Article by Rodolfo Sacco
After one hundred years, there is good news.
One century after its first congress, comparative law triumphs. Testimonials to this effect from all over the world are reunited in L'avenir du droit compare, a book on the future of comparative law recently published by the Society of Comparative Law. Comparative science assists legal practice: it suggests new models to legislators and provides new examples for judges.
Eminent jurists are driven to conduct research out of ethical and political needs that, in their view, are not secondary to a need for empirical knowledge. They torment themselves with concern over the backwardness of their respective national bodies of law, they confront diverse legal systems and analyze the mechanisms of those systems in order to determine how they function, and they immerse themselves in the study of the social and cultural conditions which permit the success of various legal solutions.
The comparativist engages in the politics of law and in a strict analysis of judicial values. Among these comparativists, some have become apostles of comparative science and practice this discipline to obtain experimental data that will provide the foundation of verifiable inferences.
All of this allows us to say that comparative science triumphs. It triumphs because it is the conduit for the creation of new rules and the reform of laws that are obsolete. One does not draft a new law without regard to precedent. Further, one becomes aware of a problem if one's neighbor has identified the problem and the remedial measures to adopt. Conscientious objection, environmental protection, rights of illegitimate children: all of these issues are disseminated as a result of this circulation of models.
Comparative science triumphs because it suggests viable models to its interpreters, notably to judges, while they struggle with questions that may be resolved by more than one solution. Comparative science triumphs because jurists profit from the knowledge of their colleagues in other countries. Comparative science triumphs because the legal community has become conscious of a new kind of scholarship.
Documentation and research in comparative law has been extended and diffused; the education of young lawyers has begun to incorporate the comparative approach. Significant institutes of comparative law have been established in Hamburg, Lausanne, Paris, and elsewhere. Education in comparative law has been propagated almost everywhere. In Italy, law students cannot obtain their degrees unless they have taken a year-long course in comparative law. At the University of Trent, law students may choose to study each field of law from a domestic or comparative law perspective. The number of essays, collections of books, and comparative law reviews is multiplying. An international initiative yielded the International Encyclopedia of Comparative Law. In Italy, UTET has published the first six volumes of a comparative law treatise that covers all legal systems and areas of law. The new judicial encyclopedias play an important role in comparative scholarship. Introductions to comparative law, treatises on the different legal systems, and works on foreign law appear everywhere. Likewise, an increasing number of legal books being translated for use in other countries.
But, above all, this Article intends to emphasize that comparative legal science triumphs because we are indebted (that is to say, mankind is indebted) to its masterpieces: harmonization, uniformity, and unification of the law.
About the Author
Rodolfo Sacco. Emeritus Professor of Law, University of Turin, Italy; Vice President of the International Association of Legal Sciences; President of the Latin Group of the International Academy of Comparative Law; Member of the Academia dei Lincei; Correspondent for l'Institut de France.
Citation
75 Tul. L. Rev. 1159 (2001)