Sunday, December 09, 2007

Comparing Law, Lawyers, Soft Law and More

Last week I participated in an author meets critics forum at the Institute of Advanced Legal Studies in London. The book in question was Comparative Law: A Handbook edited by Esin Örücü and David Nelken.

Perhaps, as one of the contributors and audience members, William Twining, said, out of the four speakers (Nelken, Örücü, Woodman, Flood) only one, i.e. Örücü, was a declared comparative lawyer, which meant that, in effect, we are all comparativists now. That was a fair resume.

The book is designed to inform students about the field of comparative law. It is, however, almost impossible to define or to set limits around. Depending on one's perspective there are alternative ways of analyzing the topic, including economics, systems theory, or appeals to globalization. Nevertheless, in the modern world there is a tendency away from examining other legal systems towards believing one's own system is superior. This form of ethnocentrism is catastrophic for lawyers as it induces tunnel vision.

Comparative Law: A Handbook contains diverse views, as to be expected from the range of authors within it. Each chapter ends with a set of questions to guide the student to further thinking and examination. It is also a user-friendly book in that readers can either travel straight through or dip in wherever they want. Moreover, no author writes in isolation of the others often commenting or critiquing various approaches to the subject.

Is the book successful? Yes. Does it have limitations? Yes. But then this is rather like saying that one doesn't have all the answers. Because it isn't the answers that are important, it's the questions.

My critique focussed on what I saw as a lack of diversity in treatment of comparative law. I would have liked to see an acceptance of legal or normative pluralism recognizing that law comes in many guises: regulation, contracts, international standards, model codes, soft law, lawyers' opinions and so forth. As I, and my Bremen colleagues, have written, the legal system as personified by the state is no longer a sufficient condition nor an adequate basis for the stabilization of expectations because legal systems are too weak and fragmentary. For example, Errol Meidinger's work on product certification in the timber industry is a pertinent case in point.

Moreover, we can't always rely on states to tell the truth about what they do with their legal systems. For example, Greece states it has a legal aid system which is available to many, but unfortunately it has no budget so it exists nominally but not in reality. Instead the state relies on the pro bono activities of lawyers or families contributing to defence expenses.

Another example, is found in the way Russia has forced a restructuring of the production sharing agreement on Shell over Sakhalin II. This private ordering scheme between the Russian state and the oil companies and banks depended on profits being remitted to the state once costs had been met. Costs, however, doubled and Russia was seeing no return. Using the threat of environmental breaches as a pretext for withdrawing exploitation licences, Russian compelled Shell to hand over 51% of the investment. Thus power is a considerable factor in the comparative study of law.

For me, the most significant omission from the text was the legal profession. In this respect comparative law is often at an abstract level that ignores much of the legal and normative work being done that stabilizes people's expectations. Two areas that interest me are the globalization of insolvency and capital markets, both shaped and tested by lawyers rather than states.

My final comment refers to a deficiency within the book. Although some writers commented on legal systems from the south and the east, there were no contributors from these regions.

Of course, these criticisms do not decry the book, rather they portend the coming of the second edition. We have to start somewhere and this is a good starting point, one that puts down a challenge to others.
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