For over a century, English and French lawyers have compared their respective laws of contract. But the purpose of such comparisons has never been agreed. A recent volume of essays by both English and French authors, Contract Law Today: Anglo-French Comparisons, edited by Donald Harris and Denis Tallon, prompts these reflections upon the methods and aims of comparative law in general, and comparative French and English contract law in particular. In the history of the subject, we can discern four popular rationales for the comparative enterprise. In France especially, we can glimpse elements of a quest for a natural law of obligations. On this approach, by examining closely the laws of contract from a number of countries, the comparative lawyer hopes to discover by means of synthesis those rules and principles which reason dictates should govern economic transactions. Modernist skepticism with respect to the power of reason to generate objective principles of justice and morality has caused this natural law approach to comparative law to be regarded as anachronistic and its texts ignored. What survives, however, is the hope that comparative studies will accelerate the international unification of private law, a unification based upon the discovery of common fundamental principles, a ‘ius gentium’ rather than ‘ius naturale.’ A second rationale for comparative law places the enterprise within the broader context of social theories of the evolution of societies and their legal systems. The different evolutionary stages of societies can be illustrated by their laws. By examining how changes in the law take place across different societies, the comparative lawyer seeks to shed light on the forces and mechanisms which cause changes in legal systems and societies. In a Marxist approach, for example, the details of the legal superstructure are regarded as evidence of the transformations of the economic base of society.
Download the full pdf: 11OxfordJLegalStud396 Comparative contract law
Author(s): Hugh Collins
