Particularly in the context of public law, comparative law scholarship typically involves a comparison of legal norms, principles, actors, or legal institutions in different state jurisdictions or across legal traditions. The rise and increasing prevalence of transnational regulators – particularly transnational non-state regulators, but also hybrid and intergovernmental varieties – challenges this methodological default. It invites us to consider the nature of regulation across different legal regimes, some of which might be overlapping, and which, in their claims to authority, might be complementary or conflictual. Acknowledging the presence of transnational regulators within a plurality of legal orders raises questions about how state-centric regulatory institutions at the sub-national, national, regional, or international levels differ from hybrid (state/non-state) and predominantly non-state regimes, whether in terms of their functions (e.g., in terms of standard-setting, enforcement, and dispute resolution) or in terms of their relative claims to authority and political legitimacy. This chapter shows how transnational law poses a conceptual and methodological challenge for comparative lawyers, yet one that reinforces recent innovations in the comparative law field, reflected in this Handbook, that extend comparative law beyond functional comparisons of rules, legal systems, or legal traditions.

The use of qualitative fieldwork methods for comparative legal research has the potential to provide valuable insights into the relationships between laws and cultures across different nation-states and other socially defined spaces. Such methods also give rise to a wide range of methodological research design issues including fieldsite selection, the development and use of comparator concepts, and the means of handling detailed contextual accounts. This chapter discusses these issues as they arise in relation to three sub-disciplinary categories: (i) traditional comparative law; (ii) socio-legal comparative law; and (iii) comparative socio-legal studies. Building on this review of comparative legal research design discussions and examples, the authors also reflect on the design for their own ongoing comparative empirical project on labour dispute resolution systems in Southeast Asia.

There can be little doubt that foreign law has influenced the development of South American private law and that this continues to be the case nowadays. However, this chapter shows that even from the earliest stages of their historical development, these states did not merely copy legal solutions created elsewhere when receiving foreign influences. We adopt a historical perspective and a broad notion of legal transplants to expose foreign law’s influence over the shaping of South American private law and critically evaluate some dominant narratives. First, we analyse the various ways they have influenced the drafters of South American Civil Codes throughout the different waves of codification, as well as the strategies adopted. Afterwards, the inquiry moves to some particular subjects of South American contract law and traces various key shifts that occurred when shaping a liberalisation which, during the nineteenth century, went further than the contemporary European legislation: for instance, taking inspiration from Bentham. After that, we show an inverse movement during the last decades of the twentieth century, directed towards developing a more social conception of contract law, inspired mostly by the German and Italian Civil Codes, though not followed by all jurisdictions. It is concluded that although different European legal systems have informed South American private law, the result is an original blend that is a product of both the creative character of the solutions and the inspiration taken from sources not usually adopted elsewhere in the field of legal transplants.

This chapter considers trends and developments in legal education in Asia through the lens of some representative polities, namely China, Hong Kong, India, Indonesia, Japan, Taiwan, and Singapore. The experience of these polities indicates that understanding of legal education in Asia cannot be divorced from colonisation and the imposition (or reception) of Western law. It has also been influenced more recently by globalisation as seen from increased cross-border flows of faculty and students, the teaching of transnational law subjects, the development of particular forms of teaching practice such as legal clinics and programmes equivalent to the Juris Doctor, explicit focus on transnational rankings, and transnational scholarly communities engaged in teaching and research collaboration.

The laws of the countries that emerged on the territory of the former Soviet Union show profound similarities due to a number of shared historical experiences. They have all been parts of the Russian Empire and the Soviet Union and have all gone, simultaneously albeit not uniformly, down the thorny path of post-socialist transition. The resulting common legacies concern deep-lying features of legal method as well as central structures of substantive law. The codification movement, institutional design, way of functioning and the role of the judiciary, and the extent of the professionalisation of law and the flaws of legal academia as well as the current state of property law and the law of legal persons provide prime examples. Disregarding these continuities results in distorted images based, in particular, on overemphasised formal similarities to the civil law family. Therefore, joint consideration of the formerly Soviet, but also formerly tsarist and formerly post-Soviet countries, remains an indispensable tool of legal comparison.

This chapter introduces the aims and scope of this handbook. In this handbook, we seek to showcase the diverse perspectives offered by contributors from all over the world concerning topics of comparative law. We begin by outlining the proposition that one’s culture and identity shape what we do and how we think, but we also suggest that understanding law in a global context requires us to transcend a radical scepticism about the comparative law enterprise and also avoid exclusionary ‘identity politics’. We proceed by explaining the structure of the handbook and summarising the key contents of each chapter in the handbook.

Our understanding of cross-border judicial dialogue is dominated by the Global North, especially the analysis of the European judicial space, which has limited application outside Europe, and ‘global judicial dialogue’, which is a rather asymmetric phenomenon: Global South courts such as the South African and Colombian constitutional courts cite totemic Western courts such as the US and German courts with far greater frequency than vice versa. This chapter seeks to enhance our understanding of judicial dialogue from the African and Latin American perspectives, nuancing what dialogue means in Global South contexts by comparing the different patterns and facilitating conditions in these regions, including the impact of shared languages and legal traditions, the development of regional integration projects, and pan-regional democratic development. It is argued that leading national courts play highly significant roles in fostering intra-regional dialogue but can also hamper such dialogue by prioritising global extra-regional interlocutors in their citation practices and reproducing global dynamics through asymmetric citation patterns at the intra-regional level. While this pattern highlights the difficulty of de-centring and challenging Global North epistemic dominance in the arena of judicial dialogue, it also suggests that considered changes in judicial, practitioner, and scholarly practice and collaboration can disrupt these dynamics and generate more inclusive dialogue.

Critical comparative law, as we know it, defines itself negatively: it stands not for, but against something, that is, traditional comparative law. This state of affairs turns critique into a weak programme for it tends to polarise and polemicise the discussion on comparative law and its methods. Critique divides an ‘us’ (the avant-garde) against ‘them’ (the mainstream). This chapter argues for a paradigm shift, reconceptualising critique as an ethos: an attitude that requires the comparative lawyer to position and reposition her- and himself time and again towards the received methodological tools and themes currently in vogue. Consequently, critical comparative law cannot be identified with advocating a specific substantive proposition or method, yet constitutes a mode of reflection. In this chapter, the critical positional work revolves around the view on (comparative) law from beyond the Western world. It first provincialises and specialises critical comparative law and, on this basis, discusses critically the topics of legal relativism, decolonialism, and orientalism, using universal human rights as its core theme. An integrated excursus on ‘law as such’, finally, clarifies some long-standing critical issues in the triangle of truth, language, and the lifeworld of the comparatist.

This chapter offers two contributions to this collection. Its first part is dedicated to a conceptual overview of the nature and use of legal transplants. A concept central to comparative law, this is concerned with the movement of legal doctrines between legal systems in all fields of law. An overview of some of the central studies of legal transplants is ordered thematically, providing typologies of existing analyses of the nature of legal transplants sorted under several categories that range from the type of influence of foreign doctrines, through the motivations of such transplants, to the outcome of a transplant. This part also emphasises that the transplantation process is an ongoing, multi-participant exercise. The second part complements Caffera, Momberg and Morales’ chapter in this volume, which is concerned with legal transplantation in private law. In this part, I offer an example of the ways in which public law doctrines emerge and are subsequently transplanted into domestic systems, sometimes with limited, if any, attention to the particularities of public law concepts as they apply in different systems. The analysis of the movement of the ‘margin-of-appreciation’ doctrine is but one example of the highly complex nature of the movement of law around the world.

This chapter introduces comparative lawyers to the field known as law and development, which in turn examines the uses of law for developmental objectives. The chapter attempts to relate the two fields and indicate the relevance of each to the other. In the course of doing this we also introduce a general theory of law and development that can be used as a bridge between the two. We submit that law and development is itself developing in ways that involve new ideas and the processing of varied experiences; these in themselves are preoccupations of comparative law too.

One of the main characteristics of international law is its claim to ‘universality’. International law’s body of rules and practices is generally supposed to apply to every state and individual member of the world. This chapter challenges the perception that international law cannot be viewed through comparative lenses, as well as the idea that legal comparativism is a set of methodologies to contrast only domestic and regional legal systems and concepts. The underlying argument of the chapter is that behind common rules and shared aspirations of principles, members of an international system may adopt very different approaches, doctrines and procedures of internalisation. That invites an important role for comparativism. The chapter exemplifies this broad research agenda through a panoramic analysis of international human rights law and international environmental law, in both cases looking at foreign relations law and its constituencies in different legal realities.

States in sub-Saharan Africa struggle to manage the multiple legal orders bequeathed by European colonialism. This struggle is partly attributable to poor consideration of indigenous African values by policymakers. Values are useful because they distinguish social habits from the sense of obligation that gives law its normative character. Since the foundational values of indigenous laws reflect the welfare-oriented origins of indigenous laws, they illumine how Africans adjust to modern conditions, as well as the adaptive character of legal pluralism in Africa. However, not much is known about these values in the courts, in contradiction with the prominence that jurists accord to constitutional values. This chapter compares how African legal frameworks reflect the values of indigenous laws in Kenya, Nigeria, Somaliland, and South Africa. It finds that judges and legislators adopt jurispathic approaches to the regulation of indigenous laws, and suggests that reliance on the values of indigenous laws could promote their harmonisation with statutory laws.

Examining the history and institutions of the legal systems in Afghanistan, we contend that there is an under-examined set of plural legal systems – those where different legal traditions remain in continual contention. Unlike mixed legal systems, these plural legal systems are not composed of mixed, blended, or accommodated models, but of conflicting legal influences that fail to create a well-functioning legal order, contributing to social and political conflicts. In this chapter, we first discuss the different characteristics of divided legal systems. Next, we explain why Afghanistan has failed to overcome the problem of a divided legal system.

This chapter develops along three lines. First, following a historical approach, it describes the birth and development of the civil law tradition – from the rediscovery of Roman law in the High Middle Ages to the enactment of the German Civil Code. The second part presents two cases where the civil law model has been transplanted outside of Europe: Latin America and Japan. The final part offers a critical outlook on what the civil law tradition means today.