Andenas, Mads; Fairgrieve, Duncan --- "Intent on Making Mischief: Seven Ways of Using Comparative Law" [2012] ELECD 578; in Monateri, Giuseppe Pier (ed), "Methods of Comparative Law" (Edward Elgar Publishing, 2012)

Book Title: Methods of Comparative Law

Editor(s): Monateri, Giuseppe Pier

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849802529

Section: Chapter 2

Section Title: Intent on Making Mischief: Seven Ways of Using Comparative Law

Author(s): Andenas, Mads; Fairgrieve, Duncan

Number of pages: 36

Extract:

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 ...