New Issue: Asian Journal of Comparative Law (No. 1, Vol. 3, 2008)

Publication of the latest issue (No. 1 of Vol. 3, 2008) of the Asian Journal of Comparative Law was announced last week by BePress. All papers can be downloaded here. The issue has contributions on:

-The death penalty in Korea (Kuk Cho)
-China's abnormal sex ratio and gender equality (Liang Ying Tan)
-Religious liberty in Indonesia and 'deviant' sects (alfitri)
-Shari'ah and state law in Aceh, Indonesia (Hasnil Basri Siregar)
-Ideology, law and dispute resolution in Brunei (Ann Black)
-Public interest litigation and human rights: India and Australia (C. Forster & V. Jivan)
-Data protection in APEC's privacy framework (Johanna Tan)
-China, India and WTO law (Julia Ya Quin)
-The role of government in China (Vivienne Bath)
-Universal human dignity in the Asian context (Man Yee Karen Lee)

Subscribe to AJCL electronic updates here.

New Papers: Jan Smits on European Private Law

Professor Jan Smits (Tilburg University and the new Tilburg Institute of Comparative and Transnational Law, TICOM) has posted several new papers in the area of European Private Law on SSRN:

Jan M. Smits, 'A European Law on Unjustified Enrichment? A Critical View of the Law of Restitution in the Draft Common Frame of Reference (CFR)' (forthcoming in: EUROPEAN PRIVATE LAW BEYOND THE CFR, Antoni Vaquer, ed., Tilburg, 2008). Download here. This is the abstract:

This contribution discusses the European principles on unjustified enrichment as recently published in the Draft Common Frame of Reference (2007). These principles (or rather: model rules) were drafted with a view to the improvement and elaboration of the present European acquis in the field of private law. This contribution considers not so much the substantive details of the new model rules, but more the need for and the function of drafting principles in this area of the law. This is a legitimate approach as the law of restitution is traditionally not a core area of European legislative intervention. It is concluded that, in view of the multilevel regulation of European private law, enrichment law is better regulated at the national level than at the European one.

Jan M. Smits, 'Law Making in the European Union: On Globalization and Contract Law in Divergent Legal Cultures' (67 Louisiana Law Review, 1181-1203 (2007)). Download here. This is the abstract:

An important problem of law making in a globalizing world is how to deal with diverging national legal cultures. Since the emergence of the nation-state, law making has primarily been a task for the national legislatures and courts. They `make' law for relatively homogeneous societies that are usually characterized by a common language and culture. As a result of increasing globalization, this is now rapidly changing. If the law is to retain its role of regulating society (be it no longer a national, but a global one), new ways of making and enforcing law have to be found. This article offers an account of how to deal with some questions caused by increasing globalization in the field of private law. This account is not a general and theoretical one, but one that is based on the experience of the European Union (EU) in the field of contract law. European contract law is thus used as paradigmatic for globalisation and private law as a whole. There is every reason to do so: the European Union has wide experience with making law for diverging jurisdictions. In addition to this, contract law can be considered one of the most important vehicles for globalization as it facilitates economic transactions.

Jan M. Smits, 'Convergence of Private Law in Europe: Towards a New Ius Commune?' (in: COMPARATIVE LAW: A HANDBOOK, Esin Örücü & David Nelken, eds., pp. 219-240, Oxford: Hart Publishing, 2007). Download here. This is the abstract:

This contribution - a chapter in a well-known textbook on comparative law - discusses several of the questions which the emergence of a European private law raises. First, attention is paid to the need for convergence of private law: what are the reasons usually given for harmonising or unifying private law and are these reasons in any way convincing? Secondly, the question is raised how convergence of private law takes place at present. Thus, unification by treaties and harmonisation through Directives are discussed, together with the far-ranging idea of creating a European civil code. A third question is whether convergence of private law is at all possible. Some have argued that the differences among the 28 private law systems we have in Europe (27 national systems and Scots law) are too large to come to any real convergence. Finally, various other methods to reach (further) convergence of private law in Europe will be considered. Should the European Union continue with the present harmonisation process by issuing European directives or should other methods (also) be used to reach more convergence of law? For instance, such wide-ranging pleas have been made for promoting a European legal science and education and for convergence of law through competition of legal systems.

Keep an eye out also for the new Tilburg Institute of Comparative and Transnational Law - TICOM Research Paper Series on SSRN.

Eberle on Equality in Germany and the United States

Professor Edward Eberle (Roger Williams U) has posted 'Equality in Germany and the United States' on the BePress NellCo Repository (Roger Williams University School of Law Faculty Papers, Paper 19). Download the paper here.

Fauvarque-Cosson's lecture on "The Rise of Comparative Law" (with Comments by Mathias Siems and CompLawBlog)

Professor Bénédicte Fauvarque-Cosson (Paris II) has delivered the 7th annual 'Walter van Gerven' Lecture, entitled "The Rise of Comparative Law: a Challenge for Legal Education in Europe". The lecture has been published by Europa Law Publishers (a publication noted earlier on EU Law Blog).

This is from the book's back cover:

"Over the past years, academics have reacquired a significant role in the European law-making process. A truly European legal research, based on various networks has developed. This Lecture examines the discrepancy between, on the one hand, the rise of European and comparative law, and, on the other hand, the limited means allocated to the supranational education of future jurists. Legal insularity is no longer an option. Comparative law should therefore no longer be regarded as a purely academic and optional discipline but as an effective way to lead professors, judges and legislators out of national legal isolation. Moreover, the strength and durability of a truly European legal thinking depends largely on the comparative dimension of education".

ComparativeLawBlog has asked Dr. Mathias Siems (Edinburgh), author of the recent article "The End of Comparative Law" (JCL 2007, 133-150), to give a short comment on professor Fauvarque-Cosson's elegant and provocative essay, which he has been kind enough to do. Immediately below his reply, I've added a few thoughts of my own.

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This is what Mathias Siems wrote:

Fauvarque-Cosson’s lecture on the rise of comparative law provides a clear and an interesting discussion on the role of comparative law in contemporary legal scholarship and teaching. In many respects I agree with Fauvarque-Cosson. However, in two important respects I feel free to disagree.

First, this concerns the statement that – as a matter of fact – we can now observe “the rise (or renaissance) of comparative law”. In one of my pieces, of course, I stated that the early 21st century is seeing the decline or maybe even “the end of comparative law”. In Fauvarque-Cosson’s lecture there are, for instance, the claims that “comparative law is increasingly praised as an effective way to lead out of national isolation”, that “legislators seek inspiration from foreign or international modes” and that “judges and arbitrators use comparative law as a device to justify their decision”. However, there is no evidence provided that this is indeed the case. In contrast to this, my article does provide some evidence that in reality comparative law often plays only a marginal role. Eventually, this is also conceded by Fauvarque-Cosson. For instance, she too states that “the standing of comparative law is still rather modest”, that “the study of national legislation still remains the core of French legal education” (and I would to add that this is similar in most, if not all, European countries) and that the “members of various European networks (…) only constitute a minority”. So, we should really not confuse “is” and “ought”. Let’s face it: 95-99 % of all lawyers are mainly interested in their domestic legal system. “Us comparative lawyers” have, however, the aim (!) to change this.

Second, Fauvarque-Cosson indeed addresses what is needed to foster the importance of comparative law. In particular, she highlights the role that comparative law should play for European private law. She elaborates that there is a need for (1) more books on the European law as such (directives, regulations etc.), (2) more books like Kötz’s European Contract Law, (3) more casebooks and (4) “specific commentaries on various codifications”. I would not deny that these books can be useful. However, from an academic perspective we should also (not only!) go beyond this traditional focus on collecting materials about different legal systems and different legal sources. The main aim of academic legal research is legal originality (see my piece here). For instance, “us comparative lawyers” need to address that economists are increasingly pursuing quantitative comparative legal research. That’s really the “elephant in the room” because both in reality and in the academic world this “numerical comparative law” is by far more important than the “country-report methodology”, which has already dominated comparative law for decades (see my papers here and here).

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Some additional points:

There are a lot of stimulating ideas in both Fauvarque-Cosson's lecture and Siems's reply (and the papers mentioned there). I'm inclined to agree with Siems that the claim for the 'rise' of comparative law is not fully sufficiently substantiated in the lecture, but then again, claims for the 'rise', 'stagnation' or 'death' of disciplines are notoriously hard to make (one wonders why comparative scholars remain so keen on advancing them!). As far as Fauvarque-Cosson's main claim of a 'discrepancy' between the importance of comparative law and the attention given to the discipline in legal education is concerned, one could argue that this claim is somewhat difficult to reconcile with the simultaneous observation that a true 'European legal scholarship' has already come into existence, apparently in spite of this lack of institutional support. Of course, the counterargument would be that things might be still 'better' if more comparative law was given a more prominent position. That might be true.

I have two small comments to make. The first is a point of detail, but because it concerns an issue raised in the essay's first paragraph, I feel free to offer it. Fauvarque-Cosson writes: "At the beginning of the twenty-first century, the renaissance of comparative law seems to be well on its way (...) legislators seek inspiration from foreign or international models; judges and arbitrators use comparative law as a device to justify their decisions, or - which is even more remarkable - to reach a decision"(my emphasis). I don't understand why 'reaching' decisions on the basis of comparative study would be more remarkable than 'justifying' them. In my view it's exactly the other way around. Reaching decisions by studying comparative law is hard to distinguish from practices such as using hypotheticals or the opinions of scholarly writers. It is the explicit justification of decisions by reference to a foreign law, however, that raises issues of the authority to be accorded to foreign legal materials. Or not?

My second point concerns the familiar issue of the politics of unification and diversity. Fauvarque-Cosson's essay might be a little quick in accepting the unqualified 'good' of legal unification and in conflating attention to national law and legal culture with 'parochial' perspectives. Notwithstanding the benefits of European legal integration, a lot can still be said in favour of detailed attention to national law, and in favour of sustained legal (cultural) diversity.

In the end, as an eloquent plea for increased attention to comparative law, Fauvarque-Cosson's essay is surely to be welcomed. I'm not entirely sure, however, whether the line of reasoning based on legal integration is the strongest argument that can be made in favour of comparative legal studies. As a discipline, comparative legal scholarship must be of value also in the absence of a shared goal of a "general law in Europe to exist once more" (at p. 14).

New: Comparative Law Bibliography at 'Ratio Juris'

Patrick O'Donnell, a blogger over at Ratio Juris, has posted this very useful Comparative Law Bibliography online. I've added a link on the sidebar. Other bibliographies on Ratio Juris include International Law and Human Rights. The Comparative Law Bibliography's headings are: (1) Comparative Law: Assumptions, Topics and Theories (2) Law in Africa (3) Chinese Law (4) Hindu Law (5) Islamic Law.

Tips on other comparative law bibliographies or research guides are very welcome.

Michigan Law Review Annual Survey of Books Related to the Law: Comparative Law (April 2008)

The Michigan Law Review's most recent Annual Survey of Books Related to the Law, published this month, has two entries under 'comparative law':

-A review by Benjamin J. Liebman of Mark D. West's 'Secrets, Sex and Spectacle: The rules of Scandal in Japan and the United States' (University of Chicago Press, 2006)

-A review by Roger P. Alford of Ronald J. Krotoszynski Jr.'s 'The First Amendment in Cross-Cultural Perspective: A Comparative Legal Analysis of the Freedom of Speech' (New York University Press 2006).

Georgiev on Comparative Antitrust Law and Legal Transplants

George S. Georgiev has posted 'Contagious Efficiency: The Growing Reliance on U.S.-Style Antitrust Settlements in EU Law' on SSRN (Utah Law Review 2007, 971-1037; winner of the Third Annual Swope Antitrust Prize (via Antitrust & Competition Policy Blog). This is the abstract:

This Article analyzes the impact of the introduction of U.S.-style antitrust settlement procedures in EU law, which occurred in 2004 as part of an ambitious antitrust modernisation program. After documenting the lack of a settlement tradition in the EU legal system or the legal systems of EU member states, I argue that the new procedures were transplanted from U.S. law and that this was done without sufficient tailoring. Relying on lessons from the longstanding U.S. experience with antitrust settlements and on emerging evidence about the EU's own approach since 2004, I analyze the effects from the introduction of settlements at three interconnected levels of antitrust enforcement: the EU level, the member-state level, and the level of transatlantic antitrust cooperation. I demonstrate that when compared to the standard prohibition decision procedure, the conclusion of cases by settlement is more attractive both to the antitrust authority and to companies under investigation. The resulting reliance on settlements can lead to distortions in enforcement incentives and a reduction in the degree of legal certainty and accountability within the EU antitrust system. Most importantly, the growing use of settlements threatens to shift the system towards further bureaucratization and could interfere with many of the original goals of the antitrust modernisation program. I suggest that the EU should revisit those goals and evaluate whether the U.S. cost/benefit calculus for antitrust settlements is compatible with the EU's own legal regime and societal preferences. The immediate practical and theoretical insights of the Article relate primarily to EU antitrust law; viewed more broadly and from the vantage point of comparative administrative law, the Article also represents a detailed case study of the negative effects stemming from the untailored transplantation of legal rules and regulatory approaches across dissimilar legal systems.

Donald on 'Approaching Comparative Company Law'

David C. Donald (Frankfurt) has posted 'Approaching Comparative Company Law' on SSRN (noted on LegalHistoryBlog). This is the abstract:

This paper identifies some common errors that occur in comparative law, offers some guidelines to help avoid such errors, and provides a framework for entering into studies of the company laws of three major jurisdictions. The first section illustrates why a conscious approach to comparative company law is useful. Part I discusses some of the problems that can arise in comparative law and offers a few points of caution that can be useful for practical, theoretical and legislative comparative law. Part II discusses some relatively famous examples of comparative analysis gone astray in order to demonstrate the utility of heeding the outlined points of caution. The second section offers a framework for approaching comparative company law. Part III provides an example of using functional definition to demarcate the topic "company law", offering an "effects" test to determine whether a given provision of law should be considered as functionally part of the rules that govern the core characteristics of companies. It does this by presenting the relevant company law statutes and related topical laws of Germany, the United Kingdom and the United States, using Delaware as a proxy for the 50 states. On the basis of this definition, Part IV analyzes the system of legal functions that comprises "company law" in the United States and the European Union. It selects as the predominant factor for consideration the jurisdictions, sub-jurisdictions and rule-making entities that have legislative or rule-making competence in the relevant territorial unit, analyzes the extent of their power, presents the type of law (rules) they enact (issue), and discusses the concrete manner in which the laws and rules of the jurisdictions and sub-jurisdictions can legally interact. Part V looks at the way these jurisdictions do interact on the temporal axis of history, that is, their actual influence on each other, which in the relevant jurisdictions currently takes the form of regulatory competition and legislative harmonization. The method of the approach outlined in this paper borrows much from system theory. The analysis attempts to be detailed without losing track of the overall jurisdictional framework in the countries studied.

Halberstam on 'Constitutionalism and Pluralism in Marbury and Van Gend'

Daniel Halberstam (U Michigan) has published Constitutional Pluralism in Marbury and Van Gend on SSRN (forthcoming in: 'THE PAST AND THE FUTURE OF EU LAW: REVISITING THE CLASSICS ON THE 50TH ANNIVERSARY OF THE ROME TREATY', M.P. Maduro, L. Azoulai, eds., 2008). This is the abstract:

The European Court of Justice's landmark decision in Van Gend en Loos is often casually compared to Marbury v. Madison simply because in each case a central high court declares itself to be the final arbiter of central government law. But there is a good deal more to the comparison than this. Both cases serve up what is perhaps the single most profound and complex issue in their respective constitutional systems: multiple competing claims of ultimate legal authority. In addressing this issue, both decisions make important claims for central judicial authority. And yet, neither decision successfully establishes a central judicial monopoly over final legal authority. Instead, both decisions inaugurate a tradition of mutual accommodation among the competing actors lasting to this very day. By juxtaposing accommodation in the two systems, we may understand these practices better than if we limit ourselves to only one or the other legal order. In particular, we recognize that actors in both systems rely on considerations of voice, expertise, and rights to manage the pluralist standoff.

'Symposium: Constitution Drafting in Post-Conflict States' (Wm & Mary L Rev)

The March 2008 issue of the William & Mary Law Review is devoted to a symposium on 'Constitution Drafting in Post-Conflict States'. This wonderful collection brings together articles by: Angela Banks, Paul D. Carrington, Zachary Elkins, Tom Ginsburg, & James Melton, James Thuo Gathii, Ran Hirschl, Donald L. Horowitz, Vicki Jackson, Inga Markovits, Balakrishnan Rajagopal, Kim Lane Scheppele, Karol Edward Soltan, Jane Stromseth, Mark Tushnet, William Van Alstyne, and Jennifer Widner.

Here's a taste of a few of the articles featured:


Ran Hirschl's paper "The Theocratic Challenge to Constitution-Drafting in Post-Conflict States" opens with the observation that "Over the past few decades, principles of theocratic governance have gained enormous public support in developing polities worldwide". The article goes on to explore "several key aspects of constitutionalism in a theocratic world".


Vicki Jackson has a contribution entitled "What's in a Name? Reflections on Timing, Naming and Constitution-Making". From this article's Introduction:

"There is a paradox, well described by Jon Elster, that the crisis conditions that often lead to constitution-making are incompatible with the kind of deliberation thought necessary for the creation of a constitution consistent enough with the needs of its polity to be successful. “Post-conflict” situations are likely to involve crises that motivate constitution-making, but are also likely to create conditions in which the probability of creating a lasting constitution at one blow is low. This essay explores the consequences of this observation, suggesting that those committed to constitutionalism need an expanded repertoire of approaches in post-conflict societies (including contingent, incrementalist, revisable or interim approaches). Moving directly to traditional, comprehensive forms of constitutionmaking in some circumstances may be antithetical to promoting the conditions necessary for constitutionalism—including trust inlegal institutions"

Inga Markovits and Kim Lane Scheppele both address the influence of 'forward-looking' and 'backward-looking' perspectives in constitution-making. From Markovits' article "Constitution-Making after National Catastrophes: Germany in 1949 and 1990":

"Constitutions, usually, are new beginnings: after some seismic shift in a country’s history—a revolution, a lost war, a collapse of government—a nation sets out to reinvent itself. It can do so by looking back into the past or forward into the future. Most constitutions will do a bit of both, but their character will differ depending on which time perspective is foremost in the drafters’ minds. In this Essay, I will compare three twentieth century German constitutions; all three, responses to political disintegration and collapse. The first, the German Grundgesetz of 1949, drew its inspiration mainly from the past and became extraordinarily successful. The other two, the first East German Constitution, also of 1949, and the last East German attempt at constitution making, the Roundtable Constitution of 1990, looked mainly to the future and were thorough failures. I will describe how considerations for the past or for the future shaped these constitutions, examine what went right or wrong in their respective lives, and ask whether we can draw any lessons from their fate that may explain what it is that makes a constitution succeed or fail. Did the drafters’ attitudes to time play any role in the effectiveness of their creations?"

And from Kim Lane Scheppele's paper "Constitution between Past and Future":

"Because the explicit aim of constitutions generally is to improve upon an existing condition, the faces of constitution drafters are almost invariably imagined to be turned toward the future, bright with hope. What this Essay suggests, however, is that constitution drafters invariably look even more toward a past than they do toward a future. (...) Constitutional theory, in my view, needs to take on board this basic observation: Constitutions in their moments of creation cannot
be inspired solely by imagined futures. Perhaps even more crucially, they encode imagined pasts."

Two other articles, finally, discuss the (im)possibility of cross-system normative teaching and learning. In "Some Skepticism about Normative Constitutional Advice", Mark V. Tushnet is, well, skeptical about giving normative constitutional advice. From the Introduction:

"I suggest that what primarily determines the content of constitutions are the intensely local political considerations “on the ground” when the constitution is drafted, and therefore that normative recommendations about what “should” be included in a constitution or constitution-making process are largely pointless. Scholars can accumulate information about constitutions and their drafting and try to draw inferences about what will work. Yet, predicating normative advice on such studies is hazardous at best."

William van Alstyne's article "Quintessential Elements of Meaningful Constitutions in Post-Conflict States", on the other hand, is a careful attempt at drawing some normative 'lessons' from earlier constitutional experiences across systems and cultures.

Highly recommended.

Rizal Salim and Lawton on Shareholder Remedies in Malaysia (Global Jurist Gold Medal 2007)

An article by Mohammad Rizal Salim (Universiti Teknologi MARA) and Philip Lawton (Lancaster University) in Global Jurist Frontiers has been named the recipient of that journal's 'Gold Medal' for 2007. The contribution is entitled: "The Law in a Post-Colonial State: The Shareholders' Oppression Remedy in Malaysia", and this is its abstract:

Once colonised by the British, Malaysia inherited the British political and legal system, as well as written and judge-made laws. We trace the development of the law on the shareholders' oppression remedy in Malaysia, and compare it with the development in England. We found that the influence of English case laws is still very pervasive in the courtroom. The reasons for this includes, among others, the use of a company law statute based on the British statute, the reliance of English case laws and other legal materials, the legal training of members in the legal profession, as well as the use of the English legal tradition and the English language in the Malaysian courtroom. We conclude that despite a similarity in the written law, the sharing of a common legal heritage and a propensity by Malaysian lawyers and judges to use English laws, the laws as applied by the courts in Malaysia is not identical to the law in England. There was a desire to keep up with English developments, but in the whole the Malaysian courts have not been able to keep pace. In the courtroom, the lack of resources and expertise are probably the main factors contributing to the underdevelopment of the law. The propensity to rely on the reforms in other countries with little emphasis to the peculiarity in the local environment has undermined law reform. We argue that an effective law-making process and legal institutions are as important as the law itself.


The Global Jurist medals are awarded to "the best submissions from scholars in Africa, Asia, Latin America and beyond, that shed critical light on current developments in global capitalism" (sponsored by the Preparatory Committee of the International University College of Torino).