Studying Comparative Law: A vital need for today’s lawyers
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In this day and age where globalization has resulted in closer interaction between business communities transcending national boundaries, it has become more important than ever to gain a sound understanding not only of the laws and trade practices of your own country but also of other countries with which business relationships are being established.
This is clearly exemplified by the ‘One Belt, One Road’ thrust of the Chinese; more and more new investments are made by Chinese businesses in hitherto unknown legal environments.
Dr. Dayanath Jayasuriya P.C
Comparative law essentially means studying the similarities and differences between two or more legal systems or law subject-areas. It could be a macro-level comparison of the laws of island states such as Sri Lanka and Singapore or on a micro-level study of the evolution of constitution law in the United Kingdom (without a written constitution) and an erstwhile British colony such as Malaysia, for instance.
In the past, comparative law became important when a legal relationship was to be established or when a legal dispute arose. Some scholars chose comparative law as a subject for investigation of their post-graduate qualifications.
The move towards harmonization of laws and codification gave impetus to the development of comparative law where the similarities across national systems found a place in treaties and conventions with differences being sorted out over time to gain consensus.
The globalization of international trade meant that a deep understanding of laws and trade practices had to be mastered; after all, ‘ignorance of the law’ is no defense.
As regional bodies such as the European Union developed binding treaties and conventions, national laws had to be fine-tuned. Prior to the creation of the European Union, The Hague Conference on Private International Law developed, since 1893, many conventions on subjects such as international civil procedure, including enforcement of foreign judgments, family law including marriage, protection of children and succession, and products liability. Another example is UNIDROIT, the International Institute for the Unification of Private Law.
It was first set up in 1926 as an organ of the League of Nations and later re-established. The Convention relating to a Uniform Law on the International Sale of Goods of 1964 is one of its landmark achievements.
Recognizing that in an increasingly economically interdependent world, there is a need for an improved legal framework for the facilitation of international trade and investment, the United Nations Commission on International Trade Law was established by the United Nations General Assembly in 1966.
It plays an important role in developing that framework in pursuance of its mandate to further the progressive harmonization and modernization of the law of international trade by preparing and promoting the use and adoption of legislative and non-legislative instruments in a number of key areas of commercial law. These areas include: International Commercial Arbitration; International Commercial Mediation; International Sale of Goods (CISG) and Related Transactions; Procurement and Infrastructure Development; Micro, Small and Medium-sized Enterprises; Electronic Commerce; Insolvency; Security Interests; Online Dispute Resolution; International Payments; and, International Transport of Goods.
Many countries have established International and Comparative Law Associations. In the United Kingdom, one of the reputed refereed law journals is the International and Comparative Law Quarterly (ICLQ). Sri Lanka is in the early stages of forming a Society of International and Comparative Law.
The Nawaloka College of Higher Studies and the Ulster University have launched an LL. B. programme. It entails two years of studies and examinations here in Sri Lanka with the final year at Ulster in Northern Ireland.
One of the key distinguishing features of this Two Plus One Law programme is that from the outset, students will be exposed to studies of a comparative law nature. The role of law in society and the dynamics of law reform in a socio-political context will be examined in detail, thus laying the foundation to producing a generation of young law graduates with a sound comparative law knowledge.
This will be a unique experience and the graduates should have no difficulty in fitting to the needs of today’s law firms working within a multinational environment.