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 foreign 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: http://mitworld.mit.edu/video/266 1. One of Indias smartest engineers, trained at his countrys 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.

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Alexander, Larry and Schauer, Fredrick, Laws Limited Domain Confronts Moralitys 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: http://papers.ssrn.com.libproxy.smu.edu.sg/sol3/papers.cfm?abstract_id=900254 The concept of limited 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 limited 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 Laws 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

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laws claim to practical authority. As a result, 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, just as the law has good moral reasons for imposing its legal will on those same moral agents. How law operates by cutting off access to certain considerations An individual rule, as is well-known, achieves its rule-ness by cutting off access, either absolutely or presumptively, to the full range of considerations bearing on some decision, and even to the background justifications whose purposes the rule was designed to serve. Modest incorporationism of morality into law If legal reasons do not decide a particular case, then there is nothing amiss in -- indeed, there is everything right about -- the judges 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, of course, legislators -- who are legally authorized to change the legal constraints (except those that are constitutional and can only be changed by another set of legislators) -- 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 change. This is termed as modest incorporationism of morality into law. But in all common law systems, and in all systems that employ highly indeterminate constitutional or, less often, statutory language,law leaves many questions legally unanswered and many decisions legally undecided; and when that is the case, this incorporative role for morality, although modest in terms of its theoretical status, nonetheless plays a significant role in actual legal practice.

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The limited domain of law does not make it morally a failure 10. If we understand law as the morally- prompted social institution that sees the moral value in settlement and the moral value in moral certainty, then we can see why law exists as a limited domain, and why the moral enterprise of law is and must be at least partially closed to the direct consideration of morali ty itself. That law is so in the legal systems of the world we experience is not a moral failing of law rather, it is the embodiment of morality at moralitys fullest, and thus of moralitys best.

Ault, Hugh and Glendon, Mary Ann, "The Importance of Comparative Law in Legal Education: United States Goals and Methods of Legal Comparisons" (1975). Boston College Law School Faculty Papers. Paper 77. Persistent link to this record: http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1077&context=lsfp 1. While torts, contracts, property, crimes and so on, have not been abolished, there is i ncreasing emphasis on how they are related to each other. There is increasing emphasis on how civil procedure is related to all of them. 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, and as a by-product to give him or her more understanding of the local legal system. As a perspective course: The emphasis of comparative law is on the insight which the study of the foreign model can give into the students own legal system. 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.

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Peerenboom, Randall, Asian Discourses on the Rule of Law, University of California, Los Angeles School of Law Research Paper Series, Paper No. 03-15, (Routledge Curzon, Jan. 2004). Persistent link to this record: http://papers.ssrn.com.libproxy.smu.edu.sg/sol3/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- sent their position as a morally reprehensible and philosophically absurd anything-goes cultural relativism. Defenders of Asian values often respond by attacking Western governments for past and present violations of human rights, and accuse them of cultural imperialism and ethnocentricity.

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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, International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. In response, some Asian governments argue that the hard core (referring to the overl apping consensus) of universal rights is extremely limited. Asia is a big place, with tremendous diversity too much, critics suggest, to speak about a singular set of Asian values. On the other hand, a pluralism of Asian values is still Asian values. Max Weber, for instance, attributed the success of some Western countries in part to their legal systems, which he described as logical, formal, and rational. In contrast, 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. Whereas the West has law, order, rule, reason, rational bureaucracies, predictability, and certainty, others have violence, chaos, arbitrary tradition, and coercive despotism imposed by rulers with too much discretion. In some cases, Asian countries are seen as incapable of implementing the rule of law or a modern legal system because of cultural factors. Three forms of legal systems In a rule of professional law or rule of law system, law is the main mechanism for resolving disputes and the state and state actors are subject to law. In addition, law is largely secularized and indepen - dent from religion, morality, and other social norms. In contrast, in a rule of political law system, the separation between law and politics is absent or minimal. Legal institutions are weak, and the law often does not bind government officials. This form of law is characteristic of former socialist states in transition and developing states. Systems adopting traditional law lack a separation between law and religion and/or are based on a traditional transcendental philosophy in which the individuals internal dimension and the societal dimension are not separated. They are characterized by a reduced role for lawyers in dispute resolution and an increased role for mediators and wise men, a high rate of survival of diversified local customs, an emphasis on duties rather than rights, a high value placed on harmony, the importance of a homogeneous population as a means of preserving social structure, family groups rather than individuals as the building blocks of society, a strongly hierarchical view of society, a high level of discretion left to decision-makers, a greater emphasis on the role of gender in society, a hurried and largely unsuccessful attempt to transplant Western legal codes and relationships, and a rhetoric of supernatural legit imization rather than an appeal to democracy and rule of law for legitimacy. Factors affecting the transplantation of Western Law Singapore, Malaysia, Hong Kong, the Philippines, and India are all now grappling with postcolonial attempts to reconcile the colonial legal system with local condi- tions, leading in some cases to movements to give greater expression to indigenous traditions and values. To that end, a variety of cultural and reli - gious traditions, including Buddhism, Islam, Confucianism, and Daoism, may provide valuable resources. Relationship between rule of law and economic development Some scholars argue that law has not played a signif- icant role. Why? (1) Rather, growth has been attributed to Asian varieties of capitalism, which for some means a strong developmental state in which atechnocratic bureaucracy determines industrial policy, picking and choosing winners and in some cases deliberately getting the prices wrong. (2) In a similar vein, some attribute economic success to a close relationship between government and business, described by some as clientelism or corporatism or more disparagingly by critics as cronyism. (3) Still other explanations high- light cultural factors that diminish the importance of clear property rights or emphasize diligence, hard work, education, and saving; the large number of family businesses; informal networks; and relation-based contracting and business practices.

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10. A functional legal system is not sufficient for economic growth. Other factors may be more important, including sound macroeconomic fundamentals and management; a stable business environment with low inflation; prudent fiscal policies; exchange rates to support exports; high savings and investment rates; high-quality human capital (good

education and high literacy rates); merit-based bureaucracies; low income inequality; export promotion; success in attracting foreign direct investment and polit- ical stability. 11. 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.Conversely, substantive or thick theories of rule of law may be distinguished by differences in economic systems or varieties of capitalism. Merryman, John Henry, Comparative Law Scholarship 21 Hastings Intl & Comp. L. Rev. 771 (1997-1998).Persistent link to this record:http://heinonline.org.libproxy.smu.edu.sg/HOL/Page?collection=journals&handle=hein.journals/hasint21&id=789 Comparative law scholarship that identifies law with authoritative texts 1. The most common such texts are rules of law, or what civil lawyers often refer to as legal norms. Text centered scholarship may be referred to as rule comparison. An institution is a structured body of rules, and legal system refers to the body of rules in force in a jurisdiction. 2. General principles of law derived from the study of rules achieved wide acceptance as guides to interpretation of legislation and as instruments of legal science. Works of leading contemporary theorists of comparative law treat rules as the sole or primary substance of comparative legal studies. Legal system refers to the complex of social actors, institutions, and processes referred to by members and observers of a society as legal or juridical or as directly related to or forming part of law or the legal system or the juridical order. 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, the area of social activity to which it attempts or purports to apply. Legal Penetration: The social grasp of the legal system. 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). Legal extension and legal penetration are social dimensions of the legal system. 6. Legal culture: Can be thought of as the inner logic of the legal system, in that ideas about law are a deeply rooted, historically conditioned component of the culture and can powerfully limit and direct thinking about what law is. Legal Institutions: The composite units that maintain, perpetuate and carry on the daily work of the legal system, and include courts, legislatures, administrative agencies, police departments, law schools, legal research institutes and bar associations. Legal actors: The legal roles played by people, such as attorneys/advocates, notaries, police, prosecutors, judges and judicial personnel, law professors, litigants and so on. Legal processes: The activities performed by legal institutions and actors, such as the private ordering of legal relations, legislation, judicial and administrative proceedings, legal scholarship and legal education.

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10. Primary rules: The substantive rules of law. 11. Secondary rules: The rules that define and direct legal institutions, actors and processes, such as rules of jurisdiction and procedure, and rules about rules, those that govern the creation, interpretation and application of primary rules of obligation. 12. Legal expense: What it costs the society to establish, maintain and operate the legal system.

The non-legal aspect of primary rules 13. The question of what kinds of consequences should attach to peoples acts or omissions is an economic, social and political one, although the solution may be contained in law. The legal solution effectuates certain social behaviour. Conversion of social consensus of solutions into a legal obligation 14. Such conversions require one to delve into social-legal policy. In an ideal society, 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. But in practice, neither legislators nor the courts pay attention to social legal policy in the process of conversion. Conclusion 15. The law is much more than primary rules. Antons, C., Analyzing Asian Law: the Need for a General Concept (1995) 13(1) Law in Context 106-119. [V] 1. The vast majority of the former colonies in Asia are still subjected to indigenous Asian law. The body of indigenous law rarely consists of a single homogenous system. In heavily diversified countries, dozens of indigenous legal systems can exist next to each other. Colonial powers have made unsuccessful attempts to define what actually is indigenous law and what is not. An informal legal system is formed when people circumvent the adapted rules and choose to use informal practices instead. For example, in Indonesia, trademark violations are not solved by a court injunction but by an advertisement campaign of the trademark owner warning his clients about pirated products. Statistics indicate that the reluctance to rely on state courts is much greater in Asian societies. Cultural values are partly responsible for this different attitude towards litigation. In some Asian countries, Western law is still being preserved despite the option not to do so, 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. 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, nor as totally unimportant because of its use for international trade. Asian values may become increasingly significant in Asian legal systems because of the developmental state that many of the Asian states are in, 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. It will be inter esting to see whether the Japanese will show interest in influencing legal change upon the other Asian countries.

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Seminar 2: Concepts of Legal Traditions, Cultures, and History A. Guiding Questions: The Elements of the Comparative Perspective 1. What are legal traditions? How do they develop? Why do they develop? 2. What parts do culture and history play in the formation of legal traditions? 3. Who defines legal tradition? Ubisocietasibiius. (Where there is society, there is law). 4. What do we mean by normative spheres (e.g., social, political, legal)? 5. How do these spheres interrelate generally and within a given cultural context? B. Texts Jared Diamond, Guns, Germs, and Steel: The Fates of Human Societies (W.W. Norton & Company, Inc. 1999), pp 13-32. Persistent link to this record: http://www.youtube.com/watch?v=bgnmT-Y_rGQ What influenced societal development History followed different courses for different peoples because of differences among peoples environments, not because of biological differences (such as intelligence) among peoples themselves. The author contends that environmental geography and biogeography are the key factors influencing societal development.

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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. People have argued that seasonally variable climate at higher latitudes poses more challenges than does a seasonally constant tropical climate, and that cold climates require one to be more technologically inventive to survive in keeping warm, whereas one can survive in the tropics with simpler housing and no clothing. 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, where highly productive agriculture depended on irrigation systems that in turn required centralized bureaucracies. Complex irrigation systems came after the rise of centralized bureaucracies.

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Glenn, H. Patrick, Legal Traditions of the World, ch. 1 [CR] Harding, A., Global Doctrine and Local Knowledge: Law in South East Asia, 51 Intl & Comp. L.Q. 35 (2002).Persistent link to this record:http://heinonline.org.libproxy.smu.edu.sg/HOL/Page?collection=journals&handle=hein.journals/incolq51&id=45 Cockayne, James, Members Of The YortaYorta Aboriginal Community v Victoria; Indigenous And Colonial Traditions In Native Title, 25 MULR 2001. Persistent link to this record:http://www.austlii.edu.au/au/journals/MULR/2001/25.html Lavery, Daniel 2003. A Greater Sense of Tradition: The Implications of the Normative System Principles in YortaYorta for native title determination applications, Murdoch University Electronic Journal of Law, Vol. 10, No.4, December. (especially [5] [55]) Persistent link to this record: http://www.murdoch.edu.au/elaw/issues/v10n4/lavery104.html Janeczko, F.A.W., The Impacts of Colonial Law and Policy on Indigenous Family Life in Australia, Groundings 1 (2007).Persistent link to this record:http://eprints.gla.ac.uk/3721/