Laithier’s Droit comparé offers one of the best contemporary introductions to comparative law. It engages with contemporary works available in English and French, but the range of his reading and in-depth engagement is very impressive. The work aims to be a textbook, introducing the reader to different ways of approaching the subject, their positive and negative features. As such, it does not explicitly promote a specific way of undertaking comparison, but aims to inform the reader, so she can make her own choices. At the same time, the analysis of different theories and methods enables the reader to assess the validity of contributions to the subject made by works she may encounter. The aim of this book is to be critical, but not prescriptive. Despite this ambition of neutrality, the author’s preferences become apparent, but not in a significantly distorting way.
The need for a new introduction comes partly from new theoretical perspectives that are shared with other branches of legal scholarship and partly from the different experiences of conducting comparison. In the past, comparative lawyers were similar to anthropologists – they went to a foreign country and reported their observations, also drawing heavily on texts in the foreign language. Many more recent comparativists have been nationals of a legal system explaining their own system to a foreign audience, either through responses to questionnaires or by being resident and teaching in the foreign country. Today, many more lawyers are interested in using the insights of different legal systems to solve particular shared problems – how to construct transnational agreements or projects or how to construct transnational rules.
The work is French and the book is divided into three parts: theories of comparative law, methodologies and purposes. I am not sure that this division is totally successful, as there seems to be quite a bit of repetition of core ideas in the three parts.
The first, theoretical part engages with a wide range of contemporary debates, especially economic theories, decolonisation, the place of Eurocentrism and of public law. A good example of Laithier’s approach is the theme of globalisation. For Laithier, “comparative law is one of the privileged methods of knowing and diffusing global law” (p. 271). As a heuristic, comparative law serves to find out whether there are common trends and standards within different legal orders which respond to the interconnectedness of the contemporary world. Do national laws serve as the basis for developing common principles and identifying them? Laithier is well aware that the answers may not identify a consensus among legal systems, but may identify the hegemony either of particular national legal systems or of the work of non-governmental organisations (e.g. in sport, commercial trade or corporate governance – see p. 295). Laithier presents economic models of “efficiency” as seeing different legal systems in competition with each other for global business. The “Legal Origins” and World Bank “Doing Business” which attempt to classify legal systems according to a number of key metrics exemplify this approach (pp. 221–25). But Laithier subjects them to substantial criticism as over-simplistic. Their discussion of the “rule of law” and courts focus merely on one aspect of a legal system – the enforcement of debts. That approach is partial and preoccupied with certain Western interests (pp. 236–38). Like Mathias Siems’s Comparative Law (3rd ed., Cambridge 2022), Chapter 8, Laithier understands the value of numerical analyses of law. But he is sceptical of classification and ranking as ways of judging legal systems. They are often based on too narrow a range of variables and too limited a body of evidence. At best, benchmarking in specific areas may be more useful.
The second feature of globalisation is treating the world’s legal systems as a supermarket of legal solutions. Here some comparativists use comparative law to come up with a “better” solution to a problem, if not an ideal one. On this topic, most of Laithier’s examples are from commercial contract law, but he could have also drawn attention to surrogacy, assisted dying, the availability of medical treatments, or indeed rules on weddings as areas in which campaign groups and legislators scour the world for inspiration for domestic law reform, if not actual texts. Here he is right about the need for an interdisciplinary approach which focuses not just on the legal rules, but on the context in which they operate. One of the distinctive features of this book is its inclusion of public law. Public law is traditionally seen as embedded in the state and not universal. But he is able to show how there are common ideas and common problems in public law despite distinctive constitutional systems. This arises not least because of the influence of transnational treaties on fundamental rights. The function of these transnational influences may often be procedural and regulatory, but they may also affect substantive law (p. 298).
A third feature is the role of comparative law in diffusing the different ways legal systems have addressed problems. Examples might be the transfer of contracts or constitutional review of legislation. There is no necessary objective of law reform involved, but it can create a climate in which some options for reform are seen as more acceptable (pp. 330–35).
Laithier debates the question of whether presentations of “global law” are too narrow. He suggests that there is often an overly narrow range of countries considered in any comparison and that the experience of the Global South is typically marginalised. He sees a clear danger that the law of the Global North is seen as “universal law” (p. 340). He does, however note the retreat of Eurocentrism among comparative law writings of recent times. But, for example in comparative public law, he suggests that broadening involves not merely looking at more countries, but also expanding the classic trilogy of democracy, rule of law and human rights to include economic and social rights and the involvement of indigenous peoples (p. 353). At the same time, he thinks that accusations of “Americanisation” and neo-colonialism addressed to much contemporary comparative law is too simplistic, since any comparison needs also to recognise the influences of Islam and China in the modern legal systems (p. 363). Laithier’s discussion is significant in challenging claims to “global” or “universal” law. It also opens up a debate on legal pluralism.
The second part of the book examines comparative methodology. Here he addresses the suggestion by some such as Pierre Legrand’s Le Droit Comparé (5th ed., PUF 2015) that methods adopted by comparative lawyers are subjective (p. 324). He is also concerned with the issue of whether comparative methods are distinctive. He notes that sociological and anthropological methods were adopted in the early days of the subject. As has been noted, economic and quantitative methods have come to the fore in recent years. But he notes that comparative law is more interested in national specificities whereas economic looks to general trends.
There is a lively debate among comparative lawyers about the value of adopting a focus on functions as a more useful guide than studying particular rules or values. Laithier presents clearly the state of the debate. At the same time, his own concern is that functionalism reduces the complexity of the issues and reduces the scope of the law to be studied. In particular, he is sceptical of whether law is simply an instrument to solve problems much like the tools of an engineer (p. 436). He is also concerned not to lose sight of the different place law has within different societies. His approach suggests that functionalism need not lead to harmonisation. A vision of the universalism and uniformity of law are not necessary aspects of the functional method (p. 455), despite the views of Zweigert and Kötz’s An Introduction to Comparative Law (3rd ed., Oxford 1998). Laithier’s approach presents a balanced, but distinctive approach to the functional method, qualifying it without rejecting it.
Laithier is particularly concerned to stress the need to understand the context within which the rules of different legal systems operate. It is a corrective to a functional approach. In particular, he draws attention to institutions and culture. Institutions were a focus of attention in the 19th century with writers like Rudolf von Jhering. The institutional perspective that Laithier uses focuses not just on legal concepts, but also on social institutions – professions, procedures and practices. He illustrates the importance of such institutions with the analogy of a card game. We can understand the significance of a card by understanding the context within the institution of the game (p. 479).
Culture has been a particular emphasis of Legrand’s approach to comparative law (see his Le Droit Comparé). Laithier sees it as a limited addition to an institutional analysis. Culture shows the link between law and society (p. 499). But Laithier argues that cultures change over time and there is often a plurality of cultures in a particular society and in the law itself (p. 502). For him, there is no direct correlation between culture and law. Laws can be similar in countries which are culturally different and countries with similar cultures can have different laws. He notes (p. 505) how culture is invoked in order to denounce imperialism or the dominance of Western approaches to law and also as a riposte to harmonisation. These last points lead him to conclude that the choice of legal methods may be closely linked to the purposes of comparative law (p. 507).
The third part looks at the purposes of comparative law. Laithier’s approach is to focus more on the “cognitive” or analytical focus than on normative outcomes. Analytically, comparative law may serve to improve the reader’s understanding of their own legal system. In contrasting the home system with others, the reader may clarify why that legal system is distinctive and in what ways. In particular, Laithier thinks it may polish up concepts used in national law by seeing how “fault” and “contract” are used differently in other systems (p. 524). It may also clarify what is merely contingent or accidental in the current content of a legal system. Comparative law may offer a subversive perspective. He does not claim another legal system is necessarily better. But he considers that knowledge has value in its own right. It may serve as a pointer to the interpretation of law in the future.
Although much comparative law is commissioned to inform law reform, Laithier is reticent about the normative purpose of comparative law. Rather than directly leading to reform, he considers that, indirectly, it may illuminate the reform process. His illustration is the way the recent reform of the Belgian Civil Code rejected recent reforms to the French Civil Code (p. 550). It is not that national lawyers should be hostile to external influences. Rather, the notion of “improvement” needs to be based on clear criteria (p. 574). He is also sceptical of treating the quotation of foreign judicial decisions or law reforms as evidence of the influence of foreign law in a legal system. It is necessary to understand the context much better before assuming that there has been an impact. His chapters dealing with harmonisation and uniformisation show the way in which comparative law is used and the ambitions of many scholars who take part in such exercises. His final section cautions the reader. He emphasises that comparison and uniformisation are separate activities – one does not necessarily lead to the other. He stresses that uniformisation may adversely affect the authority of comparative law. Comparative law stresses the grounding of particular laws in particular societies. To overemphasise common elements in order to produce uniform law renders comparison superficial. Equally the law produced through uniformisation may produce disorder in the importing system. Drawing on Jean Carbonnier, he also thinks that uniformity harms the nature of law as an institution which engages with the diversity of human communities (p. 614).
Whether the reader agrees with Laithier’s arguments, the work provides considered reflection, but also enough material from which different conclusions could be reached. In this, the author has done a good work of introduction to comparative law.
