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Seminar 1: The Significance and Use of Comparative Law A. Guiding Questions: The Cultivation of a Comparative Perspective 1.

How can we develop a comparative perspective? Why should we? 2. What is law? What is ³foreign law?´ From what and, indeed, whose vantage point are these judgments made? 3. Does our approach to, and understanding of, comparative law issues need to be multifaceted as a function of the context in which these issues are encountered? B. Texts Friedman, Thomas, The World Is Flat: A Brief History of th e Twenty-first Century, 3 rd edition (Farrar, Straus and Giroux, 2007). Introduction [CR] or Persistent link to this record: 1. One of India¶s smartest engineers, trained at his country¶s top technical institute and backed by the most modern technologies of his day, was telling me that the world was flat, as flat as that screen on which he can host a meeting of his whole global supply chain. 2. While the dynamic force in Globalization 1.0 was countries globalizing and the dynamic force in Globalization 2.0 was companies globalizing, the dynamic force in Globalization 3.0 ± the thing that gives it its unique character ± is individuals and small groups globalizing. Globalization 3.0 is not only going to be driven more by individuals but also by a muchmore diverse ± non-Western, nonwhite ± group of individuals. We are now in the process of connecting all the knowledge pools in the world together. This created a global, Webenabled playing field that allows for multiple forms of collaboration on research and work in real time, without regard to geography, distance or, in the near future, even language. No, not everyone has access yet to this platform, but it is open now to more people in more places on more days in more ways than anything like it in history. It is this convergence ± of new players, on a new playing field, developing new processes for horizontal collaboration ± that I believe is the most important force shaping global economics and politics in the early 21st century.



Alexander, Larry and Schauer, Fredrick, ³Law¶s Limited Domain Confronts Morality¶s Universal Empire,´ Prepared for the Conference on Law and Morality, Institute for Bill of Rights, College of William and Mary School of Law, March 16-18, 2006. Persistent link to this record: The concept of ³limited domain´ And thus from either the broad premise that morality pervades all of practical reason, or from the narrower and tautological premise that morality pervades only the entire universe of moral reasons, we can still ask what it would mean for law to incorporate morality. Moral legal reasons are a limited domain of all the moral reasons there are, legal incorporation of morality presents the odd case of the subset incorporating the larger set, and thus suggests the peculiar image of a mouse attempting to swallow a python. Law has a ³limited domain.´By that we mean that legal reasons for decisions make up only a subset of all the practical reasons that bear on them. Moreover, we can understand why law has a limited domain. Law exists against a background of moral disagreement and moral uncertainty; for if people generally agreed about what morality required, there would then not be much reason to substitute law for the direct moral decision-making of citizens and officials alike. The guidance function of law In the decidedly real world in which the commands of morality are both uncertain and contested, law provides much needed practical guidance by greatly reducing the amount of knowledge required to make practical decisions. In many instances, the law simplifies morality sufficiently for ordinary people to be guided by it. Law thus carries out its guidance function by limiting its domain of reasons, and in doing so furthers morality by enabling huge moral costs to be avoided. Among these costs are simply those of making erroneous decisions, a consequence of failures of guidance for real people making real decisions. The conflict between law and morality Law¶s moral function thus always puts it into potential conflict with the morality it ser ves. Law claims authority, and must do so in order to serve its moral function.By contrast, morality denies this division of moral laborand thus denies







Jan. 1. Paper 77.And. How law operates ± by cutting off access to certain considerations An individual rule. As a result. just as the law has good moral reasons for imposing its legal will on those same moral agents. and as a by-product to give him or her more understanding of the local legal system. and when that is the then we can see why law exists as a limited domain. That law is so in the legal systems of the world we experience is not a moral failing of law ± rather.smu. (Routledge Curzon. have not been abolished. and even to the background justifications whose purposes the rule was designed to serve. and accuse them of cultural imperialism and ethnocentricity.prompted social institution that sees the moral value in settlement and the moral value in moral certainty. this incorporative role for morality.bc. If we understand law as the morally. 7.indeed. There is increasing emphasis on how civil procedure is related to all of 8. The limited domain of law does not make it morally a failure 10. 03-15. achieves its rule-ness by cutting off access. Persistent link to this record: http://lawdigitalcommons. Randall. legislators -. Persistent link to this record: http://papers. Defenders of Asian values often respond by attacking Western governments for past and present violations of human leaves many questions legally unanswered and many decisions legally undecided. to the full range of considerations bearing on some decision. But in all common law systems. nonetheless plays a significant role in actual legal practice. of course.the judge¶s asking what would be the morally best decision given the constraints of the settled law that the judge is not legally authorized to change. and in all systems that employ highly indeterminate constitutional or. crimes and so on. there is everything right about -. ³Asian Discourses on the Rule of Law. Boston College Law School Faculty Papers. .cfm?abstract_id=445820 Criticisms of Asian Values Supporters of universal human rights frequently dismiss the claims of some Asian governments as the self-serving rhetoric of dictators and (mis)repre. Paper No. 2004). Los Angeles School of Law Research Paper Series. it may well be the case that moral agents would have go od moral reasons for rejecting those claims of law that those agents believe to be morally erroneous. it is the embodiment of morality at morality¶s fullest. 9. statutory although modest in terms of its theoretical status. Mary Ann. Peerenboom. This is termed as ³modest incorporationism´ of morality into law. contracts. While torts. Modest incorporationism of morality into law If legal reasons do not decide a particular case.ssrn. property. A subsidiary concern of the course has to do with the accurate identification of social and economic context and with the complexities of the relationship between law and social change. 2. and why the moral enterprise of law is and must be at least partially closed to the direct consideration of morali ty itself. Ault. less often.sent their position as a morally reprehensible and philosophically absurd anything-goes cultural relativism. As a perspective course: The emphasis of comparative law is on the insight which the study of the foreign ³model´ can give into the student¶s own legal system.´ University of California.who are legally authorized to change the legal constraints (except those that are constitutional and can only be changed by another set of ³legislators´) -. Hugh and Glendon. as is well-known.may and should ask what is the morally preferred change or set of changes in the legal landscape among those legal constraints they are authorized to¶s claim to practical authority. there is i ncreasing emphasis on how they are related to each other. and thus of morality¶s best. 4. As a basic course: Comparative law has a principal goal to give law students an introduction to comparative method and to the workings of one or more foreign legal systems. either absolutely or presumptively. 3. then there is nothing amiss in -. "The Importance of Comparative Law in Legal Education: United States Goals and Methods of Legal Comparisons" (1975).

a high level of discretion left to decision-makers. Why? (1) Rather. 6. arbitrary tradition. a greater emphasis on the role of gender in society. growth has been attributed to Asian varieties of capitalism.2. a variety of cultural and reli . On the other hand. 5. rational bureaucracies. Hong Kong. a hurried and largely unsuccessful attempt to transplant Western legal codes and relationships. the large number of family businesses. with tremendous diversity ± too much. and coercive despotism imposed by rulers with too much discretion. and relation-based contracting and business practices. In contrast.gious traditions. may provide valuable resources. To that end.tions. and India are all now grappling with postcolonial attempts to reconcile the colonial legal system with local condi. education. exchange rates to support exports. order. some attribute economic success to a close relationship between government and business. formal. 4. hard work. a high value placed on harmony. law is the main mechanism for resolving disputes and the state and state actors are subject to law. Three forms of legal systems In a rule of professional law or rule of law system. Other factors may be more important. 8. In some cases. predictability. an emphasis on duties rather than rights. and saving. critics suggest.dent from religion. Factors affecting the transplantation of Western Law Singapore.icant role. Asia is a big place. the importance of a homogeneous population as a means of preserving social structure. Whereas the West has law. family groups rather than individuals as the building blocks of society. picking and choosing winners and in some cases deliberately ³getting the prices wrong. in a rule of political law system.´ They are characterized by a reduced role for lawyers in dispute resolution and an increased role for mediators and ³wise men. high-quality human capital (good . 7. chaos. which he described as logical. In contrast. and Daoism. to speak about a singular set of Asian values. This form of law is characteristic of former socialist states in transition and developing states. Relationship between rule of law and economic development Some scholars argue that law has not played a signif. Legal institutions are weak. including sound macroeconomic fundamentals and management. Systems adopting traditional law lack a separation between law and religion and/or are based on a ³traditional transcendental philosophy in which the individual¶s internal dimension and the societal dimension are not separated.´ a high rate of survival of diversified local customs. 9. and certainty. and other social norms. (3) Still other explanations high. attributed the success of some Western countries in part to their legal systems. Universalist advocates of human rights argue that there is an expansive overlapping consensus regarding human rights as set forth in the so-called International Bill of Human Rights ± the Universal Declaration of Human Rights. the separation between law and politics is absent or minimal. including Buddhism. Confucianism. described by some as clientelism or corporatism ± or more disparagingly by critics as cronyism. Social and Cultural Rights. leading in some cases to movements to give greater expression to indigenous traditions and values.´ (2) In a similar vein. which for some means a strong developmental state in which atechnocratic bureaucracy determines industrial policy. reason. International Covenant on Economic. a pluralism of Asian values is still Asian values. some Asian governments argue that the hard core (referring to the overl apping consensus) of universal rights is extremely limited. and the law often does not bind government officials. others have violence. Asian countries are seen as incapable of implementing ³the rule of law´ or a modern legal system because of cultural factors. informal networks. 3. A functional legal system is not sufficient for economic growth. and a rhetoric of supernatural legit imization rather than an appeal to democracy and rule of law for legitimacy. a stable business environment with low inflation. morality. law is largely secularized and indepen . the Philippines. and rational. Weber considered the legal system of many Asian countries to be nothing more than a kind of arbitrary or irrational kadi justice where wise men allegedly determined what was best in a given situation based on their own judgment and interpretation of customary norms rather than by appeal to fixed standards or principles of general applicability. a strongly hierarchical view of society. Max Weber. prudent fiscal policies. In addition. Malaysia. for instance.light cultural factors that diminish the importance of clear property rights or emphasize diligence. Islam. In response. rule. high savings and investment rates. and the International Covenant on Civil and Political Rights. 10. and high literacy rates). maintain and operate the legal system. Rev. The most common such texts are rules of law. Legal Institutions: The composite units that maintain. Secondary rules: The rules that define and direct legal institutions. success in attracting foreign direct investment and polit. 12. and include courts.Persistent link to this record:http://heinonline. interpretation and application of primary rules of obligation. 8. 771 (1997-1998). such as attorneys/advocates. judicial and administrative proceedings.smu. such as the private ordering of legal relations. Legal systems that comply with the requirements of a thin or formal conception of rule of law are compatible with a variety of economic systems. those that govern the creation. An ³institution´ is a structured body of rules. in that ideas about law are a deeply rooted. actors and processes. and ³legal system´ refers to the body of rules in force in a jurisdiction. Text centered scholarship may be referred to as ³rule comparison´. Legal processes: The activities performed by legal institutions and actors. litigants and so on. 2. judges and judicial personnel. prosecutors. Works of leading contemporary theorists of comparative law treat rules as the sole or primary substance of comparative legal studies. 11.Conversely. merit-based bureaucracies. 6. An apparatus of concepts for assessing the nature and significance of similarities and differences of legal systems Legal Extension: The social reach of the legal system. such as rules of jurisdiction and procedure. Comparative law scholarship that identifies law with authoritative texts 1. institutions. 7. administrative agencies. legislation. Legal Penetration: The social grasp of the legal system. L. historically conditioned component of the culture and can powerfully limit and direct thinking about what law is. the area of social activity to which it attempts or purports to apply. or what civil lawyers often refer to as legal norms. Primary rules: The substantive rules of law. legal research institutes and bar associations. . Legally plural nations have legal systems that may purport to apply to everyone but in practice have limited impact on the lives of significant segments of the population and are a dominant presence only within specific areas (or may not penetrate at all elsewhere). ³Comparative Law Scholarship´ 21 Hastings Int¶l & Comp.ical stability. police departments. low income inequality. Legal culture: Can be thought of as the inner logic of the legal system. 4.libproxy. 3. John Henry. 10. ³Legal system´ refers to the complex of social actors. 9. Legal actors: The legal roles played by people. 11. perpetuate and carry on the daily work of the legal system. export promotion. ³General principles of law´ derived from the study of rules achieved wide acceptance as guides to interpretation of legislation and as instruments of legal science. and processes referred to by members and observers of a society as ³legal´ or ³juridical´ or as directly related to or forming part of ³law´ or ³the legal system´ or the ³juridical order´. and rules about rules. notaries. law professors. substantive or thick theories of rule of law may be distinguished by differences in economic systems or varieties of capitalism. Legal extension and legal penetration are social dimensions of the legal system. Legal expense: What it costs the society to establish. law schools. legal scholarship and legal education.

The legal solution effectuates certain social behaviour. The author contends that environmental geography and biogeography are the key factors influencing societal development. Cultural values are partly responsible for this different attitude towards litigation. pp 13-32. 3. ³Analyzing Asian Law: the Need for a General Concept´ (1995) 13(1) Law in Context 106-119. In heavily diversified countries. Colonial powers have made unsuccessful attempts to define what actually is indigenous law and what is not.The non-legal aspect of primary rules 13. It will be inter esting to see whether the Japanese will show interest in influencing legal change upon the other Asian countries. 4. How do these spheres interrelate generally and within a given cultural context? B. legal)? 5. Norton & Company. dozens of indigenous legal systems can exist next to each other. But in practice. Guiding Questions: The Elements of the Comparative Perspective 1. 1999). although the solution may be contained in law. the reduction of foreign aid from EC countries and the US.. and Japan will be left as the unrivalled major donor and trading partner of most countries in Asia. and History A. Statistics indicate that the reluctance to rely on state courts is much greater in Asian societies. nor as totally unimportant because of its use for international trade. What are legal traditions? How do they develop? Why do they develop? 2. Texts Jared Diamond. An informal legal system is formed when people circumvent the adapted rules and choose to use informal practices instead. Who defines legal tradition? Ubisocietasibiius. in Indonesia. the conflict with fundamental legal principles of the society as prescribed by customary law and poor acceptance by people because it is largely seen as serving purposes of economic development rather than as granting basic rights to individual citizens. The law is much more than primary rules. trademark violations are not solved by a court injunction but by an advertisement campaign of the trademark owner warning his clients about pirated products. 2. In some Asian countries. Western law is still being preserved despite the option not to do so. 1. Germs. not because of biological differences (such as intelligence) among peoples themselves. (Where there is What influenced societal development History followed different courses for different peoples because of differences among people¶s environments. Western law can neither be seen as the legal basis of Asian societies because of its rather insignificant use by the indigenous population for the regulation of their affairs. The body of indigenous law rarely consists of a single homogenous system. Seminar 2: Concepts of Legal Traditions. 5. Asian values may become increasingly significant in Asian legal systems because of the developmental state that many of the Asian states are in. social. For example. and Steel: The Fates of Human Societies (W. Such conversions require one to delve into social-legal policy. neither legislators nor the courts pay attention to social legal policy in the process of conversion. social and political one. What parts do culture and history play in the formation of legal traditions? 3. Inc. there is law).g.. 4. Conversion of social consensus of solutions into a legal obligation 14.W. Antons. The vast majority of the former colonies in Asia are still subjected to indigenous Asian law. [V] 1. What do we mean by normative spheres (e. C. Conclusion 15. such questions of social-legal policy might be expressly resolved by legislatures as they consider proposals for the enactment of new primary rules and by courts that are considering whether to promote a desired social result by expansive or restrictive interpretation of existing legal norms. . The question of what kinds of consequences should attach to people¶s acts or omissions is an economic. Persistent link to this record: http://www. Cultures. In an ideal society. Guns.

25 MULR 2001.´ 51 Int¶l & Comp. The reason why the Western world is far better developed than the other parts of the world may also not be related to the presence of lowland river valleys in dry climates.. No.A. µA Greater Sense of Tradition: The Implications of the Normative System Principles in YortaYorta for native title determination applications¶. James.Persistent link to this record:http://eprints.W.html Lavery. whereas one can survive in the tropics with simpler housing and no L. Glenn. Murdoch University Electronic Journal of Law. ³The Impacts of Colonial Law and Policy on Indigenous Family Life in Australia. where highly productive agriculture depended on irrigation systems that in turn required centralized bureaucracies. Persistent link to this record:http://www.libproxy. 35 (2002). (especially [5] ± [55]) Persistent link to this record: http://www. Indigenous And Colonial Traditions In Native Title´. Vol. and that cold climates require one to be more technologically inventive to survive in keeping December.2. Complex irrigation systems came after the rise of centralized bureaucracies.html Janeczko. 3.austlii. People have argued that seasonally variable climate at higher latitudes poses more challenges than does a seasonally constant tropical climate. ch.Persistent link to this record:http://heinonline. What did NOT influence societal development The reason why the Western world is far better developed than the other parts of the world may not be related to the stimulatory effects of climate. Daniel 2003. 10. ³Members Of The YortaYorta Aboriginal Community v Victoria.´ Groundings 1 (2007).edu. Legal Traditions of the World. F.journals/incolq51&id=45 Cockayne. . ³Global Doctrine and Local Knowledge: Law in South East 1 [CR] Harding.