Introduction
Building a ‘mental map’
Professor John Bell’s idea – Public/Private Law; Institutions/Practice; Legal
Research.
Bridging two ‘mental maps’ - grid 格框for reading and understanding a legal system
foreign legal system requires an interpretation of that system – a ‘rational
reconstruction’
Adopt an internal perspective to the extent possible (try to get as close as
you can to act like what a foreign lawyer would do)
Legal traditions
are traditions embedded within a culture and context.. Problem of
incommensurability (incapable of useful comparison). Justify the choice,
must be justifiable, compare its function.
Comparative law & who?
A method of Legal Inquiry. Long history – with ongoing influence, book
‘Montesquies: The spirit of the laws’. Significant growth of comparative legal
scholarship in recent decades
Knowledge of one’s legal system and other legal systems; New approaches to
legal problems; Legal consensus or best approach; International
harmonization; Transplantation (copying and pasting into a new system, but
not always works); Testing theories; Explanations and empirical 经验claims;
Advising your client.
Judges
- High Court of Australia, HC judges - Kirby looked at Indian law, rare situation,
most judges looked at western laws. Judges use law of the other countries to
strengthen their arguments. High court case discussed Canadian cases, quoted
it, agreed or rejected, used as part of their reasonings.
- Supreme Court of Canada, law review by Lorne Neudorf - ‘Taking
Comparative Law Seriously: Rethinking the Supreme Court of Canada’s Modern
Approach to Statutory Interpretation’.
Lawyers - law of different jurisdictions, each state of their own laws, use other
countries cases to present to the judges, and let them know how it went well.
Governments - South Australian Law Reform Institute, law review - use
comparative law every time, solving contracts law, treaties, because people in
different places.
Scholars AND International organisations (the United Nation, World Bank)
Study
clear comparative research question and purpose; primary and secondary
legal sources; case selection principles (4 - most similar/different/difficult cases
or prototypical 典型cases)
Sample size - One country (detail); Small-n studies (a small number of
countries, more countries more complicated. Book by Lorne Neudorf ‘The
Dynamics of Judical Independence – a comparative study of courts in Malaysia
and Pakistan’); Surveys and empirical studies (‘Economic Growth and Judicial
Independence, a Dozen Years On: Cross-Country Evidence Using an Updated Set
of Indicators’, p.23,Table 3: Judicial Independence and Economic Growth and
Table 4: Differences)
Comparative analysis
1
, ◦ Explain similarities and differences; Interdisciplinary 跨学科research and
context; Functionalism (different legal rules and context might be serving
the same function as we’ve seen in our own countries - judges making
autonomous decisions); Universalism (Principles that you cannot avoid
them - human rights).
Critical evaluation of the law (by what standard? Effective system?)
Suggestions for law reform (to achieve what? be like or not?)
Criticism - Methodological limitations 方法论限制; Lack of true understanding as an
outsider; Western selection bias, the ‘world series’ syndrome (Developing
countries are about 95%, why only look at a particular one or two developed
countries?)
Questions - when selecting countries
(Aim? research question? Why these countries? Too different/similar to make a
meaningful comparison? Too few or too many? Have access to sufficient primary and
secondary materials? Language? Local lawyer from the foreign jurisdiction agrees?
Does it matter? Audience? Are you mapping your preconceived 先入为主 notions of law onto
another country, looking for a rule that plays a similar function to one you are familiar
with? Bad or good? Expressly acknowledged? Role of history, context and culture play
in the similarities or differences. Domestic/foreign) law ‘right’ or ‘better’? What
standard are you using to evaluate this? Law reform? If so, method? Should we
generally strive for universal laws or encourage each society to develop its own
unique approach? Does this depend on the area of law?)
Class discussion
Your partner has asked you to quickly write a short memo summarising whether
Japanese law imposes an obligation of good faith on parties fulfilling their
contractual obligations.
How would you start your research? What are some of the questions you
would need to ask? What are some of the challenges that you would need to
overcome? What would the outline of your memo look like?
(Think about methodology, the law system? The articles? Codes? Civil law countries?
The judges don’t seem to make law, the judgment might be short. Outline both
countries. DOCUMENT Your methodology - when draft a memo, have a little section
state what you done and how you done it, because they might test you.)
2
, Culture, Transplants & Development
Traditional comparative law
Describe domestic and foreign law side-by-side, offer some explanation for
differences observed (focus on description and some basic examples)
Post-Modern Comparative Law
Law is embedded within complex societies, cannot be isolated from its
context
Context as essential to understanding foreign law (underlying cultural, reason
and explain similarities/differences)
Two critiques (Post Modern)
1 Cultural critique
st
Pierre Legrand – traditional approach is superficial and misleading
Engage with philosophical, anthropological, sociological, linguistic works
to understand how a community thinks about law
Each legal system is unique and represents an irreducible view of the world –
no law can be superior to other laws.不可约的观点if people are educated in one system, could
never understand another system.
Cannot understand a small part of a legal system like a specific rule in
isolation (wrong and irrelevant, need to understand why they think that way)
Responses to Pierre Legrand
◦ Takes comparative law away from lawyers – becomes domain of
philosophers, anthropologists, linguists (NO)
◦ No practical use for comparative law when we know there are real-world
applications - NO, everyday judges, lawyers use comparative law in a
meaningful way. Laws changing every day, everyone has partial
understanding of something.
◦ Intellectual enrichment from exchanging information - YES
◦ Can make normative judgements about law by reference to a value or
standard - be clear that the standard you are valuing
◦ Outsiders see something insiders don’t see - Useful
◦ Focused too heavily on difference and ignores similarities - YES
2nd Law as politics
American legal realist movement and critical legal studies – important
part of US/Canadian legal education
All law involves power and politics including statutes and judicial
decisions – embody policy preferences (they are empowering norms)
Judges have discretion and no such thing as “objective” lawmaking –
winners and losers (judges don’t make laws, only declare things that happening
in this common law world. Don’t see it is political dimension in Australia) (Liberal
means: Left-wing politics support social equality and egalitarianism, often in
opposition of social hierarchy - Douglas) (Conservative:保守) (Interesting to see the
judicia’s personalities.)
Different Approaches
1st Comparative jurisprudence (Ewald)
Focus on philosophical ideas, less on technical rules and doctrines
‘Cognitive structure’ of foreign law from leading thinkers (common law –
utilitarian)
2nd True culturalists (Grossfeld)
3
, Culture can explain all the variation in law across systems
‘Invisible forces’ like history, geography, religion (equity law), ideology
from non-legal sources (can do a little bit, but don’t forget we are lawyer)
But caution on using culture to explain everything, and the potential for
cultural relativism - uncomfortable critiquing other’s culture, (*Racial
Integrity Act of 1924 of Virginia, US - required the race to be recorded at
birth, and prevented marriage between "white persons" and ‘non-white’
persons. The most famous ban on miscegenation 通婚, and was overturned by the
Supreme Court in 1967 - Loving v Virginia.)
3rd Total immersion (Hyland)
Anti-functionalist – rethink everything and shed all pre-conceived notions of
law and systems
Bell offers a more pragmatic version with the insider’s view of the foreign
legal system
Try to reflect the perspective of a ‘typical internal lawyer’ but not reproduce his
or her way of explaining the law (because you need to translate it back to the
domestic audience in a way they will understand)
4th Legal pluralism 法律多元化more than one way
Look beyond formal laws and institutions - enforce religious rules, do it
through binding arbitration. Islamic?
The state does not have a monopoly on law: religion, custom, practices
may create accepted norms
How they mix with formal state law - can’t only look at state law of other
country.
Appreciate the stubborn pervasiveness of the ‘old way of doing things’
despite a change in the law - legal transplants
Challenge to identify these norms as a researcher
Legal Transplants
Moving the law of a donor jurisdiction and bringing it to a recipient jurisdiction
Reasons - Conquest or colonization (involuntary) (without consent.
England colonized countries, the recipient countries do not voluntarily accept
the transplants). Law seen as better (with consent, 2005 Chinese legislature,
based on United State – Laws related to shareholders’ rights, just like copy and
paste) (trust comes out of equity – originated common law, some countries
bringing trust by putting it in a section of the legislation). Donor country seen as
prestigious 声望高(like influencers, you just look up on them). Interests of elite
groups (wealthy people in the country, they do not like the Australian tax
system, they want American rules for them, those people have power to
influence). Legal harmonization (might create problem for transnational
dealings, 2005 – United States, change the time, and some other countries
follow and keep the rules harmonized). Soft influence (international
organisations) (the world bank – the money tide to law reform)
Different views:
◦ Can work as in the donor country. Irrelevant and are empty vessels
(culture, totally different – Legrand). Harm by disrupting domestic
culture (imposing your view on local culture). May work according to their
purpose if done properly (Australian Constitution framers, rejected the pure
British common law model, hybrid of British and US common law)
4
Building a ‘mental map’
Professor John Bell’s idea – Public/Private Law; Institutions/Practice; Legal
Research.
Bridging two ‘mental maps’ - grid 格框for reading and understanding a legal system
foreign legal system requires an interpretation of that system – a ‘rational
reconstruction’
Adopt an internal perspective to the extent possible (try to get as close as
you can to act like what a foreign lawyer would do)
Legal traditions
are traditions embedded within a culture and context.. Problem of
incommensurability (incapable of useful comparison). Justify the choice,
must be justifiable, compare its function.
Comparative law & who?
A method of Legal Inquiry. Long history – with ongoing influence, book
‘Montesquies: The spirit of the laws’. Significant growth of comparative legal
scholarship in recent decades
Knowledge of one’s legal system and other legal systems; New approaches to
legal problems; Legal consensus or best approach; International
harmonization; Transplantation (copying and pasting into a new system, but
not always works); Testing theories; Explanations and empirical 经验claims;
Advising your client.
Judges
- High Court of Australia, HC judges - Kirby looked at Indian law, rare situation,
most judges looked at western laws. Judges use law of the other countries to
strengthen their arguments. High court case discussed Canadian cases, quoted
it, agreed or rejected, used as part of their reasonings.
- Supreme Court of Canada, law review by Lorne Neudorf - ‘Taking
Comparative Law Seriously: Rethinking the Supreme Court of Canada’s Modern
Approach to Statutory Interpretation’.
Lawyers - law of different jurisdictions, each state of their own laws, use other
countries cases to present to the judges, and let them know how it went well.
Governments - South Australian Law Reform Institute, law review - use
comparative law every time, solving contracts law, treaties, because people in
different places.
Scholars AND International organisations (the United Nation, World Bank)
Study
clear comparative research question and purpose; primary and secondary
legal sources; case selection principles (4 - most similar/different/difficult cases
or prototypical 典型cases)
Sample size - One country (detail); Small-n studies (a small number of
countries, more countries more complicated. Book by Lorne Neudorf ‘The
Dynamics of Judical Independence – a comparative study of courts in Malaysia
and Pakistan’); Surveys and empirical studies (‘Economic Growth and Judicial
Independence, a Dozen Years On: Cross-Country Evidence Using an Updated Set
of Indicators’, p.23,Table 3: Judicial Independence and Economic Growth and
Table 4: Differences)
Comparative analysis
1
, ◦ Explain similarities and differences; Interdisciplinary 跨学科research and
context; Functionalism (different legal rules and context might be serving
the same function as we’ve seen in our own countries - judges making
autonomous decisions); Universalism (Principles that you cannot avoid
them - human rights).
Critical evaluation of the law (by what standard? Effective system?)
Suggestions for law reform (to achieve what? be like or not?)
Criticism - Methodological limitations 方法论限制; Lack of true understanding as an
outsider; Western selection bias, the ‘world series’ syndrome (Developing
countries are about 95%, why only look at a particular one or two developed
countries?)
Questions - when selecting countries
(Aim? research question? Why these countries? Too different/similar to make a
meaningful comparison? Too few or too many? Have access to sufficient primary and
secondary materials? Language? Local lawyer from the foreign jurisdiction agrees?
Does it matter? Audience? Are you mapping your preconceived 先入为主 notions of law onto
another country, looking for a rule that plays a similar function to one you are familiar
with? Bad or good? Expressly acknowledged? Role of history, context and culture play
in the similarities or differences. Domestic/foreign) law ‘right’ or ‘better’? What
standard are you using to evaluate this? Law reform? If so, method? Should we
generally strive for universal laws or encourage each society to develop its own
unique approach? Does this depend on the area of law?)
Class discussion
Your partner has asked you to quickly write a short memo summarising whether
Japanese law imposes an obligation of good faith on parties fulfilling their
contractual obligations.
How would you start your research? What are some of the questions you
would need to ask? What are some of the challenges that you would need to
overcome? What would the outline of your memo look like?
(Think about methodology, the law system? The articles? Codes? Civil law countries?
The judges don’t seem to make law, the judgment might be short. Outline both
countries. DOCUMENT Your methodology - when draft a memo, have a little section
state what you done and how you done it, because they might test you.)
2
, Culture, Transplants & Development
Traditional comparative law
Describe domestic and foreign law side-by-side, offer some explanation for
differences observed (focus on description and some basic examples)
Post-Modern Comparative Law
Law is embedded within complex societies, cannot be isolated from its
context
Context as essential to understanding foreign law (underlying cultural, reason
and explain similarities/differences)
Two critiques (Post Modern)
1 Cultural critique
st
Pierre Legrand – traditional approach is superficial and misleading
Engage with philosophical, anthropological, sociological, linguistic works
to understand how a community thinks about law
Each legal system is unique and represents an irreducible view of the world –
no law can be superior to other laws.不可约的观点if people are educated in one system, could
never understand another system.
Cannot understand a small part of a legal system like a specific rule in
isolation (wrong and irrelevant, need to understand why they think that way)
Responses to Pierre Legrand
◦ Takes comparative law away from lawyers – becomes domain of
philosophers, anthropologists, linguists (NO)
◦ No practical use for comparative law when we know there are real-world
applications - NO, everyday judges, lawyers use comparative law in a
meaningful way. Laws changing every day, everyone has partial
understanding of something.
◦ Intellectual enrichment from exchanging information - YES
◦ Can make normative judgements about law by reference to a value or
standard - be clear that the standard you are valuing
◦ Outsiders see something insiders don’t see - Useful
◦ Focused too heavily on difference and ignores similarities - YES
2nd Law as politics
American legal realist movement and critical legal studies – important
part of US/Canadian legal education
All law involves power and politics including statutes and judicial
decisions – embody policy preferences (they are empowering norms)
Judges have discretion and no such thing as “objective” lawmaking –
winners and losers (judges don’t make laws, only declare things that happening
in this common law world. Don’t see it is political dimension in Australia) (Liberal
means: Left-wing politics support social equality and egalitarianism, often in
opposition of social hierarchy - Douglas) (Conservative:保守) (Interesting to see the
judicia’s personalities.)
Different Approaches
1st Comparative jurisprudence (Ewald)
Focus on philosophical ideas, less on technical rules and doctrines
‘Cognitive structure’ of foreign law from leading thinkers (common law –
utilitarian)
2nd True culturalists (Grossfeld)
3
, Culture can explain all the variation in law across systems
‘Invisible forces’ like history, geography, religion (equity law), ideology
from non-legal sources (can do a little bit, but don’t forget we are lawyer)
But caution on using culture to explain everything, and the potential for
cultural relativism - uncomfortable critiquing other’s culture, (*Racial
Integrity Act of 1924 of Virginia, US - required the race to be recorded at
birth, and prevented marriage between "white persons" and ‘non-white’
persons. The most famous ban on miscegenation 通婚, and was overturned by the
Supreme Court in 1967 - Loving v Virginia.)
3rd Total immersion (Hyland)
Anti-functionalist – rethink everything and shed all pre-conceived notions of
law and systems
Bell offers a more pragmatic version with the insider’s view of the foreign
legal system
Try to reflect the perspective of a ‘typical internal lawyer’ but not reproduce his
or her way of explaining the law (because you need to translate it back to the
domestic audience in a way they will understand)
4th Legal pluralism 法律多元化more than one way
Look beyond formal laws and institutions - enforce religious rules, do it
through binding arbitration. Islamic?
The state does not have a monopoly on law: religion, custom, practices
may create accepted norms
How they mix with formal state law - can’t only look at state law of other
country.
Appreciate the stubborn pervasiveness of the ‘old way of doing things’
despite a change in the law - legal transplants
Challenge to identify these norms as a researcher
Legal Transplants
Moving the law of a donor jurisdiction and bringing it to a recipient jurisdiction
Reasons - Conquest or colonization (involuntary) (without consent.
England colonized countries, the recipient countries do not voluntarily accept
the transplants). Law seen as better (with consent, 2005 Chinese legislature,
based on United State – Laws related to shareholders’ rights, just like copy and
paste) (trust comes out of equity – originated common law, some countries
bringing trust by putting it in a section of the legislation). Donor country seen as
prestigious 声望高(like influencers, you just look up on them). Interests of elite
groups (wealthy people in the country, they do not like the Australian tax
system, they want American rules for them, those people have power to
influence). Legal harmonization (might create problem for transnational
dealings, 2005 – United States, change the time, and some other countries
follow and keep the rules harmonized). Soft influence (international
organisations) (the world bank – the money tide to law reform)
Different views:
◦ Can work as in the donor country. Irrelevant and are empty vessels
(culture, totally different – Legrand). Harm by disrupting domestic
culture (imposing your view on local culture). May work according to their
purpose if done properly (Australian Constitution framers, rejected the pure
British common law model, hybrid of British and US common law)
4
