Contents

Theory............................................................................................................................................................................. 2
Views on legal transplants...........................................................................................................................................2
Methodology................................................................................................................................................................... 3
Tertium comparationis................................................................................................................................................3
Functionalism..............................................................................................................................................................3
Socio-legalism..............................................................................................................................................................3
Choosing objects of study...........................................................................................................................................3
Civil-Common Law Divide................................................................................................................................................4
In history.....................................................................................................................................................................4
In evidence.................................................................................................................................................................. 4
In contract................................................................................................................................................................... 4
In tort.......................................................................................................................................................................... 5
Impact of legal cultures...............................................................................................................................................5
Legal Pluralism................................................................................................................................................................ 5
Asian Public Law..............................................................................................................................................................6
Constitutionalism........................................................................................................................................................6
Impact of culture, national ideologies and religion.................................................................................................6
Separation of powers..................................................................................................................................................6
The military and the monarchy...............................................................................................................................7
Judging constitutional issues.......................................................................................................................................7
A Globalised World..........................................................................................................................................................7
Harmonisation.............................................................................................................................................................7
Influencing the legal order..........................................................................................................................................7
CISG............................................................................................................................................................................. 7

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Theory
Jaako Husa: Comparative law is for different purposes, depending on who compares. What to compare, where to
start and the outcome, all of these depend on the purpose. They might be legislative or scholarly comparative
lawyers, but each have their own purpose. They might have a desire to protect their own legal history, or they might
be using comparative law to make decisions about laws to implement. Like after the fall of the USSR in 1989, model
shopping and practical comparative law came to the fore. While other lawyers are looking to find a universal law, like
in the case of the Phinikaridou (2007) ECHR case – though the registration of paternity was time barred, the court
held that they deserved at least one chance to check. A procedural registration limit would be a limit to human
rights.

People can understand without accepting, and end up comparing unconsciously as they try to express and
understand what they see. Based on what comparatists begin knowing, they should also realise that to understand
their legal system in its entirety, they should see it from the outside. In 1900, the International Congress on
comparative law was centred around the French laws and only European countries attended. Though the English
overserved, they had not gotten around to writing their laws, and the presenters of the law were mostly concerned
with encouraging the adoption of their laws.

Vivian Curren: Comparative law also has potential to broaden the legal perspectives. Further, there should be space
for differentiation of law without subordination. The language, words and judgement are all parts of a legal culture.
In fact, the only thing in common is difference. Underlying similarities that are observed may be deceptive creations.
Comparison is similar to a back-forth between cases and statutes.

Gleeson: Caution against underlying biases that the West is better and more developed.

Views on legal transplants

Legal transplants refer to the cut and paste of laws of one jurisdiction into another.

Pierre Legrand (linguist): Are impossible.

Laws are part of society and have historical, epistemological and cultural baggage that cannot be transplanted. The
meaning of the rule and words are different for each country as the reader’s interpretation would be different. The
larger cognitive framework that interprets laws is different. Thus in a transplant, there’s a loss in transfer – a loss of
nativity. A meaningful transplant would move both the proposition and its invested meaning, but there would
definitely be a loss in translation. Similarity in words would not help. Instead, comparatists should focus their studies
on comparing differences in the laws.

Alan Watson (historian): Have been done and are an approach to comparative law

Western law is derived from Roman Civil law – and despite the diversity of contract theories, there is agreement
with regard to basic contract rules. The closeness in wording and meaning of the laws across the western sphere
show that some connection must exist, and that legal transplants are not new.

Ralf Michaels: can be mass produced like IKEA

IKEA’s one size can fit all approach is good for law reform – because you don’t need perfect law, just good enough
law. This is the distinction between functionalism and formalism. Because of globalism, the idea of locality which was
precious to Legrand is now questionable. The local contract is not as heavy a barrier to transplants.

Empty rules and propositions where you keep only the text can be transplanted to good use. As legal cultures are not
relatively isolated, empty rules can be used as artifacts that fit in wherever they must go. Finally the global reservoir
of such empty rules can come all together as a package, with form and standardisation so everything fits.

Kim Lane Scheppele: have potential to do both good and bad.

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Just as good ideas can move, transplants are also seen in the migration of anti-constitutional ideas. There’s a
difference between the voluntary borrowing of law that legislators have had time to look through and pick, and the
migration of ideas by imposition. For example, when it comes to international security law instead of it being
voluntary, the changes moving in one direction that were imposed by international organisations eg. UNSC
Resolution 1373 that legislated anti-terrorism laws. Countries that complied with these requirements in order to
follow the UNSC’s directions to catch terrorists, but further expanding on the laws to widen their own powers – seen
in Vietnam, Russia and China. In contrast, Canadian criminal law customarily did not need proof of motive. Mexico
and Venezuela instead, were pressured to make freezing of assets of potential terrorists faster than a court ruling. As
all ideas can migrate, the relationship of law and state authority is something to be careful of. Especially when the
law expands not for the need of the country, but for international organisations.

 Also the idea of legal positivism that says only parliamentarians can make law for their own people, being
rooted in the idea of sovereignty. Unlike the sociological position that states society must make their own
law, even if society is diverse.

Mindy Chen-Wishart: On Singapore and Confucianism, and the impact of transplants from England in Undue
Influence.

Though the Singapore Courts profess to follow Royal Bank of Scotland v Etridge, they rarely find undue influence.
Instead, the local understanding of relationships and roles that each person correctly plays was seen in the words of
the court. Where despite finding that the father had a “cruel and unusual” manner of verbally abusing his son, there
was still no undue influence – OCBC v Chng Sock Lee. [Hopefully this has been since overwritten by the 2019 SGCA
case of BOM v BOK.]

Methodology
On how to do comparative law, there are stages -> but of course each person would know why they are doing it.
They have a purpose, and a goal. Based on that and their own limitations, they would fit a method to do so.

Tertium comparationis
The basis of comparison is a preliminary question for people who are going to do some study on comparative law –
John Reitz translates it as the common point of departure. It might be a real life problem or ideal, a legal rule,
doctrine, an institution or socio-economic problem or a normative ideal. When picking this departure point, it is
important to identify the implicit biases in your assumption.

Functionalism
Zweigert & Kotz: Things to be compared in law are those that have the same function. This function would be the
solving of a socio-legal problem, rather than a theoretical concern. They envisioned that solutions could be cut loose
from their conceptual context and stripped of national doctrine. Thus, they would be viewed purely in light of their
function to solve a particular legal need.

An assumption this had was a presumption of similarity, that the two jurisdictions had the same problem to solve.

Socio-legalism
Mathias Siems: explains it as being more focussed on the law in action. Based on the mirror view that law reflects
society, law would change slowly as society changed, even though lawmakers were not society, they would reflect
the changes accordingly.

Catherine Valcke: views it as a method that is descriptive rather than prescriptive, and avoids labels that come from
a particular system. Instead, doing it in a manner that comes to understand the law. It encourages immersion such
that the comparatist can understand the law from as internal a manner as possible.

Choosing objects of study

Wolff: comments that personal features and familiarity of researchers appeared to be the main reasons why
particular legal systems were chosen to be compared. Horizontal, vertical and temporal comparison would suit

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different needs. The most important thing is that the reason for choosing your objects of study be identified and
aligned with the goals of your research. Practicality cannot justify the choice of legal systems from a methodological
perspective, eg. a banana on the way home.

John Reitz: also cautions comparatists to look out for the difference between law in the books and law in action, and
also information about foreign legal systems, particularly when they are translated for a particular audience.

As he says, “criticism from the outside is always suspect of chauvinism”, and one should be explicit in their
comparisons and respectful all the same.

Finally, law in the books and laws and the courts are not everything to the law. The idea of Legal Formants refers to
all the elements that constitute the living law, which might be judicial statements, textbooks or even the
practitioners – these components concur and overlap to result in that result that comes from applying the ‘law’.

Civil-Common Law Divide

In history
Common Law
Litigation in the middle ages were based on writs (a
kind of form that you fill in and poof you have a case).
These judge made laws came under parliamentary
control in 1285. And in the 14 th century the courts of
equity were made. Similarly, the 4 Inns of Court began
to guide and call lawyers to the bar. This would allow
the solidarity of the profession, which supported
parliament tin the 16th and 17th century in opposing
the Tudors and Stuarts who had a desire for an
absolute monarchy and Roman Civil Law.
Civil Law
Rooted in the 6th century Corpus Juris Civilis
commissioned by the Roman Emperor Justinian I. The
revival in continental Europe began in the Northern
Italian universities, and scholars who learnt law there
brought it back to their countries. The distinction
between the purposes of the civil codes drafted by the
French (for the people) and the german (for the
practitioners). Nevertheless, judicial lawmaking is
heavily frowned upon even today. Eg. in the French
revolution, the judges were seen as to be overthrown.

In evidence
Mirjan Damaska:

The approaches to fact finding in the two systems differ, resulting in difficulties in transplants.

Eg. In the common law, restrictions on evidence that can be shown to the jury. Because lawyers are the one who find
facts in order to craft their cases, hostile witnesses and contact with witnesses is normal, a judge’s questioning can
come off as coloured.

Unlike in the civil law, where importing a jury system is seen as odd because judges have the power to summon
witnesses, and the judge’s questions have a mediating impact. Lawyers cannot touch witnesses because that would
be polluting the court’s informational sources.

In contract
Parglender: commenting on the differences in the role of the state in contract law.

Common law which prioritises less intervention often results in less specific performance, because they leave it to
parties to decide what they eventually do. Contracts are viewed as agreements between two people. (as Valcke
would describe it, contracts a framed as an intrinsic source of reciprocal authority, rules account for facts and not
meant to rely on the broader contract. The bargain is welded by whatever consideration that parties have.)

Unlike in the civil law where the state is there to use good faith to fill in gaps and override express terms in a
contract between two parties for the sake of social values that are desired. Because they have a social concept and
objective, the German and French have a Fairness Test that is objective and stricter than the UK’s Unfair Contract
Terms Act. (as Valcke points out, there is a difference in the legal styles. The collective statement on identity in the
civil law system states that contracts are part of society, and must be independently justified by the world’s moral

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truth. Thus contracts are promises with religious and societal weight to them, a contract is only as good as the
morality of it. Difference in outcome with Smith v Hughes, cannot rely on the sample.)

In tort
James Gordley & Arthur Taylor: show the broad difference in how the common law and civil law look at torts –

The common law has ‘types of torts’ and need various factors like duty, breach, causation and remoteness before
they give ‘damages’. This also meant that new torts have to be lined out when there’s something that doesn’t fit into
the system, like in Wilkinson v Downton. Rooted in the writs of the Middle Ages.

Unlike the civil law that starts from the broadest possible wrong things that humans can do, which catches all kinds
of tortious behaviour. This comes from the broad two ‘types’ of torts explained in the Roman laws. For the French,
who see the body as personal property, any kind of damage will count. Also seen in the way they call it ‘extra
contractual liability’ – which needs damage, causation and fault -> this fault is the judgement of society.

Impact of legal cultures

Mauro Bussani & Marta Infantino (tort law scholars)

Tort law is a product and constituent of the very cultural framework in which it is embedded.

- What is an injury, what is causation (and what is ‘force majeure’), fault (or no fault), which parties are
involved (is society damaged?), and what remedies are appropriate?

All the way to insurance offices and their idea of fault and what can be insured, or what would be the fault of the
victim.

Legal Pluralism
The idea that even within legal systems there can be different types of law. It is said that Asia is an area where legal
pluralism is common. So much that Andrew Harding calls it the Nomic Din.

To the positivists, if the law is not recognised by authority, it’s not law. But states do, often recognise laws beyond
themselves (though they often co-opt it into being part of them)

Uwe Kischel: comments on the common and civil law jurisdictions of Asia, and how they came to be in the first
place.

China -> After a long history of the Tang Code and it’s own system, with the Opium Wars, it was forced to take on a
Civil Code that was translated immediately into English for the British. This Code came mostly from the Germans and
the Swiss. Today, despite that code as the official statutes, there are regulations, norms and normative documents
released by the Communist Party that styles itself as the paramount source of law in the country.

Japan -> Gunboat diplomacy by the west and the later Meiji Restoration. A large impact by the German scholars
regarding laws and civil code on the Meiji leaders, which survived even with MacArthur’s imposition of American
ideas with the constitution in 1946 after Japan’s defeat.

Taiwan -> Which underwent Japanese colonisation, and the survival of Taiwanese customany law, though
interpreted in Japanese with German principles. When they returned to China after WWII, only for the split off by
Chiang Kai Shek, the Six Codes of the 1930 Civil Code remained.

Korea -> Influence of Buddhism and importing of the language, culture and laws from China, use of the Tang Code.
Later the struggle between Buddhism and Confucianism ended with the rise of the Joseon Dynasty in 1392 which
entrenched Confucianism. The Six Codes of Governance under Yi Seong Gye would later become codified. After
Japan took over Korea, some similarity to Taiwan in the survival of Korean customary law, despite the change in filter
of understanding. The Korean constitution being built off the American one, but having further codifications to
replace colonial law with German and Swiss codes. Law reform later also referred to the German code in debates,

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along with European legal projects and international law. Further, the Korean version of the American Constitution’s
provision that every person has a right to pursue happiness-> shows deviation.

India -> Impact of the British East India Company, and the bringing of law to secure commercial interests rather than
to protect the people. Codification in the Government of India Act 1858 was a reaction to the rebellion in 1857, and
lasted till independence in 1947. Traditionally jurists in India have a high position in the hierarchy due to the link to
independence and Gandhi.

Indonesia -> it’s surviving customary law has roots in the 7 th century Buddhist and Hindu Kingdoms – adat law. Dutch
Colonisation brought commercial law, much like in India. The purpose of the brining of laws. Thanks to the efforts of
Cornelis van Vallenhoven who argued for the retention of adat law, allowed for different legal regimes for different
people so it survived, except for criminal and commercial law. The adat law was then formalised and transcribed. In
the independence of Indonesia, actors like Sukarno and Suharto made attempts as well, in favour and then quashing
religious laws and the influence of Islam.

Asian Public Law

Constitutionalism
Refers to the idea that a constitution is the supreme law of the land and nothing is above it. Under the liberal
constitution, constitutionalism is considered a force that encourages convergence in the desire to have normative
individualism, the prizes the liberties of people. But in the years we have seen illiberal constitutionalism, where the
constitution points to other goals, for example, religion, or communal goals. In such constitutions, the state has a
view of public good that is pursued.

Mark Tushnet: Also points out that one extreme is domestic constitutional exceptionalism, where countries view
their constitution as the best. Forces of convergence can come from top down directions (eg. NGOs) or bottom up
(pressures from the needs of the people, or commercial stability, or vested interests of people in the legal field).

Countries may appear to ‘race’ but they are racing to different points for different goals.

Impact of culture, national ideologies and religion

Chang Wen-Cheng and others: the differences in constitutions often reflect the differences in cultures. Eg. in India,
they choose to express a spiritual need in “compassion for living creatures”, or in Timor-Leste, trying to codify a
sense of ‘self’ in “value the personality and cultural heritage of the East Timorese people”. Constitutions also often
regulate the conduct of war, the composition of the country’s executive, or might talk about wishes for goals like re-
unification in Taiwan and South Korea.

National ideologies as created by leaders are often also included into the constitution when they have enough
power. Further, over long terms of office, a country’s government can grow into a kind of institutional culture.

Separation of powers
Andrew Harding: who discusses the transplantation of the Westminister Model throughout the British Crown.
Having a distinction between the versions that were exported and implemented without discussion, and those that
were debated by the locals (who had been trained usually in the UK). Because the WM Model did not have a written
constitution, there was nothing that needed to be amended before parliament made decisions – this was
Parliamentary Supremacy. Unlike where the WM was exported to, which usually had written constitutions, thus
allowing for Constitutional Supremacy.

Kumarasingham: Discussing Eastminister and particularly Ivor Jennings’ confidence in the British system, such that
he encouraged the export of it to all the colonies undergoing decolonisation. Unlike the skeptic Malcolm MacDonald,
who felt that the colonies were “inclined to acquiesce in being governed by others rather than governing
themselves” Further, the influence of the Asian Raj (returning Western trained intelligentsia), interfering head of
state that did not obey the separation of powers as envisioned in the West Minister Model, selective dictatorships,
pressures of minority rights and other invented conventions would lead to many amendments to the WM Model

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Dian Shah: Commenting on the differences in Pakistan, Malaysia and Indonesia when it comes to religion and the
constitution, reflecting the political will, and the impact on the people and composition of the country.

The military and the monarchy

Kevin Tan: points out that in Vietnam, the military is entrenched in the constitution via art. 66, and that it also plays
a heavy role in Thailand, eg. its coups, and the counter by the King during the Black May crackdown. Historical
reasons, like the prominence of the military in independence movements also account for the impact and weight
that the military has in the governance of the country.

Pavin Chachavalpongpun: highlights that the roles of Kings in SEA also vary widely. While the Thai King is the centre
of the political power of the country, the King in Cambodia is ceremonial, while the King in Malaysia appoints
political powers, and in Brunei, he’s almost the spiritual leader. In particular, Thailand is interesting to consider
because the King follows Buddhist law, not the constitution.

Judging constitutional issues

 Who upholds the constitution, Political constitutionalism vs. judicial constitutionalism.

Whether there is a decentralised system to hear constitutional issues, or centralised. Where and who can raise the
issues, what issues are suitable to be heard, and what powers the instrument that hears the case can do.

A Globalised World
Harmonisation
Siem describes laws around the world as partners and rivals, where the basis of comparison is changing from state to
state to something else. The legal world of kings is gone forever, and so has history.

Hybridisation and cooperation of laws is seen in the are of the Conflict of Laws and more physically, in extradition
treaties, unlike jurisdiction claiming like the US’ Alien Tort Statute. Unlike convergence, which just ‘happens’,
harmonisation is a deliberate action.

Gomes & Ganuza: describe different types of harmonisation – minimum, where they go to the lowest standard set,
maximum, where they go to the highest standard set, and then partial harmonisation where they do either but only
for a limited area. Option harmonisation is where cross border transactions come into play, and the harmonised
standard is only for products being exported.

Examples of such: EU and ASEAN.

Influencing the legal order

Bermann: Is something that many international bodies try to do. But at the same time, they produce legal practices
and norms that are different from those of the states that form part of them. As a result, they have to mediate the
differences as well.

Siems: argues that globalisation is eroding the idea of nation states, particularly for those which were not coherent
states to begin with. Further, non-state actors like NGOs, industry groups, religious couples also contribute to the
weakening of the state and its authority to be the setter of laws. The interplay also results in ‘dynamic interlegality’.

The best example of transnational law, which transcends state boundaries is in commercial law -> though things like
IFRS/GAAP are influential, things that set laws that can be adopted, like the UNCITRAL model law on commercial
arbitration law. The more people use it as clauses in their contract, the more influence it begins to have as people
choose its jurisdiction.

CISG
Created by UNCITRAL – that finds legitimacy in it’s composition and the way it organises its work. Further, the
various avenues that it explains it’s own writing process and how to apply and interpret the words it uses – seen in
interpretative guides. CISG was built as a global sales convention from many things and countries’ laws, across both
the common and civil law systems
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