Comparative Law: Law, Reality and Society

This book does not deal with conventional comparative law. Rules and structures of one system are not set out against those of another for contrast. Rather, rules particular or general, are examined to explain why they are as they are, and how they came to be. The author does not accept that to a great extent law reflects society or the power of the ruling elite. Chapter one serves as both introduction and conclusions. The conclusions are: 1) Governments and rulers are not much interested in developing law, especially not private law, but leave this to others to whom they do not grant power to make law. 2) Even famous lawmakers are seldom interested in a particular social issue in law or in giving law certainty. 3) Borrowing, even mindless, is the name of the legal game. Chapters range from grand legislation (the Ten Commandments and Napoleon s code civil) to unrecognized law in action and daily life (Jesus and the Samaritan woman, Jesus and the adulteress, the claim that Julius Caesar descended from a slave). Other chapters deal with judges passivity in giving needlessly a judgment they claimed was unjust, to deciding against the judge s own theoretical and practical position (Somerset s Case). Likewise stressed is the difficulty of developing law fit for the society, and of understanding foreign legal thinking. The survival of law in different circumstances for centuries and also in a different place is emphasized. The chapters are separate entities, and the author claims that each must stand on its own merits. But he insists that if each is plausible, then together they present a very different approach to law in society from those habitually offered.