Comparative Law and Globalization - Essay Example

< Comparative Law and Globalisation > by Abstract The essay discusses comparative law and globalisation from the perspective of global development and productivity. The essay also highlights the conflicts between the legal strategies of the Non-West and the West. Table of Contents I. Introduction…………………………………………………..….……….4 II. Comparative Law in the Modern Context……………………...….…….4 III. Defining Comparative Law…………………………………….……….6 IV. Globalisation………………….……………………………………........7 V. Effects of Comparative Law………….…………………………….….…8 VI. Viewing Comparative Law……………………………………………...11 VII. Conclusion…………………………………………..……....…….........12 Introduction The essay details the foundations of Comparative Law and its connection with global productivity and globalization. The main points of socio-cultural values and comparative legal traditions are discussed in the essay as well. Furthermore, the essay attempts to analyze the conflicts between Non-Western and Western management systems and strategies. Comparative law is now subject to the wave of globalisation. Lawyers around the world had predicted that the internationalization or globalisation would eventually lead to an integration of the law or unification of the legal system to a certain extent. The advent of globalisation has necessitated the governments of all countries to be more aware of the diverse set of laws existent throughout the world. Eugène Lerminier1, the chairman of comparative legislature believed that it was inevitable that more states would eventually emerge. We are not very far from the vision of Eugène Lerminier. Comparative law’s evolution can be traced back to the early nineteen hundreds. William Twining notes2, ‘As the discipline of law is becoming more cosmopolitan in response to the processes loosely labeled ‘globalisation’, so comparative law as a sub discipline has been moving from a relatively marginal role, dealing with foreign relations, to a much more central role at the hub of the subject. …’3 In 1900, Raymond Saleilles 4proposed a common law5 of civilised humanity in France. Subsequently in 1910, a fusion of the Western law and the Chinese law was proposed by the jurist Shen Jiaben6. My legal education has inculcated that legal systems are basically an integral part of social, economic and political development. No social change or change in morals and values takes place without some type of change in the Western academic legal culture. My legal education and my better understanding of legal culture have helped me in understanding the state orientated, secular positivists, top drawn North centric, unempirical and Universalist morals Western academic legal culture tends to follow. Most importantly, it is the Western style legal education that I’ve received, which helps me better relate to the morals of the Western academic legal culture. Comparative Law in the Modern Context Peter De Cruz states7, ‘As a new era in world history beckons, there seems no better time for the comparatist to take up the challenge and to utilise the techniques of comparative law, to think in more global terms so as to acquire a better understanding of the operation of law in a rapidly changing world. There can be few better ways to prepare for the 21st century…’ 8 There were a number of scholars who continued their quest for integrating the laws of the world and publishing numerous chapters on the law which would detail the dissimilarity east and similarities of laws belonging to different parts of the world. Prior to the Second World War, the comparative law developed in Europe was quite different from the comparative law which was later framed after the war. After the war, an upgraded comparative law was used to reconstruct and create new political and economic frameworks for the war torn countries around the world. Also there was a renewed interest in comparative law, and the world was more concerned about the economic and the political spheres rather than the size of an integrated harmonious legal order. Unfortunately, the internationalisation after the Second World War didn’t have much theorisation. Although the European judges 9 had created the framework for human rights (European Court of Human Rights), this framework was considerably dissociated from the economic facets of the European reconstruction process. It is only in the year 2000 that the charter created a set of laws which could integrate and systemize the European legal community. In Europe, concept of Relativism prevents the propagation of comparative law and encouraging as international law, which is intrinsically against any form of integration of laws. Relativism indirectly may also cause human rights fragmentation and economic privatisation of the norms. A lack of proper comparative law in Europe also leads to a sort of imperialism and a decrease in democratic supervision by the judges. Hence, by encouraging comparative law, am more inventive and democratic type of internationalisation might be reached. The European legal and political environment requires comparative laws which help in a pluralist integration. Therefore comparative law would eventually help Europe to have a sort of hybridization of different legal systems of nations. Defining Comparative Law Comparative law can be defined as a kind of study rather than being a legal rule body. Some scholars term comparative law as comparative history of law, comparative legislation and descriptive comparative law. Eminent commentators such as Pollock, David and Gutteridge10 have helped immensely in better understanding of comparative law in this era of globalisation. Furthermore, the number of critics feels that framework for comparative law needs to be improved, in order to with the rapidly globalising world. Basic concept of comparative law, its methodology and its aims have been criticised as well. Notable scholars such as Ernst Rabel and Otto Kahn-Freund 11 have however defended and encouraged the implementation of comparative law in the west. Rabel believes that comparative law can help in maintaining coherence in the common legal structure. There are a number of disciplines which influence comparative law of the modern times. Disciplines such as history, culture and law are integrated in a way which makes the understanding of the legal structures of the countries much easier, and thereby helping in better economic and political relationship between countries of the world. Some experts believed that comparative law was a misnomer, and terms such as ‘comparative study of law’ for ‘comparison of laws’ would have been more appropriate. However since the nineteen nineties, the system of law has no generally termed as comparative law. According to Hug (1922), 12comparative law can be broadly classified into five segments. The first segment deals objectively with the specific solutions for a particular legal problem which different legal systems of the world offer. The second group examines causal relationship between diverse systems of laws in the world; the third group on the other hand explores and compares different stages of the different legal systems around the world; the fourth group of comparative law concerns the study and comparison of the foreign legal systems and domestic legal systems. Finally the fifth group tries to discover the evolution of laws in legal systems of different parts of the world, from the perspective of different time periods. Peter De Cruz 13 notes, ‘It would seem that the time is now ripe for lawyers, judges and students to investigate and utilize the benefits of comparative law. With the impending Single Market, the trend towards convergence of European systems, the growing influence of European Community law on EC Member States, the global village phenomenon and a communality of purpose in the protection and enforcement of human rights, practitioners and international law specialists should seize the opportunity to establish more positive and imaginative programmes for interregional research and practice across national frontiers…’14 Globalisation The term Globalisation has generated a number of debates in the present era. But generally, globalisation is related to the economic interactions that occur between countries of the world, creating a single global economy. There are certain movements around the world which tends to lessen capitalism in the world economy and thus and anti-globalisation movement exists as well. However the process of globalisation dwarfs all other movements and globalisation makes its presence felt in areas such as political, cultural, economic and communicative, making each of these areas more interactive than it was ever before. Globalisation is not only present in the international level, but its presence can be felt in levels such as transnational, supra-national,15 sub-national, diasporic and regional. Thus globalisation would be a governing factor for the future legal systems of the world. It can also be assumed that comparative law would significantly improve and expand due to the effects of globalisation. William Twining 16 comments, ‘The distinction is recognised not to be sharp, for macro and micro studies are interdependent, but this is a convenient way of labeling two rather different kinds of enterprise strongly influenced by a particular conception of academic law at a formative period in the history.’17 Effects of Comparative Law There are however signals which show the developments happening in other areas of law due to globalisation. Some features which have been greatly changed by globalisation are environment law, regional law, public international law and the law relating to the international finance and trade. Moreover in the 21st century new types of laws such as internet law and the International Criminal Law 18(After 9/11) are the emerging fields which the proponents of comparative law are taking a note of. What’s more, the north and south divide is now more significant than ever, which affects global poverty as well as global development. Thus, global development and poverty is of central importance for comparative law. Another important discipline is environmental law such as the changing climate around the world and other environmental issues. Comparative law also needs to take into consideration factors such as international crime, migrations and immigration, war and pandemics, terrorism as well as the far reaching arms of global media in this age of globalisation. Transnational law has been an issue which has captured the attention of experts in comparative law. There are a number of subjects which fall under transnational law; some of them include domestic law, contract law19, intellectual property law, labour law and family law. Especially in the department of family law, there are a number of issues such as the rights of children, custody of children, respect for the labour, and option and adoption of children across the borders and obviously sex trade among minors. In the Pacific McGeorge Law School, “Globalising the Law Curriculum” 20is a specific chapter which deals with comparative law issues in the school curriculum, demonstrating the growing importance of comparative law among schools and colleges in the world today. Another one of the issues which comparative law needs to deal with in this age of globalisation is migration and religious practices which sometimes clashes with the other countries. Migration causes a different cultural practice to be transferred to a different geographical location, therefore for a better blend of the cultures, nations need to have and improved comparative legal system in place. In this generation, it would be wrong for students as well as scholars to assume that a domestic law belonging to a single jurisdiction would be enough to handle the variety of issues raised by the effect of globalisation. William Twining 21states, ‘Again, viewed from a global perspective, western comparative law has shared many of the tendencies of institutionalized discipline of law. To be sure, within our tradition, the subject has had a de-parochialising role. In some respects it has served as a Ministry of foreign affairs, establishing contacts and developing relations with legal scholarships from other countries and cultures.’ 22 For example, the law students belonging to the UK do not only study the domestic law, but also the European Community Law 23 and the European Convention on Human Rights. Peter De Cruz 24notes, ‘The ever increasing membership of the European Community, its supranational legal regime and the continuing transplantation of Western ideas to countries all over the world, provide an ideal environment in which the comparative law methodology should not just be used, but will be absolutely essential to an understanding and appreciation of the law...’ 25Furthermore, the municipal law of Wales and England is heavily influenced by the laws existent in the United States. Therefore, a cross-level comparison and integration of laws is already a reality in many countries. Competitive law has affected the number of legal studies in the world today. The basic tenets of comparative role are evident in books such as Global Issues in Property Law (2006) and Global Issues in Tort Law (2008). In the United Kingdom, efforts are being made by the lawyers to better understand Islamic law, so as to create a national legal framework which integrates and accepts a few basic tenets laid down by laws such as the Islamic law. Efforts are also been made in many western countries to incorporate a few important points of the Islamic law into the mainstream domestic law of western countries. Viewing Comparative Law It is generally believed now that comparative law does not have that amount of sophistication as it should be in this age of globalisation. Comparative law is more like a way of life does not get much importance as the other departments of law gets. Comparative law is more of a participant oriented area and unlike conventional law which is related to the immediate and local problems of a particular area, comparatively law has a much broader purview. The law of the West has never been very parochial and is now becoming more and more cosmopolitan. Therefore for lawyers to make the perfect judgment is important that they balance the local context with the broader context. At the beginning of the twentieth century up about mid twentieth century, the main driving force behind globalisation was imperialism and colonialism. It’s helped in the diffusion of the state law to a great extent. It is believed by some scholars that comparative law is an exclusive entity of the European and Anglo-American region. After colonialism and after the Second World War was brought to an end, it was believed that convergence, unification of laws, and harmonization were not necessarily the end results of diffusion of law. However, in today’s age of globalisation diffusion is one of the central topics in the field of comparative law. Comparative law has few misconceptions which are not totally correct. First of all, comparative law of the present era is much richer and diverse than it’s believed to be. Secondly, comparative law is respected by numerous scholars such as John Henry Merryman, Otto Kahn-Freund, Barry Nicholas, F. H. Lawson, Basil Markesenis and Max Rheinstein26 which makes it more respected than it is sometimes considered to be. Finally, comparative law needs to be practiced in a more varied matter that it is presently practiced globally. New schools in comparative law are emerging each and every decade, some of them being comparative common law, comparative civil liberties law, comparative constitutional law and comparative development law. Therefore comparative law can be termed as a discipline which is extremely cosmopolitan. William Twining 27notes, ‘Adopting a global perspective also helps to map the extent of our collective ignorance of the other legal traditions. However, even if our discipline becomes genuinely cosmopolitan, the great bulk of its attention inevitably be focused on particular inquiries....’28 Conclusion William Twining 29comments, ‘The Country And Western model is restricted in respect of each of its elements: municipal law of Western nations states; doctrine, especially private law; and contrast between so-called ‘parent’ civil and common law systems has the central focus…’ 30 Comparing comparative law with international law sometimes makes the transformation of pluralism into a type of common law which does not have any conflicts with relativism or universalism. Globalisation has allowed for more interdependence among sub-global legal levels and really does have a significant influence on of a variety of legal specialisations. The legal culture in this present century as well as the mid twentieth century has been secular, positivists, state-oriented, universalist, unempirical and North-centric from the standpoint of morals, according to Twining. Comparative law when viewed from a global perspective is not a radical movement of the Western laws, but rather a list of guidelines which entails adjustments in the academic laws. In. this global order, comparative law helps in the broadening of legal horizons for certain countries where as for other countries, comparative law creates a major overhaul in the domestic legal framework. Hence as lawyers and scholars, it’s important to frame laws keeping in mind the broader context. Bibliography Books Anelue, S.L, Law and Social Change, London: Sage Publications. (2005). Antoine, R.B. Commonwealth Caribbean Law and Legal System. London: Cavendish Publishing. (2000). David, R. in: K. Zweigert and U. Drobnig (eds.), International Encyclopedia of Comparative Law, Vol. 2, The Legal Systems of the World – Their Comparison and Unification. (1981). De Cruz, P, Comparative Law in a Changing World. London: Routledge-Cavendish Publishing, (2007). 3rd Edition. Fennell, S., Law and Institutions in International Development, London: Routledge-Cavendish Publishing. (2007). Florkowski, G.W. Managing Global Legal Systems. London: Routledge, (2006). Glenn H.P. Legal Traditions of the World: Sustainable Diversity in Law, Oxford: Oxford University Press. (2007). Maloka, E.(Ed) A United States Of Africa?. Pretoria: The Institute of South Africa, (2001). Menski, W.F. Comparative Law in a Global Context: The Legal Systems of Asia and Africa, London: Cambridge University Press. (2006), 2nd Edition. Moore, S.L. Law and Anthropology, London: Blackwell Publishing. (2005). Oruc, E. and Nelken D. Comparative Law: A Handbook. Oxford: Hart Publishing, (2007). Prah, K. Africa’s Development Thinking Since Independence. Pretoria: Africa Institute of South Africa. (2007). Richards, P. Law of Contract. New York: Longman. (2007). 5th Edition. Twining,W. Globalisation and Legal Theory. London: Cambridge University Press. (2007). Journals/Articles Charles, AB; Mim, ‘Consideration and Cause’, Journal of Comparative Law 123-145. (2006) Craig, P. ‘Constitutional Foundations, the Rule of Law and Supremacy’. 92- 96. (2003) Merryman and Clark, ‘Comparative Law: Western European and Latin American Legal Systems. 51–67 (1978) Tupper, K. The Globalisation Of Ayahuasca: Harm Reduction or Benefit Maximisation? International Journal Of Drug Policy , 19(4), 297-303. (2008). Websites E Hobsbawm, ‘The Dangers of Exporting Democracy’ Guardian (London 22 January 2005) http://www.guardian.co.uk/usa/story/ 0,12271,1396157,00.html, retrieved 10 December, 2009 Foreign and Comparative Law Research Guide, Duke Law Library, 2009, http://www.law.duke.edu/lib/researchguides/foreign.html, retrieved 1 January, 2010 Read More