Foreign and Comparative Law Basics

John Reitz suggests the following basic principles of the comparative method in John C. Reitz, How To Do Comparative Law, 46 American Journal of Comparative Law 617 (1998).

1. Comparative law involves drawing explicit comparisons, and most non-comparative foreign law writing could be strengthened by being made explicitly comparative.
2. The comparative method consists in focusing careful attention on the similarities and differences among the legal systems being compared, but in assessing the significance of differences the comparatist needs to take account of the possibility of functional equivalence.
3. The process of comparison is particularly suited to lead to conclusions about (a) distinctive characteristics of each individual legal system and/or (b) commonalities concerning how law deals with the particular subject under study.
4. One of the benefits of comparative analysis is its tendency to push the analysis to broader levels of abstraction through its investigation into functional equivalence. 
5. The comparative method has the potential to lead to even more interesting analysis by inviting the comparatist to give reasons for the similarities and differences among legal systems or to analyze their significance for the cultures under study.
6. In establishing what the law is in each jurisdiction under study, comparative law (and, for that matters, studies of foreign law, as well) should (a) be concerned to describe the normal conceptual world of the lawyers, (b) take into consideration all the sources upon which a lawyer in that legal system might base her opinion as to what the law is, and (c) take into consideration the gap between the law on the books and law in action, as well as (d) important  gaps in available knowledge about either the law on the books or the law in action.
7. Comparative and foreign law scholarship both require strong linguistic skills and maybe even the skills of anthropological field study in order to collect information about foreign legal systems at first hand, but it is also reasonable for the comparative scholar without the necessary linguistic skill or in-country experience to rely on secondary literature in languages the comparatist can read, subject to the usual caution about using secondary literature. 
8. Comparative law scholarship should be organized in a way that emphasizes explicit comparison. 
9. Comparative studies should be undertaken in a spirit of respect for the other.  

Edward J. Eberle suggests the structured comparative law methodology in Edward J. Eberle, The Methodology of Comparative Law, 16 Roger Williams University Law Review 51 (2011). 

1. Acquiring the skills of a comparatist in order to evaluate law clearly, objectively, and neutrally.
2. Evaluating External Law, as Written or Stated.
   • Evaluating the law as it is expressed concretely, in words, action, or orality. 
3. Evaluating Internal Law (or Law in Action).
   • Evaluating how the law actually operates within a legal culture.
4. Determining Comparative Observations
   • Assemble the results of our investigation and conclude with comparative observations that can shed light on both a foreign and our own legal culture.  

Mark Van Hoecke proposes a toolbox, rather than a fixed methodological road map, for comparative law research in Mark V. Hoecke, Methodology of Comparative Legal Research 1 (2015).  He distinguishes six different methods for comparative research.

1. The functional method is looking at the actual societal problem and the way this is solved in different jurisdictions along similar or different roads and with similar or different results. The focus is on the societal problem and the actual result of the legal approach to that problem.
2. The analytical method is analyzing legal concepts and rules in different legal systems in such a way that common parts and
   differences are detected. 
3. The structural method is focusing on the framework of the law or of the elements reconstructed through an analytical approach. This is not the structure of each of the compared legal systems, but just one way of looking at them, which proves to be revealing for answering the research question.
4. The historical method will almost always be a necessary part of the methods used, for understanding differences and commonalities among legal systems and for determining their degree of belonging to a deeply rooted tradition or rather to accidental historical events. 
5. The law-in-context method has inevitably also a historical dimension but focuses on the law’s current societal context, including, where appropriate, culture, economy, psychology, religion, etc. It studies a much broader context when compared to the functional or analytical method and implies the use of other disciplines.
6. The common-core method looks for commonalities and differences between legal systems in view of the question to what extent harmonization on certain points would be possible among the compared legal systems or the question how a European rule, for instance, could be interpreted in such a way that it fits best the different national traditions.

Hoecke also distinguishes levels of comparison as follows: 

1. Macro level vs micro level:
   • Comparing legal systems as distinguished from comparing more concrete rules and legal solutions to societal problems in different legal systems.
2. Doctrinal framework vs underlying legal culture:
   • Comparing the content of the law (values, principles, or rules) and the attitude towards the law versus comparing doctrinal frameworks as divided into the Common Law system and Civil Law system.
3. Surface level vs deep level:
   • Looking at superficial similarities and/or differences among legal systems, as compared to studying diverging types of ‘right’ included in complex legal concepts, rules and institutions, underlying world views, a detected common structural framework behind apparent differences, elements in history that are weakening the strength of seemingly opposed and irreconcilable approaches, etc.

Comparative law is not a separate body of rules and principles, but is a method of the comparative study of two or more different legal systems. Publications on comparative law may compare legal traditions and institutions, compare the law and legal systems of two or more different countries in general, or compare the law of different countries for specific subjects. Research in comparative law may involve finding choice of law rules, constitutions of other countries, statutes and legislation, decisions of constitutional courts or the courts of last resort, and secondary sources, particularly treatises.

1. Identify your legal issue. What question or issue do you want to compare across jurisdictions? You may want current awareness and news sources to find a novel question for your research.

2. Choose jurisdictions to compare. What are their similarities and differences? For this, you may want to review research guides and country background reports to determine the selected countries' legal systems and find the points of comparison in their legal institutions.

3. Find secondary sources. These may include treatises and scholarly articles, either comparative works, or on the law of each jurisdiction. These will give you descriptions of the legal institutions for each country, analysis and interpretation of the law, and citations and keywords for continuing your research.

4. Gather primary materials. Legal research guides will help you find these. You may need subscription databases, government sources, or print materials, and you may need interlibrary loan to find them. These will include constitutions, judicial decisions, and statutes.

5. Update your research as needed. Have laws you found been superseded? Are your secondary sources reviewing current law?

6. At every stage, take good notes. Keep track of what sources you have used and what search terms you used. Note the citations for everything in your notes.

Foreign law jurisdictions may be either civil law or common law jurisdictions, or sometimes use customary or religious law or a mix of those with civil or common law.  

In civil law jurisdictions, stare decisis may not apply, so court decisions may include few citations and little background on the facts of the case.  Full-text opinions may not be published.  Codes are usually well-organized and each article may provide a complete picture of that area of the law.  The standard codes are civil, civil procedure, criminal or penal, and commercial, but modern systems may have many more codes.  The official legal publication for statutes and sometimes regulations or case law is an official gazette or official journal.  There is a written constitution. Scholarly writings are influential but are still secondary. Constitutional and administrative courts can nullify laws and regulations, and although there is no precedent in theory, judges and lawyers do look to prior decisions. For more explanation of civil law systems, see the Federal Judicial Center’s A Primer on the Civil-Law System. 

Civil law systems are found in most of Europe, Latin America, and parts of Asia and Africa. Civil law evolved from Roman law. There is usually a distinction between public and private law, and between ordinary and administrative courts. 

In common law jurisdictions, stare decisis applies:  case law serves as precedent for later decisions and decisions of lower courts.  There are usually citators (like Shepards and Keycite) for verifying the status of case law precedents. Judicial opinions are primary authority along with statutes and the constitution, and they are more detailed than in civil law jurisdictions, and there is more reporting of cases. Codes and statutes also serve as legal authority. There may not be a single constitution or code. The United Kingdom and its former colonies (including the United States) have common law systems, or mixed systems including common law.

Customary law is part of some countries' legal systems. It is generally unwritten and based in the community, with law on personal conduct, inheritance, property, and family law. It is difficult to research; try searching in secondary sources and for judicial notice of customary law in caselaw. 

Religious law makes up most or part of come countries' legal systems. The two main religious legal systems are Islamic and Judaic. It governs family law, personal status, and inheritance, but may make up more of the law in some countries. Research religious law in religious texts, scholarly writings, and published caselaw. 

Mixed legal systems include elements of multiple legal systems. Countries with customary or religious legal systems are usually common or civil law systems as well.

Find the legal system for a jurisdiction in:

• Judiciaries Worldwide: Map with basic information on the legal system and courts, full country profile for some countries.
• Juriglobe: Classification of legal systems of other countries.  Find maps and explanations classifying countries as having civil law, common law, Muslim law, customary law, or mixed legal systems. Includes a bibliography of works on the different legal systems.
• CIA World Factbook: Basic information on countries of the world, including languages, demographics, legal system, and governmental structure, including courts.
• Foreign Law Guide (subscription database): Research guides by country include descriptions of the country's government and legal systems, with citations and links to sources, documents, and secondary sources.
• NYU GlobaLex Guides: Detailed guides under Foreign Law are written by practitioners and law librarians. Information included varies but usually includes a description of the government institutions, the court system, and the primary sources of law. GlobaLex also has research guides on comparative law topics. 

Sources on Judicial, Court, and Legislative Systems:

• Judiciaries Worldwide (Federal Judicial Center): Articles on court systems and judiciaries. Find information on legal traditions, judicial councils, court governance, judicial selection and education, judicial conduct, enforcement of judgments, and case management. Mostly comparative, with some specific country examples. More information is available in the country profiles for select jurisdictions.
• European E-Justice Portal: Information on justice systems and access to justice in EU countries. Includes sections on family matters and inheritance, court procedures, legal systems and courts, and judicial training. Includes some citations and links.
• IBA Regulation Directory Project: Directory of organizations responsible for regulating the legal profession in countries of the world, with links to bar associations and disciplinary authorities, and citations to laws on the legal profession. 
• Practical Law: Articles in the global section of Practical Law include some practice information on the legal profession and standards, judicial and arbitrator independence, and litigation procedures, particularly in the Practice Notes.
• IPU Parline: Information and data on national legislative bodies, law-making procedures, and elections.

Rule of Law:

An important question is how well the country adheres to the rule of law. How much protection do fundamental and constitutional rights receive? Is there corruption, making reliance on legal protections problematic? How has the constitution of the country evolved?

• World Justice Project Rule of Law Index includes measures of the adherence to the rule of law, including constraints on government power, fundamental rights, and civil and criminal justice.
• Special Rapporteur on the Independence of Judges and Lawyers: A mandate of the UN Human Rights Council to make recommendations for improving the independence of the judiciary and the legal profession. Find reports by country and theme.
• The Max Planck Encyclopedia of Comparative Constitutional Law has comparative articles on topics in constitutional law, civil and political rights, and legal systems, with examples, citations and links to constitutions and statutes, bibliographies of secondary sources, and select cases and documents. As with other encyclopedias, check for the dates of articles.

• Find commentary on constitutional rights and the rule of law in Hein World Constitutions Illustrated  (in commentaries and scholarly articles) and in Oxford Constitutions of the World.