Article by Sir Basil Markesinis
Those who have shown an interest in the comparative examination of legal systems have for a long time now thought that one of the greatest benefits of the study of foreign law is that it makes you rethink and understand better your own law. The deeper one gets into a foreign system, the more one notices that the problems which systems of an analogous state of socio-economic development have to face are the same, and that the answers they tend to reach can be remarkably similar. Therefore, the use of foreign law, in a comparative fashion, can help us to better understand our own law. However, as will be discussed, the use of foreign law should be done following two steps.
Selection of legal systems on the basis of their intrinsic and time-tested value is the first step. But the step that follows this first one can be even more complex. This involves testing relevance ratione materiae and realizing that this may start in a somewhat haphazard way since the researcher may not be able to determine whether a part of foreign law may lend itself to transfer or even inspiration. At this stage of the enquiry one may be forced to undertake a wider examination of the foreign system before the compatibility or incompatibility of a particular solution can become obvious, and this may mean restricting further the group from which inspiration is sought. Further, such attempts at functional comparison should be accompanied by a general warning that in issues of federalism, unlike human rights, the possibilities of legal borrowing may be more limited. The point of this Article is to realize the many points that bring us together and, where we differ, to be willing to exchange views rather than to impose views upon one another.
About the Author
Sir Basil Markesinis. D.Iur (Athens); Ph.D., LL.D. (Cambridge); DCL (Oxford); Doctor h.c., Ghent, Paris I (Sorbonne), and Munich; Professor of Common and Civil Law at University College London; Jamail Regents Chair at the University of Texas at Austin; Fellow of the British Academy; Foreign Fellow of the Academies of Athens, Belgium, France, Italy (Accademia dei Lincei), and the Netherlands; Member of the American Law Institute.
Citation
81 Tul. L. Rev. 123 (2006)