Essay by Christopher Osakwe
Law, like language or music, is an historically determined product of civilization and, as such, has its roots deep in the spirit of the people. In the final analysis, law is a normative expression of the culture, history, social values, folklore, psyche, ecology, and tradition of a given nation. The development of law can be likened to the organic growth of a plant: it is slow and derives its strength from the inner powers of the spirit of the people. As such, the evolution of law is a process of historical growth which develops silently and unconsciously from one age to another. To the extent that law is not the product of the formative reason of a particular legislator, its natural progression can neither be accelerated nor completely stopped by the intervention of a legislator.
Because law is inextricably interwoven with the social and political context in which it operates, any comparative study of different systems of law must go beyond the mere comparison of legal rules. One of the purposes of comparative law is to examine how different legal systems respond to a common problem and, through careful analysis, to determine whether it is possible to improve one legal system by borrowing ideas developed in other systems. Like any medical transplant operation, a legal transplantation is frought with many dangers. A true comparatist should, therefore, view himself as a legal surgeon who is about to perform an organ transplant. As a prelude to any such transplantation, the comparatist should make sure that the legal tissues of the donor system are compatible with those of the recipient system. If they are not compatible, the transposed institution is bound to be rejected by the recipient system.
Because all laws must be examined in the light of their political, social, and economic purpose, no two countries have exactly the same laws. Even when two countries speak the same language, their laws are quite different. Thus, for example, the laws of Mexico are as different from those of Spain as ranchero is different from flamenco music. Similarly, a close analysis of the laws of England and those of the United States soon will reveal that these are two countries separated by a common law.
About the Author
Christopher Osakwe. Eason-Weinmann Professor of Comparative Law and Director, Eason-Weinmann Center for Comparative Law, Tulane University School of Law. LL.B. 1966, LL.M. 1967, Ph.D. 1970, Moscow State University (Lomonosov); J.S.D. 1974, University of Illinois.
Citation
59 Tul. L. Rev. 875 (1985)