Comparative Law Through the Lens of Historical Legal Knowledge

This post is derived from Roberto Scarciglia, A Short History of Comparative Law: From Ancient Times to the 21st Century (Edward Elgar 2026).

How important is knowledge of the history of law for a comparative legal scholar? What contribution have leading scholars made, in different historical periods and in the context of significant events, to the foundation of comparative law as a discipline? How important has the choice of methodological tools been in its development? What interest does the historian have in comparative legal analysis? These are questions that form part of the current academic debate on the rapprochement between two disciplines that have long been separate: comparative law and legal history. This debate highlights the need to re-examine the lexical and conceptual frameworks generated by the histories of nation-states belonging to the Western legal tradition – as well as the symbols that accompany them, and indeed the methods of investigation. Dynamics of cross-fertilisation require researchers to look beyond the indigenous life of the law, by tracing how law develops over time.

Comparative law and legal history: a necessary perspective or a ‘dangerous liaison’?

In their research, legal scholars – and, in particular, comparatists – analyse events whose distinctive and profound characteristics can only emerge through comparison with other historical events. This has prompted a debate about whether the comparative history of law and comparative law might merge into a single legal discipline: ‘comparative legal history’, as if they were two sides of the same coin. Although these fields can hardly be regarded as a single discipline at present, this does not preclude the possibility that a form of comparative law which is not merely descriptive and a history of law open to external perspectives might constitute an ideal combination for a more robust discipline. For some legal scholars, the merger of comparative law and legal history represents a necessary approach; for others, it could turn into a ‘dangerous relationship’ if there is no mutual expertise amongst scholars of the two disciplines.

The difficulty lies not only in developing a profound and mutual understanding of historical events relevant to comparison, but also in the impossibility of viewing history through the eyes of the present. By examining the past across different eras, one can appreciate how historiography can change over time. One need only consider Roman law, which has been studied using different methods that, as in the scientific disciplines, have undergone inevitable changes. Similarly, one might, for example, consider how the revolutionary programme launched at the end of the fifteenth century by humanist scholars studying antiquity was taken up and developed by jurists in subsequent centuries. Although comparative law and the comparative history of law may merge in the future, the two disciplines remain separate for the time being, particularly in the context of university teaching, where they serve different audiences.

Comparative legal studies and knowledge of history

With reference to different phases of history, the field of comparative law is inherently historical, and knowledge of comparative law itself cannot be separated from knowledge of its history. An issue that inevitably arises in the field of legal studies – and, in particular, in comparative analysis – concerns the role of historical knowledge in understanding the law. A classical higher education, complemented by courses in history and Roman law within law faculties, could enable those wishing to engage with comparative law to acquire the necessary foundational knowledge to engage with the realities of foreign legal systems. This knowledge can, of course, be further developed during subsequent post-doctoral training.

A comparative legal scholar who has followed this educational path might instinctively adopt the perspective of a historian, moving beyond any form of conceptualisation or classification, with freedom and without prejudice, whether studying domestic or foreign law. It is evident to the legal comparatist, as well as to the legal historian, that today, the interaction, imitation and hybridisation between models extend beyond ethnocentric perspectives and previously established geographical categories. They reach even the most remote corners of the globe, from which ideas and new research perspectives may emerge. Indeed, analysing another legal system through the lens of the Western legal tradition is very likely to produce a distorted representation of a given legal system, including through the ‘invention’ by comparative lawyers of legal models or categories that do not reflect how the system understands itself.

Comparative law beyond Western doctrine

With the aid of history, legal scholars may come to understand cultural categories and differences that transcend geography and the ‘ethnocentric’ perspective of Western law. This enables them to observe legal phenomena beyond established or deliberately biased narratives, both through diachronic analysis and by exploring lesser-known contexts. The study of legal and historical processes of transformation, including their dynamics and interconnections, requires an interplay between synchronic and diachronic analysis and interpretative approaches. This interplay closely draws on the knowledge and interpretative skills of historians, legal scholars, and comparatists.

Transcending the boundaries of one’s own legal system is undoubtedly a means of broadening one’s knowledge. It offers a unique perspective which can help scholars to grasp, above all, the historical differences between legal systems and the relativity of the interpretation of legal concepts. This also fosters an understanding of different legal cultures and traditions. The differences that emerge from comparative historical analysis beyond the boundaries of nation-states – ‘external legal history’ – may relate to successive stages in the development of legal systems, or to changes arising from opposing viewpoints that have remained latent within the societies under comparative study.

Recent research has examined in greater depth the interconnections between European history and that of other countries, as well as the different levels of normativity within legal systems belonging to non-Western legal traditions. From this perspective, the volume on the history of comparative law that has inspired these brief reflections has emerged from the dialogue and exchange between scholars from different countries and legal traditions. Their work has laid the foundations for a discipline still described as ‘weak’ (Legrand, 2022), i.e. one that renounces claims to a definitive knowledge of foreign law in favour of recognising its otherness, and that has yet to find a shared framework of reference.

Comparative methodology through the lens of history

The study of the history of law highlights the importance of methodology in analysing foreign legal systems, even though methodology is not a particularly favoured field among many comparative lawyers. However, if we consider comparative law as one of the methods for interpreting legal norms, we must ask ourselves how it enriches our understanding of the law and whether it is necessary to foster an approach that conceives of the legal discipline as open to historical, comparative and interdisciplinary perspectives. The development of such approaches also depends on the conceptual framework of legal reasoning and on a broader understanding of methodology.

Methodological choices may change over time to adapt to the analysis of legal institutions that intersect and evolve, including through the interpretation and application of foreign legal precedents by constitutional and supreme courts. From this perspective, the comparative lawyer could draw on historical-legal best practices to develop methodological reflections on the intersections and overlaps between comparative law and legal historiography, particularly in relation to approaches oriented towards differential comparativism. Differential comparativism replaces the presumption of similarity between legal systems with a presumption of difference. Its roots can be traced to the Renaissance, when humanists such as Guillaume Budé (c. 1468–1540) set French legal culture apart from Roman law rather than treating the two as equivalent.

In particular, the historical-comparative method can provide specific knowledge for legal comparison, by studying the diachronic evolution of the law, or parts thereof, within a legal system. The relationship between law and history is essential for understanding the origins and evolution of an institution, as well as for interpreting its structure within changing legal systems and traditions. The historical method should not be overlooked in any comparative research. Understanding a legal institution or rule belonging to another culture or legal tradition requires not only proficiency in the relevant language but also familiarity with its origins and its evolution or decline across different historical periods.

General paradigms from different disciplines could also be integrated, either through a framework of intelligibility – for example, the functional approach, which until recently was adopted almost exclusively in comparative research – or through other methods, within a framework of methodological pluralism, while at the same time valuing historical knowledge. Through the historical method, comparison can therefore help a legal scholar both to explore the origins and rationale of current law within the context of a legal tradition, and to show that similar rules or legal approaches existing in one legal system may once have been valid in another, whilst current law and doctrine have since evolved.

History and comparative legal thought: what legacy for young scholars?

The legacy left by the pioneers and masters of comparative law to younger scholars has been progressively enriched through communication, dialogue, and participation in epistemic communities. Although the new generations have distanced themselves from earlier studies and ideas, they retain those insights and inspirations as part of a cultural heritage that is essential to thinking about the future of comparative law and its relationship with the history of law.

This approach can inform the work of comparative lawyers, who must address the legal problems arising from new forms of hyper-globalisation, endless wars, virtually permanent states of emergency, the crisis in international law and contemporary neo-colonialism, as well as the call for a decolonisation of comparative law and its methodology. In tackling those challenges, the methodological and epistemological divisions within legal doctrine cannot be overlooked. Here, historical and cultural knowledge – and, above all, an awareness of the need for differential comparativism – can offer valuable support. This is grounded in the conviction that the framework of concepts and skills developed by the great comparatists across different eras and in various parts of the world will continue to evolve. A brief overview of the history of comparative law may therefore prove useful to those who are about to embark on their legal studies at university, armed with curiosity, an open mind, and a desire to learn not only about their own legal system but also about those of ‘Others’.

SUGGESTED CITATION: Roberto Scarciglia, ‘Comparative law through the lens of historical legal knowledge’, BACL Blog, 10 November 2026, https://british-association-comparative-law.org/2026/11/10/comparative-law-through-the-lens-of-historical-legal-knowledge/

LICENCE: This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International Licence (CC BY-SA 4.0).