Hostname: page-component-586b7cd67f-t7fkt Total loading time: 0 Render date: 2024-11-25T00:52:52.025Z Has data issue: false hasContentIssue false
  • English
  • Français

An International Lawyer Looks at Comparative Law*

Published online by Cambridge University Press:  12 February 2016

L. C. Green
Get access

Extract

The legal practitioner may well be excused if his approach to comparative law resembles somewhat that of the defence lawyer putting forward the “rolled-up” plea in an action for defamation. Having questioned the very existence of comparative law, he cannot be blamed for covering his retreat by asserting that even if it does exist, it has, for him and his clients at least, no obvious value or significance. Should he refer to the writings of some of the leading acknowledged authorities in the field, he may find that his doubts, far from being lessened, are confirmed and strengthened. What must he feel, for example, when informed by Sir Frederick Pollock, participating in the first International Congress of Comparative Law at Paris in 1900, that “le droit comparé n'est pas une science propre, mais qu'il n'est que l'introduction de la méthode comparée dans le droit.” Should he prefer a more modern exposition, he may refer to Gutteridge writing some fifty years later. The methodological, as distinct from the juridical, character of the subject will appear to be confirmed. “‘Comparative Law’ denotes a method of study and research and not a distinct branch or department of the law. If by ‘law’ we mean a body of rules, it is obvious that there can be no such thing as ‘comparative’ law…[that is to say] any independent rules for the regulation of human relationships or transaction. …[C]omparative law is merely a convenient label attached to a particular method of study and research.”

The international lawyer, too, who adopts some such definition of his field as “that system of laws and regulations which those who operate on the international scene recognize as being necessary for their orderly conduct”, is likely to adopt a similar view, for he is unable to find any system of rules and regulations to which he can apply the term comparative law.

Type
Articles
Information
Israel Law Review , Volume 1 , Issue 4 , October 1966 , pp. 580 - 592
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1966

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Procès-Verbaux, I, p. 60, cited Hall, Comparative Law and Social Theory, 1963, p. 7.

2 Comparative Law, 1949, pp. 1, 41.

3 Green, , “The Nature of International Law” (1962) 14 Univ. Toronto L.J. p. 176, at p. 193.CrossRefGoogle Scholar

4 Hamson, and Plucknett, , The English Trial and Comparative Law, 1952, p. 6.Google Scholar

5 “Teaching Tools in Comparative Law” (1952) 1 Am.J.Comp.L. pp. 98, 99.

6 Paton, , Jurisprudence, 1946, p. 32, n. 1.Google Scholar

7 The Hague, 1902, 95 British & Foreign State Papers, p. 411.

8 Guardianship of Infants Case, I.C.J. Reports 1958, p. 55.

9 Havana, 1928, Hudson, 4 International Legislation, p. 2279.

10 The Hague, 1930, 5 ibid., p. 516.

11 Geneva, 1931, 5 ibid., p. 889.

12 Ross, , On Law and Justice, 1958, p. 22.Google Scholar

13 Hall, op. cit., p. 33.

14 Digest of International Law, 8 vols., 1906.

15 Digest of International Law, 8 vols., 1940–44.

16 Digest of International Law, 1963–.

17 International Law Chiefly as Applied and Interpreted by the United States, 3 vols., 1947.

18 Great Britain and the Law of Nations, 2 vols., 1932–35.

19 International Law Opinions, 3 vols., 1956.

20 British Digest of Int. Law, 1965–; British Int. Law Cases, 1964–.

21 Traité de Droit International Public, 2 vols., 1953–54.

22 Répertoire Français de Droit International Public, 1962–.

23 International Law Chiefly as Interpreted and Applied in Canada, 1965.

24 International Law in Australia, 1966.

25 International Law—Indian Courts and Legislature, 1965.

26 Growth of International Law and Pakistan, 1965.

27 The Islamic Law of Nations, 1966.

28 International Law, 196(?).

29 The Common Law of Mankind, 1958, pp. 80 et seq.

30 Asylum Case, I.C.J. Reports 1958, p. 266, Dissenting Opinion, p. 290, at 294.

31 See Conferences of Afro-Asian Consultative Legal Committee; Charter of the Organization of African Unity, 1963, 2 Int. Legal Materials, p. 766; and Syatauw, , Some Newly Established Asian States and the Development of International Law, 1961.Google Scholar

32 Schwarzenberger, , International Law, vol. 1, 1957, ch. 14Google Scholar, and Frontiers of International Law, 1962, ch. 9; Green, , International Law Through The Cases, ch. 13, 14.Google Scholar

33 Katz, and Brewster, , The Law of International Transactions and Relations, 1960.Google Scholar

34 Tanc, , “Comparative Law, Peace and Justice” in Nadelmann & Others, XXth Century Comparative and Conflicts Law—Essays in Honor of Hessel Yntema, 1961, p. 80, at pp. 88–89.Google Scholar

35 1947, 1954, Peaslee, , International Governmental Organisations, 1961, vol. 1, p. 688Google Scholar; Muhammed, Seyid, The Legal Framework of International Trade, 1958.Google Scholar

36 1957, Campbell, and Thompson, , Common Market Law, 1962–1963.Google Scholar

37 White, , Nationalisation of Foreign Property, 1961Google Scholar; Foighel, , Nationalisation and Compensation, 1964Google Scholar; McDaniels, , ed., International Financing and Investing, 1964Google Scholar; Schwarzenberger, , “The Abs-Shawcross Draft Convention on Investment Abroad” (1961) 14 Current Legal Problems, p. 213.CrossRefGoogle Scholar

38 (1938/41) 3 UN Reports of Int. Arbitral Awards, p. 1905, at p. 1920.

39 (1931) 282 U.S. 555.

40 9th Ed. (1920), secs. 932, 947.

41 Pp. 1925–26.

42 Schwarzenberger, , International Law, vol. 1, 1949, p. 391.Google Scholar See also, Rosenne, , The Law and Practice of the International Court, 1965, vol. 1, p. 98.Google Scholar

43 (1926) 6 Reports of Int. Arb. Awards, p. 173.

44 Petroleum Development (Trucial Coast) Ltd. and the Sheikh of Abu Dhabi (1951), Int. Law Reports 18 (1951), p. 144, at pp. 149–50 (Lord Asquith, arbitrator).

45 (1887) 19 Q.B.D. 400 at p. 406, (1888) 21 Q.B.D. 52, at p. 65.

46 See, e.g. Cheng, , General Principles of Law as Applied by International Courts and Tribunals, 1951, p. 16.Google Scholar

47 1922, 1 Reports Int. Arbitral Awards, p. 309, at p. 331.

48 1926, 2 ibid., p. 779, at p. 792.

49 Series A/B, No. 70, at p. 73 (Hudson, 4 World Court Reports, p. 172, at pp. 231–37).

50 Halsbury, , Laws of England, 2nd ed., 1934, vol. 13, p. 87.Google Scholar

51 Buckland, , Textbook of Roman Law, 2nd ed., 1932, p. 493.Google Scholar

52 Girard, , Droit romain, 8th ed., 1929, p. 567Google Scholar; Saleilles, , 6 Annales de Droit commercial, 1892, p. 287Google Scholar, and 7 ibid., pp. 24, 97, 175.

53 Droit civil, 6th ed., 1912, vol. 2, p. 320.

54 Schwarzenberger, , Frontiers of International Law, 1962, ch. 4.Google Scholar

55 Green, , “General Principles of Law and Human Rights” (1955) 8 Current Legal Problems, p. 162, at pp. 176–78.CrossRefGoogle Scholar

56 Gutteridge, , Comparative Law, 1949, pp. 70–71, 65.Google Scholar

57 The Changing Structure of International Law, 1964, pp. 206 et seq.

58 Report of the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation among States, General Assembly Doc. A/5746, 16 Nov., 1964, p. 157. See also, Draft Report of the 1966 Special Committee, Doc. A/AC.125/L.38/Add.4, 21 Apr., 1966, pp. 6, 10, 14, 17.

59 I.C.J. Reports 1952, p. 176.

60 118 British & Foreign State Papers, p. 990, Art. 11.

61 (1923) Series A, No. 1 (Hudson, 1 World Court Reports, p. 163).

62 (1935) Series A/B, No. 64 (3 ibid., p. 485).