Comparative Law and its Influence on National Legal Systems

THE OXFORD HANDBOOK OF COMPARATIVE LAW, Mathias Reimann & Reinhard Zimmermann, eds., pp. 477-512, Oxford, 2006

31 Pages Posted: 27 Feb 2007 Last revised: 4 Jun 2009

Jan M. Smits

Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)

Date Written: 2006

Abstract

This contribution explores the use of comparative law by the legislature and the courts in creating, reforming and interpreting national law. This practical use of comparative law by national institutions has increased considerably over the last few decades. Particularly in Europe, comparative reasoning seems to play an ever larger role in drafting statutes and deciding cases. Still, in legal systems that have been mainly national in outlook and character over the last two centuries, many aspects of this recourse to foreign law are far from clear. One of the key questions is the extent to which it is legitimate for a court to refer to foreign law in a purely domestic dispute. While in Europe the drawing of comparative inspiration in such cases is usually met with enthusiasm, this is different in the United States, where it is keenly debated whether such 'comparative reasoning' is allowed, particularly in constitutional cases. In this chapter, the scholarly state of affairs regarding the influence of comparative law in national systems is critically assessed. In so doing, emphasis is put on private law and constitutional law, as these are the two areas where comparative inspiration is discussed most vigorously.

Keywords: Comparative law

JEL Classification: K10

Suggested Citation

Smits, Jan M., Comparative Law and its Influence on National Legal Systems (2006). ; THE OXFORD HANDBOOK OF COMPARATIVE LAW, Mathias Reimann & Reinhard Zimmermann, eds., pp. 477-512, Oxford, 2006. Available at SSRN: https://ssrn.com/abstract=965389

Jan M. Smits (Contact Author)

Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) ( email )

P.O. Box 616
Maastricht, NL-6200 MD
Netherlands

HOME PAGE: http://www.jansmits.eu

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