At the end of this module, you will be able to:
Comparative law is the study of the laws and legal systems of different jurisdictions in terms of their similiarities and differences. The field is undergoing rapid growth for a number of reasons:
No recent decision of any court outside this country is binding on an Australian court. This does not mean, however, that overseas case law has no part in the Australian legal system. The decisions of foreign courts are regularly cited in Australian courts.
Australian judges cite overseas decisions for a number of reasons. These include:
English precedents were particularly influential in Australia for most of the twentieth century. However, courts now seek persuasive precedents from a wider range of common-law jurisdictions.
Not all common law jurisdictions are equally highly regarded. No hard and fast rules exist. In practice, however, an overseas decision is more likely to be regarded as a persuasive precedent if it is made by a superior court in a small number of common law jurisdictions in the developed world. These include the United Kingdom, Eire, Canada, New Zealand, Hong Kong and the United States.
Decisions made by courts in Scotland or South Africa may also provide persuasive precedents, although technically both Scotland and South Africa are mixed jurisdictions.
Citations from other common law jurisdictions can be extensive. A recent example is Hancock v Nominal Defendant [2002] 1 Qd R 578. In this case, the Queensland Court of Appeal upheld the award of damages against a negligent driver. In their decision, the judges referred to decisions from a number of foreign jurisdictions: England, Canada, New Zealand, South Africa, Scotland, the United States and Eire. One judge, Judge Byrne, cited no less than 60 US cases. Overall, the number of overseas precedents cited was far greater than the number of Australian ones.
The impact of comparative law is not limited to case law. Australian parliaments are often influenced by the example of overseas legislation. The European Commission Directive on Product Liability was used as the model for the inclusion of Part VA in the Trade Practices Act 1974 (Cth). A recent example of the influence of overseas statutes law is the proposed legislation regarding price fixing. In January 2008, the Commonwealth announced that it intended to legislate for jail terms of up to five years for business people who collude with competitors to control prices. This decision brings Australian law into line with that in North American and the European Union. This harmonisation is expected to make international co-operation against cartels easier.
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Italian law and the Queensland Criminal CodeAs Chief Justice of Queensland in the 1890s, Sir Samuel Griffith (left) was responsible for drafting the model criminal code for the State. This enormous task took him five years. During this time, Griffith made considerable use of the Italian Penal Code of 1888. In a few instances, Griffith simply translated the relevant Italian article into English. Griffith's Code passsed into law in 1899 and was used by the British Colonial Office as a model for the criminal codes elsewhere in the British Empire. His willingness to make use of the Italian Penal Code is a striking early example of the reception of civil law into Australian law. |
Authorities disagree regarding the exact boundaries of the overarching legal families which exist across the world. However, three broad distinctions are useful:
Not all jurisdictions fall into these broad categories. Many countries have legal systems based on the Soviet model or systems which reflect the influence of Islamic law. GlobaLex has a page on Religious Legal Systems which summarises the contributions made by religious legal systems to law of different jurisdictions. The University of Ottawa has additional information on the World Legal Systems site. Note that the maps provided by the University of Ottawa class the legal systems of the post-Communist world as civil law jurisdictions, on the grounds that the Communist-era law of these nations was code-based. Although many would argue that Soviet law represented a separate legal family, this issue is quickly becoming a dead letter. Many Eastern European countries have replaced their Soviet-inspired laws with legal systems based on the civil law traditions of Western Europe.
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Israeli LawBefore 1948, Palestine was part of the British Empire and its legal system was largely based on the common law. The new state of Israel initially took over this body of law (including the remnants of Ottoman law). Over the next few decades the Israeli legal system moved steadily away from the English model. Even now, sixty years later, the influence of the English common law is still strong: it remains evident in areas such as tort, criminal law, the law of evidence and court procedures. Israeli courts apply stare decisis (precedent) and judges continue to fill in gaps in the existing law by arguments from analogy. Despite these continuities, there are very significant departures from the English common law. There are no juries in Israeli courts and over 99% of criminal cases end in conviction, something unthinkable in most common law jurisdictions. Further, the influence of the English common law has been increasingly diluted by the reception of the US common law, particularly in the area of commercial law. Israelis can now point to a distinctive Israeli common law tradition. Given the strength of the common law, why is Israel regarded as a mixed jurisdiction? The reason is that between 1962–1981, large areas of Israeli private law were codified through legislation based primarily on French, Italian and German models. The result was the replacement of common law with civil law. The influence of European positive law is also felt in the courts. Israeli lawyers are more likely than, say, their Australian or English counterparts, to majke use of abstract reasoning in their pleadings. Stop for a moment, and think about the historical factors which might have been at work in Israel after 1948. Is there anything particularly surprising about the direction of legal changes after Independence? Why do you think most other newly-independent common-law jurisdictions have remained closer to the English model? |
Looking for evidence of comparative law in a particular area? Start your research with the secondary sources. Journal articles, book chapters and entries in reference works will provide a useful guide to overseas concepts and terminology, which can be very different to those in use in Australia.
If your question is fairly simple, try the Martindale-Hubbell International Law Digest. This publication provides short summaries of the laws of many states under standard topics (eg wills), including the names of important pieces of legislation. Although the information in the International Law Digest is brief, getting the name of important statutes or cases will allow you to find full-text materials elsewhere.
The Martindale-Hubbell International Law Digest is available in paper or online through LexisNexis.
If Martindale-Hubbell is not available in your institutional library, look for one of the other encyclopedias in the area.
Apart from Martindale-Hubbell, reference works in the area of comparative law include:
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The Common lawHow confident are you of the unique value of the common law tradition? Iain Stewart, a Senior Lecturer at Macquarie University, has some valuable things to say about the common law. Read this excerpt from a recent article: From a practical point of view, the reliance on analogy makes the law highly flexible, to a degree that a civilian can envy. On the other hand, it leads to several types of obscurity:
These obscurities, however, are a goldmine for the legal profession. It is rarely possible to discover one's legal rights or duties reliably without consulting, hence feeing, a lawyer. This compounds the anti-democratic bias: partly by privileging those who can afford legal advice and representation; and partly because the judge-made law, including constitutional and statutory interpretation, is then moulded upon the interests of those who can afford to sue. How valid are these criticisms? Can it be argued that positive law based systems (such as civil law) are inherently superior to the common law? The whole article is available online. |
For further information on finding information on the law of countries, see the modules on International Public Law and Foreign Law. There are also separate modules on the laws of New Zealand, Canada, the United States and the United Kingdom.
This module dealt with the following:
