Research Methods for Law

By Mike McConville; Wing Hong Chui | Go to book overview

CHAPTER 4
Comparative Legal Scholarship

Geoffrey Wilson


INTRODUCTION

One of the most remarkable features about the study of law, whether in the course of legal education or by way of legal scholarship, has been its intensely national orientation. Even comparative law has, more often than not, been seen as an extension of the study of national law. By looking overseas, by looking at other legal systems, it has been hoped to benefit the national legal system of the observer, offering suggestions for future developments, provid- ing warnings of possible difficulties, giving an opportunity to stand back from one’s own national system and look at it more critically, but not to remove it from first place on the agenda. Comparative studies have been largely justified in terms of the benefit they bring to the national legal system. In some areas it is easy to see why. In countries that have adopted codes or constitutions which originated in another system, it has been natural for legal scholars to look at the way that system has developed and has been developed in its original habitat. This applies particularly to those systems in which legal scholarship has a major part to play in the practical working of the system, where the courts pay great attention to doctrine and where it is legal scholars who are mainly responsible for the analysis and development of doctrine. And where doctrine plays a major role, the incentive to see the way it has developed elsewhere is reinforced by the notion that the development of doctrine is in some way sci- entific – that is, it does not depend on the accidents of time and place, though it is often not scientific in another equally important sense that doctrine is tested empirically to see what impact it has had in practice, how effective the law and the legal system have been in dealing with the problems facing it, not simply the technical doctrinal problems but the social and economic problems that lie behind them, or to see what other factors have played a part in decid- ing outcomes.

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