by Ana Beatriz Steingraber-dutra

One of the most pressing contemporary discussions in comparative legal scholarship concerns the extent at which Comparative Law has been influenced by the globalised world in the 21^st century. Suffice to say that due to Globalisation, several experts in the field adopt different views on the utility of Comparative Law today. For instance, Siems has asserted that the significance of Comparative Law in the traditional sense has been decreasing and potentially coming to an end. Additionally, Frankenberg has referred to Comparative Law as the “Cinderella of Legal Studies” explaining that the discipline in the second half of the 20^th century held diminishing importance in legal education and practice. Michaels, on the other hand, has argued that Comparative Law will never cease to exist due to its constantly evolving nature. With these varying views in mind, and in line with the subject matter of this series of blogposts, this post examines these viewpoints as a means to initiating this symposium’s discussion on the impact of Globalisation on Comparative Law.

Purpose and subject matter of Comparative Law

Although there is no standard definition of Comparative Law, this field of legal study can be described as ‘the juxtaposing, contrasting and comparing of legal systems or parts thereof with the aim of finding similarities and differences’. Moreover, the subject matter of Comparative Law can also be said to comprise the notion that it is feasible to compare vast legal systems of the world, with the aim to advance the knowledge of legal rules and institutions. Thus, the purpose of Comparative Law can be described through three key aspects.  Firstly, the acquirement of knowledge and understanding of foreign laws, secondly, the offering of guidance for the application of foreign laws domestically, and thirdly, the offering of guidance for the practical use and study of laws from multiple jurisdictions at an international or regional level.

Additionally, a crucial element of Comparative Law is the achievement of uniformity among distinct legal systems. The discipline essentially promotes uniformity across legal systems by identifying resemblances in existing laws, and bridging differences, in the process of establishing novel uniform rules. Even so, it has been broadly argued that comparatists still lack a common basis and structure which would allow them to consolidate their studies.  As a result, it is often believed that there is an absence of a precise subject matter of Comparative Law and that the term solely accounts for the generic comparative study of various aspects of legal systems or rules across the world. This is evident, as seen below, in the variety of views held by comparative legal scholars, on their field’s relevance in the 21^st century.

Three theses on Comparative Law in the 21^st century

(a) Practical trends triggering the diminishing relevance of Comparative Legal Studies

It could be argued that Comparative Law has evolved from being a substantial discipline, towards experiencing a drastic reduction in relevance. Siems determines this change in the utility of Comparative Law under four principal aspects: the ‘disregard’, the ‘complexity’, the ‘simplicity’, and lastly, the ‘irrelevance’ of comparative law. One such example is the disregard for Comparative Law, as expressed by Judge Scalia in Lawrence v Texas (2003), where he stated in his dissenting opinion that the court ‘should not impose foreign moods, fads, or fashions on Americans’. Despite the fact that we live in an ever-evolving globalised world, the literature suggests that other distinct legal systems are also likely to adopt the stance taken by the American Supreme Court, with the aim to protect their own jurisdictions from foreign legal influence.  

(b) Comparative Law as ‘the Cinderella’ of Legal Studies

Frankenberg has argued for a long time (here and here)  that comparative legal scholarship is the “Cinderella of Legal Studies”, as a result of the comparatists’ ambivalence concerning their discipline’s marginalisation from mainstream legal studies. The “Cinderella complex”, as he calls it, is based on the notion that some comparatists succumb to views that their discipline holds an inferior status and is disregarded by the academic community, whereas other comparatists perceive their discipline as superior. Hence, he asserts that further critical work should be undertaken, in order for the field of Comparative Law to contribute towards a comprehensive and beneficial learning experience.

(c) Comparative Law as an Evolving Discipline

There are also those who argue openly against the notion that Comparative Law, as we know it today, is approaching a natural end. Among them, Michaels argues, that Comparative Law is continuously evolving, aligned with the growth and evolution of law and society as a whole. One of the factors responsible for this evolution is globalisation itself, which has drawn our focus away from State-centric Westphalian conceptions of the world; the notion that sovereignty over a determined territory is the main component of statehood, and in most cases, subsequently, jurisdiction as well. At the time of globalisation, this Westphalian model of comprehending the world has become especially complex and problematic, considering the reduced sovereign autonomy States have in a globalised world.

Globalisation and its impact on Comparative Law

In popular discourse, globalisation is associated with multiple disciplines and definitions of the term, including its core focus on shifts in economic activity, such as ‘the growth in international exchange of goods, services, and capital, and the increasing levels of integration that characterize economic activity.’ Indirectly, therefore, globalisation encourages the harmonisation of laws, for which legal comparison is an essential requirement (see here). At the same time, due to an increase of cross border interactions and transnational exchange of goods, services, and human mobility, all legal fields are likely to become more globalised themselves (see here).

Globalisation coincided with a shift in the priorities of Comparative Law.  In recent decades, Comparative Legal Studies have initiated a search for similar legal systems, diverting the focal point of comparison to the similarities shared by legal systems, as opposed to fixating on their differences. One aspect which contributed to this shift is the increased exchange of legal expertise among jurisdictions and an expansion of legal globalisation. Within this context, according to Mattei, legal taxonomy (i.e the grouping of legal systems into families) also contributes significantly towards the ability of legal systems across the world to acquire knowledge from one another. Yet, in order to achieve progress, one needs new classifications, which go beyond the traditional Euro-American orientation in the classification of legal families. 

Conclusion

Based on the above, it is evident that with the rise of globalisation in the 21^st century, the subject matter of Comparative Legal Studies has decreased in relevance and utility, at least in the traditional sense. Even though some argue that Comparative Legal Studies is an ever-evolving field of study, it cannot be denied that legal scholarship has been paying declining attention to the comparative legal field. Unless this is dealt with directly, as legal students, scholars or practitioners we may lose the benefits and opportunities this field has been offering to us.

Symposium Overview

In the following posts in the present symposium, my fellow students focus their attention on concrete challenges that arise in Comparative Law (or Comparative Legal Studies, as it has been increasingly referred to) in the time of Globalisation.

In her post ‘From Colonialism to Globalisation’, Yasmina Amhaz discusses the traditional dominance of western legal systems in Comparative Law, and its incompatibility with a Comparative Law suitable to tackle the challenges of the 21^st century. This is followed by a second contribution in search of ‘A Comparative Law for a Shrinking World’, by Hashane Perera. In the follow up post on ‘Regulating Globalisation through Comparative Law’, Ksenia Fedoseeva uses the analogy of global legal development as a train, which Comparative Law can help regulate its speed, in the ‘otherwise uncontrolled global diffusion of law’. Last but not least, the symposium concludes with Alexander Studnev on ‘Comparative Law and the Great Uncertainty’, from the aftermath of the Cold War to our times. The last post contains some final thoughts by Dr. Nadia Kornioti, who coordinated the present initiative, with ‘Taking Cinderella to the Ball: A Postscript to the Student Symposium on Comparative Law:’