Most of the traditional general books on comparative law include chapters on ‘legal families’, some of them using terms such as ‘legal traditions’ or ‘legal cultures’.1 The core idea of legal families is that the diversity of the world’s legal systems is not random, but that groups of countries share common features in terms of legal history, legal thinking and positive rules. Recently, this idea of legal families has also become popular among economists and political scientists, who often call them ‘legal origins’.

‘Lawyers are professionally parochial. Comparative law is our effort to be cosmopolitan.’1 This statement may seem exaggerated, but there is also a good deal of truth in it. Most lawyers are almost entirely trained and specialised in the law of their domestic jurisdiction. Thus, as soon as lawyers leave the borders of their own country, they may feel as if they are stranded on a foreign planet. Learning about comparative law aims to address this problem. But where do you start? Which method do you apply? And is it really feasible to learn about all laws of the world?

Globalisation has given rise to legal transplants, convergence, and regional and international laws, as discussed in the previous two chapters. However, the proliferation of transnational law and the emergence of global law may have had an even more profound impact as they challenge the traditional notion of state-based law. For comparative law, such changes to the legal configuration may show the limitations of traditional methods and tools of comparative law.

It is one of the aims of this book to challenge traditional comparative law and promote alternative approaches. Yet, to start with, it is useful to discuss the ‘comparative legal method’ of traditional comparative law in some detail. For this reason, Section A of this chapter outlines how, according to traditional comparatists, a comparative legal analysis should be conducted. Section B focuses on two of the most important concepts on which this method is based: functionalism and universalism. A critical analysis follows in Section C, and Section D concludes. Examples will be provided throughout this chapter, in particular from topics of private law as these feature most prominently in this approach to comparative law.

There are two ways of understanding the title of this chapter: it can either mean ‘comparative law’ and development, or it can refer to comparative ‘law and development’. Both variants are addressed in the following. In the sense of ‘comparative law’ and development, the chapter considers how insights drawn from comparative law can assist development policy. This reflects the aim of traditional comparative law to provide policy recommendations while also responding to the criticism that traditional comparative law is largely uninterested in the countries of the developing world.

The division between civil and common law countries discussed in Chapter 3 is a major building block for mapping the world’s legal systems. In addition, a number of further categories have been suggested. Section A of this chapter discusses why scholars attempt to classify the world’s legal systems at all. Section B provides examples of how precisely this has been done in the twentieth and early twenty-first centuries. The critical analysis of Section C challenges the usefulness of these classifications for comparative law, and Section D concludes.

The aim of this chapter is to map how other comparative fields have produced a remarkable amount of research that should be of interest to comparative lawyers. It should also be noted, however, that the present account of ‘implicit comparative law’ is highly condensed and selective. Thus, while this chapter can provide a critical introduction into these areas of research, it is clear that it may well be possible to write entire books about many of its themes.

In spite of the consensus that has gradually taken shape in Chinese society as regards the building of a modern rule-of-law order, there has emerged with it a series of challenges to the institutional design of constitutionalism and those paradigms fundamental to legal scholarship – challenges that have been brought to the fore by the new realities and epistemics in the structural changes taking place the world over. They have further complicated the status quo in both theory and practice confronting contemporary China.

China has experienced a fundamental change in its mode of economic management since its reforming and opening up to the outside world: from ex ante administrative permits and direct regulation to ex post judicial remedies and indirect restraint. According to a Chinese economist, it is characterized by “progressive interference of the judiciary in the market control” (Zhou 2004, p.262). The proper role of the judiciary in the market economy depends on its strict impartiality and final ruling, which call for a higher degree of judicial independence and a higher level of judicial technique. However, in light of the existing institutions and their practices, China’s judicial power is unique because the principle of judicial independence is not established in its operation.