Can We Compare Fictional Laws?

Johanna Fournier*

Abstract: The ever-growing law and literature movement covers a range of artistic works and research in this field can discuss about any area of law. Nevertheless, only few attempts have yet been made to look at law and literature from a comparative law perspective. With regard to so-called fictional law, this may seem understandable, as only in rare cases will the reader or viewer be presented with a word-by-word print of the written law or case law of a fictional world. Yet, some (earthly) lawyers did make the effort and published scientific articles or even whole books on the laws in Star Trek’s universe, the Hobbits’ Middle-earth, or Harry Potter’s wizarding world.

Hence, the question arises of what exactly is fictional law and how do we identify it? Can we compare it like any other domestic or foreign law? Do we even want to do that? As the name implies, the essence of comparative law is to compare the law of different jurisdictions with one another. This can be done on several levels, for various purposes and through different methods. Is fictional law enough of a law to bear such a comparison? Can it even add value to the process?

(2025) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

Introduction

Comparative law is a well-established area of law. As the name implies, the essence of comparative law is to compare the law of different jurisdictions with one another. The law and literature movement, however, is a more recent development, focussing on the intersection between laws and storytelling, most importantly by analysing depictions of legal aspects in books and other works of art. Furthermore, the notion of comparative law and literature is quite new, constituting a mash-up between these two fields of research. Finally, very little has been written on the idea of using fictional law as a unit of comparison.

With the aim of furthering the discussion of this idea, we will map the existing publications on fictional law and examine them from a comparative point of view: Did the authors, maybe even without realising it, not only contribute to research in the field of law and literature, but simultaneously also broaden the scope of comparative law?

In this paper, we will present the necessary methodological background which comparative law both offers and requires (see point I.) in order to then see to what extent and in what way fictional law can be subject to a comparative law analysis (see point II.). At the same time, this paper maps of currently existing publications on fictional law.

I. Comparative Law

Comparative methodology encompasses different aspects of how to compare laws. Within the scope of the present paper, the most important questions are for which purposes laws can be compared (see point 1.) and by using which methods (see point 2.).

1. Aim of Comparative Law

The most obvious aim of comparing laws or, for that matter, any other research or scientific activity, is to extend knowledge.[1] While there are different ways to compare, comparative law necessarily consists of at least two steps: First, assembling and presenting the information on the law in the examined jurisdictions, and second, comparing these laws by looking at similarities and differences.[2] Initially, we learn about how other jurisdictions deal with the same issue, thereby allowing us to broaden our knowledge about foreign law. Subsequently, in making the comparison, we may learn something about our own law, as the comparison with other jurisdictions provides us with a new perspective, perhaps even with surprising ideas and approaches. Hence, the outcome of the comparison itself has a value of its own as a very enriching and horizon-broadening gain of knowledge.

What can we then do with all the information which we have gained on foreign law and through our comparison? With the help of our comparison, we can identify similarities and differences in order to use this knowledge, for example, in relation to a law reform or when first considering how to regulate a specific issue. Furthermore, especially in the European context, we can use it to harmonise the laws of several countries.[3] It has also been suggested that comparative law can be used as a means of interpreting one’s own law, for example by the courts.[4] With this regard, comparative law has even been called the ‘fifth method of interpretation’, next to literal, systematic, historic and telos-, i.e. purpose-oriented interpretation.[5] This seems to be particularly noteworthy with regard to rules which are based on international or European law, and which also therefore have counterparts in other jurisdictions.[6] Adopting the interpretation of a particular rule in line with how this has been interpreted in other jurisdictions is in fact executing the rule’s raison d’être: harmonising the laws of different jurisdictions.

Comparative law can uncover approaches that a legislator had not thought of before; we can also learn and profit from our peers’ positive and negative experiences concerning the regulation of particular issues. This inspiration can be on both a small and a large scale. We can either choose to focus on a particular aspect of a legal question, such as, for example, adopting the same definition of a legal term or the same sanction for a violation of a certain rule as another jurisdiction. This approach can be a very useful way to learn from what our neighbours do well or what has not worked out on a small scale.

Alternatively, we can transpose a foreign set of rules or even an entire statute into our own legislation, which constitutes a so-called legal transplant. This term was introduced in the early 1970s and has become firmly established in discussing comparative methodology.[7] A more nuanced approach adds to this notion of transplanting an organ into another body also the procedure of placing a new carburettor in a car: while some transfers can be done easily (carburettor), others are more difficult and have a lower success rate (organ).[8] Sometimes it is a success, and the car will run smoothly with its new carburettor, sometimes the new host will reject the transplanted organ, even though there may be no apparent reason for this. Laws are deeply rooted in a society’s structure, mentality, and history. Sometimes the law follows the society’s evolution, sometimes it ties in with a minor movement and leads the way to change. In any event, the society as well as the existing legal framework have to be compatible with the transplanted statute, so that it can evolve from this one specific society that serves as the new host.

2. Method of Comparison

The most commonly used method in comparative law is the so-called functional method.[9] The functional method is built on the premise that every society basically faces the same problems and must find legal or other solutions to them. As a consequence, in order to compare different jurisdictions, we have to identify the actual underlying problem in which we are interested. We can then ask in what way and by which means this problem is being solved in other jurisdictions.[10] In a next step, we can go on by comparing the solutions we found for those jurisdictions and analyse where they differ and where they resemble each other. Finally, we can then look for reasons which explain the differences and similarities, for example that some jurisdictions have replicated, or, in other words, transplanted, a solution from another jurisdiction or that a solution has a particular historical, economic, societal, or other background.

Apart from the functional method, there are also other approaches that can be used for comparing laws. However, there is no clearly defined set of methods. One can identify several other approaches in addition to the functional method, such as, for example:[11] the structural method for macro-level comparisons on legal families;[12] the historical method taking particularly the historical evolution into account;[13] as well as the common-core method, which specifically aims at finding the common denominator in order to harmonise the laws of several jurisdictions.[14]

Furthermore, one can also list the so-called ‘law in context’-method,[15] even though it does not seem to be considered as an individual approach to comparative law that could be isolated from the other methods. Instead, it is explained that law in context and the other methods of comparative law[16] were ‘complementary and interdependent for an adequate understanding of the law’.[17] This applied most notably to the functional method which already used, by definition, law in context, as it asked how a certain societal problem was being solved. But even though it has been said that, ‘[a]ll legal scholars will agree that comparative research cannot be limited to pure black-letter comparison of legal rules, concepts or systems,’ the same author unfortunately does not want to go further than taking into account law in practice ‘as far as it transpires from judicial decision.’[18][19] We would argue that it is important to look beyond statute and case law for adding law in context to our research. Economic, historical, sociological, anthropological, psychological, religious, geographic, or other data[20] have been designated as invisible patterns[21] or legal formants,[22] meaning those factors which we explicitly mention and of which we are aware. Moreover, we must also consider the so-called cryptotypes,[23] which are factors that influence us even though we may not always be conscious of it. Some authors go even further and expect us to have gone through a total ‘immersion in the culture under review’ in order to be able to compare laws.[24] However, this requirement sets the bar too high, as it may lead to the loss of valuable innovative ideas which may benefit from a different way of thinking.

II. Law and Literature

The law and literature movement has its main origins in the 1970s in the United States (U.S.),[25] even though one can find earlier publications on this topic.[26] It was mainly created as a counterpart to the then popular orientation of law towards economics. The idea was to present a more idealistic point of view as contrast to the then prevailing focus on efficiency and costs, and to promote both the language and literary content of the law.[27] Initially, law and literature consisted basically of two parts, which are still predominant within the movement: law in literature and law as literature. Law in literature focusses on how law and lawyers are presented in literary works, notably in novels or plays. In most cases, the stories will include some link to law, for example in the form of legal proceedings that are part of the storyline or where the protagonist is a lawyer. Popular objects for such an analysis are works by writers that were also legally trained.[28] Law as literature, on the other hand, can, in a narrow sense, be defined as a closer look at the language used in legal texts. This could for example refer to judicial decisions written in rhyme,[29] but also to an analysis of the structure or the words chosen by a judge. In a broader sense, law and literature can cover many more aspects, especially with a view to how law is created, and which factors influence this process.[30]

Over the years, the scope of the law and literature movement broadened in both geography and content. Geographically, the movement extended to Europe, mainly through the founding of the European Network Law and Literature.[31] However, the movement still seems to be most popular in the U.S., where classes on law and literature are being given in many law schools. As to the content, the scope has been broadened and the term of law and literature now also covers a broader range of works of art, extending beyond literary works, most notably to movies and TV series, but also any other versions of the arts. Going through papers published in one of the movement’s main journals, Law & Literature, shows that artistic topics combined with law as diverse as art in general,[32] cinema,[33] photography,[34] music,[35] proverbs,[36] or street art,[37] to give just a few examples.

Although research in the field of law and literature can cover just about any area of law, only a few attempts[38] have been made until now to intertwine law and literature with comparative law. The present paper hopes to contribute to this recent mash-up of comparative ‘law ands’.[39]

In order to do so, we will focus on certain aspects of so-called fictional law, analysed from a comparative lawyer’s perspective. In this regard, the questions arise what fictional law actually is (see point 1.), why we might need it (see point 2.) and whether we can compare it (see point 3.).

1. What is Fictional Law?

What is fictional law, we might wonder?

There are many different ways of how we could mix law with the arts and having as a result something one might call ‘fictional law’. This paper uses a broad definition of the term ‘fictional law’ by including the laws of other worlds as well as those of imagined future, present or past times. In order to qualify as so-called fictional law, the regulations and legal institutions governing a story’s society must have been invented by the story’s author. Of course, the author can take their inspiration from our real world; the distinctive characteristic is that the author did not use existing present or past times including the laws then in force and placed their fictional story within this setting. Instead, they created at least the legal part of this setting on their own and adapted this to their narrative.

In most cases, this will mean that this fictional law is very fragmented. There may, of course, be exceptions: Just like J.R.R. Tolkien created a whole family of different Elvish languages as they were supposed to be spoken in the various regions and eras of his narratives,[40] an author could draft a complete set of laws and legal institutions and use this as a setting for their story. However, this will rarely be the case. Most fictional laws will be characterised by the fact that only a few indications of the governing legal system can be found within a narrative. If we look, for example, at the contract between the Little Mermaid and the Sea Witch, or the one between the Hobbit Bilbo Baggins and Thorin Oakenshield’s Company of Dwarves, we do not have the whole contract law of the respective worlds at our disposal and do not even know whether such a set of rules exists. We merely have one sample document and the surrounding context. This poses a particular challenge when working with fictional law, as we only have a few pieces of the puzzle and sometimes a vague idea of the bigger picture. Most pieces of the puzzle are missing, however.

A story set in a fictional world may contain references to law, either included deliberately by the author, or made without the author being aware of the legal implications. According to Jaakko Husa, fictional law can be seen as what he calls ‘imaginary legal transplants’. He uses the familiar notion of legal transplants[41] and applies this to fictional laws, arguing that this term is more accurate than speaking of fictional laws inspired by real laws.[42] Considering fictional law as a legal transplant is certainly an interesting approach. Husa gives as an example the so-called Wizengamot,[43] ie the Wizard Supreme Court in the Harry Potter books, for which the real-life Witenagemot from Anglo-Saxon times can be seen as a model.[44] One can easily think of other examples,[45] such as the Pirate Code which is repeatedly referred to in the Pirates of the Caribbean movie series:[46] Comparable pirate codes indeed existed in piracy’s golden age, although not exactly with the same rules as depicted in the movies.[47] With regard to these examples of the Witenagemot or pirate codes, it seems very fitting to compare them to legal transplants.

However, not all references to law or legal aspects lend themselves to such a comparison. The intent to create law seems crucial for a legal transplant, whether imaginary or not. Without this intent, narratives of a legal nature rather seem to qualify as the cryptotypes we mentioned earlier[48], as they are part of the author’s general storytelling inspired by both the real world and the author’s imagination. It still becomes part of the new fictional law system and plays no lesser role in it than laws or legal institutions which have been modelled intentionally on a real-life example; it simply does not fall into the category of imaginary legal transplants. Just like our real laws, it makes no difference whether the laws were copied from another jurisdiction or drafted from scratch: as long as they fulfil the conditions under national law, they become valid laws.

2. Why do We Need Fictional Law?

As a lawyer I wonder: Why do we need fictional law? What can we do with that?

It is clear that fictional law is not a necessity. One could instead see fictional law as coloured sprinkles on a cake. There are some cakes that simply do not go well with sprinkles, as there surely are topics or settings where fictional law does not really fit in. But decorating a good old chocolate cake with some coloured sprinkles makes the cake more appealing and gives us both the possibility and the challenge to become creative with the decorations. Similarly, working with fictional law and law in an alien setting is a creative and scientific challenge, a rather recent field of research and an educational tool. And, yes, it can also be good fun.

The number of existing fanwikis[49] and scientific publications on fictional law shows that there are many people who enjoy spending their private or also their professional time with fictional law. As such, research purely for the sake of curiosity and for the advancement of knowledge seems to me to be an important reason for taking a closer look at fictional law. Added to this, I consider there to be at least two further arguments as to why fictional law can be worth the effort.

First, fictional law can avoid finger-pointing. Especially dystopian science fiction stories as well as fantasy worlds inspired by our earthly medieval times may contain examples of harmful or inapt laws, meaning that they discriminate against certain groups of people, enable an imbalance of powers or fail to guarantee stability and security in certain circumstances. Surely, we can also find examples of harmful or ineffective real-life laws in force today as well as in the recent past, but we may not always want to point fingers at a specific jurisdiction. Alternatively, we may not want to cite real-life injustices by way of illustration, as we do not want to diminish the memory of those affected by the laws in question. Depending on the circumstances, a more thoughtful choice when talking eg about segregation, may be to refer to Marvel’s Superhuman Registration Act[50] rather than to real incidents; or to the court hearing against Harry Potter[51] when referring to unfair trials. Literature and the arts have always been an invaluable tool for criticising injustice and are therefore rich with examples.

Secondly, fictional law can represent a useful teaching tool. Students, or any other audience for that matter, may be more likely to pay attention if the topic relates to their personal interests. Instead of relying on self-invented cases or delving into existing case law, we can also analyse legal issues using examples from a fictional world.[52] As fictional stories have purposely been written to appeal to the reader or viewer, it can be simpler for a student to identify with a case’s protagonist, thereby encouraging their engagement in finding a solution to a given legal problem.[53] Contrariwise, observing a situation from the outside instead of using a case from our everyday life can help offer students the necessary distance for seeing things in a clearer and more objective way.[54] Furthermore, given that fictional law is very fragmented and often presented in a limited way, an analysis can focus more clearly on the legal issue in question, without the distraction of exceptions that may otherwise apply under a real law on the same topic. Conversely, the fragmentation of fictional law and the fictional settings in which it applies mean that many legal questions are not dealt with as part of storylines. That makes it possible to apply our own law to these very alien settings, to fill in the gaps in fictional law systems as part of a thought-experiment.[55] This exercise requires a thorough understanding of our own laws and, at the same time, creativity and the ability to find patterns and deeper meaning in certain rules.[56]

3. Can We Compare Fictional Law?

As a comparative lawyer I wonder: Can we compare fictional laws to other laws, whether they be real or fictional?

Mathias Siems answered this question by using his own matrix. In this, he listed 14 possible non-traditional units of comparative law, among which are the options ‘existing law and fictional law’ as well as ‘fictional laws’. He then marked whether it would be possible to apply seven different concepts of comparative law[57] to each of the 14 possible units and scored them on a points-based system.[58] Yet, Siems relativises the outcome of his analysis as possibly arbitrary, as one could not assume that all indicators were of the same importance. Moreover, he suggests taking a reverse approach: instead of testing whether traditional concepts can be applied to possible new units of comparison, he recommends choosing promising new units of comparison and then adding new concepts that could be a better fit for the respective units.[59] As a result, comparative law would be flexible and therefore strong enough to stay relevant on its own as well as in relation to other fields.[60]

When it comes to fictional law, I suggest distinguishing several different types of published research. For the purposes of this chapter, by mapping this research I identified three groups of publications.

3.1 Presenting

The first group of publications on fictional laws regards those in which the respective author has decided to collect information on the laws of a certain fictional legal system and to present and analyse this information.[61] These publications therefore collect and explain the presented laws just as a publication on any given foreign law would do. Even though this can be done by way of an in-depth analysis, this probably does not yet qualify as a comparison, but rather as the necessary preliminary stage of collecting information.

3.2 Comparing

The second type of publication on fictional laws regroups all those publications that entail comparisons of different laws according to which as we, as comparative lawyers, know them.

It seems that only a few publications have dealt with comparisons on the micro level between different fictional laws or between fictional laws and real laws. The reason for this is not that the different laws were inappropriate for comparison, but rather that the fractioned nature of fictional law means that there is unlikely to be sufficient congruent information on which a comparison may be based. In order to carry out such a comparison, the legal issue found in the story in question must be presented in some detail, and it would appear to be rare that two stories feature the exact same legal issue. If we take a look at the universe of Star Trek, for example, we can learn quite a lot about different legal systems. It will, however, be difficult to find information on exactly the same legal issue in these different legal systems. While through Star Trek: Deep Space Nine, we become familiar with the Ferengi contract and business law,[62] the available information on Cardassian law focuses on criminal law and criminal procedure law.[63] The respective storylines do not provide enough overlap between the different legal systems to permit a meaningful comparison, at least not on the micro level. Exceptions exist, of course,[64] but there seem to exist considerably more comparisons on the macro level, especially with regard to aspects of legal philosophy and the nature of law. These may notably regard the works of Tolkien,[65] the universes of Star Wars,[66] Star Trek,[67] or Marvel,[68] but also a variety of other works and worlds.[69]

3.3 Intertwining

Other than these classic comparisons, for want of a better term, one can find a range of publications on fictional law that do not really compare different legal systems, but which rather intertwine them. This can be done in various ways, a few of which I identify as follows:

a. Learning from Our Neighbours

Some publications mix alien settings with our real laws. This can be achieved by employing science fiction stories to showcase possible consequences of legal developments or the lack of new laws. The main focus is therefore on a certain aspect of the author’s respective domestic law, but using a fictional legal narrative to strengthen their argument. Referring to science fiction stories proves useful especially for scenarios that are, thankfully, not yet part of our own experience, such as with regard to human clones[70] or admixed embryos[71].[72] This is, in fact, comparable to considering our neighbours’ experiences with a new law in the course of our own legislative process.

b. Further Developing the Law

Another variation on the idea of intertwining alien settings and our domestic laws is to imagine that our law applies to these foreign acts and individuals and to decide the fictional case on the basis of our own law. This idea is particularly well suited to narratives set in our world, such as, for example, those about super-heroes;[73] they can also, however, be applied to other settings.[74] Even though this is in fact a mere application of our national law to a hypothetical case, the intersection between the different worlds constitutes a particular challenge and requires a new level of both abstracting the law and reducing the seemingly alien facts to their core values and meanings. This approach is comparable to applying our current law to new technologies and situations that the legislator did not have in mind when creating the law.

c. Transplanting Laws

The next step of this approach is to apply as far as possible the fictional law to such an alien setting and to only fill in the gaps within this fragmented fictional law with notions of our domestic law.[75] This exercise reveals the intertwining aspect as most visible, with parts of different laws braided together as part of a single legal system, much like a legal transplant.

d. Harmonising Laws

Other papers again present aspects of different fictional or real laws and use them as pieces of a puzzle: by placing these fragments of diverse laws next to each other, they create a bigger picture of a certain topic. The authors intertwine the different narratives alongside the different laws in order to fill the gaps that the single storylines would otherwise leave. Examples of this can be seen with the notion of contract law in Disney movies[76], or the characterisation of zombies and the rules which apply to them,[77] or Star Trek’s legal system.[78] This very much resembles the process of harmonising laws and building legal families.

III. Conclusion

So, how does fictional law fit within the scope of comparative law?

To a certain extent, fictional law can be treated just like any other foreign law and it can be compared to our own jurisdiction. We may be limited to specific questions of research, as we may not have enough information on the respective legal system. Yet, at the same time, the fragmented nature of fictional law also allows for us, when conducting a comparison, to focus on the core points and to not get distracted by challenges which often apply to real-life laws, in particular by the need to distinguish exceptions.

It is true that fictional law can be considered as trivial or irrelevant. But the fact that we are dealing with imaginary laws and worlds gives us the liberty to be more creative when dealing with lacunae in the examined legal systems. By intertwining different laws or legal narratives, we can learn about our own domestic law, about its strengths and shortcomings as well as about its structure, definitions and scope of application. While intertwining real and fictional laws and facts may seem odd at first glance, it is not that far away from the concepts of comparative law we are used to. Perhaps intertwining real and fictional laws or fictional laws among one another may be one of those new concepts which Siems suggested we should identify, so that the field of comparative law can remain flexible and strong – namely, in his words, ‘the Power of Comparative Law.’[79]

* LL.M. (Exeter/United Kingdom), Ph.D. (Bucerius Law School/Germany); Legal Adviser for German-speaking jurisdictions at the Swiss Institute of Comparative Law in Lausanne/Switzerland. I would like to thank Dr. Lukas Heckendorn Urscheler, LL.M., and John Curran, LL.M., as well as Prof. Dr. Gerhard Dannemann, MA, and the anonymous reviewers for their very helpful remarks.↑

  1. Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ [2015] Law and Method 1, 2; Patrick Glenn, ‘The Aims of Comparative Law’ in Jan M. Smits (ed), Elgar Encyclopedia of Comparative Law (2nd edn, Edward Elgar Publishing 2012) 65, 67; Ernst Rabel, ‘Aufgabe und Notwendigkeit der Rechtsvergleichung’ in Ernst Rabel (ed), Gesammelte Aufsätze Band 3: Arbeiten zur Rechtsvergleichung und zur Rechtsvereinheitlichung (J.C.B. Mohr 1967) 1, 6; Konrad Zweigert and Hein Kötz, Einführung in die Rechtsvergleichung (3rd edn, J.C.B. Mohr (Paul Siebeck) 1996) 3, who even went as far as to claim that research in comparative law was primarily purposeless (‘zweckfrei’). ↑
  2. Melinda Mills and others refer to ‘similarity and variance’ in ‘Comparative Research: Persistent Problems and Promising Solutions’ (2006) 21 Int’l Sociol. 619, 621 <http://euroac.ffri.hr/wp-content/uploads/2012/10/Comparative-Research_Problems-and-Solution.pdf> accessed 10 June 2025, cited by Vellah Kedogo Kigwiru, ‘Comparative Legal Research: A Brief Overview’ (AfronomicsLaw 25 January 2020) <https://www.afronomicslaw.org/2020/01/24/comparative-legal-research-a-brief-overview> accessed 10 June 2025. ↑
  3. Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ (2015) Law and Method 1, 2; Patrick Glenn, ‘The Aims of Comparative Law’ in Jan M. Smits (ed), Elgar Encyclopedia of Comparative Law (2nd edn, Edward Elgar Publishing 2012) 65, 67; Doris Forster, ‘Zur Methode des Rechtsvergleichs in der Rechtswissenschaft – On the Methods for Comparative Law Research in Legal Studies’ (2018) Ancilla Iuris 98, 101. ↑
  4. See for example Patrick Glenn, ‘The Aims of Comparative Law’ in Jan M. Smits (ed), Elgar Encyclopedia of Comparative Law (2nd edn, Edward Elgar Publishing 2012) 65, 69-70. ↑
  5. Peter Häberle introduced this term, see for example ‘Grundrechtsgeltung und Grundrechtsinterpretation im Verfassungsstaat — Zugleich zur Rechtsvergleichung als „fünfter“ Auslegungsmethode’ (1989) JuristenZeitung 913, 916-918. ↑
  6. Doris Forster, ‘Zur Methode des Rechtsvergleichs in der Rechtswissenschaft – On the Methods for Comparative Law Research in Legal Studies’ (2018) Ancilla Iuris 98, 103-104. ↑
  7. The term of ‘legal transplants’ is mainly ascribed to Alan Watson, who used it as a title for a book on comparative law, see Alan Watson, Legal Transplants: An Approach to Comparative Law (2nd edn, University of Georgia Press 1974). For a detailed analysis of the history of this term see John W. Cairns, ‘Watson, Walton, and the History of Legal Transplants’ (2013) 41 GJICL 637-638. ↑
  8. Otto Kahn-Freund, ‘On Uses and Misuses of Comparative Law’ (1974) 37 Mod. L. Rev. 1, 5-6. ↑
  9. The functional method became known through the book ‘Introduction to Comparative Law’ by Konrad Zweigert and Hein Kötz and is generally attributed to them. However, they do not seem to have been the first ones to develop a functional approach to comparative law: see Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ (2015) Law and Method 1, note 12. ↑
  10. Even more nuanced versions of this method of comparison differentiating between the functional-institutional approach on the one hand, and the problem-solving approach on the other has most notably been promoted by A. Esin Örücü, see for example A. Esin Örücü, ‘Methodology of Comparative Law’ in Jan M. Smits (ed), Elgar Encyclopedia of Comparative Law (2nd edn, Edward Elgar Publishing 2012) 560, 561-562. ↑
  11. The following is based on Mark Van Hoecke’s list of methods. ↑
  12. Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ (2015) Law and Method 1, 11-21. See Geoffrey Samuel, An Introduction to Comparative Law Theory and Method (Hart Publishing 2014) 81-84, 96-99 for more details on the structural method. ↑
  13. Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ (2015) Law and Method 1, 18-19. ↑
  14. Ibid 19-21. For more information on the study carried out at the Cornell University between 1957 and 1967 see for example Rodolfo Sacco, ‘Legal Formants: A Dynamic Approach to Comparative Law (Installment I of II)’ (1991) 39 AJCL 1, 27-30 or the complete study, published at Rudolf B. Schlesinger (ed), Formation of Contracts: A Study of the Common Core of Legal Systems (Oceana Publications 1968) Vol 1, 2. ↑
  15. Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ (2015) Law and Method 1, 16-18. Van Hoecke also states that the historical method is in fact part of the law-in-context method, see at 18. ↑
  16. Except perhaps for some of the studies using the analytical method, which aims at giving a broader perspective of a certain jurisdiction and therefore does not include as many societal aspects as law on the micro-level, see Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ (2015) Law and Method 1, 16. ↑
  17. Ibid. ↑
  18. However, it has to be noted that this last citation regards ‘domestic legal doctrine’ and not foreign law. ↑
  19. Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ (2015) Law and Method 1, 16; see also Edward J. Eberle, ‘The Methodology of Comparative Law’ (2011) 16 Roger Williams UL Rev 51, 52. ↑
  20. See for example A. Esin Örücü, ‘Methodology of Comparative Law’ in Jan M. Smits (ed), Elgar Encyclopedia of Comparative Law (2nd edn, Edward Elgar Publishing 2012) 560, 565; Edward J. Eberle, ‘The Methodology of Comparative Law’ (2011) 16 Roger Williams UL Rev 51, 52; Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ (2015) Law and Method 1, 16; David Nelken, ‘Legal Culture’ in Jan M. Smits (ed), Elgar Encyclopedia of Comparative Law (2nd edn, Edward Elgar Publishing 2012) 480, 485; Arnold F. Rusch, ‘Methoden und Ziele der Rechtsvergleichung’ (Jusletter, 13 February 2006) <https://jusletter.weblaw.ch/juslissues/2006/362/_4500.html__ONCE> accessed 10 June 2025. ↑
  21. Bernhard Grossfeld and Edward J. Eberle, ‘Patterns of Order in Comparative Law: Discovering and Decoding Invisible Powers’ (2003) 38 Tex Int’l LJ 291, 294. ↑
  22. Rodolfo Sacco, ‘Legal Formants: A Dynamic Approach to Comparative Law (Installment I of II)’ (1991) 39 AJCL 1, 30-32. ↑
  23. Rodolfo Sacco, ‘Legal Formants: A Dynamic Approach to Comparative Law (Installment II of II)’ (1991) 39 AJCL 343, 384-387. ↑
  24. Vivian Grosswald Curran, ‘Cultural Immersion, Difference and Categories in U.S. Comparative Law’ (1998) 46 AJCL 43, 51-54. ↑
  25. James Boyd White is considered to have started the movement with his book on The Legal Imagination, first published in 1973. See also James Boyd White, ‘The Cultural Background of The Legal Imagination’ in Austin Sarat and others (eds), Teaching Law and Literature (Modern Language Association of America 2011) 29, 31. ↑
  26. This regards most importantly Benjamin N. Cardozo, ‘Law and Literature’ (1925) 14 Yale Rev 699. ↑
  27. Edward Schramm, ‘Law and Literature’ (2007) Juristische Arbeitsblätter 581, 581. ↑
  28. In German, they are called ‘Dichterjuristen’, meaning ‘poet-lawyers’. ↑
  29. For examples of court decisions in rhymes see for example Jennifer Davis, ‘Poetic Decisions’ (In Custodia Legis, 30 April 2018) <https://blogs.loc.gov/law/2018/04/poetic-decisions/> accessed 10 June 2025 or Till Zimmermann, Scherz und Witz in der Jurisprudenz: Ein Handbuch des Rechtshumors als Festgabe für das juristische Publikum (Duncker & Humblot 2023) 109. ↑
  30. See for a more detailed definition Tonio Walter, ‘Recht und Literatur (Law and Literature)’ (Universität Regensburg) <https://www.uni-regensburg.de/rechtswissenschaft/strafrecht/walter/recht-und-literatur-law-and-literature-/index.html> accessed 10 June 2025. ↑
  31. See ‘European Network Law and Literature’ (Erasmus School of Law) <https://www.eur.nl/en/esl/research/our-research/international-collaboration/european-network-law-and-literature> accessed 6 January 2025 for more information. It was mainly Greta Olsen who introduced the topic of Law and Literature in Europe through her paper on ‘De-Americanizing Law and Literature Narratives: Opening Up the Story’ (2010) 22 Law & Lit. 338. She is also, together with Jeanne Gaakeer, co-founder of the European Network Law and Literature. ↑
  32. Joan Kee, ‘Why Art and Law?’ (2021) 33 Law & Lit. 347. ↑
  33. Conor Casey and David Kenny, ‘How Liberty Dies in a Galaxy Far, Far Away: Star Wars, Democratic Decay, and Weak Executives’ (2021) 33 Law & Lit. 221. ↑
  34. Michaela Fišerová, ‘Portrait and Mugshot: Metonymical Foundation of Photographic Genres’ (2023) 35 Law & Lit. 1. ↑
  35. Filippo Annunziata and Giorgio Fabio Colombo, ‘Opera and Law: Critical Notes’ (2021) 33 Law & Lit. 141. ↑
  36. José Manuel Pereiro Otero, ‘The Right to Not Cut Our Owne Throats with Our Tongues: Proverbial Roots of the Fifth Amendment’ (2023) 35 Law & Lit. 359. ↑
  37. Alison Young, ‘Cities in the City: Street Art, Enchantment, and the Urban Commons’ (2014) 26 Law & Lit. 145. ↑
  38. Most notably Jaakko Husa, ‘Comparative law, literature and imagination: 28 Transplanting law into works of fiction’ (2021) Maastricht J Eur & Comp L 371 and Interdisciplinary Comparative Law (Edward Elgar Publishing 2022) 75-113 <https://www.elgaronline.com/monochap/book/9781802209785/book-part-9781802209785-8.xml> accessed 10 June 2025; but also other authors mention the combination of comparative law and law and literature, for example Mathias Siems, ‘The Power of Comparative Law: What Types of Units can Comparative Law Compare’ (2019) 67 AJCL 861, 870-871, 880-883; Eric Achermann and Klaus Stierstorfer, ‘Squaring Law and Literature: Materiality – Comparativity – Constitutivity’ (2022) 34 Law & Lit. 1, 9-14; Eric Heinze, ‘The Literary Model in Comparative Law: Shakespeare, Corneille, Racine’ (2014) 9 JCL 17. ↑
  39. John C. Reitz, while also including law and literature in this term, John C. Reitz, ‘How to Do Comparative Law’ (1998) 46 AJCL 617, 627. ↑
  40. For more information, see for example Bettina Ene, ‘The Functional and Artistic Dimensions of Constructed Languages: From Esperanto to Na’vi, Klingon, and Tolkien’s Elvish Languages’ (2024) 28 Res & Sci Today 67, 71-73. ↑
  41. See above I.1. ↑
  42. Jaakko Husa, ‘Comparative law, literature and imagination: Transplanting law into works of fiction’ (2021) 28 Maastricht J Eur & Comp L 371, 381-382; Jaakko Husa, Interdisciplinary Comparative Law (Edward Elgar Publishing 2022) 88-89 <https://www.elgaronline.com/monochap/book/9781802209785/book-part-9781802209785-8.xml> accessed 10 June 2025. ↑
  43. Jaakko Husa, ‘Comparative law, literature and imagination: Transplanting law into works of fiction’ (2021) 28 Maastricht J Eur & Comp L 2021, 371, 386; Jaakko Husa, Interdisciplinary Comparative Law (Edward Elgar Publishing 2022) 94-95 <https://www.elgaronline.com/monochap/book/9781802209785/book-part-9781802209785-8.xml> accessed 10 June 2025. ↑
  44. Susan P. Liemer, ‘Bots and Gemots: Anglo-Saxon Legal references in Harry Potter’ in Jeffrey E. Thomas and Franklin G. Snyder (eds), The Law & Harry Potter (Carolina Academic Press 2010) 19, 19; Sarah Baldwin, ‘Witch Hunts among Witches: Anglo-Saxon Law, the Persecution of Witchcraft, and the Legal System in the Wizarding World of Harry Potter’ (2019) 50 Cumb L Rev 139, 151-152, 154-155. ↑
  45. For more examples see on Narnia: Kirk Ross, Lex Fantasticorum (Independently published 2017) 55-66, on the Shire: ibid 93-102, and on the Wizarding World of Harry Potter: ibid 165-174. ↑
  46. Reference to the Pirate Code is made in the first three movies: Pirates of the Caribbean: The Curse of the Black Pearl (2003) 37-38, 44, 83, 94 <https://assets.scriptslug.com/live/pdf/scripts/pirates-of-the-caribbean-the-curse-of-the-black-pearl-2003.pdf> accessed 10 June 2025 (unofficial script); Pirates of the Caribbean: Dead Man’s Chest (2006) 85 < https://assets.scriptslug.com/live/pdf/scripts/pirates-of-the-caribbean-dead-mans-chest-2006.pdf> accessed 10 June 2025 (unofficial script); Pirates of the Caribbean: At World’s End (2007) 9, 55, 89-90, 92 <https://assets.scriptslug.com/live/pdf/scripts/pirates-of-the-caribbean-at-worlds-end-2007.pdf> accessed 10 June 2025 (unofficial script). ↑
  47. David J. Bederman, ‘The Pirate Code’ (2008) 22 Emory Int’l L Rev 707, 713-719. ↑
  48. See above, I.2. ↑
  49. See for example a list of Harry Potter-related sites in Aaron Schwabach, ‘Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World’ (2006) 11 Roger Williams UL Rev 309, 310, note 4. ↑
  50. The comic book series Civil War consists of seven books, published by Marvel between July 2006 and January 2007. The plot around the Superhuman Registration Act has also been used as part of the Sokovia Accords in the movie Captain America: Civil War. There are several other examples of (planned) legal acts aimed at controlling superhuman powers, eg the Mutant Registration Act in different X-Men stories. ↑
  51. Kenneth Schneyer, ‘No Place to Stand: The Incoherent Legal World of J.K. Rowling’ (2008) Johnson & Wales University ScholarsArchive@JWU 12-13 <https://scholarsarchive.jwu.edu/cgi/viewcontent.cgi?article=1027&context=humanities_fac> accessed 10 June 2025. ↑
  52. Michael P. Scharf and Lawrence D. Robert, ‘The Interstellar Relations of the Federation: International Law and Star Trek – The Next Generation’ (1994) 25 U Tol L Rev 577, 580. ↑
  53. Thomas E. Simmons, ‘What Zombies can Teach Law Students: Popular Text Inclusion in Law and Literature’ (2015) 66 Mercer L Rev 729, 743. ↑
  54. See also Ellie Campbell and Antonia Eliason, ‘Teaching Law and Science Fiction at the University of Mississippi’ (2022) 52.1 SFRA Rev 165, 165-166 <https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=1529&context=faculty_publications> accessed 10 June 2025; Craig Newbery-Jones, ‘“The Changes that Face Us”: Science Fiction as (Public) Legal Education’ (2022) 4 L, Technol & Humans 137, 145-146 <https://lthj.qut.edu.au/article/view/2488> accessed 10 June 2025. ↑
  55. Mathias Siems, ‘The Power of Comparative Law: What Types of Units can Comparative Law Compare’ (2019) 67 AJCL 861, 871, referring to Maks Del Mar, ‘Thought Experiments in Law: Practice and Theory’ (The Junkyard, 7 July 2017) <https://junkyardofthemind.com/blog/2017/7/17/thought-experiments-in-law-practice-and-theory> accessed 10 June 2025. ↑
  56. This approach can for example be found in Johanna Fournier, ‘(Konzern-)Recht und Popkultur – Eine Rechtslücke in fiktionalem Recht: Ist Jadzia Dax aus Star Trek: Deep Space Nine eine Gesellschaft?’ (2023) Bonner Rechtsjournal 23 <https://www.bonner-rechtsjournal.de/fileadmin/pdf/Vorab/Fournier__Konzernrecht_und_Star_Trek.pdf> accessed 10 June 2025 or in the blogs by James Daily, Law and the Multiverse <https://lawandthemultiverse.com/> accessed 10 June 2025 and by Josh Gilliland and Jessica Mederson, The Legal Geeks <https://thelegalgeeks.com/> accessed 10 June 2025. ↑
  57. The concepts of comparative law he chose were as follows: a functional comparison; legal families; legal transplants & diffusion; foreign country & legal culture; sociolegal relations; law reforms by transplant; and possibility of unified rules. ↑
  58. Mathias Siems, ‘The Power of Comparative Law: What Types of Units can Comparative Law Compare?’ (2019) 67 AJCL 861, 881-882. The results for the 14 different units are: ‘different international laws same topic’ (6 points); ‘new and old law of different countries’ and ‘law and nonlaw of different countries’ (5.5 points); ‘local laws’ and ‘domestic and international law’ (5 points); ‘old laws of different countries’ (4.5 points); ‘private law making’ (4 points); ‘existing law and fictional law’ and ‘new and old laws of same country’ (3.5 points); ‘different international law different topic’ (3 points); ‘law and non-law same country’ and ‘different areas of law’ (2.5 points); ‘fictional laws’ and ‘foreign country implicit’ (2 points). ↑
  59. Mathias Siems, ‘The Power of Comparative Law: What Types of Units can Comparative Law Compare?’ (2019) 67 AJCL 861, 882-883. ↑
  60. Ibid 884. ↑
  61. See for example Robbert Coenmans, ‘Ankh-Morkporkian Law Review — Legal and Administrative responses to Technological Change’ (Medium, 18 May 2017) <https://medium.com/@robbertcoenmans/ankh-morkporkian-law-review-legal-and-administrative-responses-to-technological-change-628fd08c7104> accessed 10 June 2025; Kirk Ross, Lex Fantasticorum (Independently published 2017); Walt Disney, EGB – Entenhausener Gesetzbuch (Egmont Comic Collection 2022); Jeffrey E. Thomas and others, ‘Harry Potter, Law, and Culture: Harry Potter and the Law’ (2005) 12 Tex Wesleyan L Rev 427; Benjamin H. Barton, ‘Harry Potter and the Half-Crazed Bureaucracy’ (2006) 104 Mich L Rev 1523; William P. MacNeil, ‘“Kidlit” as “Law-And-Lit”: Harry Potter and the Scale of Justice’ (2013) 14 Law & Lit. 545; Kenneth Schneyer, ‘No Place to Stand: The Incoherent Legal World of J.K. Rowling’ (2008) Johnson & Wales University ScholarsArchive@JWU <https://scholarsarchive.jwu.edu/cgi/viewcontent.cgi?article=1027&context=humanities_fac> accessed 10 June 2025; Paul R. Joseph and Lynn E. Wolf, ‘The Law in Harry Potter: A System not even a Muggle Could Love’ (2003) 34 U Tol L Rev 193; Fabrice Defferrard, Le droit selon Star Trek (Mare & Martin 2015). ↑
  62. We know 52 out of the 289 Ferengi Rules of Acquisition, plus 13 unofficial rules, ‘Rules of Acquisition’ (Fandom) <https://memory-alpha.fandom.com/wiki/Rules_of_Acquisition> accessed 10 June 2025. ↑
  63. ‘Cardassian Law’ (Fandom) <https://memory-alpha.fandom.com/wiki/Cardassian_law> accessed 10 June 2025. ↑
  64. See for example Ivan Allegranti, ‘Literature and Law: Fairy Tales, Animated Cartoons and Property Law’ (2022) 27 Bialostockie Studia Prawnicze 7 or Thomas C. Wingfield, ‘Lillich on Interstellar Law: U.S. Naval Regulations, Star Trek, and the Use of Force in Space’ (2001) 46 SDL Rev 72; Timothy S. Hall, ‘IX. Magic and Contract: The Role of Intent’ (2005) 12 Tex Wesleyan L Rev 464; Sarah Baldwin, ‘Witch Hunts among Witches: Anglo-Saxon Law, the Persecution of Witchcraft, and the Legal System in the Wizarding World of Harry Potter’ (2019) 50 Cumb L Rev 139. ↑
  65. Charles Edward Andrew Lincoln IV, ‘A Literary Lens into Constitutional Interpretation and a Possible Synthesis of Natural and Positive Law: The Silmarillion’ (2019) 41 Mitchell Hamline LJ Pub Pol’y & Prac 101; István H. Szilagyi, ‘The Lord of the Rings: The Tale and the Unfolding Wisdom of Lawyers’ (2012) 53 Acta Juridica Hungarica 33. ↑
  66. Timothy D. Peters, ‘The Force as Law: Mythology, Ideology and Order in George Lucas’s Star Wars’ (2012) 36 Aust Fem LJ 125; Conor Casey and David Kenny, ‘How Liberty Dies in a Galaxy Far, Far Away: Star Wars, Democratic Decay, and Weak Executives’ (2021) 35 Law & Lit. 1. ↑
  67. Richard J. Peltz, ‘On a Wagon Train to Afghanistan: Limitations on Star Trek’s Prime Directive’ (2003) 25 U Ark Little Rock LJ 635; Arnaud Coutant, ‘Droit constitutionnel des exo-sociétés in Fabrice Defferrard (ed), Le droit saisi par la science-fiction (Mare & Martin 2016) 181. ↑
  68. Daniel Davison-Veccione, ‘How is the EU like the Marvel Universe? Legal Experientialism and Law as a Shared Universe’ (2018) 30 Law & Lit. 185. ↑
  69. Helen Hershkoff, ‘The Dick Whittington Story: Theories of Poor Relief, Social Ambition, and Possibilities for Class Transformation’ (2005) 12 Tex Wesleyan L Rev 67; Anthony Bradney, ‘It’s about Power: Law in the Fictional Setting of a Quaker Meeting and in the Everyday Reality of Buffy the Vampire Slayer’ (2006) 6 Issues in Legal Scholarship 8; Anthony Bradney, ‘For and Against the Law: “Buffy the Vampire Slayer”, “Angel” and the Academy’ (2011) 9 Ent & Sports LJ 1 <https://www.entsportslawjournal.com/article/id/803/> accessed 10 June 2025; Marco Mazzocca, ‘The Laws of Magic and the Magic of Laws: A Study of the Unbreakable Vow from Harry Potter and the Half-Blood Prince from a Legal and Ontological Perspective’ (2021) cognitio 1 <https://zenodo.org/records/4767583> accessed 10 June 2025. ↑
  70. Kieran Tranter and Bronwyn Statham, ‘Echo and Mirror: Clone Hysteria, Genetic Determinism and Star Trek Nemesis’ (2007) 3 LCH 361. ↑
  71. Mitchell Travis, ‘Making Space: Law and Science Fiction’ (2011) 23 Law & Lit. 241. ↑
  72. For a more detailed view on law and science fiction see also Bruce L. Rockwood, ‘New Possibilities’ (1999) 23 Leg Stud F 267; Kieran Tranter, Technical Legality: Law, Technology and Science Fiction (Griffith University 2010) <https://research-repository.griffith.edu.au/items/9b54b21a-d2ae-5433-8e75-60453609c19e> accessed 10 June 2025; Stefan Nicholas Vella, ‘Legal theory and Science Fiction: Law in the Eyes of Sci-Fi’ (Conference Paper 2015) <https://www.researchgate.net/publication/307122792_Legal_Theory_and_Science_Fiction_Law_in_the_Eyes_of_Sci-Fi> accessed 10 June 2025. An example for fantasy-related settings can be found in Scott Hershovitz, ‘Harry Potter and the Trouble with Tort Theory’ (2010) 63 Stan L Rev 67 or in Geoffrey Christopher Rapp, ‘Sirius Black: A Case Study in Actual Innocence’ in Jeffrey E. Thomas and Franklin G. Snyder (eds), The Law & Harry Potter (Carolina Academic Press 2010) 91, 98-100. ↑
  73. See for example James Daily, Law and the Multiverse <https://lawandthemultiverse.com/> accessed 10 June 2025. ↑
  74. See for example Josh Gilliland and Jessica Mederson, The Legal Geeks <https://thelegalgeeks.com/> accessed 10 June 2025; Scott Hershovitz, ‘Harry Potter and the Trouble with Tort Theory’ (2010) 63 Stan L Rev 67; Luis Gomez Romero, ‘Harry Potter contra el legalismo, o la magia republican del pluralism juridico’ (2014) 32 Revista Derecho del Estado 177; most of the contributions in Marine Ranouil and Nicolas Dissaux (eds), Il était une fois… analyse juridique des contes de fées (Dalloz 2018) as well as Raphaël Maurel, Le droit dans la saga Le seigneur des anneaux (Enrick B. éditions 2023). ↑
  75. See for example Johanna Fournier, ‘(Konzern-)Recht und Popkultur – Eine Rechtslücke in fiktionalem Recht: Ist Jadzia Dax aus Star Trek: Deep Space Nine eine Gesellschaft?’ (2023) Bonner Rechtsjournal 23 <https://www.bonner-rechtsjournal.de/fileadmin/pdf/Vorab/Fournier__Konzernrecht_und_Star_Trek.pdf> accessed 10 June 2025; Christina Krandick, ‘Mediation between Vernon & Petunia Dursley and Harry Potter’ (2012) 6 Am J Mediat 85. ↑
  76. Michael A. Baldassare, ‘Cruella de Vil, Hades, and Ursula the Sea-Witch: How Disney Films Teach our Children the Basics of Contract Law’ (2000) 48 Drake L Rev 333. ↑
  77. Adam S. Chodorow, ‘Death and Taxes and Zombies’ (2013) 98 Iowa L Rev 1207; Thomas E. Simmons, ‘What Zombies can Teach Law Students: Popular Text Inclusion in Law and Literature’ (2015) 66 Mercer L Rev 729. ↑
  78. Paul Joseph and Sharon Carton, ‘The Law of the Federation: Images of Law, Lawyers, and the Legal System in “Star Trek. The Next Generation”’ (1992) 24 U Tol L Rev 43, 43; Michael P. Scharf and Lawrence D. Robert, ‘The Interstellar Relations of the Federation: International Law and “Star Trek. The Next Generation”’ (1994) 25 U Tol L Rev 577. Other examples can be found in Randy Lee, ‘Fred Zacharias and a Lawyer’s Attempt to be Guided by Justice: Flying with Harry Potter and Understanding how Lawyers can Prosecute the People they Represent’ (2011) 48 San Diego L Rev 233; Aaron Schwabach, ‘Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World’ (2006) 11 Roger Williams UL Rev 309. ↑
  79. Mathias Siems, ‘The Power of Comparative Law: What Types of Units can Comparative Law Compare’ (2019) 67 AJCL 861, 863. ↑