Comparative Methodology in Law Sean Cooney

Possible applications of comparative law principles Examine law in another country to understand in its own right Examine law in another country to see if it would work in Australia Examine law in several countries to try to establish patterns or new theories e.g. European employee consultation mechanisms in Australia; US concepts of fair dealing e.g. tax law in France; Corporate governance in Japan Economic effects of common law Influence of Islamic law

Common questions What practical problems will I confront, given the different contexts of law? Is there a methodology that can help me? What is the role of culture, of economics? To what extent can I assume universals? (or is this Western bias etc.?) universal human rights? universal economic behaviour (rational choice)  How do I measure the effectiveness of the laws in the countries I compare? How do I deal with foreign language materials?

Is there a comparative law theory or methodology? There is no generally agreed or systematically elaborated comparative law methodology. However, there are some approaches that you may find helpful. While you need to be aware of them, to the extent that they are relevant, you need not be driven by them We look at some ‘grand theory’ later but first some more specific issues

Watch out for different constitutional structures … Even if countries appear very similar The jurisdiction of the US Supreme Court is not the same as that of the Australian High Court Australia has a unified common law, but the US does not – of major significance if examining cases

Watch out for categorising according to different legal ‘families’… It is obviously important to identity whether a legal system is common law, civil law or socialist BUT There are vary wide divergences within these categories Legislation in many civil law systems has been influenced by statutes derived from common law countries, and vice-verse There are many hybrids, and examples of legal pluralism The systems are dynamic

Watch out for ‘cultural’ arguments… Problem one: The explanation you have when you don’t have an explanation …cf ‘Reluctant litigant’ literature Kawashima: Japanese don’t litigate for cultural reasons Haley (cf Ramseyer): Institutional factors are very important in explaining litigation practices Problem two: what do you mean by culture? Legal philosophy? Religious ideas? Customs and social norms? Ideas about gender roles? Informal transactional practices?

Watch out for rational choice arguments… As Haley showed, using a rational actor perspective can be very illuminating But it does not follow that: Non-economic factors can be neglected Economic analysis should be the only touchstone for law reform – Problem of getting the context wrong and making inappropriate policy prescriptions Note work by Braithwaite and Drahos to show that US, EU and Japanese international legal models are suffused with self-interest

Watch out for application of universals… Most countries don’t comply with international human rights conventions Assessing whether a country complies can invite a ‘so what’ response Consider what a country can practically do to move closer towards compliance

Foreign language materials Treat translations with suspicion: Try to get official translations Don’t make two much of a particular word or phrase Be careful with secondary materials which don’t make use of primary language sources

Strategies to avoid pitfalls: you might want to… Limit yourself to a particular aspect of law, and to a particular contextual factor Regularly make qualifying statements If you’re looking at one country, take an internal historical perspective – what has changed If you’re looking to import to Australia, let the Australian needs and context drive the paper

Overview of comparative law approaches Post-war attempts at methodology Advocates of divergence: Philosophical, political anthropological and sociological approaches The transplant debate Some law and development Law and economics Harmonisation/legal modernisation attempts Frankenberg, Curran, Ewald, Geertz, Legrand, Peerenboom Legal historian: context is not important

Comparative law scholarship in the immediate post-WW2 period tended to believe in the possibility of a neutral point of comparison; looked towards the harmonisation of laws; were influenced by functionalism and based comparison on ‘functional equivalents’; developed the idea of ‘legal families’; recognised the importance of interdisciplinary work but did not develop a coherent framework for undertaking it.

1970’s: debate over “transplants” Between Kahn-Freund and Watson on connection between law and other social spheres -> KF claimed some laws were so bound to their society they could not be moved Watson – laws can be transferred to radically different societies: autonomy of legal system

Teubner’s reworking of Kahn-Freund (1) Reconceptualises issue of transplantability and context in terms of systems theory different social spheres KF is correct to say that some parts of the legal system are more tightly ‘coupled’ than others links between law and other social systems are increasingly fragmented But politics should not be given automatic primacy Cf Bourdieu on idea of ‘legal field’

Teubner’s social systems approach COUNTRY ONE COUNTRY TWO Technological systems Economic relations Social norms Political system Law Law Social norms Economic relations Technological systems Political system

Teubner’s reworking of Kahn-Freund (2) ‘Transplants’ might ‘fail’ because: a law is closely linked to a country’s economic system and the ‘recipient’ country’s economic system is different -> good faith concept law was not able to regulate another social system even in the home country

Teubner’s reworking of Kahn-Freund (3) A transplant might succeed if: the relevant social system is similar in both countries (e.g. medical technology) But in any case transplants will have unintended consequences Problem: Teubner’s analysis needs to be modified in relation to East Asia because the autonomy of the legal order cannot be taken for granted