On The English Comparative Law

The Comparative Law had been being into existence for centuries before itbecame the habit of self-analysis and obtained a name. This article tries to discuss theEnglish Comparative Law at divided stages, which not only show the differentdevelopment in various periods of the English Comparative Law afresh but alsosummarize and comment on both its characteristics and causes. In early times of England, Roman law, Canon law and French law which wasbased on Roman law often appeared in the legal works of the English scholars as forcomparing with Common law. During the period of 18th century to the middle of19th century, some comparative legal works emerged in England. Meanwhile, inlegislation and jurisdiction, there were some obvious cases that the English wasmaking use of legal notions from foreign countries especially from French. In 1869,Henry Sumner Maine assumed the office of professor of historicalcomparative law in Oxford University, which indicated that the Comparative Lawwas recognized as a independent legal subject in England. At the end of 19th centuryand the beginning of 20th century, the legal reform, the rise of jurisprudence and theEvolution Theory of Charles-Robert Darwin enhanced the development ofcomparative law of England. Maine, Dicey, Pollock and Maitland were theoutstanding comparative jurist at this time when The English Comparative Law wasin its ascendant. From 1918 to 1946, the English comparative law gained a great breakthrough.This period found the most outstanding English comparative jurist—— HaroldCooke Gutteridge. His master piece 《Comparative Law——An Introduction to theComparative Methods of Legal Study and Research》 which systematizes the theoryof comparative law at the first time has been the most valuable work in comparativelaw so far. The period from 1946 to 1969 was the efflorescence of English comparative law.A number of distinguished jurists emerged and a few comparative study institutionsand organizations were constituted. In addition, education of comparative law waswell developed at the universities and the area of comparative law was continuouslybeing enlarged. Since 1970's, the basic theories of the English comparative law have beendeepened. At the same time, studies on different types of legal systems andinstitutions have obtained a deeper development. English law is isolated and Englishmen are anti-foreign. In this atmosphere,though the English Comparative Law has been facing serious obstacles, it stillemerged and now is continuously developing and progressing. It is also acceptingconcept, methods and techniques of foreign law more and more quickly. Moreover,we find that the English comparative law has the feature of diversity. There are twoclearly distinctive comparative law schools of thought: the historical comparative lawschool and the modern comparative law school as well as several understanding tothe definition of the English Comparative Law. English law and the ideology of English law are not simply the production ofnation or isolation while there are also some elements from other legal systems. Thedevelopment of English Comparative Law shows us the course of its isolation andrefusing to adopt foreign laws, which reflect both the change from island separatist toworldwide views and the transplant process of English law to some extent. Therefore,the legal system of any country can hardly be simple and pure. It is dangerous toapply the letter "nation" to any legal system and isolation is not an inherent feature inthe course of legal development. It is open and exchange that inherent tendency of thedevelopment and evolution of the legal system is. Law transplant is not only afundamental historical phenomenon of legal development but one of the basic rulesof legal development as well.