Prasenjit Sarkar

TEACHING OF COMPARATIVE LAW Teaching of Comparative Law – Methods and Approach The teaching of comparative law opens the world for students to learn about approaches and concepts that may not be present in the national legal system. Does it entail acquaintance of the law as prevalent in foreign nations, a consciousness of their legal systems from a purely academic viewpoint? If not, how do we structure teaching that would lead to appreciation of and practice of the different methodologies, and help them integrate the varied concepts and offer solutions that help unify and harmonize them? We know that law is a means of social control and organization. With increasing globalization, it is imperative that we equip our students to make appropriate functional comparisons that provides insights and help formulate techniques for scenarios where no ready-made rules or precedents may exist. What is Comparative Law The nature of comparative law renders itself to multiple subjective assessments. At its simplest, it is a comparison between different legal systems, the differences between them and their similarities. It is therefore an undertaking for the discovery, explanation and evaluation of similarities and differences of varied legal systems, belonging to different geographical jurisdictions. On the other hand, some scholars have opined that comparative law is more a method, or a variety of methods, to compare different bodies of law. 1 The commonality in all these interpretations is that the comparative element is essential to the understanding of influence between different legal systems as also an appreciation of adaptation of law to prevailing social conditions. Comparative law not only aids in the interpretation of different legal systems but also 1 Ugo Mattei, Some Realism about Comparativism: Comparative Law Teaching in the Hegemonic Jurisdiction, 50 Am. J. Comp. L. Supp. 87 (2002). Available at: http://repository.uchastings.edu/faculty_scholarship/1283 2 plays a bigger role in the adaptation of one socio-legal system into the legal framework of another jurisdiction. 2 It was in the early nineteenth century that an appreciation of the study of comparative legal systems was first recognized. However, the practice of comparative law can be traced as far back as the 4th Century BC when Greek lawmaker Solon is said to have curated the laws of multiple city states when he was tasked with compiling laws for Athens while Aristotle, in the 4th century, studied the constitution of 158 city states to draft a model constitution.3 Thus it is evident that comparative law has played an important role in improving and codifying laws since ages. Also, in recent times, the development of international laws, like in international trade or on the question of human rights, has accentuated the need to formulate rules that do not apply only to the jurisdiction of a single state. The study of comparative law Any substantive study of comparative law requires an appreciation of the cultural perspectives pertaining to the jurisdiction of the law being analyzed. The use of different legal concepts in different geographies stem from the sociological and philosophical environment prevalent in different societies across the globe. Therefore, any study of the subject should be able to explain how the different legal systems adopted legal concepts in the context of social use and objectives of that society. In a study4, W. G. Friedmann, illustrates how vital differences in ways of thinking in different societies can be appreciated by a study of the respective legal 2 Kiekbaev, Djalil I (2003), Comparative Law: Method, Science or Educational Discipline? Electronic Journal of Comparative Law: Vol. 7.3. Available at: http://www.ejcl.org/73/art73-2.html 3 David, Rene (2011), Comparative Law, examination of comparative legal systems and of the relationships of the law to the social sciences. Available at: https://www.britannica.com/science/comparative-law 4 Friedmann, W. G., The Teaching of Comparative Law: An Innovation at the University of Melbourne, University of Western Australia Law Review 90. Available at: http://www.austlii.edu.au/au/journals/UWALawRw/1948/12.html 3 concepts and functions. For this he has cited an example of the study of the concept and function of trust as prevalent in English law with the concept of Stiftung, a German legal application of the same concept. Thus, a careful study of different approaches adopted in different geographies to solve similar problems may help students develop an understanding of transnational legal regimes and respond appropriately in an increasingly pluralistic society. The challenges of teaching comparative law are manifold. Legal researchers have often equated it with the study of sociology, a science which is a study of different aspects of life to understand the spirit of a group of people. Similarly, law has evolved as a mechanism of social control and organization. Max Rheinstein, in an interesting work5, draws these parallels and infers that any study of comparative law should meet the following two objectives:  One should be able to explain what purpose the law serves for the present society and  Whether it serves the function well or would an alternative be better for the purpose Rheinstein thus expounds the two pillars on which any study of comparative law should be based. First, it should be able to explain the functionality in the context of prevailing societal norms of the region and secondly, a comparison with other jurisdictions should elicit an answer on whether an alternative system would have been more appropriate. A relatively more complex and inherent challenge is the prevalent structure of law courses in this country and others generally. The law curriculum is designed to address the needs of a vocation, which is the dispensation of justice within national boundaries. This approach is inherently 5 Rheinstein, Max (1938) "Teaching Comparative Law," University of Chicago Law Review: Vol. 5: Iss. 4, Article 4. Available at: http://chicagounbound.uchicago.edu/uclrev/vol5/iss4/4 4 biased towards limiting the boundaries of study to one’s own legal order, namely the national law. This constrains a student’s view to study law that is “legally relevant”6 for them. As the term ‘comparison’ implies, the study of comparative law is more of an activity. It is an act of doing where you compare; compare between two or multiple legal systems. Methodologies depend on the context; are we doing an historical comparison, a functional comparison or a comparison of structures? A further difficulty arises from normal bias of one’s own law and therefore the possibility of subjectivity creeping in to the assessment of a foreign law. Sebastian Poulter in his seminal work7 on customary law in Lesotho has discussed how to elicit information when analyzing foreign law that could possibly be used as a method to bring objectivity to the study. We will discuss this later in this study. Teaching Methods and Approaches In the teaching of comparative law, it is essential to focus on concepts and the principles governing a certain field of law. This would help students identify the basics and then go on to identify he common principles that have gone into the formulation of common law across different nations. When students are aware of the basis, it should become relatively easier for them to focus on the comparison of legal concepts. However, as Max Rheinstein points out in his discussion, the prevalence of the principles of precedence and of tradition often prevent existing institutions from discovery of the true 6 Husa, Jaakko, "Turning the Curriculum Upside Down: Comparative Law as an Educational Tool for Constructing Pluralistic Legal Mind" (2009). Comparative Research in Law & Political Economy. Research Paper No. 35/2009. Available at: http://digitalcommons.osgoode.yorku.ca/clpe/147 7 Poulter, Sebastian, “An essay on African customary law research techniques: some experiences from Lesotho”, Journal of Southern African Studies Vol. 1, Iss. 2,1975, Pages 181-193. 5 nature of a certain foreign law. To overcome this problem, he suggests inducting elements of sociology into legal sciences, what he calls “the sociology of law”8. To understand the evolution of law in all its manifestations, it is important to understand its history across the world. Thus, a student must be trained on several heterogenous systems. They need to understand the laws of multiple countries, gain an appreciation of multiple cultures set in different timeframes in history and can correlate these to understand legal evolution across cultures. At this juncture, it would be important to look back at Sebastian Poulter’s work and understand the concept of bias and how to adopt methods that can help a student get rid of bias in their analysis of foreign law. Poulter was engaged as a senior lecturer at the University of Botswana Lesotho and later at Swaziland in Roma, Lesotho. During this period, he devoted himself to the study of legal methodology in the light of Sotho law and customs. He was concerned that his Western influence should not limit his analysis and that his concepts of law should not get projected onto local cultures and customs9. To detach himself from the influences of his own legal culture, he undertook an extensive approach that involved reading of local legal literature, review of past judicial decisions, asking detailed circumstantial questions, crosschecking his findings with local sources and numerous independent surveys. What this implies is that in the teaching of comparative law, we should be able to help students dissociate themselves from influences of their local law by helping them expand their horizon beyond the realms of the national law. Courses and curricula that help educate themselves of the differences in origin and 8 Supra, page 620, where Rheinstein explains how comparative law has a task of not only classifying and arranging humongous data pertaining to existing law but also develop techniques that aid in deciding cases in the spirit of the given legal system. 9 Palmer, Vernon Valentine, From Lerotholi to Lando: Some Examples of Comparative Law Methodology (2004), Global Jurist Frontiers Vol. 4, issue 2, Article 1. Available at: http://www.uio.no/studier/emner/jus/jus/JUS5240/h12/undervisningsmateriale/palmer.pdf 6 history of the different legal systems is necessary. This needs to be a conscious process, a process of problem solving that helps bridge the differences through study of history, of the migration of legal ideas and relationships between legal systems.10 Some methodological problems in the study of comparative law stem from issues of language. In many instances of comparison, it has been seen that in translating an information published in a local legal publication, often the tone has changed and acquired an interpretation thereof of the editor. In such instances, it is obvious that the reliability of the material would be in question and may also be of divergent quality. This is a problem that requires careful consideration and in teaching, we need to ensure appropriate access to the foreign law, and offer tools that will be able to translate what is said into the language of the user. This requires a knowledge of the foreign system and a comparison mechanism with one’s own legal language. This can be achieved through providing multilingual legal dictionaries and at the minimum, some technology supported translation tools. The way legal courses are structured today, students first acquire knowledge of the national law and comparative law comes I much later or is a supplementary requirement. Thus, the students initial legal understanding gets formed based on one mother-system. This may aid in the creation of a funnel vision where the legal approach as practiced in one’s own nation is taken to be the norm. Instead, we could look at restructuring curricula to take a more generalist approach at initiation where general legal questions and principles could be explained, principles to construct legal questions and ways of answering them should be taught. This, as pointed out 10 Supra, page 23, where Palmer discusses competing models that need to be studied in the pursuit of optimal doctrines. 7 by Jaakko Husa, could stimulate legal thinking in students.11Comparative Law, taught as just a supplementary subject may not be apt for today’s transnational legal world where economic boundaries are getting increasingly blurred. In the globalized future, lawyers should be able to form solutions to challenges of a global legal integration. In such a scenario, it would perhaps be apt to design a curriculum that teaches concepts from a global perspective. For example, some European Universities like the University of Utrecht are moving to an international curriculum12 where they teach concepts of contracts, torts, property and family law in comparison to prevalent laws and systems on the European continent. In recent years, there has been an increasing interaction between professional pursuing comparative law with legal anthropologists.13 As discussed before, study of foreign law also involves a study of elements of the local legal culture. Legal anthropologists are interested in the cultural origins of law and the functions it plays in that society. It would therefore be useful to engage legal anthropologists in the teaching of comparative law. They could help enlighten students about cultural contexts and how these contexts relate to societal perceptions and the interpretation of the law. In India, there has been significant progress in teaching of comparative law. With the increased globalization of the world, the National Knowledge Commission also recommended that legal education imparted in the country should be able to meet the demands of trade, 11 Husa, Jaakko, "Turning the Curriculum Upside Down: Comparative Law as an Educational Tool for Constructing Pluralistic Legal Mind" (2009). Comparative Research in Law & Political Economy. Research Paper No. 35/2009. Available at: http://digitalcommons.osgoode.yorku.ca/clpe/147 12 Gert Steenhoff, Teaching Comparative law, Comparative Law Teaching, vol 6.4 Electronic Journal of Comparative Law, (December 2002), Available at: http://www.ejcl.org/64/art64-4.html 13 Mauro Bussani and Ugo Mattei, The Cambridge Companion to Comparative Law (2012), First Edition, Page 30. 8 commerce and industry. The objective, as outlined in those recommendations was to prepare lawyers who can deal with different legal cultures while they stay rooted in the national legal system. Despite this recognition of the need for trained lawyers who can appreciate the nuances of international law, Comparative Law continues to be offered mainly as an optional subject in Indian Universities. There is therefore a need to integrate a study of comparative law with the regular curricula. In designing approaches, care should be taken to accommodate the multitude of skills required to have a grasp of the complexities involved in the profession. The initial focus should be to equip students with the ability to gain linguistic knowledge and develop objective evaluation skills. Going further, students need to be guided on the application of comparative skills to evaluate external law. The other skill that would be of great importance in the domestic context would be the ability to apply the same methodologies to an evaluation of the national law. This could have long lasting influence on the formation of law internally. With the recognition that the systematic observation of law and their usages in a global context is of great practical and theoretical interest, there is no gain saying that it should be part of the general legal education system of the country. Lastly, but nonetheless important is the subject of who teaches comparative law. While general lectures and tutorials could form the basis for an introduction to the main legal systems, it would be great to have teachers with first-hand knowledge of the systems that are being taught. They would be able to articulate the nuances of law in the context of the culture of the jurisdictions involved and they also understand the systems as it functions there. As education evolves in an era of globalization and as more lawyers get to practice in another country than the one where they were educated, it is important to offer courses that are not tied to a national legal order. Generalist approaches teaching principles governing a field of law are 9 essential to identifying the common principles of law and extend them on a universal or regional basis, as the objective would demand.