Comparative Law (LAW 2508, 2022 semester 1)
Lecture 1-4 Notes
Lecture 1 - Introduction
Topics
Defining comparative law
Historical and contemporary comparative law
Who makes legal comparison and why
Case selection principles
Common methodologies
Criticism of comparative law
Required readings
Siems text
o Ch. 1 “Introduction”
o Ch. 2 “The Comparative Legal Method”
John Bell, “Legal Research and the Distinctiveness of Comparative Law”, in Mark van
Hoecke, ed., Methodologies of Legal Research: What Kind of Method for What Kind of
Discipline? (Hart, 2013)
Thinking about comparative law
Building a ‘mental map’
◦ ‘Mental map’ is our grid for reading and understanding a legal system
◦ Looking at a 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
◦ Legal systems are traditions embedded within a culture and context
◦ Problem of incommensurability like apple of orange, means incapable of useful comparison.
You only come to this conclusion when you have already compared them.
◦ Ask: what are you seeking to achieve from the comparison? Are the objects of the
comparison useful for that purpose why would I choose those countries?? Justify the choice,
must be justifiable? Compare to its function.
Defining comparative law
◦ Is it a substantive body of law? NO. outdated notion.
◦ Is it a method of legal enquiry? YES.
◦ Long history of comparative law – with ongoing influence Book, the top one comes up
◦ Significant growth of comparative legal scholarship in recent decades
Page 1 of 21
,Comparative Law (LAW 2508, 2022 semester 1)
Lecture 1-4 Notes
Who compares?
◦ Judges (e.g., the High Court of Australia high court judges, Supreme Court of Canada law
review done by the lecturer) High court case discussed Canadian cases, quoted it, agreed or
rejected, used as part of their reasonings. Kirby looked at Indian law, rare situation, most
judges looked at western laws. Judges use law of the other countries to strengthen their
arguments.
◦ 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 in that countries)
◦ Governments (e.g., SALRI) (LAW REVIEW: use comparative law every time) (solving contracts
law, treaties, because people in different places)
◦ Scholars
◦ International organisations
Why compare?
◦ Knowledge of one’s legal system and other legal systems
◦ New approaches to legal problems
◦ Legal consensus or best approach
◦ International harmonisation
◦ Transplantation (ie. Just like copying and pasting into a new system, but not always works)
◦ Testing theories, explanations and empirical claims (
◦ Advising your client
Carrying out a study
◦ Define a clear comparative research question and the purpose of the study have a clear
purpose
◦ Locating and using foreign primary and secondary legal sources
◦ Case selection principles (4 different ways)
◦ Most similar cases
◦ Most different cases
◦ Prototypical cases 原型
◦ Most difficult cases
◦ Sample size
◦ One country (detail)
◦ Small-n studies (a small number of countries, once you add more countries, it will be
more complicated)
◦ Surveys and empirical studies (judicial independence example, see below)
Page 2 of 21
, Comparative Law (LAW 2508, 2022 semester 1)
Lecture 1-4 Notes
◦ Comparative analysis
◦ Explain similarities and differences
◦ Interdisciplinary research and context
◦ Functionalism (different legal rules and context might be serving the same function
as we’ve seen in our own countries, ie. Judges making autonomous decisions)
◦ Universalism (there are principles, you cannot avoid them, i.e. human rights)
◦ Critical evaluation of the law (by what standard?) is it the effective system?
◦ Suggestions for law reform (to achieve what?) sometimes we say we should be like that
foreign countries. Or tell them what not to do, ie. Don’t be like America
Criticism of comparative law
◦ Methodological limitations
◦ Lack of true understanding as an outsider
◦ Western selection bias, the ‘world series’ syndrome (one or two countries, why call ‘world
series’??) (developing countries are about 95%, why only look at a particular one or two
developed countries?)
Questions to ask (think about these question when you are selecting countries)
What are you trying to get out of the comparison? What is your research question? Why were these
particular countries selected? Are they too different to make a meaningful comparison and answer
your research question? Too similar? Are there too few or too many? Do you have access to
sufficient primary and secondary materials to do a good job in answering the research question? In
a language you can read? Would a local lawyer from the foreign jurisdiction agree with how you
have described their law? Does it matter? Who is your audience? Are you mapping your
preconceived notions of law onto another country, looking for a rule that plays a similar function to
one you are familiar with? Is that bad or good? Have you expressly acknowledged it? What role
does history, context and culture play in the similarities or differences you observe? Is the (domestic
or foreign) law ‘right’ or ‘better’? What standard are you using to evaluate this? Should there be
law reform? If so, what should be done? 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
You are a junior lawyer working at a local firm. A partner in the firm was recently engaged by Hold-
On, an Australian car manufacturer, to provide legal advice with respect to a steel supply contract.
One of the preferred suppliers is based in Japan. While the partner plans to engage a Japanese firm
to provide advice on Japanese law, he has asked you to quickly write a short memo summarising
Page 3 of 21
Lecture 1-4 Notes
Lecture 1 - Introduction
Topics
Defining comparative law
Historical and contemporary comparative law
Who makes legal comparison and why
Case selection principles
Common methodologies
Criticism of comparative law
Required readings
Siems text
o Ch. 1 “Introduction”
o Ch. 2 “The Comparative Legal Method”
John Bell, “Legal Research and the Distinctiveness of Comparative Law”, in Mark van
Hoecke, ed., Methodologies of Legal Research: What Kind of Method for What Kind of
Discipline? (Hart, 2013)
Thinking about comparative law
Building a ‘mental map’
◦ ‘Mental map’ is our grid for reading and understanding a legal system
◦ Looking at a 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
◦ Legal systems are traditions embedded within a culture and context
◦ Problem of incommensurability like apple of orange, means incapable of useful comparison.
You only come to this conclusion when you have already compared them.
◦ Ask: what are you seeking to achieve from the comparison? Are the objects of the
comparison useful for that purpose why would I choose those countries?? Justify the choice,
must be justifiable? Compare to its function.
Defining comparative law
◦ Is it a substantive body of law? NO. outdated notion.
◦ Is it a method of legal enquiry? YES.
◦ Long history of comparative law – with ongoing influence Book, the top one comes up
◦ Significant growth of comparative legal scholarship in recent decades
Page 1 of 21
,Comparative Law (LAW 2508, 2022 semester 1)
Lecture 1-4 Notes
Who compares?
◦ Judges (e.g., the High Court of Australia high court judges, Supreme Court of Canada law
review done by the lecturer) High court case discussed Canadian cases, quoted it, agreed or
rejected, used as part of their reasonings. Kirby looked at Indian law, rare situation, most
judges looked at western laws. Judges use law of the other countries to strengthen their
arguments.
◦ 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 in that countries)
◦ Governments (e.g., SALRI) (LAW REVIEW: use comparative law every time) (solving contracts
law, treaties, because people in different places)
◦ Scholars
◦ International organisations
Why compare?
◦ Knowledge of one’s legal system and other legal systems
◦ New approaches to legal problems
◦ Legal consensus or best approach
◦ International harmonisation
◦ Transplantation (ie. Just like copying and pasting into a new system, but not always works)
◦ Testing theories, explanations and empirical claims (
◦ Advising your client
Carrying out a study
◦ Define a clear comparative research question and the purpose of the study have a clear
purpose
◦ Locating and using foreign primary and secondary legal sources
◦ Case selection principles (4 different ways)
◦ Most similar cases
◦ Most different cases
◦ Prototypical cases 原型
◦ Most difficult cases
◦ Sample size
◦ One country (detail)
◦ Small-n studies (a small number of countries, once you add more countries, it will be
more complicated)
◦ Surveys and empirical studies (judicial independence example, see below)
Page 2 of 21
, Comparative Law (LAW 2508, 2022 semester 1)
Lecture 1-4 Notes
◦ Comparative analysis
◦ Explain similarities and differences
◦ Interdisciplinary research and context
◦ Functionalism (different legal rules and context might be serving the same function
as we’ve seen in our own countries, ie. Judges making autonomous decisions)
◦ Universalism (there are principles, you cannot avoid them, i.e. human rights)
◦ Critical evaluation of the law (by what standard?) is it the effective system?
◦ Suggestions for law reform (to achieve what?) sometimes we say we should be like that
foreign countries. Or tell them what not to do, ie. Don’t be like America
Criticism of comparative law
◦ Methodological limitations
◦ Lack of true understanding as an outsider
◦ Western selection bias, the ‘world series’ syndrome (one or two countries, why call ‘world
series’??) (developing countries are about 95%, why only look at a particular one or two
developed countries?)
Questions to ask (think about these question when you are selecting countries)
What are you trying to get out of the comparison? What is your research question? Why were these
particular countries selected? Are they too different to make a meaningful comparison and answer
your research question? Too similar? Are there too few or too many? Do you have access to
sufficient primary and secondary materials to do a good job in answering the research question? In
a language you can read? Would a local lawyer from the foreign jurisdiction agree with how you
have described their law? Does it matter? Who is your audience? Are you mapping your
preconceived notions of law onto another country, looking for a rule that plays a similar function to
one you are familiar with? Is that bad or good? Have you expressly acknowledged it? What role
does history, context and culture play in the similarities or differences you observe? Is the (domestic
or foreign) law ‘right’ or ‘better’? What standard are you using to evaluate this? Should there be
law reform? If so, what should be done? 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
You are a junior lawyer working at a local firm. A partner in the firm was recently engaged by Hold-
On, an Australian car manufacturer, to provide legal advice with respect to a steel supply contract.
One of the preferred suppliers is based in Japan. While the partner plans to engage a Japanese firm
to provide advice on Japanese law, he has asked you to quickly write a short memo summarising
Page 3 of 21
