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In their seminal textbook on comparative law, Zweigert/K??ttz distinguish comparing law on the macro and the micro level. Micro-comparisons are comparisons of the specific rules or institutes of a national body of law. Macro-comparisons on the other hand take into account such larger issues as different codification styles, principles of adjudication, interpretation and role of precedents, and so forth. Zweigert/K??tz also observe that one can’t sensibly be conducted without taking into account the other. Comparing the rules governing failure to perform properly under a contract will remain meaningless without a sense of the macro-principles of contractual interpretation, enforcement, and adjudication.
But things run even deeper. Contract remedies under US law cannot be understood without distinguishing common law and equity. The principle that only monetary damages are available at law is comprehensible only historically (despite the recent interest in the question of specific performance vs. monetary damages from the law-and-economics school of thought). I won’t cite Maitland, but the fact that the distinction between law and equity has been abolished both in England and the U.S. and yet is relevant today because it informs the thinking and rhetoric of contract lawyers, is vital to a comparison of common law and civil law systems.
Law and equity, monetary damages, specific performance and injunctive relief and their historic origins will all fall under the heading of macro-comparison in Zweigert/K??tz¨ƒ” model. But what I feel is left out is the most fundamental level of how law works. In practice, enforcement and decision by the courts is an ancillary process. Law is effective not because raw social interests collide and are adjudicated by a court according to legal principles and rules. First and foremost law is effective because the citizens and particularly the lawyers take legal rules into account in undertanding and conceptualizing conflicts of interest, in making decisions and in structuring their interaction. (Certainly one can argue this is a function of hypothetical and historical adjucation by the courts, but that is not what I am aiming at here.) On a fundamental level, law works by informing the way lawyers and citizens analyze and structure a problem or transaction. Certain arguments make sense and are considered convincing within a legal system. Those topoi or argumentative patterns are relevant because (despite the 19th-century European conviction to the contrary) law is not logical and deontic syllogisms do not have the force of scientific proof.
Another way of regarding this sub-level of the legal system is to consider such topoi and arguments the normative building blocks from which a legal system is constructed. What is a legal issue, a contract, a person, the state, in one legal universe or another? The interesting question to ask is: What will a U.S. lawyer regard as a sufficient argument? What will a French or a German lawyer regard as sufficient? And so forth. This sort of comparative project will naturally involve the macro level and even micro level, but with a view of explicating the different legal world-views.
More on this to follow.

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