Elgar original reference
Edited by Jan M. Smits
Chapter 59: Public law*
For years, a large number of legal comparatists seem to have accepted as true what Henry Puget remarked in 1949: ‘jusqu’a présent, le droit comparé a été orienté principalement du coté du droit privé’ (Puget, 1949). This seems a strange remark if one admits that the first author to develop comparatism in the social sciences was Aristotle and that he did this by comparing constitutions. More recently, Montesquieu’s ‘L’esprit des Lois’ (Montesquieu, 1962) is certainly a major work of comparative constitutional law, being, amongst others, at the basis of one of the most commonly acknowledged concepts of constitutional law, i.e. the theory of a tripartite separation of power (legislative, executive and judiciary). Furthermore, in most countries (with the exception maybe of the United States of America), handbooks of constitutional law contain a general conceptual part which is based on a comparison of different countries’ institutional settings and constitutional law; in contrast, general introductions to civil law are usually strictly focused on a national system or contain at best some references to Roman law. Furthermore, comparative law has been a methodological component of international public law which has played a particularly important role in the reasoning of international courts, especially the Permanent Court of International Justice, between the two world wars, and its successor, the International Court of Justice.
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