FEBRUARY 20 — Comparative law has been in existence for a long time, wrote Nicholas HD Foster on New Year’s Day in 2006.
The co-founder of the Journal of Comparative Law (JCL) explained that comparative law “goes back via Montesquieu and the reception of Roman law into modern European legal systems to Aristotle (at least). Some trace its beginnings as a scholarly discipline to Lambert and Saleilles’ foundation of the International Congress for Comparative Law in 1900, others to the foundation of the French Society of Comparative Legislation and the appointment of Sir Henry Maine as Professor of Historical and Comparative Jurisprudence in Oxford in 1869.”
Yet, even at the turn of the new millennium, comparative law had been regarded by many as arcane.
It was unjustified, for the simple reason that the benefits of comparative law are, and have been, well known, which are that it is “[an] academic study; law reform and policy development; a tool for research to reach a universal theory of law; the provision of perspective to students; an aid to international practice of the law; international unification and harmonisation — common core research; a gap-filling device in law courts; and an aid to world peace”. (See Esin Örücü, “Critical Comparative Law: Considering Paradoxes for Legal Systems in Transition” (2002) Electronic Journal of Comparative Law)
According to Foster, there is “a need for comparative legal knowledge unparalleled in history”. According to Örücü, comparative law has become an “essential instrument for legal understanding”. (See Esin Örücü, “Unde Venit, Quo Tendit Comparative Law” in Esin Örücü and Andrew Harding (eds) Comparative Law in the 21st Century, Kluwer 2002)
That is why in ”Malaysia too can have federal and state laws governing criminal offences”, I presented a comparative look at Australia and the US to show that criminal laws can vary significantly among the states in a country.
It is hoped that one is not set to “the narrow-mindedness which blinds law students [and lawyers] to the possibility that legal questions could be solved, or even approached, differently than in their own legal system”. (See Uwe Kischel, “Aims of Comparative Law” in Comparative Law, Oxford University Press 2019).
To quote Nicholas HD Foster again:
“The old assumption that legal systems neatly regulate natural and legal persons on their territory is no longer defensible, if it ever was. Account needs to be taken of legal pluralism and of non-state legal orders, such as Islamic law in the United Kingdom, which coexist with the formal legal system and exert a very significant influence on the lives of many people, even if the formal legal system refuses to acknowledge this.”
Legal systems do co-exist.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
