The world in microcosm
One of the most practical
applications of my in-class learning came when I was writing the section on legal
context. I had assumed that this would be the hardest part of the paper to
write. I already had an inkling that there would be a lot of material that
would be relevant. This proved to be true. My research revealed a great many
points that were fascinating – and it was not hard to get side-tracked
following interesting points in the literature, but then I was simply
researching, rather than hypothesising and writing. It did not take long for me
to realise that I needed to focus on the goal of gathering information on both
jurisdictions’ legal context – but how to do this? There was so much! Kahn-Freund’s
words on the dangers of freedom in comparative law resonated in my mind.[1] I
would venture to say, they apply to students as well!
I remembered what was said in
class about zooming out versus zooming in and realised that instead of trying
to distil the research on the topic down to a level that superficially covered
a bit of everything, I needed to pick a few factors that most shaped the laws
in both places and zoom in on them. I could then delve into them more deeply.
Going forward, I understand that whether I zoom in or zoom out will depend on
how wide the subject is.
Underpinning this I drew on Van
Hoecke’s[2]
and Samuels’[3]
points on method – particularly on the value of going beyond mere functionalism
to incorporate structuralism to build a richer analysis. I chose three factors
which showed the greatest points of difference; once I had them it brought the
goal of research into sharp focus and it was quite straightforward to tease out
what was relevant for comparative purposes and what was background information
that I might generally use but would generally belong in the bibliography
rather than in the footnotes. I also then had a frame to structure a clear
analysis of the context. In hindsight I can see my assumption about the
difficulty of context came from not having a clear method to approach it. I am
generally an ordered person and I discovered not deciding on method earlier
made this section seem more daunting than it needed to be.
In this, I found Siems’[4]
conceptualisation of comparative law particularly helpful. He posits it as a
three-dimensional box with the base representing with breadth of jurisdictions
surveyed, the height representing the fields of law surveyed (torts, contract
etc) and the depth representing the approaches (culture, history, economics
etc). With this tool I could see how much to zoom in. Once I realised geography
was a key point of comparison Cryer et al’s section on legal geography was very
useful in in explaining how to analyse this point properly.[5]
Looking back, an important
critique I would make of my analysis is that I need to look at the
contradictions between aspirations that arose from the context and the actual
outcome of the law in not fully reaching those aspirations, as this has
ramifications for the viability of the transplant.[6]
Confounding points and the perils of assumptions
One of the major practical
discoveries I made when writing was how much assumptions – even if based on
experience, can colour your approach and how they need to be open to challenge.
My assumption was that, in
Singapore’s case, its deep reluctance to change its unique laws on chewing gum
would permeate through to other areas, in fact this was not the case. Whilst it
is highly parochial when it comes to laws that go to social behaviour such as
its chewing gum laws and laws prescribing corporal and capital punishment for certain
offences, my research showed that it was highly open to change – indeed
actively seeks out international best-practice in international commercial
arbitration (as it aspires to be a global hub for it). This was a surprise to
me. I had assumed that parochialism in one area would manifest in others as
well. I was also assuming that authoritarian governments are averse to learning
from external praxis.
This rammed home to me the
importance of interrogating my ‘jam jar’ and how apt it was that that was the
starting point of the whole unit. Implicit assumptions are often the hardest
ones to see and bring into consciousness. I learned this often manifests when
research throws up a confounding fact – it forced me to ask myself “why might
that be – could it only be confounding because I assumed x?” What I learned
from this is that even when I have quite a bit of background knowledge about a
topic, I need to be careful about extrapolating too freely and should be
mindful about not universalising about legal culture based on some of its
discrete parts, as this impairs understanding function. Just because something
is so in one area does not mean it is so in other areas. Legrand’s phrase that “distance delimits
inaccessibility”[7]
proved a salutory message in this case!
Flowing on from this, Malhotra
talks about this at length in his books – the need to “reverse the gaze,” to
interrogate suppositions and categories and to try (‘try’ being the operative
word) to understand the perspective of ‘the other’.[8]
Malhotra applies this in the context of debate, but it applies just as much in
the context research. Where he and Legrand are in tension is on his optimism
that one can fully understand the ‘other’s’ perspective, here I disagree and
think that Legrand’s is the better view – the range of factors driving
perspective is simply too broad to be fully synthesised by the other person,
but this can be done with specific points.
What I learned from this is to
start by articulating and acknowledging the lens I view a topic with and hold
the framework I am applying as somewhat provisional – and definitely not to
force confounding factors to fit within it, but to see them as potential
warning signs to think about my assumptions and try to reverse the gaze.
Correctly putting the neo in neofunctionalism
One of the points I learned about
preconceived notions was on what I thought would be primary driver of each
jurisdiction’s response to the problem. I had assumed that politics would be
primary in this. However, whilst politics is important, it does not exist in a
vacuum.
One of the most valuable points
of intermediary jurisprudence in assessing the viability of the transplant was
investigating the geographic context of each jurisdiction and discovering that
that was what drove the politics in this case. It is often a response grounded
in time and place. I came at this with a deep interest in politics generally
and had thought that much of ideology is grounded in “big ideas” adapted to
local circumstances. This comes out of my keen interest in philosophy more
generally. In this case, particularly with Singapore, it was the other way
around – the local circumstances drove the big idea – Neoconfucianism as it
best captured Lee Kwan Yew’s views of the local situation.
What learned from this was that I
need to be careful to look for whether pragmatism, rather than idealism is what
is driving things when analysing context and culture. To do this I should look
at the situation and then assess whether the laws are responding to context
(pragmatism) or actually trying to shape it (idealism). In this Bacon &
Chin will prove helpful in future as they point out that pragmatism as a
driving force is not just about apologetics for the status quo but can end up
as an ‘ideology’ of its own, whilst not precluding other, more obvious
ideological influences.[9]
Consequently, more generally, as
part of the writing of the paper I also got a practical side-lesson in the
value of Lyotard’s postmodern scepticism of grand narratives.[10] I
learned these can be one tool to help situate ‘context’ in relation to
‘function’ (i.e. the ‘neo’ in ‘neofunctionalism’) but they are not the be all
and end all of it. They can potentially be a helpful first stop on my journey
into context, but I leaned I will need to go beyond this – to think about other
relevant factors to context and see which ones apply. This will lead to richer,
better explanations of context in future.
At the end of the day though, the
freedom in researching and writing the paper was immensely intellectually
stimulating and a sound practicum in applying the tool of comparative law.
[1]
Kahn-Freund, Otto, Sir 1965, Comparative law as an academic subject,
Clarendon Press, Oxford.
[2] Mark Van Hoecke, 'Methodology of Comparative Legal Research' (2015) Law and Method.
[3] Geoffrey Samuel, An introduction to
comparative law theory and method (Hart Publishing, 2014).
[4] Mathias
Siems, Comparative Law (Law in Context),
(Cambridge University Press 2018).
[5] Cryer,
Robert., Tamara K. Hervey, Bal. Sokhi-Bulley, and Alexandra. Böhm. Research
Methodologies in EU and International Law, (Hart 2011) 92.
[6] David
Nelken, Beyond Law in Context: Developing a Sociological Understanding of Law,
(Routledge 2016).
[7] Legrand, Pierre, ‘Foreign
Law: Understanding Understanding’ <https://pierre-legrand.com/understanding_understanding.pdf>.
[8] Malhotra, Rajiv, Being
Different an Indian Challenge to Western Universalism (Harper Collins,
2011).
[9] Bacon, Michael and
Clayton Chin, 'Contemporary Pragmatist Political Theory: Aims and Practices'
(Pt SAGE Publications) (2016) 14(1) Political
Studies Review 3-6.
[10] Lyotard,
Jean-François, The postmodern condition :
a report on knowledge (Manchester University Press, 1984).
