COMPARATIVE LEGAL SYSTEMS Slideshow #1

1. COMPARATIVE LEGAL SYSTEMSSlideshow #1 Course 522 LLM KiLAWSpring2013 Dr Myra Williamson

2. Overview of this slideshow • Housekeeping • Attendance, location, website, Twitter, etc • Textbooks and readings • Teaching and learning • Course outline • Distribute & discuss • Introduction to Comparative Law

3. Housekeeping • Website: www.drmyrawilliamson.com/students • Twitter: @MyraWilliamson • Location: • Textbooks and readings • Zweigert and KotzAn Introduction to Comparative Law (Oxford University Press, 2011) • Schlesinger et al Comparative Law – Cases-Text-Materials (Foundation Press, 1998) • Bussani and Matei, The Cambridge Companion to Comparative Law • Texts mentioned in the course outline • There’s a good selection of books in the library – see “new arrivals” shelf for latest additions

4. Teaching and Learning Main ideas: • Lecture or seminar style • Learning outcomes • Student-centered leaning • The role of the lecturer: • “sage on the stage” v “guide on the side” • The role of the student: • active learners, life-long learners

5. The mind is not a vessel to be filled but a fire to be kindled • Plutarch (46-120AD) • Alternative translation: “For the mind does not require filling like a bottle, but rather, like wood, it only requires kindling to create in it an impulse to think independently and an ardent desire for the truth.” Source: 1927, Moralia by Plutarch, Volume 1 of the Loeb Classical Library edition, “De auditu” by Plutarch, (“On Listening to Lectures”), Webpage maintained by Bill Thayer as cited on http://quoteinvestigator.com/2013/03/28/mind-fire/#note-5808-3

6. Course outline • Please read the course outline • It contains important information including: • Course description • Learning outcomes • Assessment • Lecture schedule

7. Aims, method, history, who uses it? Introduction to Comparative Law

8. Introduction to Comparative Law • What is it? • In essence it involvesa comparison between two or more legal systems in one or more areas of law/one or more legal issues • Is it merely a method or is it a discipline or field of knowledge in its own right? • I think it is a method of inquiry – comparison – not a body of law in itself (e.g. compare “comparative law” with, say, “contract law” which has a standard body of laws, principles and cases) • Mainstream view: “the discipline consists of a comparison of the world’s legal systems or particular elements thereof in pursuit of a variety of academic and practical objectives” • Source: Zweigert and Kotz, Introduction to Comparative Law, cited in Bussani and Matei at 21-22

9. Practical benefits of comparative law – 1/3 • Zweigert and Kotz mention several aims of comparative law in their textbook: • 1. As an aid to the legislator: • When considering new laws or amending existing laws • But before adopting a foreign proposal, we should ask 2 questions: • Has it proved satisfactory in its country of origin and • Will it work in the country where it is proposed to adopt it? • 2. As a tool of construction • That is, when interpreting national rules when they are unclear or when there is a gap • But can a judge look at any other system or only systems that are similar to his/her own? • Some countries are more receptive than others: Courts in England, Australia, Canada and other commonwealth countries have long made reciprocal references to each other’s decisions • …

10. Benefits of comparative law…2/3 3. As a component of the curriculum of universities • Students can “learn to respect the special legal cultures of other peoples, and understand his own law better” • Its useful to the student in areas such as conflict of laws, interpretation of treaties, international adjudication, arbitration etc • Contributes to the ‘internationalization’ of legal life • It helps to show students that ‘the rule currently operative is only one of several possible solutions’

11. Benefits…3/3 4. As a contribution to the systematic unification of law • When unification is the goal, preparatory studies in comparative law are essential; without them one cannot discover the points of agreement or disagreement in the different legal systems • Unified law makes international business easier • This promotes greater legal stability and predictability • 5. The development of a private law common to the whole of Europe

12. Early Origins • Ancient Greece: • Plato (429-348 BCE) discussed the rules of several Greek and other city-states in the Laws • Aristotle (384-322 BCE) examined many legal structure in his Politics

13. Aristotle and Plato, sometimes called the ‘fathers’ of comparative law and politics “The School of Athens” by Raphael Image taken from University College London, Institute of Global Law, logo http://www.ucl.ac.uk/laws/global_law/

14. Origins continued… • Rome: jurists had a practical interest in foreign laws • The Romans created a special office (praetor peregrinus) in 242 BCE who supervised jurisdiction over disputes involving non-Romans • There was no real philosophical interest in studying foreign laws – it was a practical matter only – because Romans believed in the superiority of Roman law over foreign law

15. Origins – modern history • Comparative legal method dates back to around the 16th century • Russian scholars in the 16th century were engaged in comparative historical studies • Montesquieu (1689-1755) used comparative law to back-up his theories about natural law principles • Montesquieu’s most famous work on comparative law was De l’esprit des lois(1748) • He wrote about the need to ensure that the laws of each nation be adapted in a manner to suit the people for whom they were framed (see extracts)

16. Origins – 19th century • Important comparativists of more recent times include: • Sir Henry Maine (UK) (1822-1888) – looked at the parallels between the development of English common law and classical Roman law • John Henry Wigmore(US) (1863-1943) published A Panorama of the World’s Legal Systems in 1928 – it covered 16 historical and contemporary legal systems using pictorial method. • Wigmore had taught at a university in Tokyo then became dean of Northwestern University in the US.

17. Comparative law in Europe • Europe and the US have been the two strongholds of comparative law • 19th Century European congresses were concerned with improving legislation, facilitating codification, and recognizing foreign legal entities such as corporations and foreign legal acts such as judgments. • 1900 Paris International Congress of Comparative Law – the birthplace of modern comparative law? • Jurists supported comparative methods derived from the fields of history, sociology and anthropology, as well as so-called doctrinal legal science. • Read more: http://www.answers.com/topic/comparative-law#ixzz2Jc8ZUU8D • Note: emphasis was on comparing European laws with each other (non-European jurisdictions were largely ignored) and the focus was mainly on private law

18. Comparative law in the US • Pre WWI, there was activity in the US, eg, 1904 Universal Congress of Lawyers and Jurists • However, comparative law was largely made popular by Rudolf Schlesinger (1909-1996), a German lawyer who came to the US in 1938; graduated top of his class at Columbia in 1942 (only non-native English editor of the Columbia Law Review). He worked as a lawyer but joined Cornell Law School in 1948; later became professor of comparative law; later joined University of California, Hastings College of the Law • In 1950 he published Comparative Law: Cases-Texts-Materials which became THE standard text and which helped establish comparative law in US law schools. • It was really only after World War II that comparative law became a common part of US legal education in US law schools • In 1952 the American Association for the Comparative Study of Law (today the American Society of Comparative Law) began publishing the American Journal of Comparative Law. This is the leading journal in the field.

19. Comparative law today • The US and Europe remain as two regions where comparative law thrives today • Comparative law is taught at most US law schools; most have their own student-run comparative law journals • It’s also taught across European law schools • The EU still at the forefront, especially with its project on the harmonization of EU laws. • Common Core Project • See link on my website to an article by Ralf Michaels for more info on European comparative law

20. Comparative legal history Comparative Legal History

21. Comparative legal history…are you interested in this area? • Note that comparative legal history is a new but distinct field of scholarship with the field of comparative law • Sources/sites/blogs of interest include: • European Society for Comparative Legal History • http://esclh.blogspot.ieThis blog has excellent links to journals, conferences and other websites – check it out • Comparative Legal History: • http://www.hartjournals.co.uk/clh/ • http://comparativelegalhistory.wordpress.com • Interesting article by Michele Graziadei: http://www.jus.unitn.it/cardozo/Critica/Graziadei.htm

22. Purpose(s) of comparative law • What is the purpose of comparative law? What is the point? • To compare, to improve, to find similarities, to find differences • There is no consensus about the purpose (see Bussani and Mattei at 21ff) • Some purposes are: • To attain a deeper knowledge of the legal systems of the world • To perfect a particular legal system (ie. By seeing whether it can borrow, or transplant, ideas from another legal system) • To contribute to unification of legal systems on a large or small scale (eg see the UNDRIOT initiative)

23. Macro v micro • Macro-comparisons: comparing whole legal systems or a whole area of law • For example: comparative company law might compare company law in 2 jurisdictions • Micro-comparisons: comparing a specific issue or a specific problem across 2 or more legal systems • For example, ‘the postal acceptance rule’ compared in the UK and Kuwait • Whether the study is macro or micro, an understanding is needed of at least 2 legal systems but there is no maximum number

24. A point of debate: differences or similarities? • One point of debate in the discipline centres on whether comparative law should look for similarities (things in common across the legal systems) or differences? • Should comparative law be directed at harmonizing legal systems, to make them more like one another, or should it be aimed at discovering and understanding divergence and difference • If the latter, can we avoid saying that one system is ‘better’ than another – ie ‘self-centrism’ • Do we have to choose between the two extremes? • Schlesinger quote (see next slide) • What do you think?

25. Schlesinger on similarities v differences Schlesinger says ‘to compare means to observe and to explain similarities as well as differences’… the emphasis is sometimes on differences and at other times on similarities. He talks of periods of ‘contractive’, which he also calls ‘contrastive’, comparison with the emphasis on differences, alternating with periods of what might be called ‘integrative’ comparison, i.e., comparison placing the main accents on similarities. Thus Schlesinger contrasts ‘integrative comparative law’ with ‘contractive or contrastive comparative law’. His conclusion is that the future belongs to ‘integrative comparative law’. • Schlesinger as quoted in EsinÖrücüCritical Comparative Law: Considering Paradoxes for Legal Systems in Transition (available for download from a link on my website)

26. Who uses comparative law? • Judiciary • Legislature • Lawyers • NGOS • IGOs • Academics • Students • Judiciary: When researching and writing judgments, to see how other jurisdictions have solved a legal problem; to justify their decision • Legislature: when considering new laws; when amending existing ones; when harmonizing with other countries (eg EU, GCC) • Law Commission: when recommending changes to laws • Lawyers: when researching submissions • NGOs: when writing reports (eg Oxfam, Save the Children, Human Rights Watch, Amnesty International) • IGOs: when writing resports, when considering new laws (eg UN, EU) • Academics: when researching and writing papers

27. How do courts use comparative Law: some useful readings • David Seipp “Our Law, Their Law, History, and the Citation of Foreign Law” 86 Boston University Law Review 1417 (2006) • Thomas Allen and Bruce Anderson “The Use of Comparative Law by Common Law Judges” 23 Anglo-American Law Review 435 (1994)

28. Should a court take into consideration what a court in another jurisdiction is doing? • Should legal systems seek to learn from each other? • Is there anything that one legal system can learn from another? Or is each legal system unique and therefore has no need to take any notice of other legal systems? • Should judges consider other jurisdictions, and how they have solved a novel problem, when making a decision? • Video (3 mins): “Why US Law Should Learn From Foreign Precedents” • http://www.dailymotion.com/video/xggd2l_can-us-law-learn-from-foreign-precedent_news#.UQu8yaBnLlI • Questions: • Do Kuwaiti courts ‘learn from foreign precedents’? • Do Kuwaiti courts refer to the law in other jurisdictions? • What about the Kuwaiti legislature, when drafting new laws?