PERSONAL NOTE

COMPARATIVE LAW (6816)

BY

MUHAMMAD RAZI
G1427787

AHMAD IBRAHIM KULLIYAH OF LAWS

INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA
2015/2016

16 Sept 2015
FIRST CLASS

1. Introduction to Comparative Law

Definition:
Zweigert and Kotz (1977): The words suggest an intellectual activity with law as its
object and comparison as its process.
The comparison of the different legal systems of the world.
Kamba (1974): Signifies the systematic application of the comparative technique to
the field of law. It is the study of, and research in, law by the systematic comparison
of two or more legal systems; or of parts, branches or aspects of two or more legal
systems.
Functions:
For convenience functions of comparative law will be considered under six general
headings-headings which should not be regarded as exhaustive or in any way
watertight compartments .
(1) Academic Studies.
(2) Legislation and Law Reform.
(3) The Judicial Process.
(4) Unification and Harmonisation.
(5) International Law.
(6) International Understanding.

23 Sept 2015
SECOND CLASS

2. Approaches to Comparative Law

The functional method of comparative law
Functionalism is historically one of the most influential approaches to the study of
comparative law, and perhaps the most controversial.

In short, the functional method is a triple misnomer. First, there is not one (the)
functional method, but many. Second, not all allegedly functional methods are
functional at all. Third, some projects claiming adherence to it do not even follow
any recognizable method. Does functionalist comparative law actually have any
meaning? Functionalist comparatists agree on some important elements. First,
unctionalist comparative law is factual, it focuses not on rules but on their effects, not
on doctrinal structures and arguments, but on events. As a consequence, its objects are
often judicial decisions as responses to real life situations, and legal systems are
compared by considering their various judicial responses to similar situations. Second,

functionalist comparative law combines its factual approach with the theory that its
objects must be understood in the light of their functional relation to society.
The Concept of Functional Method
In fact, one can distinguish at least seven different concepts of functionalism across
disciplines:
finalism, a neo-Aristotelian functionalism based on inherent teleology,
adaptionism, an evolutionary functionalism in a Darwinian tradition,
classical (Durkheimian) functionalism, explaining institutions through their
usefulness for society,
instrumentalism, a normative theory of using law for social engineering,
refined functionalism, a functionalist method that replaces certain ostulates
of classical functionalism with empirically testable hypotheses,
epistemological functionalism, an epistemology that focuses on functional
relations rather than on the ontology of things, and
equivalence functionalism, building on these concepts but emphasizing the
non-teleological, non-causal aspect of functional relations. Largely oblivious
of incompatibilities, functionalist comparative law.
uses all of these.

30 Sept 2015
THIRD CLASS

3. Major Legal Systems

There are three major legal systems in the world today in consist of
Continental legal systems ( civil law )
Anglo-American legal systems ( common law )
Religious legal systems
Each country often develops variations of each system or incorporates many other
features into the systems.
Continental Legal Systems (civil law)

It is a legal system inspired by Roman law, the primary feature of which is that
laws are written into a collection, codified, and not determined, as in common
law, by judges.

The principle of this system is to provide all citizens with an accessible and
written collection of the laws which apply to them and which judges must
follow.

It is the most prevalent and oldest surviving legal system in the world.

Continental legal system is sometimes inappropriately referred to as Roman

law or otherwise called Romano-Germanic law, especially by people under its
jurisdiction.

Anglo-American Legal System

Common law is law developed by judges through decisions of courts and similar
tribunals (called case law), rather than through legislative statutes or executive action,
and to corresponding legal systems that rely on precedential case law.

Common law legal systems are in widespread use, particularly in England

where it originated in the Middle Ages, and in nations that trace their legal
heritage to England as former colonies of the British Empire, including the
United States, Singapore, Pakistan, India, Ghana, Cameroon, Canada, Ireland,
New Zealand, South Africa, Hong Kong and Australia.

The term "common law" originally developed after the Norman Conquest of
England

The "common law" was the law that the whole country had in common, rather
than particular tribal laws that might apply between smaller communities

Religious Legal System

Religious law refers to the notion of a religious system or document being

used as a legal source

The main kinds of religious law are Sharia in Islam, Halakha in Judaism, and
Canon law in some Christian groups.

Islamic Law: The Islamic legal system of Sharia (Islamic law) and Fiqh
(Islamic jurisprudence) is the most widely used religious law, and one of the
three most common legal systems in the world alongside common law and
civil law.

Mainstream Islam distinguishes between fiqh (deep understanding,

discernment), which refers to the inferences drawn by scholars, and sharia,
which refers to the principles that lie behind the fiqh.

07 Oct 2015
FOURTH CLASS

4. Variations & Permutations of Comparative Law

To be clear , any mention of comparative law and comparative legal studies refers to
research field since its inception, inclusive of all permutations it has undergone over
time. For its part, comparative law means the traditional, once mainstream, process
of comparison, while comparative legal studies indicates those post-positivist
approach that are more sensitive to the importance of context.

14 Oct 2015
FIFTH CLASS

5. Legal Pluralism
What is legal pluralism ?
Any sort of pluralism necessarily implies that more than one of sort of thing
concerned is present within the field described. In the case of legal pluralism, more
than one law must be present. This cannot be conceived of as a situation in which
more than one rule is applicable to the same situation, for any such asserton is
normative and not empirical. It identifies a situation in which law is non-uniform, not
one of legal pluralism.
Legal pluralism is an attribute of a social field and not of law or of a legal system.
A descriptive theory of legal pluralism deals with the fact that within any given field,
law of various provenance may be operative. It is when in a social field more than
one source of law, more than one legal order, is observable, that the social order of
that field can be said to exhibit legal pluralism.
Furthermore, legal pluralism is a concominat of social pluralism: the legal
organization of society is congruent with its social organization. Legal pluralism
refers to the normative heterogeneity attendant uppon the fact that social action
always takes place in a context of multiple, overlapping semi-autonomous social
fields, which, it may be added, is in practice a dynamic condition.

21 Oct 2015
SIXTH CLASS

6. Comparative Legal Research

it means the study of, and research in, law by the systematic comparison of
two or more legal systems; or of parts, branches or aspects of two or more
legal systems. (W.J. Kamba)

The aim of comparative legal research is to find solutions to a specific

problem in a legal system by comparing with other legal systems having a
similar problem.

Types of methodology used in CLR is usually the qualitative methodology but

may in some rare cases involve the quantitative methodology.

Importance of Comparative Legal Research

If not the only function, the chief function of comparative jurisprudence is to
facilitate legislation and the practical improvement of the law. (Maine).
1. It helps in solving some of the problems encountered by Lawwakers

2. It helps in the creation of new rules and solutions

3. It helps in modifying or abolishing existing laws
4. It helps with regards to the technique of drafting and formulating new rules
5. It helps to resolve the question of practicability and enforceability of the
proposed law arises
6. It helps in solving problems arising from the interaction of different legal
cultures in the practice of International Commercial Law.
7. It emphasizes the importance and relevance of domestic legal systems for
international trade
11 Nov 2015
SEVENTH CLASS

7. Legal Transplants
Definition:
Alan Watson

Esin rc

As the moving of a rule or a system of law from one country to

another, of from one people to another

Grosheide
Rodolfo Sacco

Jean Carrbonier

Legal transposition. The transposition occurs to suit

the particular socio-legal culture and needs of the
recipient
Legal Transfers: The horizontal and vertical movement of
laws and institutional structures.
legal borrowing
Borrowing of ad hoc legal rules
imitation
A selective adoption of particular legal institutions or
rules
acculturation occurs only when one legal institution or
only one law is transferred from one legal system to
another, whereas reception refers to adopting one entire
legal system en bloc.
legal acculturation refers to both reception and legal
transplants (and the overall diffusion of law)

Adoption

Direct transplant
through conquest

Transplant through
Colonization

Possibility of legal
acculturation

Adaptation

Voluntary legal
transplant

Adapt laws based

on local variations

Law of model
compared with the
socio-cultural
factors of recipient

18 Nov 2015
EIGHTH CLASS

8. Foreign Law in The Malaysian Courts

Foreign Law vs. Comparative Law

Foreign Law
A law of another jurisdiction belonging to any of the recognized legal
families.
Has no effect outside such foreign jurisdiction

Comparative Law
Study of the similarities and differences between the laws of two or
more countries, or between two or more legal systems.
Not a system of law or a body of rules, but rather a method or
approach to legal inquiry

The Usefulness of Comparative Law in Malaysian courts

The Malaysian laws promote the use of comparative law in legal practice.
Lawyers and judges actively utilize foreign law in normal court proceedings
In most cases, they inadvertently act as comparatists.
Legislative provisions that are in pari materia are construed with reference to
each other and in similar fashion.

Judgments of foreign courts in which the law is in pari materia are persuasive but
not binding
It is more convenient to rely on foreign law but it may pose its own challenges,
particularly when the parties dispute the existence of a particular foreign law
expert witnesses are required.

25 Nov 2015
NINETH CLASS

9. Codification of Laws in Comparative Perspective

In law, codification is the process of collecting and restating the law of
a jurisdiction in certain areas, usually by subject, forming a legal code, i.e.
a codex (book) of law. Codification is the defining feature of civil law jurisdictions.
Recodification refers to a process where existing codified statutes are reformatted
and rewritten into a new codified structure. This is often necessary as, over time, the
legislative process of amending statutes and the legal process of construing statutes by
nature over time results in a code that contains archaic terms.
The codification of law is something which goes back to early 1760 BC. The first real
civil code was the code of Hammurabi, which has been initiated Hammurabi the ruler
of Babylon. This code was based on the principle of an eye for an eye, which in
modern context is known as retribution. For example in this rule by the, if a son was
slapping his father, his hands had to be cut off. Moreover, this code by Hammarabi
(the one of the king in Babylon dynasty) holds significance to this day and helped
serveas example to lawmakers in Rome.

2 Dec 2015
TENTH CLASS

10. Harmonisation, Convergence and Unification of Laws

Harmonisation of laws: is the effects of a type of transaction in one legal system are
brought as close as possible to the effects of similar transaction under the laws of
other countries.
Harmonization of laws is a process to effect an approximation or co-ordination of
different legal provisions or systems by eliminating major differences and creating
minimum requirements or standards. (Kamba).

Also can be defined as a process in which diverse elements are combined or adapted
to each other so as to form a coherent hole while retaining their individuality. In its
relative sense, harmonisation is the creation of relationship between diverse things. Its

absolute and most common meaning, however, implies the creation of relationship of
accord or consonance.
Convergence: Evolution of the legal institution of different legal system where the
legal institution of one system resembles the other.
Unification: A process by which conflicting rules of two or more systems of national
laws applicable to same legal transaction is replaced by a single rule.

HARMONISATION
The dissimilarity of legal
rules more identical or
reduce it well achieved
within the same legal
family.
May result in the creation
of the common set of
rules which have the same
subtantive scope.

UNIFICATION
Uniform law is designed to
be adopted by states while
model law is mean only as
a guideline on model

CONVERGENCE
Is
more
related
to
integration, which may
results in the unification of
law.

Focuses on combining the

legal
systems
and
subtituting with common
legal rullings
Avoid the conflict between
different legal rules of
different legal system

09 Dec 2015
ELEVENTH CLASS

11. The Future of Comparative Law

In the global world there is fundamental need for sophisticated comparative
scholarship that can be produced only by interdisciplinary efforts involving legal
experts in basic research. In the global world the differences between jurisdictions
will not disappear, they will simply be more difficult to spot and more in need of
being under-stood and respected.
Indeed, the poor prospects for incorparating professional legal knowledge into
interdisciplinary research in social sciences creates a great opportunity for
comparative law scholars, but it will require tremendous methodological awareness to
seize this opportunity. Comparative lawyers should make the effort to develop
approaches that make increasing complexity of the global world amenable to general
comparative analysis.