What is Comparative Law and Society?

In order to make the case for comparative law and society in the Asian Century, I first introduce and explain the intellectual field of comparative law and society. It has two distinguishing features in comparison to the traditional study of comparative law.

First, comparative law and society extends beyond the traditional focus on comparing Global North legal systems to accommodate and consider a wide range of legal traditions, without having to compare them to a Global North jurisdiction as the ‘standard’. Traditionally, scholars of comparative law undertake the comparative study of legal doctrines and jurisprudence in Western liberal democracies.Footnote ⁵ This commonly involves comparing similar legal issues in countries that are perceived to belong to the same legal family, such as issues of private law in civil law jurisdictions like Germany and France, or judicial doctrine in common law jurisdictions such as England and America. Some comparative law scholars compare legal issues in countries from different legal families, such as constitutional law in civil-law Germany in contrast to common-law America. Others may compare legal issues in a Global North jurisdiction such as America with those in a postcolonial context such as India. But even when such scholars go beyond comparing Global North jurisdictions, their comparison may often be between liberal democracies. Scholars who go beyond this form of comparison usually compare the jurisdiction they are based in, such as the United States, with a populous jurisdiction like China. Contemporary scholars of comparative constitutional law, in contrast to private law scholars, are more likely to include the jurisdiction of countries in the Global South in their comparative gaze, but again the focus is often on liberal democracies.Footnote ⁶ In contrast, comparative law and society, as I understand it, is a genuinely global and comparative enterprise, that reaches beyond the comparison of liberal democracies. Such focus is increasingly important given the decline of democracy worldwide.

Second, aside from the geographic focus, scholars of comparative law and society differ from traditional comparative law scholars because they go beyond legal doctrine to focus on the study of law in action, as law and society scholarship does. On the traditional view, comparative law scholars study the case law of various legal jurisdictions,Footnote ⁷ that is, the study of jurisprudence and doctrine, and the state domestic law of other countries.Footnote ⁸ These scholars have long emphasised the benefits of comparative law to legal education. For example, in the early 1930s, American legal realist Roscoe Pound suggested that ‘the law teacher of the future should ground himself [sic] in comparative law’.Footnote ⁹ Likewise, comparative law scholars from various jurisdictions have argued for comparative law as an essential component of legal education. An example is German comparative law scholars, Konrad Zweigert (1911-1996) and Hein Kötz (1935-, former Director of the Max Planck Institute for Comparative and International Private Law), who are editors of a leading edition of a traditional comparative law text. In their volume (first published in 1977, and in its third edition in the 1990s) they argue that ‘we must integrate comparative law into the teaching of national law’,Footnote ¹⁰ and that ‘the need to open legal education up to comparative law is an urgent one’.Footnote ¹¹ The call for comparative law in legal education therefore has a long global history, although these scholars adhered to the classical conception of comparative law as doctrinal studies, with a primary focus on Europe.

Comparative law and society scholars are sympathetic to this long-standing scholarly advocacy for comparative law in education, but at the same time they incorporate the insights of law and society scholarship.Footnote ¹² The research and teaching of comparative law and society scholars reflects the scholarly reaction against legal formalism, and the related growth of ‘law and…’ approaches to the study of law. Comparative law and society scholars share with law and society scholars three broad sympathies: to law in context, legal pluralism, and interdisciplinarity. Law and society scholars recognise the importance of the place, location and culture of law, or law in context. On this view, comparative law and society scholars include in their sights the role of law in society at large, beyond mere jurisprudence. These scholars pay attention to how law works in action, rather than only what the legislature or courts declare the law to mean. Their emphasis on the context of law makes legal culture explicit.Footnote ¹³ Werner Menski (SOAS, London) has made a similar argument in his book on comparative law that is an early example of textbooks that incorporate legal knowledge beyond the Global North. He argues that students need ‘a broad-based analytical understanding of law as a cross-cultural phenomenon, rather than merely… technical rules of various legal systems’.Footnote ¹⁴ Similarly, comparative law and society scholars embrace the cultures of law.

Second, these scholars affirm the interdisciplinary possibilities of studying law in society by using the insights and methods from disciplines such as anthropology, sociology, history and political science, among others. The use of social sciences and humanities to study law enrich and deepen law students’ understanding of when, why and how law works, or does not work. And third, comparative law and society scholars value and take seriously the study of legal pluralism – from religious-based legal systems to traditional and customary law. Legal pluralism draws attention to colonial legal legacies, the co-existence of legal systems and the operation of law both within and outside of the modern state. Legal pluralism is concerned with how non-state and plural legal systems influence people’s lives and are just as important, if not more important, than official state legal systems.

For these reasons, I refer to the study of ‘comparative law and society’ as the contemporary contextual approach to comparative law, one that adopts and incorporates the perspective and ethos of law and society, in terms of its attention to law in context, interdisciplinarity, social justice and legal pluralism, and combines it with an inherently comparative outlook.

The Case for Comparative Law and Society: Its Intrinsic Pedagogical Value and its Applied Career Value

Building on this characterisation of comparative law and society, the case for teaching comparative law to law students usually rests on two broad sets of benefits for students: its intrinsic pedagogical value, and its applied career value. In terms of the first, the incorporation of comparative law and society in legal education is designed to train and equip law students with a sensibility, outlook and mindset that is open and respectful towards other ways of understanding and practising law, and different configurations of legal institutions and law. Given that legal education has a strong normative impulse, students learn from the legal institutions, concepts, reforms and innovations in other countries, in order to reconsider and reevaluate the merits of their own legal system. By studying comparative law and society, students gain a new perspective and vantage point from which to reflect on their own legal system. In doing so, they are better able to interrogate and evaluate the assumptions, preoccupations, logic, and merits of their own legal system. The study of comparative law and society also enables students to cultivate a new sense of humility about the legal system they are trained in, overcoming either a false sense of universalism about their own legal system or an implicit bias in favour of legal nationalism by assuming the importance or significance of their own legal system relative to others.

Overlapping with the intrinsic pedagogical value, law students benefit from the applied career value of comparative law and society. For students whose career path lies within the domestic legal system in which they are trained, the study of comparative law and society enables them to gain skills in identifying different approaches to legal and social problems; to be able to identify a range of possible solutions from comparative examples; to better appreciate legal pluralism at work within domestic borders; and to evaluate and assess the merits of potential comparative models in terms of appropriate legal solutions for domestic reform.Footnote ¹⁵ Yet the reality is that whether their work is domestic, regional or international, most law graduates will undertake careers that are fundamentally shaped by the forces of globalisation and the transnational dimensions of legal practice. Students’ ability to identify, appreciate, engage with and assess other legal traditions and systems is crucial for their work in a globalised world. Over the past few decades, an increasing number of transnational and regional law firms work in Asia, with India a recent example of a legal market opened to foreign law firms.Footnote ¹⁶ Students who have the opportunity to study about foreign legal systems are better equipped to work within and across other legal jurisdictions in their legal careers, from traditional areas of commercial law such as contracts and trade law, to migration law, or the influence of international law in areas such as human rights.

The argument for the applied career value of comparative law and society for law students is not only technical in the sense that students gain knowledge of law and the legal system in specific jurisdictions, but also critical, in the sense of enabling students to develop skills in critical analysis of why legal institutions exist, what purpose they fulfil and whose interests they serve. Teaching comparative law is essential to prepare students for legal practice because lawyers need to understand the legal diversity within their domestic jurisdiction, as well as plural legal orders that coexist with modern state systems, but also the interaction between domestic law and foreign legal systems, and regional and international legal orders.Footnote ¹⁷ But the benefit of students gaining technical legal knowledge of foreign legal systems also overlaps with wider arguments that students’ knowledge of a broader range of legal traditions and systems, such as legal systems in Asia and Africa, is essential in the 21^st century. Scholars such as Werner Menski have argued that a focus beyond Western liberal democracies to Asia and Africa equips students as future lawyers to better appreciate the contemporary world order.Footnote ¹⁸

To comprehend the complexity of a multipolar world, students require a set of skills that can adapt to different contexts, sources of law and legal institutions rather than merely possess technical knowledge of specific Euro-American jurisdictions, or examples considered best practice in liberal democracies.Footnote ¹⁹ Through an appreciation of legal pluralism, students increase their awareness of pre-colonial law, the influence of colonial law on pre-colonial and postcolonial legal traditions and systems, and the impact of settler colonial law on indigenous legal systems. Specifically, the study of legal pluralism equips them to appreciate the interconnections, tensions and affinities between state law and non-state law, as well as the ongoing impact of colonial rule in the post-colony. Through such an exposure to diverse epistemologies, students come to a fuller appreciation and awareness of different practice and sources of law, and different voices and experiences of law. Comparative law and society can be central to a process of decolonisation, and part of a law schools’ agenda to decentre Euro-American law.Footnote ²⁰

Both of these sets of arguments in favour of comparative law and society – its intrinsic pedagogical value, and its applied career value – focus on the benefits to students without considering who students are and what knowledge and experience they bring to the classroom. I add to the case in favour of comparative law and society by arguing that another benefit of comparative law and society is to empower students as co-creators of knowledge in the classroom.

An Additional Argument: Students as Co-Creators of Knowledge

A third major benefit of comparative law and society is that it enables the law classroom to be a place where students can explore their lived experiences, insights and knowledge about other legal traditions. My focus here is on Asian legal systems and traditions, though the idea applies beyond Asia. In terms of pedagogy, it is commonly said that students are co-creators of knowledge in the classroom, an idea often traced to the work of Brazilian educator Paulo Freire.Footnote ²¹ Freire assumed that a central challenge in education is to affirm a person’s identity as human. He rejected the idea that students are passive receptors of knowledge, often referred to as the banking model of education. On this traditional view, students are an empty receptacle, and the role of teacher and legal education is to fill the receptacle with knowledge and learning. It is called the banking model because the student is like the piggy bank and the teacher is the depositor of funds: the teacher fills the student with information and knowledge. On this model, the students’ existing knowledge is irrelevant, instead the teacher is the source of knowledge. In contrast, Freire proposed that pedagogy must treat the student as an active participant in the learning process and as a co-creator of knowledge.

This raises a challenge: how can law schools empower law students as co-creators of knowledge, particularly in contexts where the law classroom is highly diverse? Many law schools would be quick to reject the piggy-bank model of education and affirm students as co-creators of knowledge. In contemporary legal education, the idea of law students as co-creators of knowledge is often discussed with reference to the use in the classroom of specific pedagogical practices such as active learning and flipped classrooms. These practices assume students are learning through reading and preparing before class, and then come to class where they apply that new knowledge through activities such as discussion and debate, group work and specific legal problems. While this is one way of thinking about students as co-creators of knowledge, I seek to emphasise students’ identity, their lived experience and pre-existing knowledge. This focus on students’ lived experiences is not only consistent with Paulo Freire’s work on pedagogy, but is also affirmed by other scholars such as bell hooks and her argument that students’ lived experiences are central to higher education and that we must create space for diverse experiences, particularly of minority groups, in our teaching practices.Footnote ²²

In the context of contemporary legal education, I suggest that students’ co-creation of knowledge is an approach to pedagogy that emphasises the agency of students in the learning process, the importance of their lived experience, and the contribution to collective knowledge that their identity offers. It not only puts students’ knowledge and experiences on equal terms with that of their teacher, but sees all students as co-equal, including students from diverse and minority backgrounds. The teacher aims to facilitate collaboration with and among students in the classroom through dialogue, enabling students to develop their own views and to exercise agency in the learning process.Footnote ²³ Co-creation recognises that students do not learn in a vacuum, but rather learn best when they can bring who they are, what they know and what they seek to know to class.

In the 21^st century, it is relatively well-accepted that law classrooms should be places of active learning where students have agency. However, in legal education, the study of domestic law often assumes a large amount of tacit knowledge about the language/s, history and culture of law in society. This is a problem for two reasons, which I illustrate with the example of Australia. First, legal education primarily remains the study of domestic law, which in Australia is the study of the common law of the settler colony. By default, the course context presumes certain knowledge about the context of the domestic legal system, which may be familiar to some students but is less open to the experiences of students from diverse backgrounds, particularly international students.

Second, the study of Australian law assumes law students already have a significant amount of tacit knowledge about Australian legal culture, but also the wider political and social culture of society. These two problems are at odds with both the increasingly diverse domestic student body, which includes a growing Asian-Australian community, and the significant increase in the number of international students in our classrooms as a result of the internationalisation of education, particularly students from Asia (see below).

The limitations of teaching domestic law, and the way it privileges Anglo-European students and their lived experience in the Australian context, can be illustrated by the compulsory course I teach, Principles of Public Law, which is designed to introduce students to the foundations and basics of public law in Australia’s common law system.Footnote ²⁴ This course, like all compulsory courses, assumes that students have some basic familiarity with Australian society and its law and culture. For example, it assumes that students understand our two-party political system; that students know the role and function that courts play in our society, including the impact that a lack of a bill of rights in our Constitution has on the role of courts; and so forth. In teaching this course, the content often lends itself to domestic students who have lived experience and knowledge about Australia and its legal and political system and culture, which I have found manifests in their comparatively greater class participation. In contrast, international students (whether on short-term exchange, or in the country to complete their degree) have little to no lived experience of the context in which Australian public law operates, and often contribute much less frequently to class participation. Likewise, domestic students from diverse backgrounds may assume that their lived experience is somehow less relevant.

To enable students to be co-creators of knowledge in the classroom, as lecturers we must cultivate awareness of who are our students and what are their lived experiences, so that we can create space in the classroom for them to share and explore who they are and their lived knowledge. For example, in undergraduate classes, I often have students from Singapore and Hong Kong, two common law jurisdictions with unicameral parliaments. In our class on the legislature, I intentionally include time in class to discuss the differences between unicameral and bicameral systems, and its strengths and weaknesses (although technically not in the curriculum). I invite students to discuss the features of unicameral systems, a question that implicitly creates room for students from unicameral jurisdictions to explain the legislature in their home jurisdiction to the class. In turn, domestic students with no lived experience of unicameral systems must listen, which is another core commitment to the co-creation of knowledge in our classrooms. This discussion enables domestic students to learn from the lived experiences of other students, and for the class to reflect comparatively on the merits of Australia’s bicameral federal parliament. In doing so, I both seek to create space for Asian-heritage students who have knowledge and experiences to share with the class, and in turn ensure that other students have the opportunity to listen and learn from them. The discussion is designed to acknowledge the strengths of unicameral systems, challenging domestic students’ perception that the Australian bicameral system is somehow better or superior than unicameral systems.

Aside from core courses, elective courses offer significant scope to incorporate comparative law and society to enable students as co-creators of knowledge and to have an educational experience that facilitates exploration of their identity and sense of belonging. I have taught a range of electives, such as Law and Society in Asia, and The Rule of Law in Asia. In these course, I seek to empower Asian-heritage students in the classroom while enhancing the opportunities other students have for dialogue and listening through comparative learning. These classes attract a disproportionate number of students of Asian-heritage and international students outside of Asia, and often domestic students are in the minority. This class composition immediately changes the power dynamic in the classroom, as non-Asian heritage students experience what it is like to be in the minority, even if in a small and temporary way. The class discussion is the opposite of that in my compulsory course. All students have the opportunity to select their research topic. Students whose heritage lies in places as diverse as Hong Kong, China, Sri Lanka, Bangladesh, Indonesia, Malaysia, India, Pakistan, Singapore or the Philippines, often choose topics that align with their own experiences and that of their family. The course, then, becomes a vehicle for personal exploration, identity-formation and an affirmation of belonging through the recognition of diversity.

My students tend to be diverse, with international students from Germany, Canada, Ireland, and the United States, alongside international students from Asia and domestic students of Asian-heritage. At the start of my elective course, I invite students to share why they are interested in taking this course and their answers vary. Without being prompted to do so, many of the Asian heritage students share something along the lines of ‘I have a mother/father/grandparents from (one or more countries in Asia)’ or ‘I was born in (a country in Asia)’. Most have never had a formal educational opportunity to study about their heritage as part of their law degree. At the end of the course, student feedback often indicates this is the first time they have been able to bring their lived experiences into the classroom discussion. In contrast, the main reason other domestic students take the course is because they are majoring in an Asian language or international studies (in their other degree), again, the course functioning to affirm that legal education is closely connected to, rather than isolated from, culture and society.

There are several key features or themes of my elective courses. First, I do not focus solely on liberal democracies in Asia, unlike some comparative law courses. Instead, I incorporate the full range of legal traditions, with legal pluralism a dominant theme across the course. I seek to acknowledge and affirm that law has many expressions and historical origins – from religious legal traditions (Buddhist, Islamic, Hindu, Confucian, and so forth) to socialist legal systems, from civil law to common law studies, from military rule to other illiberal forms of constitutional rule. Second, the course content keeps in view the colonial legal histories of countries in Asia – whether British, Dutch, American, Spanish, Portuguese or Japanese - and their postcolonial trajectories. It aims to help students to recognise the long-term influence that colonial experiences and imperialism has had on these countries, while also acknowledging that some – like Thailand – were never colonised.

Third, my courses are designed to cover at least three countries in some depth, while also granting students the opportunity to focus on one legal system of most interest to them in class activities and discussion. In terms of assessment, I allow students the opportunity to pursue a topic for their research paper that is of interest to them by selecting a country and legal issue of their choice (within the themes of the course). Students present draft ideas of their paper to the class throughout the semester, so that other students engage with a diverse range of legal traditions and topics other than their own project. Students often choose to focus on the country they have ties to and a topic that is meaningful for them.

I give the examples of my approach in brief here not because it is unique, but rather because I believe it demonstrates the potential of teaching comparative law and society. Such teaching embodies an ethos that does not privilege Euro-American legal systems, but rather seeks to enable students to bring their lived experiences and identities into the classroom, with legal education functioning as a vehicle for personal exploration, identity formation and a sense of belonging. This is all the more important given the changing face of law students, which I discuss next.

Asian Legal Studies Scholars

The first and fundamental commitment of law schools to comparative law and society is the hiring of Asian legal studies scholars. Asian legal studies scholarsFootnote ⁴⁶ are scholars who can teach and research drawing on the ideas and texts from the region, informed by language skills,Footnote ⁴⁷ cultural knowledge and in-country experience.Footnote ⁴⁸ These scholars have competence in one or more Asian languages, and can teach and supervise using materials in this language. They have extended in-country experience through fieldwork, legal practice or other work experience. As a result, they have acquired deep cultural understanding, and have a sustained career commitment to the study, teaching and research of the legal system and traditions in at least one Asian jurisdiction.Footnote ⁴⁹ Asian law scholars have both the skills to conduct research on law in Asia and bring these invaluable skills to bear in the classroom and in research supervision. While this is more than short-term academic mobility, although such mobility can enhance the comparative sensibility of academics.Footnote ⁵⁰

A law schools’ commitment to Asian legal studies expertise is evident when they hire such scholars with linguistic skills, cultural knowledge and in-country experience that informs their research and teaching. Linguistic skills ensure deep engagement with the legal system of the country/ies concerned. A diversity of linguistic skills are also necessary because, unlike some regions of the world that have a dominant official language other than English such as Spanish/Portuguese in Latin America, English/French in Africa, or Arabic in the Middle East, in Asia there is no one dominant language.Footnote ⁵¹ One reason that it can be important to have scholars with relevant linguistic skills is to enable research supervision (LLB/JD/LLM or PhD) of students with existing languages skills to read and engage with primary or secondary texts on Asian law in local languages. So, for example, a student doing a research essay may be able to use their language skills to draw on foreign sources under the guidance of their supervisor who also has language skills. This is not as unusual as it sounds; for example, after I studied Bahasa Indonesia in high school, as part of my undergraduate law degree at university, I was able to undertake legal research essays on Indonesian law using primary sources in Bahasa Indonesia, while at the same time advancing my language skills in my Arts (social science) degree.

A law schools’ commitment to comparative law and society is strongest when it hires scholars across diverse fields of law (public and private) and across a diversity of legal jurisdictions including East Asia (China, Japan, Korea, Hong Kong and Taiwan), South Asia (India, Pakistan, Sri Lanka, Bangladesh, Nepal etc) and Southeast Asia (Indonesia, Singapore, Thailand, Malaysia, Vietnam, the Philippines, etc). Law schools enhance their commitment to comparative law and society the more they hire scholars of Asian legal studies. Hiring scholars with language skills also models to students the importance of such a skill and encourages students to take up an Asian language, or to advance their language skills. For students who undertake an LLB degree combined with another degree (eg Arts, Business, Education), such a strategy can promote synergy between their law degree, their second degree/s and the study of a language, adding a sense of relevance, purpose, direction and affirmation to the study of Asia.

More commonly, rather than an overt or implicit commitment to Asian legal studies, law schools may have a broader commitment to comparative law expertise. This is evident by hiring scholars who teach on Asian law but who either do not publish or research on Asian law, or who do not have the skills to do so in depth and in context (that is, without language skills and in-country experience). These scholars may have limited work, travel or study experience in Asia, or some experience but without the language skills. Comparative law scholars are also essential to law schools, given that the complexity and diversity of legal traditions and languages in Asia. Comparative law expertise is often a practical necessity, given the lack of a shared language in the region, as well as the recognition of multiple national languages in some jurisdictions and the plethora of unofficial languages within countries. These factors mean that there are significant practical barriers for scholars to gain competence in more than one legal jurisdiction, with some exceptions (for example, Bahasa Indonesia is derived from Malay, so scholars with such skills may have basic comprehension across Indonesia and Malaysia, among other jurisdictions with Malay-speaking populations like Brunei and Singapore).

As the field of Asian legal studies has expanded, the expertise of Asian legal studies scholars has become more specialised. Asian legal scholars are usually grounded in a particular field of legal research (private law, public law etc) and theoretical or methodological orientation (law and society, doctrinal research, anthropology etc). In recent decades, fields like comparative constitutional studies have grown exponentially and opened a new space for scholars working on constitutionalism in Asia particularly as countries in the region democratised and established constitutional courts.

For the purpose of my case study that follows later, I measure law schools’ commitment to hiring Asian law scholars by identifying the number of Asian legal studies scholars who hold permanent positions at Australian law schools in 1990s and 2021. I acknowledge that the number of comparative law scholars is larger than this.

Course Offerings

The second commitment by law schools is curriculum offerings on Asian law, including the number and depth of courses, and whether the course is taught by an Asian law scholar. In Australia, most law schools offer law as an undergraduate degree, and some also offer a JD,Footnote ⁵² with a smaller number offering a LLM programme. The focus of my case study is elective subjects, rather than compulsory (domestic law) subjects, that is the courses that undergraduate (LLB) or postgraduate students (LLM or JD) chose in their later years from a range of possible options. The bulk of a student’s LLB/JD degree consists of compulsory subjects, known as the Priestly 11, the courses mandated by the Law Council of Australia as necessary for law graduates to be eligible to be admitted as practising lawyers. Some law schools mandate more than eleven compulsory subjects, or offer semi-compulsory courses (that is, choice from a select list of options). For example, at UNSW, students take 17 compulsory courses, leaving students the choice of only seven elective courses.

For this research, we obtained information on these elective subjects primarily from course handbooks. Where possible, we surveyed the title and description of these elective subjects.Footnote ⁵³ Where there was no course description to review, we included a subject if it referred to Asia in the title. Our data may undercount the number of such courses, because some 2001 postgraduate handbooks were not available, although we also relied on data collated for the Maximising Asia report.Footnote ⁵⁴ Some 2001 handbooks used the general label ‘postgraduate’, which we took as referring to masters of law programmes since there were few JD degrees at this time.

We distinguish between the total number of elective subjects on the books and elective subjects actually run,Footnote ⁵⁵ because many law schools have a range of potential subjects but only offer a select number each year. Further, conscious that many law schools offer elective subjects as combined classes (that is, with students from at least two of the LLB, JD or LLM programmes),Footnote ⁵⁶ I present the data so as not to double-count the same subject. I classify subjects in three ways: by geographic focus; area of law, and teaching location (see figure 1.1 below).

Figure 1.1.

Classification of Elective Subjects on Asia.

Figure 1.1 Long description

The table has three columns: Geographic focus, Subject matter/field of law and Teaching location. Row 1: Geographic focus Country-specific; Subject matter/field of law Public law; Teaching location Australia. Row 2: Geographic focus Region-specific; Subject matter/field of law Private law; Teaching location Asia. Row 3: Geographic focus Asia; Subject matter/field of law Law and religion; Teaching location blank. Row 4: Geographic focus Comparative (including Asia); Subject matter/field of law Law and society; Teaching location blank. Row 5: Geographic focus blank; Subject matter/field of law Comparative and International; Teaching location blank.

In terms of geographic focus, there are four types of subjects on Asian legal studies: country-specific subjects such as ‘Japanese Law’ or ‘Chinese Law’; region-specific subjects such as ‘Law in Southeast Asia’; subjects on Asia broadly speaking, such as ‘Law and Society in Asia’; and, comparative subjects including case studies from Asia such as ‘Comparative Corporate Governance’ with case studies of Japan and China. At some larger law schools, such as Melbourne Law School, the region-specific subjects may be taught as a team, for example, one course that includes classes taught by a Chinese law scholar, an Indonesian law scholar, a Japanese law scholar and a Vietnamese law scholar respectively. I include general subjects such as Comparative law where the abstract mentions some content on Asia (usually in the form of comparative case studies).Footnote ⁵⁷

In terms of the field of law taught, I classified subjects based on the following five subject matter categories: public law, private law, religious law, law and society, or comparative and international law. Public law subjects include constitutional law, human rights law and criminal law. Private law subjects include corporate law, foreign investment and trade law, construction law, competition law and tax law. Law and society subjects include courses that offer a broad introduction to the legal system and legal culture of one country or region (eg Japanese law), as well as courses on law and development or courses with a socio-legal emphasis, rather than a doctrinal focus. Religious law subjects include Islamic law and also personal law subjects. Comparative and international law subjects include general comparative subjects (eg comparative corporate law, comparative human rights law) that mention ‘Asia’ in the course description as one of the jurisdictions covered. Subjects on Asian law span a range of approaches, from more doctrinal comparative law to more sociological law in context studies.

We also reviewed subjects by teaching location, that is, whether the subject was taught in Australia or through an Australian university but in-country in Asia and, if so, which country in Asia. These categories – geographic focus, subject matter and teaching location – enable me to break down the types of electives offered and identify areas of strength and weakness. The two commitments – scholars and subjects – are interdependent because subjects can only be offered if the law school has the scholarly expertise available. Further, a law school’s commitment may vary from comparative law expertise to Asian studies expertise.

These two institutional commitments are only a partial indication of comparative law and society as Asian legal studies in law schools. In the future, a more robust assessment would need to assess the depth of engagement with Asia in courses beyond references in the title or abstract of the subject.

The Rise of Asian Legal Studies as Comparative Law (1960s-1990s)

From the 1910s, Asian Studies (or Oriental Studies as it was then known) as the study of Asian languages and culture began to emerge in Australian universities, although it was only after World War II that there was significant growth in programmes and hiring at universities.Footnote ⁵⁸ This establishment phase was concentrated in the humanities and social sciences, and it took several more decades for Asian legal studies to emerge. This is partly because there were just six law schools in Australia prior to the 1950s. Like other common law jurisdictions, Australian law schools grew out of legal practice and did not have a strong focus on research; many lecturers also worked as lawyers (solicitors or barristers).

The history of Australian legal education that has been written to date omits the emergence and centrality of comparative law as Asian legal studies in Australia.Footnote ⁵⁹ To address this gap, I offer a brief history of the rise of comparative law as Asian legal studies in Australia. I attribute its establishment and rise from the 1960s-1990s to two structural commitments: the growth in hiring of Asian law scholars, and the offering of subjects on Asian law.

Scholars of Asian Legal Studies as the One Percent (or Less)

Since the 2000s, scholars of Asian legal studies have remained prominent at a small handful of Australian law schools, but overall they are now the one percent of Australian law scholars. I explain how this occurred through the neoliberal expansion of law schools in terms of the major growth in the number of schools and the size of the student body, the persistence of the domestification of legal education through the compulsory Australian law subjects, and the over-concentration of Asian legal studies on private law in China.

While the total number of Asian law scholars has increased since the 1990s, overall the number has shrunk relative to all permanent law scholars in Australia. In fact, by 2020, just one percent of scholars above the level of senior lecturer had expertise in Asian legal studies out of 820 permanent scholars at or based in law schools in Australia.Footnote ⁸³ Several years later in 2023, there were an estimated 1,100 scholars in law schools in Australia, although this was a generous count that included short-term (rather than permanent) contract positions such as research fellows and postdoctoral positions.Footnote ⁸⁴ If correct, this means that the 34 scholars of Asian legal studies are now well below 1% of all law scholars in Australia.

These 34 Australian-based scholars are ones who have a sustained career commitment to the study of law in Asia, most of whom either speak one (or more) Asian language/s, have undertaken sustained research in Asia and/or whose primary research focus is Asian law. I did not include general comparative and international law scholars who did not have language expertise or who had not lived or worked in a country in Asia.

Out of this group, most of these scholars focus their expertise on either China, Indonesia or India, with a smaller number focus on Japan and Singapore/Malaysia. More than half of these scholars focus on East Asia, a reflection of the economic success of these countries, the importance of the Chinese economy to Australia, and the role of law firms in facilitating Australia’s trade relations with the region. Most of these scholars hold permanent positions at a small number of law schools, namely the University of Melbourne, the University of Sydney, the University of New South Wales (UNSW) and ANU. The concentration would extend to law schools such as Macquarie University, La Trobe University, Western Sydney University, and Bond University, among others, if we included general comparative scholars.

From the 2000s, a third generation of scholars of Asian legal studies were hired by Australian law schools. This included scholars in areas of long-standing strength, such as Japanese law (Veronica Taylor, Luke Nottage, Kent Anderson, Stacey Steele, Leon Wolff),Footnote ⁸⁵ as well as growing expertise in Chinese law (Vivenne Bath, Sarah Biddulph, Sean Cooney, Randall Pereenboom) and Southeast Asia (Pip Nicholson, John Gillespie, Amanda Whiting, Tim Lindsey, Christoph Antons). While this may seem a significant number of scholars, they were dwarfed by the dramatic growth in scholars and students due to the number and size of law schools.

There was no industry-led demand for more law graduates; rather, the expansion of education generally, and legal education in particular, is due to the growth of the number and size of law schools for purely neoliberal, commercial reasons.Footnote ⁸⁶ In the 1990s, eleven new law schools were established. In the two decades that followed (2000s-2010s), there were another six law schools established per decade, or twelve more in total. This means that from the 1990s to end of 2010s, 23 new law schools were established. By 2012, there were 32 law schoolsFootnote ⁸⁷ and by 2021, there were 39 public law schools (and one private).

There are various reasons for both the establishment of new law schools, and the increase in size of their student intake.Footnote ⁸⁸ From the perspective of the central university administration, law schools are relatively cheap to run because they can charge high fees, there is high demand due to the prestige of a law degree and they do not require labs or equipment in the same way that STEM faculties do. Law schools cross-subsidise other parts of the university. In an environment of decreased government funding, law schools are one of the ways that universities raise revenue.

The increase in student numbers is also important to note, and remains an ongoing development. Among other examples, in 2019, Macquarie University increased its student intake from about 400 to 700 LLB students;Footnote ⁸⁹ in 2022 at Monash University increased its undergraduate student intake from approximately 500 to 700.Footnote ⁹⁰ Another reason for the increase in student intake is the post-2008 impact of the University of Melbourne’s decision to shift to a US-style degree programme, with MLS becoming a JD only programme, rather than an LLB programme. Many other law schools across Australia kept their LLB programme but also added a JD programme (as a revenue raising postgraduate programme, some with large numbers of full fee-paying international students), thus increasing student numbers. In addition, over the past two decades, some top law schools have introduced or increased the size of their LLM programmes, benefiting from global trends in the internationalisation of education and the increase in international students studying in Australia, particularly students from China.

These two factors – the growth in the number of law schools and in the number of law graduates – demonstrate that while there is the opportunity for law schools to hire scholars with expertise on Asia, the reality is that these scholars represent a significantly smaller proportion of the overall number of law scholars compared to the 1990s.

Since the 2010s, another noticeable change is the backgrounds of scholars of Asian legal studies, with an increase in scholars of Asia-heritage – including Asian-Australian scholars and scholars from Asia based in Australia – or more specifically scholars from China.Footnote ⁹¹

If scholars of Asian legal studies are less than one percent in legal academia, then Australian law schools are now primarily populated by the 99 percent. This group of scholars are primarily trained in and focused on teaching and research about law in Australia, a legal system based on the common law, derived from a history of settler colonialism, affiliated with Western liberal democracy and connected to the international legal and economic order. The bias towards national law remains evident in law schools around the world, and so Australian law schools are not unusual in this regard. There are structural reasons for this bias. Even if a scholar has received legal training overseas (although anecdotally, many have obtained their undergraduate in Australia), they are required to teach compulsory (core) courses in Australian law.Footnote ⁹²

Further, most law scholars do not speak an Asian language, either never having had the opportunity to study such a language in their schooling, nor having lived or worked in Asia. Despite the increasing demands upon the leadership of law schools to engage with Asia, most scholars in positions of leadership within law schools – such as Deans, Heads of School or Associate Deans (International) – have little or no expertise in Asia.Footnote ⁹³ Most have not studied, lived, worked or undertaken sustained research or teaching in the region. The expertise of academics who lead law schools is crucial and affects hiring practices.

Overall, the number of Asian law scholars has increased since the beginning of the 21^st century. However, this number has not kept pace with the expansion of law schools, and so these scholars are now less than one percent of all permanent academic staff.Footnote ⁹⁴ Asian law expertise across law schools is lumpy with just nine law schools (out of 38) with at least one Asian law scholar. Many scholars hired over the past two decades have expertise on trade relations with China. Law schools that have no Asian law expertise tend to be newer law schools that are more teaching-oriented, ironically, often ones established in the Asian Century. Given that this factor – scholars – is a precondition for teaching offerings to students, this means that the potential for comparative law and society courses taught by Asian law scholars is only possible at a quarter of all law schools.

Change and Continuity in Subject Offerings: The Persistence in Private Law in East Asia and Growth in Short-term Overseas Study

Since the 2000s, student opportunities to study subjects on Asian law have failed to keep pace with the increase in elective subject offerings overall. Two exceptions are the increase in teaching private law and a geographic focus on East Asia, and in-country subjects, the latter of which can be explained by government funding incentives. My assessment is based on the compilation and comparison of elective subjects on the books in law schools in 2001 and 2021.

At the start of the 21^st century in 2001, a total of 53 elective subjects on Asia were on the books across 27 Australian law schools, with 42 of these subjects actually offered. Of these subjects, 36 were offered at the undergraduate level and 17 at the postgraduate (masters) level. There were seven law schools that offered more than two electives on Asia.Footnote ⁹⁵ The University of Melbourne had the most subjects on the books, with 17 electives or 25 percent of elective subjects on offer at the undergraduate level. UNSW had the next most subjects on the books, with eight electives or between 9 percent of the elective subjects on offer at the undergraduate level. By comparison to 2001, twenty years later, in 2021, there were 92 electives on Asian law on the books across 39 law schools. While the total number of electives on the books had expanded since 2001, there were 12 new law schools and a much larger student population in 2021. Overall, in relation to the number of law schools and the size of the student body, the proportion of subjects offered on Asian law has declined since 2001.

Turning to the spread of electives across law schools in 2021, there were nine law schools that had more than two electives on Asia, two more schools than in 2001.Footnote ⁹⁶ Some law schools had a large number of subjects on the books, although they do not necessarily run every year depending on the availability of scholars and teaching needs. In 2021, at MLS, there were 24 subjects on the books and five of these were offered; at UNSW, there were 15 subjects on the books, and three were offered; at ANU there were 11 subjects on the books and three were offered; at the University of Sydney, there were eight subjects on the books (it is unclear how many ran), while at Bond University, there were six subjects on the books, although none were offered.Footnote ⁹⁷ One of the reasons Melbourne and UNSW have a large number of subjects is because of the size of their masters’ programme: MLS has an Asian Law Masters and UNSW had a Chinese International and Economic Law Masters (2015-2025).Footnote ⁹⁸ The replacement of a broad Asian law masters at UNSW with a more specific Chinese International and Economic Law programme is one example of adapting to the neoliberal imperatives of the role of law firms in facilitating Australia’s trade relations with China, and the rise in international students from China.

In terms of the country or region of study, in 2021, there were 40 subjects on the books on a single country, including China (24), Japan (6), India (4), Indonesia (3), and one in each of Malaysia, the Philippines and Myanmar (Burma). This compares to just 20 subjects in 2001. In 2021, the predominant focus is on China which reflects the rise of China as an economic power and its growing trade relations with Australia, as well as the role of law firms in facilitating trade. In 2021 there was greater diversity in country focus and offerings that did not exist in 2001 such as on Indian law. In 2021, there were ten subjects on a region in Asia, including Southeast Asia (5), Asia Pacific (4) and South Asia (1). Another 22 subjects focused on Asia generally, while a further 20 comparative subjects mentioned Asia as a case study or part of the course description. This represents an increase in subjects about Asia generally, possibly due to team teaching strategies an emphasis on students gaining exposure to legal traditions from a wide range of countries, as well as the reality that a subject on Asia generally may potentially receive higher student enrolments (and therefore be perceived as justified and feasible for a school to offer) than a subject on a single country or region.

In terms of the law content of subjects offered, in 2021, there were 36 on private law, 21 on law and society, 13 on public law and 5 on religious law (compared to 34, 16, 4 and 1 respectively in 2001). There were another 17 subjects on comparative and international law generally, up from 8. Overall, there was an increase in all subject areas, but particularly public law. This increase in general comparative law courses can be explained by the wide trend towards global or transnational law, and the growing acceptance of Asian law as a minor case study. It also reflects the growing legalisation of many areas in society across fast-growing economies in Asia.

In terms of the location where the subject was taught (Australia or overseas), in 2021, there were 19 in-country electives on the books, a remarkable number, with common destinations including China, India and Japan, and less common destinations including Indonesia (2), and Myanmar, Solomon Islands, Philippines and Singapore (one each; none ran in-country in 2021 due to covid). This represents a significant growth in opportunities for law students to study overseas, compared to just one overseas elective in 2001. The ANU offered three of the four subjects taught in-country in Japan, demonstrating that some schools have strong historic links to particular geographic areas of study.

The main reason for the growth of in-country electives is that in 2014, the Australian government launched the New Colombo Plan, that funds domestic students to study in the region, usually on a short term basis.Footnote ⁹⁹ As a result, law schools have enhanced the subjects offered for their students to study intensively in Asia through New Colombo Plan funding.Footnote ¹⁰⁰ Another reason is that subjects run in-country in law schools are also part of the broader trend towards experiential learning in legal education. Subjects run in-country vary from mooting competitions held in Asia, to internships, study tours, or short-term subjects run in collaboration with a university in Asia. The growth of China study tours mirrors the increased interest in Chinese private law. There has also been a growth in subjects offered in-country in India, reflecting the renewed engagement in Australia’s relations with India. Overall, the increase in law subjects on Asia from 2001 to 2021 has in large part been driven by government funding incentives to run programmes in Asia.

In addition to the above, some in-country programmes run by cross-institutional consortiums such as the flagship Australian Consortium for In-Country Indonesian Study (ACICIS). For more than 25 years, ACICIS has been the premier consortium that has been offering both short and long-term in-country studies in Indonesia. In 2014, ACICIS established its semester-long Indonesian Business, Law and Society Program, hosted by the Islamic University of Indonesia, Yogyakarta. In 2018, ACICIS launched the 6-week intensive Law Professional Practicum at Atma Jaya University, Jakarta; while numbers vary year-on-year, in 2024, the programme had 36 students enrolled.Footnote ¹⁰¹ The benefit of the ACICIS model is that it enables law students to undertake an in-country study experience for credit, in the absence of a university-run program.