1. Comparative Methodology in Law
Sean Cooney

2. 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

3. 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?

4. 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

5. 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

6. 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

7. 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?

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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.

14. 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

15. 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’

16. 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

17. 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

18. 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