Comparative Methodology in Law Sean Cooney

Comparative
Methodology in
Law
Sean Cooney
Possible applications of
comparative law principles
Examine law in
another country
to understand in
its own right
e.g. tax law in
France;
Corporate
governance in
Japan
Examine law in
another country to
see if it would
work in Australia
•e.g. European
employee
consultation
mechanisms in
Australia;
• US concepts of
fair dealing
Examine law in
several countries
to try to
establish
patterns or new
theories
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…

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As Haley showed, using a rational actor
perspective can be very illuminating
But it does not follow that:
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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…
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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…

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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
Some law and
development
Law and
economics
Harmonisation
/legal
modernisation
attempts
Advocates of
divergence:
The
transplant
debate
Philosophical,
political
anthropological
and sociological
approaches
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”
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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 KahnFreund (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
Technological
systems
Economic
relations
Political
system
Teubner’s reworking of KahnFreund (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 KahnFreund (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