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A Pledge for the Importance of Comparative Law in the Ongoing COVID Pandemic (and Beyond)

Posted on by Anita Frohlich

I recently attended a meeting on “Comparative Law and the COVID-19 Pandemic” organized by the International Association of Legal Science. The presenters highlighted different local and regional reactions to the global pandemic. For me, these presentations emphasized that countries responded (and are still responding) to the global health threat with highly individualistic legal measures.

From a strictly political perspective, this makes perfect sense: there is an external threat to national security to which the government reacts with isolationism – which is reasonable in the short term. Now that the pandemic has been around for almost two years, however, I believe that it is time to reconsider this approach. In fact, thanks to social media, citizens have cooperated and mobilized across country borders. Hence, I think, it is time for governments to stop trying to reinvent the wheel and to start looking beyond their territorial lines. In other words, globalization makes it essential for legislators to get inspired by their neighbors and to cooperate internationally.

Comparative law could be an important tool for such legal cooperation. Thus, comparative law points out legal synergies while at the same time taking legal singularities and cultures into consideration. The importance of comparative law is true not only for regulations dealing with the current pandemic, but also for other issues of global implications, including legislation on climate change. My hope is that governments and legislators will recognize the increasing relevance of comparative law for solving issues that may have an impact on the future of our global society and our planet.

Sources

Contributions to Zoom Webinar on “Comparative Law and the COVID-19 Pandemic”, in particular by

Could Fiction Aid Comparative Law?

Posted on by Anita Frohlich

Comparative law is not as “pure” as it used to be. Modern comparative law often draws from other disciplines, such as history, economics, or linguistics. This interdisciplinarity can certainly result in beneficial symbiosis, as I have previously pointed out. Yet, how far can interdisciplinarity go?

In his recent article, Comparative Law, Literature and Imagination: Transplanting Law into Works of Fiction, Jaakko Husa introduces a new interdisciplinary area of research: comparative law and literature which he defines as

a cross-cultural field that draws comparisons between and among literature from different legal traditions, aiming to understand variations of law as they are influenced by the cultural context.

Husa coins the term imaginary legal transplant. Legal transplants in comparative law are legal concepts that are copied from one jurisdiction to another. According to Husa, imaginary legal transplants are much more inclusive and fortuitous than real world transplants. Still, imaginary legal transplants may foster our cultural understanding of legal thoughts. In other words, the way authors depict law in their fiction helps us comparative lawyers deliberate on the cultural underpinnings of our global legal traditions.

Bibliography

Jaakko Husa, Comparative Law, Literature and Imagination: Transplanting Law into Works of Fiction, 28 Maastricht Journal of European and Comparative Law 371-389 (2021).

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International Law, Comparative Law, and the U.S. Courts

Posted on by Anita Frohlich

The distinction between international law and comparative law is not just conceptual, but is also of practical importance. Thus, the Constitution determines the “law of nations” which – as Justice Ginsburg puts it – “is the core of what we today call international law” to be binding for U.S. courts while foreign law is not. [1]

This does, however, not necessarily mean that U.S. judges should be blind or ignorant to foreign laws and court decisions. In fact, there are many examples where U.S. Courts have drawn inspiration from a comparative perspective on an issue they had to decide. [2]

Yet, the question of whether a U.S. Court should look at foreign legal sources or should not has always been (and still is) highly controversial. Opponents basically are concerned (1) that consideration of foreign law might be arbitrary (i.e. only decisions/laws that are in accordance with the own mind set are cited) [3] and (2) that U.S. judges may not fully get the full picture behind a foreign decision or law due to a lack of (social, historical etc.) background knowledge. [4]

While the above concerns are definitely valid and should prevent judges from just blindly treating foreign law as binding, I do not see why – especially in today’s interconnected world – foreign legal sources should not get the same level of consideration as other secondary legal sources like law review articles or even legal blogs. [5] After all, other judges (or legislators) may have already found a good solution, so we do not always have to re-invent the wheel!

Sources

[1] Ruth Bader Ginsburg, My Own Words, 2016.

[2] Calabresi&Zimdahl, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision, 47 Wm. & Mary L. Rev. 743 (2005).

[3] see [1] on page 254 referring to Justice Scalia.

[4] see [1] on page 254 referring to Judge Richard Posner.

[5] see [1] on page 255.

[6] for an older post on the Supreme Court and Foreign Law, see here.