Article

Comparative Law and its Influence on National Legal Systems

Jan M. Smits

in The Oxford Handbook of Comparative Law

Published in print November 2006 | ISBN: 9780199296064
Published online September 2012 | | DOI: http://dx.doi.org/10.1093/oxfordhb/9780199296064.013.0016

Series: Oxford Handbooks in Law

 Comparative Law and its Influence on National Legal Systems

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This article assesses the scholarly state of affairs regarding the influence of comparative law in national systems. In so doing, emphasis is put on private law and constitutional law, as these are the two areas where comparative inspiration is discussed most vigorously. The second and third section distinguishes several types of use of comparative law by national legislatures and courts, providing the background for a critical evaluation of this influence in the subsequent sections. The fourth section discusses the legitimacy question and the question of how to categorize the different uses of foreign law. The fifth section addresses why a legislature or court actually refers to foreign law and is how to explain the different extent to which countries are open to foreign influence. The last section considers the exact influence of comparative law arguments on the legislature's or court's reasoning.

Keywords: private law; constitutional law; national legislatures; foreign law; comparative law arguments

Article.  12494 words. 

Subjects: Law ; Comparative Law

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