Edited by Pier Giuseppe Monateri
Chapter 2: Intent on Making Mischief: Seven Ways of Using Comparative Law
Mads Andenas and Duncan Fairgrieve 1. INTRODUCTION Whilst comparative law is viewed in some quarters as a modern fad (if not to say a dangerous ﬂirtation with ‘alien law’),1 some form of comparative law has long been part of the judicial process, though in the United States this was predominantly undertaken between the states and in the rest of the common law world between common law jurisdictions in different conﬁgurations. The inherent characteristics of the common law have perhaps served to mask the fact that it is indeed based on a series of comparative law exercises. Across the national borders dividing the Commonwealth, the seamless nature of the common law, from its origins in English law, through its permutations across to former colonies and beyond, provided a reason and justiﬁcation for courts to look to each other’s jurisprudence, exchange solutions and thereby create a network of persuasive authority. But there is a long tradition for borrowing from beyond the common law, although often conveniently forgotten or at least pushed into the background. The late Lord Bingham, one of the greatest jurists of recent times, was a pioneer in the forensic use of comparative law and a tireless advocate of the idea that ‘there is a world elsewhere’. Enjoying the controversy, Lord Bingham often referred to the judicial hero of English commercial lawyers, Lord Mansﬁeld, and how he made good use of Pothier and other French sources in the creation of English commercial law.2 Comparative law is...
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