Chapter 1: History of Comparative Law and Society
David S. Clark* 1 1.1 INTRODUCTION Comparative Law Comparative law is as old as the existence of law. It arose with the first complaint of injustice directed against human action justified by a legal rule. The complainer, not having that law on her side, had to rely on a rule existing outside the actor’s legal system, perhaps on a higher law. Ancient illustrations of law and justice may be of significance to theologians, philosophers or shamans. However, other than a legal anthropologist’s interest in preliterate human societies, most comparatists today would not consider historical examples older than three millennia and much of that consideration is about classical European legal systems. Nevertheless, modern legal comparatists are continuing to push the boundaries of their discipline outward, intruding on sister fields in the social sciences and humanities—from economics to rhetoric—and expanding their consideration to ancient use of legal comparison in China and other parts of Asia. The modern view is that comparison is inherent to humans and probably to other species. This insight comes from diverse disciplines ranging from social psychology to human evolutionary genetics.1 Social comparison is how we make sense of the world in which we live and even understand ourselves. Legal comparison concerns that part of social reality involving laws and legal institutions. From this perspective, comparison does not need to be justified any more than rationality requires justification. Consciously rational comparison will involve aims and methods, but intuitive comparison may be subconscious. In thinking about legal norms,...
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