Comparative Legal Research

Step six: ask the transplant question. Would the better solution work here, given the differences the earlier steps identified?

The trap: comparing rules without contexts

A rule does not work by itself. It works because of the institutions that administer it, the procedure it sits in, the resources available, the professional culture and what people expect.

Two illustrations from this book. The case method, chapter 240, works in a system whose law is largely judge made and whose examinations reward reasoning on new facts; transplanted into a codified system examined by essay, it produces students who prepare expositions. And the clinic, chapter 470, arrived in India attached to legal aid rather than to teaching, and behaved differently as a result.

The symptom of the trap in a dissertation. A recommendation that a foreign institution be adopted, with no account of what supports it there and whether those supports exist here.

And the honest form of a comparative recommendation. Not that India should adopt X, but that X performs the function better, that it depends on A, B and C, that India has A and C but not B, and that adopting X therefore requires B or a substitute for it.

Its merits

It generates options that a single system cannot produce from inside itself.

It clarifies one's own law by contrast.

It supplies evidence of feasibility. A design that has worked somewhere is more persuasive than one nobody has tried, chapter 730.

And it is well within a student's reach, because much foreign primary material is freely available online, chapter 940.

Its demerits

Language. A system whose materials are not in a language the researcher reads cannot be studied at first hand, and translations are unreliable for legal texts.

Depth. It is very easy to know enough about a foreign system to be wrong about it, and the errors are invisible to a domestic examiner.

Currency. Foreign law changes and the researcher is far less likely to notice.

Selection bias. A researcher who wants a particular reform will find a system that has it.

And the transplant problem above, which is not a demerit of the method but of its careless use.

A worked example

The problem: how should a system ensure that an accused person without means is represented?

Do not begin with section 12. Begin with the function: identifying who needs help, deciding entitlement, supplying a lawyer, paying for them, and checking the quality.

India's answer, chapters 570 to 590: a statutory entitlement by category in section 12, a prima facie filter in section 13, a panel of advocates under regulation 8 of the 2010 Regulations, payment under regulation 14, and monitoring under regulations 10 to 12.

Another system might answer differently at every stage: a means test rather than categories, a public defender's office rather than a panel, salaried lawyers rather than fees, and inspection rather than a committee.

Now compare function by function. Which method of identifying need reaches more of the people who need it? Which method of supply produces better representation? Which is cheaper per case?

And then the transplant question. A public defender office needs salaried lawyers, premises, career structure and continuity of funding. India's panel system needs none of those and depends instead on a large private Bar willing to accept a low fee. A recommendation to move from one to the other is a recommendation to build four things, and saying so is what makes it a serious proposal.

Quick revision

Comparative legal research studies two or more systems in relation to a defined problem, to identify, explain and assess their different solutions.

The method is functional: compare the problem and the function, not the rule, because the same function may be performed by quite different instruments.

Six steps: define the problem; choose the systems for a reason; state each answer from its own sources; identify and explain the differences; assess against a standard; and ask the transplant question.

The trap: comparing rules without the institutions, procedure, resources and culture that make them work. The honest recommendation says what the better solution depends on and whether those supports exist here.

Demerits: language; the ease of knowing enough to be wrong; currency; selection bias; and careless transplanting.

Test yourself

1. State the functional method and why it is necessary. Compare the problem and the function a rule performs rather than the form of the rule. It is necessary because the same function may be performed by quite different instruments in different systems, so comparing provisions directly will miss the system that achieves the same result by other means or by not needing the rule at all.

2. Set out the six steps of a comparative study. Define the problem rather than the rule; choose the systems for a stated reason; state each system's answer accurately from its own sources; identify the similarities and differences and explain them; assess which solution performs the function better and by what standard; and ask whether the better solution would work in the receiving system.

3. What is the transplant trap, and what does an honest comparative recommendation look like? The trap is recommending a foreign institution without accounting for the institutions, procedure, resources and culture that make it work there. An honest recommendation states that the foreign solution performs the function better, identifies what it depends on, says which of those supports exist in the receiving system, and treats the missing ones as part of the proposal.

4. Give three demerits of comparative research. Language, since a system whose materials the researcher cannot read cannot be studied at first hand and legal translations are unreliable; depth, since it is easy to know enough about a foreign system to be wrong in ways a domestic examiner cannot detect; and currency, since foreign law changes and the researcher is unlikely to notice.