Zurich, 02 October 2026
Prof. Dr. jur. Dr. rer. pol. h.c. Carl Baudenbacher, Partner
Comparative law is not an academic luxury for lawyers, courts and legislatures. It is a practical method for finding better solutions to real conflicts. Its value does not lie in adopting foreign rules, but in making different answers to comparable problems visible and useful for one’s own legal system.
The Functional Method of Comparative Law
The functional method does not begin by comparing concepts, statutory texts or doctrinal categories. Its starting point is a practical problem:
- a failed contract,
- harmful conduct,
- misleading information,
- price-fixing,
- or the question when the separate legal personality of a company may exceptionally be disregarded.
The next question is how different legal systems solve that problem. One system may rely on codification, another on judge-made law, a third on market mechanisms or private ordering. Comparative law is therefore not a juxtaposition of rules, but a comparison of practical solutions.
The doctrine of disregarding corporate personality illustrates this point. In Anglo-American law it is discussed as piercing the corporate veil; in Swiss law it is explained through good faith, abuse of rights and economic reality.
The functional question is always the same: when should the separation between company and shareholder no longer be respected? This way of thinking follows Ernst Rabel as well as Konrad Zweigert and Hein Kötz: legal systems are compared according to how they deal with similar practical problems.
Switzerland as a Laboratory for Comparative Law
Switzerland is particularly receptive to comparative law. The Swiss Civil Code and the Code of Obligations emerged from a critical engagement with European legal systems. Their concise codifications, open general clauses and durable concepts such as good faith, abuse of rights, diligence and reasonableness require evaluative concretisation. Article 1 of the Civil Code expressly instructs courts, where there is a gap, to apply the rule they would make as legislatures. Comparative law provides essential material for that task.
Switzerland’s structure reinforces this openness: it is a small, multilingual country situated between German, French and Italian legal traditions. Comparative lawyers must therefore know not only foreign solutions but also the language in which they are expressed. Concepts, values and institutional contexts can rarely be fully translated.
The Swiss Federal Supreme Court does not decide from within a closed national dogmatic system. It considers when foreign, European or non-European solutions are helpful and when Swiss autonomy should prevail. Examples include the Swiss reception of the Business Judgment Rule, the restrained review of board decisions, and the Product Liability Act, which autonomously follows EU law. Swiss law remains independent, yet methodologically connected.
Common Law, Roman Law and Procedure
Common law is especially important because it is strongly shaped by cases, markets, procedure and judicial reasoning. In company and capital-market law, fiduciary duties, disclosure, shareholder value and the Business Judgment Rule have had worldwide influence. In contract law, clauses such as representations and warranties, indemnities and material adverse change show how Anglo-American drafting techniques also shape continental contracts.
Classic cases illustrate the method:
- Hadley v Baxendale limits contractual liability through foreseeability;
- Fiona Trust stands for an arbitration-friendly interpretation of arbitration clauses;
- Fairchild shows how courts may address causation normatively where scientific certainty is lacking.
Even standard figures such as the man on the Clapham omnibus show that courts often concretise abstract standards of care and expectation through realistic points of comparison.
Roman law, by contrast, reminds us that many fundamental questions of private law arise from markets, exchange, ownership, credit, sale and liability. Its maxims are not binding authorities, but topoi: they identify typical conflicts and allocations of risk. Comparative law uses such formulas not out of reverence for history, but because of their argumentative force.
Education and Persuasion
At Swiss universities, comparative law often does not receive the weight its practical importance deserves. It is frequently treated as an addition to national doctrine rather than as a continuous legal method. That is unsatisfactory. A small, multilingual and internationally connected legal system needs lawyers who can fill gaps, concretise general clauses and critically assess foreign solutions.
Legal work is not mechanical rule-application but argumentation. The substance of law is text; yet text alone does not decide. Hermeneutics, topics, economic analysis, European and American models, and different views of human conduct may all serve as persuasive authority. What matters is not the accumulation of foreign materials, but the clear articulation of the legal question, the conflicting interests and the most convincing solution.
Legal Export through Quality
Legal export takes place through legislation, case law, market standards and institutional models. The EU now has an impact through data protection, product safety and digital regulation; the United States, England, Germany and France shape contract models, constitutional law, administrative law and private law worldwide.
Switzerland exports less through power than through quality. The reception of the Swiss Civil Code and Code of Obligations in Turkey in 1926 shows why Swiss law was transferable: it combined modernity, clarity, doctrinal sophistication and practical brevity.
Swiss law continues to have influence today in arbitration, private law, good faith, abuse of rights, Article 1 of the Civil Code, direct democracy, federalism and multilingual legal order. It does not export power-based solutions, but a culture of problem-solving that convinces through concision, stability, practicality and sound reasoning.
Conclusion
Comparative law is strongest where it reveals the conflict situation behind legal rules. It asks:
- which interests collide,
- which solutions different legal systems offer,
- and which answer is most convincing within one’s own law.
For lawyers, courts and legislatures, it is therefore a practical method for achieving better solutions.
