The existing states differ from each other in various legal systems, institutions and manner of management. For their more detailed study, there is comparative jurisprudence - this is a specific branch of science that uses a comparative approach in its work. Born back in the days of Aristotle and Plato, it allows you to perform analytical work and identify the presence and absence of contradictions in modern world legislation.
What does this discipline do?
Comparative law is a rather controversial section from a scientific point of view, since it cannot be distinguished into a separate theoretical school. He is engaged in comparing the existing institutions of different countries that are actively working with different legal fields. The main evidence of the need to use the discipline is its noticeable role in politics, society, pedagogy and a number of other vital areas. The existing term has several meanings, it can be interpreted as a science, method or educational discipline.
Comparative law as a science is a lot of knowledge with which you can get an idea of modern legal units. If we consider it as a method, we can see that it helps to study the corresponding processes in different countries and identify features and differences in them. A discipline with a similar name has long appeared in universities with law faculties and areas, since it is applied in nature, with its help students study mainly scientific issues.
Why do scientists argue about its origin?
An introduction to comparative law always begins with a history of discipline. And here scientists disagree, because they can not decide where to count its existence. According to one theory, it appeared back in antiquity, since it was then that legislative acts regulating the conduct of certain operations appeared, as well as describing the life of the population of those times. As evidence, scientists cite the fact of the existence of Roman law, on the basis of which a large number of legal systems were later organized.
In their opinion, scholars of the Enlightenment and Renaissance also had an idea of comparative studies in law, as they formed their reforms based on existing doctrines of neighboring states. In France, the forefather of this science is called Montesquieu, in England - Bacon, and in Germany - Leibniz. Each of these scholars left a significant mark in jurisprudence, however, it is rather difficult to determine who exactly was the first.
The second theory of the development of comparative law implies that this science appeared in the second half of the XIX century. Its followers associate this with the organization in France of a specialized community, which compared the existing legislative framework, this happened in 1869. According to some assumptions, this happened even in 1900, when the International Congress devoted to the problems of the study of comparative law was formed and held.
Such a difference in the approach to the history of the discipline appeared due to the lack of a clear formulation of it, and each scientist as a result has his own understanding of it. If we consider it as a way of studying law, it is quite fair to look for the sources in antiquity. And if we consider legal comparative science as an independent science, it is quite logical to say that it appeared in the 19th century, when the legal systems of the states of that time were being established.
How did discipline appear and develop in our country?
Comparative jurisprudence in Russia appeared at the beginning of the 20th century, while such prominent scholars as N. Korkunov, P. Vinogradov, and G. Shershenevich were engaged in the study of foreign law. For a long time, this discipline was considered as applied to other sections of jurisprudence. Its formation as a separate scientific field began only after the collapse of the Soviet Union, since all the ideological principles that existed earlier did not allow a full exchange of legal experience between states. All studies conducted then had no practical value, however, theoretical works were actively published in the periodicals of that time.
Researchers note that against the background of foreign comparative law, the attempts of our scientists to conduct research in this area in the early 1990s looked rather ridiculous. Only at the beginning of 2000, after a large number of observations in the field of jurisprudence, it was possible to formulate training programs in this discipline and generally turn it into a full-fledged scientific field. Currently, students can study legal comparative studies at the Research Institute of the Academy of the Prosecutor General of the Russian Federation, the Institute of State and Law of the Russian Academy of Sciences, as well as at the Institute of Legislation under the Government of the Russian Federation. The main research work in this area is currently being conducted on the territory of European states and CIS countries.
What is the structure of legal comparative studies?
The classification of this scientific direction was formed by H. Behruz, in his opinion, the system of comparative law consists of three components: pragmatic, theoretical and methodological. The first is a section aimed at shaping how you can apply the differences found in legal acts in practice and achieve the most effective result.
The theoretical component in legal comparative studies is a set of provisions related to the content of the discipline, its goals, and mechanisms for conducting analytical work. It is the most interesting from the point of view of conducting scientific research, since new discoveries are constantly taking place in it, which allow for a clear differentiation of existing institutions. From the point of view of the methodology, it is a doctrine of the methods of analysis, as well as how these algorithms can be used in other disciplines.
If we consider the educational system of comparative law, it is divided into two parts - general and special. The first mainly consists of studying historical problems that prevented the active development of legal institutions. In parallel with this, the actual possibilities of this scientific direction, as well as the exchange of experience between different states, are actively being studied.
With the help of a special part, one can investigate the numerous legal phenomena encountered in various systems, including those that have already ceased to exist. The rules of law in this case are subjected to serious analysis, and even individual branches of discipline are studied, which can help develop common principles for all current institutions.
What is the functional discipline?
The functions of comparative law are quite diverse, and each of them requires separate consideration in the study of the entire scientific discipline. The main one is the ontological one, which consists in the need to explain the vital processes characteristic of residents of various states who are under the influence of various legal institutions. It is characteristic of absolutely all humanitarian disciplines, since it reflects a person’s need to explain the existence of the environment.
Another function is heuristic, it consists in the need of each person to find the truth. Adapting it to jurisprudence, we can conclude that it is needed to identify the patterns of existence of various states, as well as to understand when and how the differences between them began to appear. We must not forget about the prognostic function, which can be considered as a means for predicting the future prospects for the existence of this discipline. Such forecasting becomes possible when identifying the patterns by which society develops in a single state.
Comparative law and international law are two interdependent legal areas, a clear evidence of this is the methodological function. With its help, it is possible to form a universal language that practicing lawyers around the world will use to evaluate phenomena and processes in this environment. Using an ideological mission, you can create a single and fundamental approach for the further development of legal discipline within each state.
Using comparative law, you can create the political course of a country, which it will adhere to for a certain time. Thus, a serious influence is exerted on the social system of the state, which in the future can be adjusted depending on where the government will move. In parallel with this, thanks to the scientific and applied function, researchers are able to develop a number of recommendations for the further development of the political system and the solution of tasks facing the government.
What are the goals of legal comparative studies?
The discipline "Comparative Law" today is very popular among representatives of jurisprudence who are looking for a field for further scientific activity. She has her own goals that should be considered when studying. One of them is epistemological, which consists in identifying the patterns of development of various legal institutions. Knowledge of the mechanisms of formation of foreign legal systems helps students better master their own with all its advantages and disadvantages. That is why the study of this discipline has a great influence on the formation of thinking of students planning to engage in law, it should be as flexible as possible.
There are practical goals that should be taken into account when studying this discipline, comparative law should also provide maximum assistance in bringing together existing legal institutions. In some sectors, without developing a unified methodology for interaction, it is impossible to build objective and equal relationships - civil law, trade, the existence of humanitarian organizations, etc.
In parallel with this, active development of proposals aimed at improving their own system of legal institutions should be carried out, they should appear after conducting analytical work on the experience of other states. Achieving these goals plays a huge role in modern international law, this is due to the presence of major integration processes in which almost the entire European Union takes part: the formation of a pan-European Constitution, as well as the creation of a single civil code that will operate within the Schengen area.
How are comparisons made?
As an object of comparative law, you can use any phenomenon in one state, which can be compared with similar in others. Each of them appears not by chance is constantly in the process of change. In this case, the researcher must set himself the goals of the study, which must correspond to his legal needs. If the objects and goals were set correctly, it will be easy to choose the most effective methods of working with them.
There are a number of features that can help determine what is the subject of comparative law. These include those that require constant study and serious analytical work on them. Some of them may periodically require additional scientific research, which will depend on what goals the observer sets for himself. There are objects that are difficult to identify to do this, scientists need to make a number of serious efforts. Some of them exist in close interconnection with each other, thus, when exploring one object, it is necessary to study another.
Some scholars believe that there are two types of such objects, the most common of which are legal realities. Each of them represents the current state of the legal sphere of the studied state, as well as its changes. This may include: processes aimed at developing the state, establishing a political regime, shaping the legislative sphere, improving the state of courts and internal affairs bodies, etc. Often, when studying such an object, research is also carried out on the concept of the state, although it is only mentioned here indirectly.
The second type should include those issues that signal the belonging of a phenomenon to a group of legal systems. If a researcher studies legal acts of different countries using the comparative method, he will be able to identify a number of certain legal families, which include a large number of similar systems. Such an aggregate may appear as a result of a community of institutions, a conceptual apparatus, historical formation, structure, and many other parameters. Each legal family has certain signs: ideological views, citizens' attitudes to the legal sphere, the nature of the formation of local institutions, as well as their role in monitoring compliance with the current regime.
Why not confuse law and jurisprudence?
The term “comparative law” raises a large number of questions from Russian and foreign legal experts. Western researchers believe that it can be used as a means of expressing matter, which is of a comparative legal nature. When considering this term as part of a functioning law, you can use it in your work as a descriptive tool for conducting comparative processes and forming training programs on this topic.
American scientists argue that using this term is not entirely correct, because when thinking about a possible comparison of legal institutions, it is very difficult to use only one phrase. That is why, in their opinion, comparative law and comparative law are significantly different from each other. The first in this case will be a full-fledged discipline, worthy of a separate place among all legal sciences.
This term, according to many researchers, is the most suitable, since jurisprudence has a huge content and is complex. If we talk about law in general, it becomes difficult to distinguish it as a separate new variety, since in most existing systems it is customary to use a triune understanding of law, where it is divided into supranational, international and national. The new direction simply does not have a place here; its introduction will mean a serious change in the terminology base used.
If we talk about how these two terms relate, we can conclude that both of them have the right to active use and designation of the same phenomenon. The main difference is that “law” is used in Western jurisprudence, and “comparative law” is a designation used in the countries of the former CIS, as well as in all post-socialist states. Today, scientists are inclined to believe that the second term will be most correct to use, since it reflects the content of a holistic knowledge system and fundamentally differs from the behavioral rules established in society.
What impact did comparative science have on science?
Despite the fact that comparative law is a fairly young discipline, it already has a significant impact on the scientific community. , , . - -, , .
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Enrolling in this institution is quite difficult, if you want to study there for free, you will have to work very hard. Only 10 budget places are allocated annually, which are available to students who have successfully passed exams and are ready to study full-time. For those who are not ready to devote a large amount of time to education, it will be a little easier - each year the institute provides 15 places on a budget basis for distance learning. Particularly popular at the Institute of Legislation and Comparative Law under the government are graduate schools, where a really serious fight unfolds annually for 50 free places.
If it was not possible to enter free of charge, the full-time graduate student can pay 120 thousand rubles per year of study, which can seriously hit the budget. An external student for postgraduate studies will have to pay 90 thousand annually, which is also a lot. To get answers to all your questions, you can contact the admissions office of the educational institution at Moscow, st. Bolshaya Cheryomushkinskaya, 34.
What are the prospects for the development of science?
Modern comparative law actively developed in the XX century, it began to be studied in higher educational institutions of European countries. The Second World War slowed down this process somewhat, only after it appeared in Europe periodicals on this little-studied subject. A special influence in the development of this discipline was made by German and French scientists: M. Ansel, R. Schlesinger, H. Quetz, R. David, etc.
In the 21st century, there are educational institutions that study this type of jurisprudence; one of the most famous is the Center for European and Comparative Law, which operates at Oxford University. As legal institutions change almost daily, researchers have enough work to study them, every year there are more and more questions in this discipline.
At first glance, it may seem that this scientific direction does not have any prospects, but this is not so. If we look more closely at the components of comparative law: legal systems, institutions, normative acts, we will notice how often their changes occur. At the moment, it is not known whether any states will appear in the near future or not, if this does happen, the new territorial unit will use the most advanced developments in the field of jurisprudence and will thus be as modern as possible.