The Context of Islamic Law

This chapter describes Islamic law. Islamic law is not the law of a single state, but rather a religious law of special importance, whose prominence has increased over the last few decades. It is therefore necessary to distinguish between Islamic law and the law in states with predominantly Muslim populations. The defining characteristic of Islamic law is its religious origin and character. In contrast to all state law, it is based on a God-given text, the Koran. Thus, at its core, it is itself divine in nature, not the product of mankind. This explains its special status and claims, but also its special problem. Meanwhile, the latter body of law is geared toward classical Islamic law to widely varying extents. Islamic law is by no means the only example of religious law, but other bodies of religious law—such as Jewish or canon law—are much less significant in the current times.

The Comparative Method

This chapter examines the methods used in comparative law. Today, functional comparison is considered the classic form of comparative law. The vast majority of comparative studies follow this method and the quality of any given comparative law study is often judged according to its principles. According to Zweigert and Kötz, the fundamental principle of comparative law is functionalism, according to which only law which fulfills the same function can be compared. At its core, this straightforward approach provides an exemplary description of the essential components of any individual comparison between two developed legal systems. However, attacks on the functional method has been increasing for decades. The chapter then describes these critiques and the alternatives they propose.

The Context of African Law

This chapter assesses African law. The law of Africa displays one fundamental common attribute: plurality. In Africa, a great variety of legal orders and legal concepts coincide and must try either to cooperate or at least to tolerate one another. There is no one single traditional legal system; for example, there are an estimated 300 traditional legal systems in Nigeria alone. Africans constantly switch from one legal system to another in daily life. This coexistence of many systems, which applies not only to legal orders but also to jurisdiction, generates many potential conflicts. However, the essence of pluralism is not to highlight these conflicts and try to solve them, but rather to defuse them pragmatically, if and when they lead to genuine problems.

Contexts of Transnational Law

This concluding chapter addresses transnational law. Public international law and European Union law are by no means the only transnational legal orders. There are also smaller transnational systems in South America or Africa which are modeled on European Union law, but which lag far behind in terms of importance and level of sophistication. The context of public international law is marked by a number of features which distinguish it from the various contexts of national law. At a very general level, public international law is characterized by a stronger interweaving of fact and law; heightened importance of politics; and a less technical approach to norms, their text, and their meaning than lawyers may be accustomed to. Meanwhile, European Union law is an independent legal system which, at least in its present, highly-developed form, has much more in common with national legal systems than with public international law.

The Basic Context of Civil Law

This chapter looks at civil law. Civil law is the counterpart and the typical object of comparison to the common law. The distinction between these two legal families is one of the few on which comparative lawyers largely agree. In highly simplified descriptions found mostly in older texts, the unique feature of civil law is often identified as legal codification, especially of private law. The main aspects of this legal mindset are the doctrine of legal sources, the systematization of law, the method of statutory interpretation, and the role of legal authorities. All of these things influence the way in which law is applied in everyday practice and are the products of a specific historical evolution. The fundamental character of civil law can only be understood when the interplay among all these factors is considered.

The Context of Common Law

This chapter focuses on common law. The common law is distinguished as a legal system developed by cases—that is, by judicial decisions. Put simply, the common law judge derives the law from previous decision of other judges. Even more importantly, common law courts typically do not create abstract legal rules to decide future cases. The method of the common law is not focused on deductively deriving results from general legal principles, but rather on inductively working out principles from individual decisions. This means that only judges themselves remain as creators of law. According to this view, common law would actually be judge-made law, a view also common among comparative lawyers.

Legal Families, Legal Culture, and Context

This chapter discusses legal families, legal culture, and context. A legal family is structured genealogically, with a parent legal order and its historical offspring or siblings. There are many classification systems for legal families. Classifications of legal systems do not necessarily have to be one-dimensional, they can just as well be hierarchical. Meanwhile, the idea of legal culture has long played an important role in comparative law. However, it is heavily burdened by its origin in legal sociology. Context thus becomes the core concept not only of individual comparison, but also of overall type comparison. In an individual comparison, working with context requires taking into account the entire legal and non-legal environment in which every legal rule exists. In a type comparison, the elements of this environment are aggregated.

Contexts in Asia

This chapter studies the Asian legal context. There is no single uniform context in the Asian region. Its cultural, religious, historical, and political systems are too diverse, as are the foreign and domestic influences on legal systems in the region. Nevertheless, it is possible to single out individual legal systems and groups of systems in Asia which are clearly distinguishable in their respective contexts, but which cumulatively open up the legal world that is Asia and can thus serve as a blueprint for understanding all Asian legal systems. The chapter specifically looks at the People's Republic of China and the free-market democracies in Southeast Asia. India could be regarded largely as a common law country, the chapter states. Finally, the chapter argues that Indonesia is the world's fourth largest country by population, with a culturally mixed population, a civil law influenced state legal system, a system of indigenous customary law which partially survives, and considerable Islamic influence.

Variety of the Civil Law Context

This chapter explores the variety of civil law. Civil law is not limited simply to Germany and France. However, categorizing the remaining continental European states quickly turns to be problematic and increasingly becomes difficult with more detailed examination. If one starts by looking at Western Europe countries alone, their standard classification as following either German or French legal thought is at least of some limited assistance. However, this kind of simple solution is not appropriate for Eastern Europe. Moreover, Northern European states are traditionally considered an independent group, and reveal some features which distinguish them from the overall climate of civil law legal thought. Finally, civilian legal thought does not end at the geographical borders of Europe. The law of Latin America, despite some unique features, is quite akin to that of Western Europe.

Aims of Comparative Law

This chapter determines the aims and uses of comparative law. Comparative law improves communication. This communicative importance of comparative law can directly affect the professional lives of lawyers and can be an essential aid in providing clients with sound advice. Comparative law also prevents the narrow-mindedness which blinds law students to the possibility that legal questions could be solved, or even approached, differently than in their own legal system. Nevertheless, comparative law can provide a deeper understanding of one's own legal system. It can also be a means of interpreting national law. Finally, comparative law becomes particularly important when the common principles of a variety of other legal orders are themselves considered to be a formal source of law in one particular legal system.