The train of global legal development continues smoothly gliding along the railtrack of globalisation, but the road to market efficiency appears increasingly uncertain. Can Comparative Law slow this train down?

by Ksenia Fedoseeva

Globalisation represents an essential aspect of societal development over the last few decades, and chances are most of us have heard the word thrown around before. Comparative Law, on the other hand, is a subject legal comparatists themeselves often struggle to accurately define, but in its narrow and traditional form, it entails little more than a comparison of legal rules and systems. Thus we are presented with a dilemma that questions the role of such comparison in an assimilated world. The widespread benefits of legal harmonisation, primarily for the development of international trade, are accompanied by the problematic tendency of overlooking the cultural aspects within legal systems. As will become apparent, a mere formal comparison is insufficient to counter this issue effectively.

Globalisation as the new Colonialism?

First, we shall examine the effects of Globalisation on Law, as a whole. Globalisation’s contemporary perception correlates to the decline of the direct interrelation between ‘law and state’, a doctrine widely accepted by legal scholars. The legal significance of national borders is reduced, while the objective shifts from state collaboration to interdependence. The process of legal transplantation – the taking of laws from one system and incorporating them in another – is expedited in a globalised era, though economic coercion by powerful States or reckless parroting, raise doubts about the quality of the transplants.

Regionalisation and internationalisation gradually superseded imperialist and colonialist politics, but arguably failed to eliminate the Eurocentric character of legal diffusion, nevertheless. The European Union (EU), for example, represents the archetype of increased regional interdependence, but unqualified imitation of this model would be condemned for precisely the kind of western bias colonialists fostered. The promices of economic benefits and advantageous relations with global actors, indirectly pressure countries into assimilating their systems to western democratic ideals, arguably reproducing the ‘white mythology’ of colonial times.  Internationalisation appears to cultivate ‘double standards and political non-accountability’,  while the universalism attached to the notion of fundamental rights echoes imperialist tendencies, and straitjackets cultures whose values differ from the West. These shortcomings of Globalisation set the scene for Comparative Law in modern society. Hence, the role of Comparative Law is critical in distinguishing differences beyond written rules and advising against harmonisation where it would be futile or disastrous for some legal traditions. 

A Revival of Comparative Law

Comparative Law does not constitute a field of Law, but rather a methodological approach for the study of a variety of legal systems, by analysing their differences and similarities. In its early stages the subject was heavily influenced by colonialist eurocentric perceptions that transplanted European codifications with little consideration of indigenous legal traditions. Comparative research was limited to western legal systems, aiming to establish a ‘common law for the civilized world’. The subsequently developed functionalist method did not alleviate this western bias, as it involved a universalistic assumption of functional similarities in the application of legal rules in different contexts that naturally ignored political and cultural differences. Early instances of misguided comparative legal research assessed ‘a non-Western system by Western standards’, practically guaranteeing perverted conclusions. One cannot claim a lemon is not a fruit just because most fruits are sweet.

Such  colonial  undertones reflect a narrow approach insufficient for a comprehensive appraisal of the process and effects of Globalisation.  Nevertheless, European partiality still remains a conspicuous element of comparative work, despite the urgent need for a ‘sophisticated comparative scholarship’ that engages interdisciplinarity to understand differences between legal cultures and regulate harmonisation accordingly. Correspondingly, limiting the field to horizontal comparisons that only analyse legal systems at the same level, overlooks the transplantation of international instruments into domestic law as well as the expanding global market. Swift communication and the development of cross-border relations and cooperation, which strongly influence individual legal systems and require a vertical methodology to be properly assessed, are also overlooked. Undoubtedly, interflowing legal policies stemming from shared international sources and increasing interdependence contribute to a legal homogeneity that complicates a traditional juxtaposition of State law.

However, comparison is not rendered obsolete. Coercion towards conformity with allegedly universally beneficial principles reinforces a ‘sense of difference’,  and underlines ‘local particularisms’. Thus, Globalisation unsettles the utility of the traditional approach to Comparative Law which remains firmly rooted in colonialist thinking, but it does not extinguish the significance of comparative legal research altogether.

Properly interpreted, Globalisation constitutes a ‘revolutionary’ occasion that could propel Comparative Legal Studies towards wider implementation than ever before. Any useful application of Comparative Law, however, relies on the subject’s reconstruction to encompass global attitudes. A cosmopolitan discipline involves multi-faceted aspects of ‘inter-legality’ that require analysis and that are rarely, if ever, easily discernible or fixed. Therefore, focusing on differences between legal orders rather than blindly searching for similarities, it is essential to understand the evolving legal perceptions in a globalised context. 

For instace, collaborating with other social sciences that utilise comparison would allow legal comparatists to capitalize on their exposure to surrounding factors and hence form full-fledged and innovative inferences.  Additionally, moving the law away from the so-called nation State induces a shift towards categories that truly embody the variety of  legal cultures worldwide, and redirects the attention to more representative ‘traditions or epistemic communities’.  The distinctions in these cases should be made based on ‘socio-cultural’ considerations that better reflect the reality of legal orders than – often disputed or controvesial – territorial and jurisdictional borders. A socio-legal comparative approach is imperative to renounce the deficiencies of traditional methods and appreciate the epistemic, moral and cultural elements inevitably influencing all legal systems.

The practical role of Comparative Law in the 21st century is also evident domestically in the works of judicatures and legislatures worldwide. The increased ‘cross-fertilization’ between courts, resulting from blooming technological development, is a prerequisite considering the frequency of legal transplants throughout history and to this day.  Similarly, an augmented use of comparative methods also exists in the legislative process, where parliamentary committees, for instance, utilize them to ensure successful integration of transplants. The divergent contexts of transpositions can lead to inconsistent outcomes, hence the need for a thorough comparative analysis  that would explain these discrepancies and suggest appropriate solutions.  

Modern accelerated ways of obtaining data by means of the internet, also conflict with the conventional informative purpose of Comparative Law. The ‘unstructured and decontextualised’ nature of available information however, and its unfathomable quantity, demands filtration before becoming of any practical use. Comparative research, which correctly translates information and phrases it in appropriate legal terms, thus helps generate comprehensible referential material, without having biased misconceptions – a product of simplified online access and communication – compromise the information’s accuracy.

In effect, comparison represents an invaluable tool for challenging the biases and oversights intrinsic to a globalist movement, towards the harmonisation of rules in the global market.  Global unification of the Law that accompanies the exponentially growing international trade, neglects and risks eradicating normative orders and cultural particularisms in its chase for transactional efficiency, so a more cosmopolitan comparative approach is crucial for regulating this unification.

The disproportionate priority afforded to market performance and the tromping of political freedoms in the pursuit of market efficiency, is already apparent. For instance, in Schmidberger v Austria (2003) the EU’s European Court of Justice held the importance of the freedom of movement of goods equivalent to that of freedom of expression, reflecting the unsettling choice to give principles of international trade the same weight as fundamental human rights, and perhaps foreshadowing a proliferation of this problematic view in future cases. Powerful international actors and multinational companies continue to mould the Law into the ‘handmaid of economic efficiency’, omitting significant other aspects impacting policy and law-making. Consequently, empirical comparative research that can decisively link existing evidence of unsuccessful legal transplants to cultural idiosyncracies would promote deliberation on such aspects in prospective harmonising efforts. Comparative Law can therefore ensure the consideration of socio-cultural factors in the formation of regional and international laws, and subsequently to gradually restore the centrality of human experience  in activities relating to and impacted from the legal sphere.

Conclusion

All in all, Globalisation, with the masked colonialist mentality it has carried over to modern times, perhaps raises as many issues as it solves. Crucially, legal systems are more alike than ever before, for better or for worse. In this context, now more than ever, legal comparison cannot be discarded. In the 21st century, it becomes essential for Comparative Law to take central stage, through the development of a broader, more cosmopolitan, approach and press the brakes on this otherwise uncontrolled global diffusion of law.