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Comparative Law
St. Johns University School of Law
Movsesian, Mark L.




– US, UK etc

– Derived from custom and case law (v. legislation)

o While this system does in fact have statutes and legislation, it is considered to be subsidiary to case law and custom (ie it fills the gaps)


– continental Europe, Latin America, China, Parts of Asia eg.

– Derived from legislation (v. case law) à In theory no precedent to bind future parties in other cases.

– Code systems (meant to be comprehensive and cover the entirety of the law (the heart/centerpiece of the system).

– Jus Civile (late imperial Roman law)

Louisiana à former French Colony, only US state with partial common and civil law systems. California is also a code state.

In addition, Canada is a legal pluralistic state à Civil (francophone provinces) and common (Anglophone provinces).

Is Comparative Law a

1. Method (Technique, i.e. mode of analysis, way of doing things)

2. Body of Substantive Knowledge

Is the point of Comparative Law principally

1. Integrative and functional or

2. Contrastive and non-functional

Method or Body of Knowledge?

Watson Excerpt: p. 2

Basic point is that it is a method and not a body of knowledge. Ie. The point of the exercise is to compare two different systems instead of learning in detail these systems.

Therefore study the relationship between the systems as opposed to studying discrete legal problems. Therefore analysis of discrete legal problem such as murder is not in detail since although superficially the same in terms of murder = death, each system has different standards, defenses etc with regard to that problem.

In order to compare systems however, there must be some basis for the comparison. So that you cannot adequately compare US law to Islamic law since these two different systems rest on completely different assumptions.

This approach by Watson is very conceptual and academic and not at all practical since there is no analysis of discrete legal problems.

Goals of Comparative Law

1. Integrative, OR

2. Contrastive

1. Integrative comparative law identifies the principles that unify two different systems.

a. Attempts to search for similarities

b. Attempts to integrate knowledge

c. Hopeful view of comparative law

This approach is also considered the functional approach

Integrative Comparative Law has functional approach that

– choose a legal problem

– choose legal systems to compare

– explain and evaluate the different solutions à to identify a uniform approach to the problem

– however, there is charge that there is a selection bias or ethnocentrism at play here.

o Selection Bias à choosing which system to use can skewer results. It is not a neutral or intellectually honest way to approach the analysis, since even selection of the legal problem can be subject to selection bias.

o Ethnocentrism à generally focuses on one culture and ethnicity, which in this area is invariably western in practice because Westerners are the predominate practitioners working in this area.

** the primary approach to comparative law is the Integrative Comparative Law approach**

2. Contrastive Comparative Law. The goal here is to identify the differences in the way legal systems approach problems, not the similarities. (what do these differences in law suggest about the different mentalities of the systems and their societies).

– this approach discovers underlying social/cultural factors

o Glendon à law reflects and is shaped by the values of the culture of which it is a product.

o On practical note, more useful to help advise clients because will know that to counsel them to avoid etc.


Death Penalty Case (5-4 decision)

Roper v. Simmons

United States Supreme Court

543 U.S. 551 (2005)

Rule of Law

(1) An individual who has committed capital murder between the ages of fifteen and eighteen cannot be sentenced to death.

(2) International law and foreign practice, particularly when near-universal in support of a common doctrine or policy, may be considered in interpretations of the Eighth Amendment to the United States Constitution by American courts.


Christopher Simmons (defendant) was sentenced to death following his conviction for a murder occurring when he was seventeen years old. Simmons challenged his conviction on the ground that the application of the death penalty to a minor is unconstitutional and is not supported by international law. The United States Supreme Court previously considered constitutional challenges to the juvenile death penalty in Thompson v. Oklahoma, 487 U.S. 815 (1988), where a plurality held that the Eighth and Fourteenth Amendments to the United States Constitution, as well as trends in international law, prohibited application of the death penalty to persons under age sixteen at the time of commission of the crime. The dissent strongly opposed the consideration of international practice on any matters relating to interpreting the United States Constitution. However, in Stanford v. Kentucky, 492 U.S. 361 (1989), on the issue of the constitutionality of the death penalty applied to persons aged sixteen and seventeen, the application of the death penalty was upheld. Simmons argued in Missouri state court that after the Stanford decision, a new national consensus developed opposing application of the death penalty to juveniles which was supported by international law and foreign practice. The Missouri Supreme Court agreed, and Roper (plaintiff) appealed to the United States Supreme Court.


(1) Can an individual who committed capital murder at seventeen years of age be sentenced to death?

(2) May international law and foreign practice ever be considered in resolving questions about the interpretation of the United States Constitution in American courts?

Holding and Reasoning (Kennedy, J.)

(1) No. The Eighth and Fourteenth Amendments of the United States Constitution prohibit cruel and unusual punishment, and the execution of an individual who committed capital murder before he reached eighteen years of age classifies as cruel and unusual punishment. Under Stanford v. Kentucky, 492 U.S. 361 (1989), the law allowed for such an execution. However, since that decisio

usual punishment in every other country in the world, and the United States should no longer be the exception.

Dissent (O’Connor, J.)

In general, it is true that individuals under the age of eighteen are less mature and thus less knowledgeable of the true consequences of their actions. To categorically prohibit capital punishment from applying to all individuals under the age of eighteen however is a bit extreme. Certain individuals under eighteen years of age are completely aware of the consequences of their actions and should be subject to the same punishments as their adult counterparts. Someone does not magically become more culpable for his actions merely because he has reached a particular age. The individual eighteen years of age can be sentenced to death, but his counterpart who is seventeen years, 364 days cannot. That is an unacceptable standard under the law when both individuals had the same intent and committed the same crime. Therefore, there should be a fact-based inquiry at the sentencing phase to determine whether a juvenile offender should be sentenced to death rather than a blanket prohibition.

Dissent (Scalia, J.)

The United States should be making its own laws and interpretations of those laws rather than looking to other countries and what they decide to do. The United States does not benchmark its judicial interpretations against other countries in other matters, especially regarding the separation of church and state. The United States is also one of only six countries to allow for legal abortions. Should that law be changed as well because most other countries do not believe in it? The Supreme Court should be making its decisions based on its own beliefs, not the beliefs of others.


• Opinion of the Court (Kennedy, J):

– Execution of minors (between ages 16-18) violates the 8th Amendment

• “Evolving standards of decency”

– National consensus against death penalty for minors

– Court’s independent moral judgment

(looked to state courts and legislatures for determining this consensus)

but there is long section of the opinion wherein Justice Kennedy resorts to comparative law as a means of determining this consensus against death penalty for minors.


• Foreign law is not “controlling” in US courts

– “confirming” and “instructive” – “acknowledge” (persuasive authority)

• Evidence of foreign law on juvenile death penalty

– UN Convention on Rights of Child


– Practice of foreign countries (esp. UK)

There is strong international consensus against this practice.