| In France, the comparative law has developed hundreds of years. Montesquieu, theauthor of the famous works L'Esprit des Lois, is regarded as one of the earliestcomparatists in the world. The comparative legal study in France made great progress in late 19th century. Thefirst comparative law study center in the world, La Société de Législation Comparée wasset up in Paris in 1896. And the first International Congress of Comparative Law, Congrèsinternational de droit comparé was held in Paris in 1900. In a sense, the comparative law in France is the origin of the world's contemporarycomparative legal study. Evidently, an investigation on its history can benefit a lot thecomparative legal study in China, which is still in the primitive state. As a result, the thesisfocuses on the development of the comparative law in France in recent two hundred years,and especially underlines the progress made in the 20th century. Chapter one concisely describes the situation of comparative law in France. RaymondSaleilles was the most famous French comparatist in late 19th century. He advocates thereplacement of exegesis by what he terms the historical method. Saleilles argues that thecode should be interpreted in light of historical evolution. For him, lawyers, when theyinterpret the Civil code, must take into account changes which took place over the pastcentury in social mores and in ideas. This is the meaning of his celebratedaphorism : Beyond the Civil Code, but by means of the Civil code. Chapter two concerns the 1900 Paris International Congress of Comparative Law.Professor Edouard Lambert, from the University of Lyon, presented the general report ongeneral theory and method. There was general consensus that accommodation orunification among laws should concentrate on private law and not be attempted withrespect to public law. Saleilles stated that comparative law can be an independentdiscipline, concerned not with what law should be, but aiming to discover uniformitiesamong diverse national laws. He favored a fond commun de l'humanité civilisée, whichwould replace natural law. Lambert, on the other hand, believed législation comparéecould only establish a common fund for those countries that had achieved a similar levelof civilization. Chapter three regards the development of comparative law in France in early 20thcentury. The period is called the golden age because of its rapid progress in theoreticalconstructions. Lambert was the leader among French comparatists. He was convinced thata unity of general purpose exists in similar legislation from different states, even thoughno such unity may be detected at the level of rules embodied in the legislation. It is thuspossible to discern a droit commun législatif on various questions. Where no unity ofgeneral purpose is apparent, the reliance on supporting methodologies, such as statisticsand fieldwork, may demonstrate the superiority of one legislative solution over others, inwhich case this preferable solution merits le caractère de disposition de droit communlégislative. Lambert also believed that comparative law, and more specifically the searchfor a droit commun législatif, will provide what is missing in the libre recherchescientifique and in the new sciences on which it relies: a way of identifying objectivesolutions. Chapter four is about the restoration of comparative law in France after the SecondWorld War. René·David is the forerunner in the field at that period. His life-long workchampioned the practice of legal comparativism from an anti-formalist perspective. Herefitted its method, grounded in earlier natural law and positivist theories, onto a moresociological framework. His opus not only rendered comparativism more defensible byupgrading its theoretical premises, but it also placed at the center of legitimating the legalsystem. A second and related preoccupation of David's is the Cold War. For him,comparative law... |
