The High Court of Australia

Comparative law and comparative constitutional law in particular challenge the scholar. This is so even when the scholar’s enquiry is confined to the search for useful comparative descriptions of aspects of legal systems. Meaningful exposition must be able to cross boundaries of difference in history, culture and political organisation. To do so successfully, the scholar must find descriptors of general application and relevance.

When focusing upon institutional arrangements, and particularly the judiciaries of different countries, that challenge is no less acute. There are many similarities between the judicial systems of liberal democracies. But even among liberal democracies similarity may mask diversity. When considering the constitutional position and function of judiciaries beyond those found in the democracies, the differences can be profound. Yet judges from many different countries and political systems engage with each other increasingly in international fora, conferences and bilateral meetings. There, many matters of genuinely common interest unite such judges and make engagement and dialogue mutually useful. These matters include court organisation and efficiency, information management, judicial education, case management, alternative dispute resolution and judicial specialisation. It is possible for judges from different legal systems to have a common interest in all of these things and yet to sit in courts which have different relationships with the legislature and the executive and different functions in relation to constitutional interpretation, judicial review and even statutory interpretation. At another level, statements of commitment to such ‘fundamentals’ as judicial independence may not always apply in one society in a way that is comprehensible to another. Comparative law, which offers too wide a focus across areas of great difference, may yield too diffuse a picture to be useful.