By Roxana Sotomarino

Silvia Roxana Sotomarino Cáceres holds a Doctorate in Law, a Master’s degree in Civil Law, and a law degree from the Pontifical Catholic University of Peru, where she also completed undergraduate coursework in Psychology. She conducted postdoctoral research at the University of Paris I, Panthéon-Sorbonne in 2012. She is a tenured professor at the Pontifical Catholic University of Peru and a lecturer at other universities, where she teaches Legal Research Methodology and Comparative Law, as well as other courses in Civil Law. She is a researcher and arbitrator for the Lima Chamber of Commerce, the Arequipa Chamber of Commerce, and the Center for Analysis and Conflict Resolution at the Pontifical Catholic University of Peru. She practices law independently. This article is part of a forthcoming manual on comparative civil law.

I. Preliminary Comments: Comparison as the Result of Complex Processes

Cognitive psychology, as its name indicates, is a branch of psychology, reflected in its various subfields; it studies the mental structures and processes that generate knowledge. In this context, thought and language develop from comparison. Social comparison, driven by human beings, is key to developing notions of self-worth (Gómez- Jacinto, 2005).

When comparing, we process information constantly and dynamically, learning, judging, and interpreting. To identify similarities, we detect homogeneity; when we differentiate, we notice the particularities, heterogeneous elements, we distinguish.

Daniel Kahneman (2012), in his book Thinking, Fast and Slow, explored both the basic elements of judgment and choice processing based on two systems (the first that carries out automatic operations and the second that carries out controlled operations). The study of judgment heuristics is proposed. We cite this work to highlight the importance of understanding the presence of biases, of intuitive thinking that must be “discovered” when comparing.

This complex process acquires specific characteristics when it is carried out within a particular discipline, such as law; it will then be necessary to satisfy specific substantive and methodological requirements. One of these is to recognize the presence of prior judgments, “cognitive shortcuts” that can either facilitate learning (through comparison) or hinder it.

The implications of integrating law and psychology are numerous. We will not address them now. We only intend to point out that the way individuals and groups think and act responds to diverse factors. Furthermore, law as a social science, or as the science belonging to culture, as Arthur Kaufmann (1999) calls it, possesses a strong evaluative sense, oriented toward justice (p. 96); without this approach, law would lack a single, fundamental moral value (p. 392).

II. Definition of Comparative Law. Scope of the Discipline.

As León (2023) points out, “Comparative law is the legal discipline that deals, on the one hand, with the study of the similarities and differences between various legal systems, and, on the other hand, with the reciprocal influences between them” (p. 15). León also emphasizes that, as a “scientific discipline,” it allows for the acquisition of knowledge. It allows for the establishment of “(…) relationships between the various legal systems of countries with common projects of normative unification” (León, 2023, p. 15). By “legal system” we should understand the set of rules and principles that, organized systematically and hierarchically, are applied within a state.

We share the idea of Annelise Riles (2001), for whom legal comparison is one of the most “ubiquitous” (the quotation marks are ours) – and not theorized – dimensions of modern knowledge, whether we consider it a method or a project, a creative or scientific activity, a pragmatic or utopian act. Currently, as this author emphasizes, there is a growing interest in comparative law among students and practicing lawyers, beyond the traditional community of comparativists. The reason for this lies in various factors linked to changes in the capacity for interaction between groups.

Today more than ever, proposals are being developed for various normative bodies such as constitutions, codes, and other products of legislative change (to which we can add judgments and reports); such proposals are based on comparative activity or on the harmonization of law in different legal systems (Riles, 2001). Likewise, certain paradigms regarding the typology of legal systems and their traditions, prevalent in the mid-20th century, have fallen, altering terms and categories.

It is important to emphasize that the aim is not to exhaust any discussion on comparative law, but rather to foster a perspective that gives comparison a leading role as a process for acquiring information, but also as a form of self-evaluation and growth for any discipline; and in this case, for law, whether for teaching, learning, researching, or applying it in the professional, jurisdictional, or any other sphere. Following these guidelines, essential notions of legal comparison are presented.

Regarding comparative law (and in line with the proposed interdisciplinary perspective), Zweigert and Kötz (2002: 3) point out that “The expression This involves an intellectual activity in which law is the object and comparison is the process.” Ajani, Anderson, Arroyo, and Pasa (2010, p. 19) also highlight the cognition inherent in the process of legal comparison. Gambaro and Sacco (2010) mention that the analysis of differences between legal rules and solutions is the object of a science or body of knowledge; it must be critically developed.

Comparative examination in legal science has generally been limited to territorial or casuistic positive law, without seeking fundamental principles. Without a critical element, and considering what we mentioned at the beginning of this article (regarding the presence of biases), we can assume that one model is optimal or superior to another or others (leaving aside, for example, the social reality that often imposes different considerations for achieving justice).

A superficial investigation often overlooks the reasons why the Swiss civil code was formally imposed in Turkey; Ajani, Anderson, Arroyo, and Pasa (2010, p. 19) also highlight the cognition inherent in the process of legal comparison. Gambaro and Sacco (2010) mention that the analysis of differences between legal rules and solutions is the object of a science or body of knowledge that must be developed critically.

Comparative examination in legal science has generally been limited to the territorial or casuistic legal system, without seeking fundamental principles. Without a critical element, and considering what we mentioned at the beginning of this article (regarding the presence of biases), we can assume that one model is optimal or superior to another or others (leaving aside, for example, the social reality that often imposes different considerations for achieving justice). A superficial investigation often overlooks the reasons why the Swiss civil code was formally imposed in Turkey; however, it did not modify many established family customs of religion.

Comparative law offers researchers, legal professionals and students, legislators, and judges a different perspective that can answer the questions of why social groups adopt or reject certain legal rules or principles at specific times. It is not only a «formidable tool» in their training, but also a «powerful epistemological instrument» because it helps to uncover the discontinuity between rule and definition, statement and application, highlighting the profound and relatively constant elements of the legal system itself, as Gambaro and Sacco (2010, p. 3) point out.

It has been asserted that comparative law is an integral sub-area of each branch of law, such as civil, constitutional, and criminal law. Undoubtedly, a comparative analysis of civil law institutions (which is private) between different legal systems will differ from one conducted in constitutional law (which encompasses both public and private law) or in criminal law (typically public). This is because each branch determines the guidelines or Prior and specific premises also form the basis of comparative analysis. In any case, comparative law deals with, or aims to analyze, the similar and different elements of the “different legal systems of the world” (León, 2023, p. 16).

We believe this involves considering presuppositions on how to carry out comparative activity in any branch of law. Therefore, there are basic notions inherent to legal comparison, or a set of terms applicable to the different branches of law. Since comparative law reveals and allows us to understand what is common and what is different in the development of the state legal systems being compared, it will be fundamental to understand the connections such as history, politics, customs, religion, etc.

It is necessary to trace the path that unites and separates the legal systems of each state. That’s why, during this process of determining what is common and what is different, we find the notion of legal families or legal systems. These describes the creative process or modes of production of the norm as a legal rule that even groups together legal systems. Additionally, these notions inherent to comparative law explains the commonalities and differences in the techniques for drafting legal norms; but it also explains the teaching, interpretation, integration, and application of law.

Legal systems are grouped for predominantly historical reasons, and these reasons explain the common roots of state legal systems. In this analysis, it will also be of great help to consider the influence of ideology, politics, and religion according to the specific circumstances of certain historical moments. Some have referred to the notion of legal family and legal system as synonymous. Both explain why certain state legal systems focus, for example, on the analysis of the general legal norm contained in a law, and why others focus on the study of judicial precedent, or why still others begin by interpreting religious texts as legal ones.

As in a human family, in a legal family, there is a common trunk (linked to history) that explains the similarities, while various processes (such as politics and economics) explain the differences. Thus, it arrived in Peru with the Spanish conquest. part of the Romano-Germanic legal model prevalent in continental Europe. However, there were populations with their own cultural models, and this explains the differences.

The notion of a system, for some such as Ajani, Anderson, Arroyo, and Pasa (2006), highlights “(…) the set of legal rules applied in each community (local, state, supranational)”; while the notion of a legal family (or large system) groups legal systems with common characteristics (p. 30). The term “system” can be used to describe the set of rules organized within a state, while “legal family” or “large system” defines how these state legal systems are grouped based on their common origin, thus facilitating comparative analysis and study.

For Zweigert and Kötz (2002, p. 71), the theory of “legal families” aims to provide answers to questions raised by comparative law. For example, “Is it possible to divide the vast number of legal systems into a few general groups (or legal families)? How can we determine the composition of these groups? And assuming we can answer this last question, how can we know if a given legal system belongs to this group?” or to that group?” As the aforementioned legal scholars specify, “the immediate purpose of these groups can only be taxonomic, since we wish to instill a comprehensible order into this mass of legal systems.”

Finally, it’s a matter of establishing or defining the underlying connections or links, and even their absence. They emphasize that it is therefore possible to have a method that assists in legal comparison. Thus, if one or two legal systems—or state legal orders— are representative of each of the “general groups,” then the comparatist can, under certain conditions, concentrate on them. Legal comparison takes into account the essential importance of language as a vehicle for transmitting thought. For Sacco and Gambaro (2010), these are one of auxiliary sciences of legal comparison, as is legal anthropology.

The challenges are understanding a different legal culture; learning to compare in order to understand one’s own law and that of other states; and using foreign experiences and analyzing their application or rejection, among other options. Behind every judgment, law, or contract, there are legal guidelines that comparative law evaluates with the aim of finding legal solutions to problems and developing proposals.

III. Conclusions

1. Comparison is used for learning. This is a fundamental process for human beings. It becomes more complex when carried out within a discipline such as law.

2. Comparative law deals with the study of the similarities and differences between legal systems, considering the causes that determine homogeneity and diversity, and the influence they have on one another.
3. Among its many purposes, comparative law aims to provide a better understanding of one’s own law and that of other countries, addressing how conflicts and social problems are handled and resolved, and how to propose unification.

4. Comparative law includes concepts such as legal families and legal systems that contribute to a better understanding of one’s own law and that of other countries, addressing how conflicts and social problems are handled and resolved, and how to propose unification.

Referencies

Ajani, G., M. Anderson, E. Arroyo Amayuelas, B. Pasa (2010). Sistemas jurídicos comparados Lecciones y materiales. (1ed.). Universitat de Barcelona.

David, R. (1968). Los grandes sistemas jurídicos contemporáneos. Aguilar.

Gambaro, A. y R. Sacco (2010). Sistemi Giuridici Comparati. Trattato di Diritto Comparato. (3 ed.) UTET Giuridica.

Gómez-Jacinto, L. (2005). “Comparación social y autoevaluación desde un enfoque evolucionista”. En: Escritos de psicología, 7: 2-14. http://www.escritosdepsicologia.es. También se puede ubicar en: Dialnet- ComparacionSocialYAutoevaluacionDesdeUnEnfoqueEvol-1457425.pdf

Kahneman, D. (2012). Pensar rápido, pensar despacio. Debate.

Kaufmann, A. (1999). Filosofía del Derecho. (2 ed.) Reimpression 2005. Universidad Externado de Colombia.

León V., J. L. (2023). Introduction to comparative law. (1 ed.). Colección Lo esencial del Derecho 74. Law Faculty. Fondo Editorial PUCP.

Riles, A.-Editor (2001). Rethinking the masters of comparative Law. Hart Publishing.

Zweigert, K. and H. Kötz (2002). Introduction to comparative Law. (1 ed.). Oxford University Press.