When I was studying law at Dalhousie University in Halifax, NS between 1970 – 1973 I attended a lecture about comparative law.
Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal “systems” (or “families”) in existence in the world, including the common law, the civil law, socialist law, Canon law, Jewish Law, Islamic law, Hindu law, and Chinese law. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken.
A hint of the edifying nature of the enquiry is found in the words of Montesquieu who is generally regarded as an early founding figure of comparative law:
[T]he political and civil laws of each nation … should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another.
They should be in relation to the nature and principle of each government: whether they form it, as may be said of politic laws; or whether they support it, as in the case of civil institutions.
They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.
De l’esprit des lois, Montesquieu, Chapter III of Book I (1748)
For my part the upshot of the lecture was two-fold; one, how patently our laws are rooted in and motivated by our general beliefs; and two, how similar are the underlying principles among different societies.
Comparative Law is the study of the relationship between legal systems or between rules of more than one system, their differences and similarities. Comparative Law is a method of comparing legal systems, and such comparison produces results relating to the different legal cultures being analysed. Comparative Law also plays a role in a better understanding of foreign legal systems. In this age of globalization and the complexity and intertwinement of international public and private law, it plays an increasing important role in international harmonization and unification of laws, thereby leading to more international cooperation and a better world order.
While the elucidation of “beliefs” has sometimes astonishing manifestations in different cultures and societies, the awkward conclusion of a comparative law analysis is not how mismatched we are but rather how alike we are. The examination tends to trivialize the potency of individual expression of our exalted principles yet the “basic elements” of each society is similar when stripped of the cosmetic fluff. Our differences quickly become redundant once the sharp edges are removed.
My guess is that if a random selection were made of people throughout the globe their personal expatiation of beliefs would on the whole resemble the others. People do not think in terms of the specifics of catechism. The bald expressions of belief tend to be more generic. It doesn’t constitute an inductive leap to presume that most people wherever they live harbour essentially the same values, the so-called credentials of humanity. Here is a suggested universal list:
. inviolability of life;
. importance of family;
. good and evil;
. liberty of the subject;
. presumed state of innocence;
. right to be heard;
. consequence and compassion;
. chance; and,
It will not come as a surprise for those living close to or in the United States of America that those tenets reflect what has been hailed the hallmark statement in democratic constitutions and similar human rights instruments; namely, the Declaration of Independence, the second paragraph of which starts as follows:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
The Declaration of Independence is only a statement that proclaims that the 13 colonies were independent states and no longer under British rule. It declares that the United States of America is a free and independent nation. The Constitution is the basis of the U.S. government. The Constitution is termed as the supreme law of the country.
While the Declaration of Independence proclaimed to the world that the U.S. is an independent country, the Constitution laid out guidelines and rules on how the country should run or work.
Thomas Jefferson wrote the Declaration of Independence, and it was edited by the Continental Congress. The Congress unanimously adopted the Declaration of Independence on July 4, 1776.
The Declaration of Independence lays out the government’s philosophy that all the citizens are equal and entitled to certain inalienable rights including life, liberty, and the pursuit of happiness. It also says that the government that does not have the people’s consent or that tramples on the citizen’s rights is illegitimate. The Declaration also lists a series of charges against the King of England about how he had trampled on the rights of the citizens.
The Constitution declares that there will be a Congress, a President, and a Supreme Court. It also lays down the powers of each institution and how each of them should be formed. The Constitution also details the rights of the citizens. The Constitution was written in 1787. It was written by a convention of all the states which was called for the purpose of recommending changes in the old government. The Constitution, after getting approval from the states, came into effect in 1789.
The search for commonality among people is not an enterprise which appeals to everyone. Some have decidedly greater interest in preserving differences. Exclusivity is for some not an imperative of distinction but protection (both physical and economic) and sometimes it reflects stark fear. There may not be a logical basis for the perception of threat; it may be an untrained or uneducated reaction. The study of comparative law helps to reveal similarities rather than disparities. Yet is cannot be denied that the application of the underlying precepts of law is at times distressingly selective.
The contradiction between the claim that “all men are created equal” and the existence of American slavery attracted comment when the Declaration of Independence was first published. Before final approval, Congress, having made a few alterations to some of the wording, also deleted nearly a fourth of the draft, including a passage critical of the slave trade. At that time many members of Congress, including Jefferson, owned slaves, which clearly factored into their decision to delete the controversial “anti-slavery” passage. In 1776, abolitionist Thomas Day responding to the hypocrisy in the Declaration wrote, though the first draft stated ” All free men are created equal”:
If there be an object truly ridiculous in nature, it is an American patriot, signing resolutions of independency with the one hand, and with the other brandishing a whip over his affrighted slaves.
This convenient oversight of blatant local violation while at the same time aspiring to upset foreign colonial tyranny does not however erode the substance of the Declaration of Independence though it clearly illustrates the capacity of humanity to fly in the face of reason. No amount of liberal words or lofty ambitions will defeat narrow-mindedness, suspicion, hatred, fear and anger. In spite of the overwhelming sense of propriety of such an actor, if an outsider were to examine his motives there would be little chance of crediting the person with any soaring ideals. On the other hand I suspect the demonized person would be equally alarmed to be so characterized. The result is that people at both ends of the spectrum mistrust the other.
Implementing those elemental beliefs is no easy task even when a comparative analysis tends to indicate we’re all the same. Isolating what it is that separates our commonality of human beliefs is a huge challenge. And even if we agree upon the substance of universal legislation, the enforcement of those laws if fraught with further obfuscation. Apparently we have trouble even deciding upon our internal laws and the enforcement of them much less the broader scope of international society and guardianship. But I nonetheless extract hope and conviction from the lesson of comparative law; namely, that our differences are less than we might first imagine them to be.
“The face of terror is not the true faith of Islam,” Mr Bush said shortly after the 9/11 attack on the World Trade Center. “That’s not what Islam is all about. Islam is peace.” George W Bush called Islam a religion of peace while president. He would later launch invasions of Muslim countries Afghanistan and Iraq. Mr Obama has made similar comments, noting that “it’s very important for us to align ourselves with the 99.9 percent of Muslims who are looking for the same thing we’re looking for – order, peace, prosperity”. In 2016 he ordered more than 26,000 bombs dropped on Muslim nations like Syria, Iraq, Afghanistan, Libya, Yemen, Somalia and Pakistan. Mr Trump doesn’t have the luxury of the same rhetorical cover his predecessors enjoyed. His actions as president will be coloured by his past statements and those of his advisers.