For a variety of reasons, countries in Sub-Saharan Africa have retained the legal systems that had been imposed on them during the colonial period. The question that this chapter tries to respond to is whether, after six decades of independence, particularly after the fairly fundamental constitutional reforms that started in the 1990s, there have been any significant changes made to these legal systems. In other words, have the recent legal reforms resulted in the emergence of laws that are distinct and better suited to meeting the peculiar challenges of the sub-continent and have a distinct identity within or without the legal traditions they inherited? The chapter, among other things, examines the main trends in legal reforms, and highlights the nature and scope of legal changes in certain key areas. It is against this background that a comparative analysis is undertaken to assess the impact of the different legal reforms on the quality of justice and respect for the rule of law. The chapter concludes by pointing out that although there remains a clear common law/civil law divide on the continent and that no Sub-Saharan African legal system is emerging, there are some distinct sub-regional features, such as a special mix of Roman-Dutch/English common law in operation in southern Africa.

Disciplines traditionally designated as ‘comparative’ – Comparative Literature, History, etc. – have radically called into question comparison as their apparent methodological foundation, even postulating its ‘obsolescence’. Such tendencies have also been informed and driven by the insight that the label ‘comparative’ is a legacy of the nineteenth century, when the ‘comparative method’ spread from biology and philology to other developing academic disciplines. This awareness of its roots in the peak period of colonialism and imperialism has opened ‘comparison’ itself to postcolonial critiques in these disciplines. ‘Comparison’ is no longer necessarily accepted as a timeless and ‘neutral’ methodological constant, but is rather viewed as a contextual historical phenomenon. By contrast, ‘Comparative Law’ scholars have been more hesitant to challenge that radically the role of comparison and the ‘innocence of method’ (Günter Frankenberg). This chapter explores the role that a lack of disciplinary historical self-awareness plays in this display of intellectual restraint. It interrogates, in particular, the traditional self-portrayal of Comparative Law as a ‘young’ discipline and the narrative of the famous 1900 Paris Congress as a mythical point of origin. The trope of such a ‘new beginning’ in or around 1900 insinuates a critical caesura that eclipses Comparative Law’s intellectual roots in the canon of nineteenth- century comparative disciplines, obscuring how these disciplines related to a colonial/imperialistic historical context. The chapter seeks to establish that the entanglement of our disciplinary history with that of the ‘comparative method’, that the coloniality of comparison itself is indeed an important subject in its own right. It suggests a context-sensitive recovery of the discipline’s institutional and discursive history, theoretically informed by scholarship specifically aimed at resisting ‘the mystifying amnesia of the colonial aftermath’ (Leela Gandhi).

It is said that ‘not many fields of law use comparative law as extensively as international arbitration’ (Vadi, 2010). Indeed, comparative approaches to international arbitration law have assumed greater importance in the study of both commercial and investment arbitration. This chapter explores the applications of comparative law methods in the developments of international arbitration law, reviews their key contributions, and suggests potential directions for future study. These methods, whether traditional, historical, linguistic, socio-legal, empirical, or economic have all been employed to varying degrees and varying effects in the study of international arbitration law. Drawing from key publications in the field, this chapter will explore the research focus, themes of enquiry, organisational structures, and analytical techniques of each method in turn as applied to comparative arbitration studies.

This chapter conceptualises the Confucian legal tradition as a historically extended and legally embodied Confucian argument. The Confucian legal tradition has three features. First, it is jurisprudentially founded on a set of Confucian concepts and principles justifying the importance of good men. Second, the Confucian argument is embodied in structural institutions and legal codes in premodern and modern East Asia (China, Japan, Korea, Vietnam). Third, legally embodied Confucian concepts and principles are historically extended for thousands of years from formation, consolidation, and transnationalisation to modernisation.

Globalisation has brought the world closer and urged nations to consider the differences between their various legal systems. Comparative law is vital to facilitating this. There are many reasons for the discipline to consider the legal systems of the Middle East and North Africa (MENA) region. The MENA population does not only represent a large part of the world, but the MENA region also has attractive markets with active investment opportunities. Recent studies indicate a remarkable move towards foreign investment in the MENA region business market. This chapter provides an overview of the fundamentals of the MENA region’s legal systems. What is new about this study is that it does not adopt the classical approach of examining Islamic law as the legal cornerstone in this area of the world. Rather, the chapter provides a comparison between the impact of Western laws – founded initially on either the Napoleonic Code or common law doctrines – versus the impact of Islamic law ‘Shari‘a’ on building the legal systems of the MENA countries. The chapter also gives examples of the role of comparative law in shaping some contemporary issues in the MENA countries today, such as migration and women’s rights.

The relationship between comparative law and legal history has been a topic of interest for a long time. But reflections on how methods could combine the historical approaches of legal systems around the world with theoretical or jurisprudential points of view really began with Edouard Lambert’s 1903 book La fonction du droit civil comparé. Using the two meanings of ‘jurisprudence’ (as case law in French language and as legal theory in English), Lambert proposed comparing positive rules while bearing in mind the weight of history and its limits. Following this path, this chapter explores critical and constructive approaches to comparative law through legal history. In the first part of this chapter, history is used to criticise simplistic conceptions of comparative law like ‘legal families’ and ‘national spirit’. In the second part, historical-jurisprudential approaches are defended as a means of more clearly delimiting legal phenomena and facilitating a deeper analysis of the dynamics of law. In conclusion, scholars are and should remain open to developing a diversity of historical-jurisprudential approaches.

This chapter explains how New Institutional Economics (NIE) presents an innovative, interdisciplinary approach for topics of comparative law. It discusses the core principles of NIE and how they relate to the principles of comparative law. New Institutional Economics is a natural partner to comparative law and is especially useful in the study of law in context. The chapter discusses the contribution that the combined approach of NIE and comparative law brings to the scholarship of law. NIE provides ‘institutions’ as an easily understandable tertium comparationis. The chapter concludes with a call to add NIE to the comparative law methodological toolbox as a strategy to develop a sound analytical framework through which to better understand and more aptly rationalise the divergences and convergences observed in the laws of different countries.

This chapter follows the definition of ‘empirical legal studies’ as research which applies quantitative methods to questions about the relationship between law and society, in particular with the aim of drawing conclusions about causal connections between variables. Comparative law does not typically phrase its research as being interested in questions of causal inference. Yet, implicitly, it is very much interested in such topics as it explores, for example, the determinants of legal differences between countries or when it evaluates how far it may be said that one of the legal solutions is preferable. It is thus valuable that significant progress has been made in empirical approaches to comparative law that may be able to show robust causal links about the relationship between law and society. This chapter outlines the main types of such studies: experiments, cross-sectional studies, panel data analysis and quasi-experiments. However, it also shows that such studies face a number of methodological problems. This chapter concludes that often it may be most promising to combine different methods in order to reach a valid empirical result.

The misconception of culture is responsible for many difficulties in comparative law. This chapter suggests that a general concept of culture is inevitably distorting or empty, and that any meaningful talk of culture can only take place upon microscopic elements. Cultural elements are different in their relevance to the constitution of the problem of life and accordingly the problem of law; the enquiries into the cultural impacts upon law must be based upon the relevance of a particular element to a particular law. The insider’s view to apprehend culture is a fallacy; the outsider’s view is the only way possible to know a culture. Taking culture as a purely subjective construction is another common misconception while the objectivity of cultural elements is essential for the proper understanding of culture and the methodological improvement of comparative law.

This chapter outlines the workings of the common law. It starts out by providing a historical background to legal institutions, conceptual distinctions, pedagogy and literature constituting the common law tradition before going on to identify and discuss some of the core features of the common law’s method. The chapter also seeks identify factors causing convergences and divergences between the working of the law in many of the jurisdictions all over the world that tend to be classified as common law systems.

As law is largely a country-specific discipline, formal African legal systems differ from one country to another. The commonly shared feature, however, is that of deep legal pluralism, which produces a multiplicity of normative orders in each society. National legal systems are influenced by colonial history and underpinned by customary law, resulting in a multi-layered legal environment overall. This chapter highlights the influence of traditional usages as a distinct but integral source of business law within pluralist African legal systems. The ‘survival’ of customary arbitration, for instance, clearly indicates the value which local communities attach to familiar transactional and dispute resolution frameworks which more suitably accommodate their voices. This singular feature underscores the importance of an exploratory and inclusive approach to identifying other elements of pluralism in the field of business law in Africa. These include the widening reach of regional law, the huge scale of informal cross-border trade, differing legal frameworks for formal cross-border trade facilitation and the monumental growth of China’s investments in Africa, all of which constitute substantive research areas in themselves in the study of the pertinent subject of legal pluralism in commerce in Africa.

The colonial question has not been sufficiently addressed by comparative legal studies. Although more scholars acknowledge the Eurocentric bias of the discipline, a radical rethinking of its methods and assumptions has not emerged yet. To contribute to decolonising comparative law, this chapter proposes two strategies. First, engaging with indigenous or Southern scholars that think from a decolonial episteme. These scholars often address comparative issues from their own experience of past colonialism and present coloniality. Second, engaging with social actors on the ground through decolonial methodologies. Engaging with the political agendas of local and indigenous peoples and activists allows a deep understanding of their concerns and aspirations. To explain the implications of these strategies, the chapter discusses the issue of norm diffusion in human rights debates. Viewed through a decolonial lens, this would suggest that indigenous and local people are norm makers rather than being mere norm takers or beneficiaries. Then, they either reinterpret the norms or produce their own norms. Some of these norms are local and global at the same time. They are embedded in their own local thinking and practice, but also are emerging as valuable legal models to address global social and ecological crises.

As early as 1996, when bearing multiple tattoos was less common among celebrities and athletes, a famous tattoo bearer filed an intellectual property lawsuit to protect against the commercially exploitative use of his tattoos by a third party. Dennis Rodman, “a well-known, extremely successful and hugely popular professional basketball player” in the National Basketball Association (NBA), sought to prevent T-shirt manufacturer Fanatix Apparel, Inc. from making and selling the “Dennis Rodman Tattoo T-Shirt.”2 The long-sleeved T-shirt bore replicas of 10 of Rodman’s tattoos in the same locations as the tattoos on his body.

Intellectual property (IP) scholars have spent considerable time demonstrating the global injustice produced by IP rights (IPRs). In any area where IP has taken on a significant role, it comes at a cost. The world’s food security, for example, is dependent upon corporate agriculture and biotechnology companies that control who can plant what and when they can plant it. These patent-protected products are virtually the only choice for modern farmers, even as these companies experiment indiscriminately with new patent-protected products that could have far-reaching impacts on the very ability to produce food in the future.