No CrossRef data available.
Article contents
Mainstreaming Foreign Law in the Asian Law School Curriculum
Published online by Cambridge University Press: 10 July 2019
Abstract
Exposure to foreign law is immensely valuable as it expands students’ argumentative and analytical terrain. More pragmatically, there has been a discernable shift towards rule-of-law thinking in furthering regional integration and a flurry of Free Trade Agreements (FTAs) involving Asian countries. Law schools ought to capitalize on this reality. The preferred educational strategy to adopt, we argue, entails systematically integrating foreign law across the traditional components that make up undergraduate curricula. Asian law schools should simultaneously offer general comparative courses that train students in comparative methodology and theory, enabling them to become discerning consumers of and sensible contributors to comparative research, including in the context of domestic law reform. In advocating such mainstreaming of foreign law, we further suggest a broad understanding of this notion as encompassing all rules that do not have their origins in the municipal legal order, including those produced by regional organizations like the Association of Southeast Asian Nations (ASEAN) and the South Asian Association for Regional Cooperation (SAARC). Unlike Europe's law schools, which have been laggards in adapting law school curricula to changes in their wider regional environment, Asia's law schools have the opportunity to anticipate the growing relevance of foreign law in practice and thereby ensure that they remain germane to the legal industry and society at large.
- Type
- Article
- Information
- Copyright
- Copyright © National University of Singapore, 2019
Footnotes
±
Associate Professor, School of Law, Singapore Management University. We would like to thank participants at the Conferences on Comparative Law in Asia (27 and 28 September 2017, National University of Singapore) for their helpful comments and observations.
*
Professor, Faculty of Law, National University of Singapore.
References
1. Husa, Jaakko, ‘Turning the Curriculum Upside Down: Comparative Law as an Educational Tool for Constructing Pluralistic Legal Mind’ (2009) 10 German Law Journal 913CrossRefGoogle Scholar.
2. It is said that this extends beyond the relevant legal domain area to comparing constitutional rules and doctrines. See Tushnet, Mark, ‘The Inevitable Globalization of Constitutional Law’ (2009) 49 Virginia Journal of International Law 985Google Scholar.
3. O'Hara, Erin A and Ribstein, Larry E, The Law Market (OUP 2009)Google Scholar.
4. While Master of Laws (LLM) degrees are immensely valuable in allowing students to acquire particular specialist knowledge, these do not tend to be qualifying degrees, so a (sizeable) portion of the law student community may decide to forego such a degree. Our interest is in the legal knowledge and skills that all law graduates ought to be equipped with before being eligible to join the legal profession.
5. Harding, Andrew and de Visser, Maartje, ‘Teaching Comparative Law in Singapore: Global and Local Challenges’ in Harding, Andrew, Hu, Jiaxiang, and de Visser, Maartje (eds), Legal Education in Asia: From Imitation to Innovation (Brill 2017) 102CrossRefGoogle Scholar.
6. Maartje de Visser, Jiaxiang Hu and Andrew Harding, ‘Preface’ in Andrew Harding, Jiaxiang Hu, and Maartje de Visser (eds), Legal Education in Asia (n 5) vii, viii-ix.
7. More information about ASLI and its members can be found at ‘Asian Law Institute (ASLI)’ (ASLI) <https://law.nus.edu.sg/asli/index.aspx> accessed 18 February 2019.
8. Harding and de Visser (n 5).
9. The same applies to Macao.
10. The boundary lines can at times be fluid, of course, depending on the precise syllabi: for instance, a general comparative course may also devote some time to the study of ASEAN rules alongside an examination of other Asian legal systems; similarly, subject area courses should include pertinent ASEAN or SAARC rules and policies.
11. See eg Weatherill, Stephen, Law and Integration in the European Union (OUP 1995)Google Scholar; Cappelletti, Mauro, Seccombe, Monica, and Weiler, Joseph (eds), Integration Through Law: Europe and the American Federal Experience, vol 1, book 1 (Walter de Gruyter 1986)CrossRefGoogle Scholar; Kelemen, R Daniel and Schmidt, Susanne K, ‘Introduction – The European Court of Justice and Legal Integration: Perpetual Momentum?’ (2012) 19 Journal of European Public Policy 1CrossRefGoogle Scholar; Voßkuhle, Andreas, ‘“European Integration Through Law”: The Contribution of the Federal Constitutional Court’ (2017) 58 European Journal of Sociology 145CrossRefGoogle Scholar.
12. Shapiro, Martin, ‘Comparative Law and Comparative Politics’ (1980) 53 Southern California Law Review 537, 538Google Scholar.
13. The ASEAN Economic Community was established only in 2015, almost five decades after the inception of ASEAN. In contrast, the European Economic Community saw the light of day in 1957 and was superseded by the European Union, which amongst others introduced economic and monetary union as well as European citizenship for all nationals of its Member State.
14. See in particular the signing of the ASEAN Charter on 20 November 2017, which amongst others establishes a legal and institutional framework for the organization and makes repeated references to democracy, good governance, the rule of law, and human rights. For academic discussion, see eg, the book series Integration through Law: The Role of Law and the Rule of Law in ASEAN Integration published by Cambridge University Press; Deinla, Imelda, The Development of the Rule of law in ASEAN: The State and Regional Integration (CUP 2017)CrossRefGoogle Scholar.
15. For a general discussion, see Janssens, Christine, The Principle of Mutual Recognition in EU Law (OUP 2013)CrossRefGoogle Scholar.
16. Treaty on the Functioning of the European Union (TFEU) [2012] OJ C326/47, art 53; Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649 (Cassis de Dijon); Council Regulation (EC) 764/2008 of 9 July 2008 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State and repealing Decision No 3052/95/EC [2008] OJ L218/21; Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on the mutual recognition of goods lawfully marketed in another Member State’ COM (2017) 796 final.
17. TFEU, arts 67(3)–(4), 70, 81(1), 82(1)–(2), and 88(1). See also European Council, ‘Tampere European Council 15 and 16 October 1999 Presidency Conclusions’ (European Parliament 1999).
18. Council Directive 77/249/EC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services [1977] OJ L78/17.
19. Council Directive 98/5/EC of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained [1998] OJ L77/36. For an evaluation of this Council Directive and Council Directive 77/249/EC (n 18), see Sjoerd Claessens and others, ‘Evaluation of the Legal Framework for the Free Movement of Lawyers – Final Report’ (MARKT/2011/071/E, Zoetermeer, 28 November 2012).
20. Council Directive 2005/36/EC of 7 September 2005 on the recognition of professional qualifications [2005] OJ L255/22.
21. cf European Council, ‘European Council Meeting (Brussels, 4–5 November 2004), European Parliament resolution on the outcome of the European Council meeting held in Brussels on 4–5 November 2004’ (P6_TA(2004)0062, European Council 2004); The Hague Programme: Strengthening Freedom, Security and Justice in the European Union [2005] OJ C53/1; Commission, ‘Judicial Training in the European Union’ (Communication) COM (2006) 356 final.
22. cf TFEU, arts 2–6 listing the areas in which the EU has competences and specifying the nature of this competence (exclusive, shared with the Member States, or supporting and supplementary). See Charter of Fundamental Rights of the European Union [2012] OJ C326/391, art 51(1); Piet Eeckhout, ‘The Real Record of the EU Charter of Fundamental Rights’ (UK Constitutional Law Association, 6 May 2016) <https://ukconstitutionallaw.org/2016/05/06/piet-eeckhout-the-real-record-of-the-eu-charter-of-fundamental-rights/> accessed 18 February 2019.
23. Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECR 1.
24. Case 6/64 Flaminio Costa v ENEL [1964] ECR 585.
25. Council Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and education (recast) [2006] OJ L204/23; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16; Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22; Council Directive 2011/83/EU of 25 October 2011 on consumer rights [2011] OJ L304/64.
26. Initiated with the Joint Declaration of the European Ministers of Education – The Bologna Declaration of 19 June 1999 (Bologna Declaration). The countries involved in the Bologna Process are also parties to the European Cultural Convention 1954 of the Council of Europe. Regular progress assessment reports and related policy documents are available at EHEA, ‘European Higher Education Area and the Bologna Process’ (EHEA) <www.ehea.info> accessed 18 February 2019. See further, Garben, Sacha, EU Higher Education Law: The Bologna Process and Harmonization by Stealth (Kluwer Law International 2011)Google Scholar.
27. Budapest-Vienna Declaration on the European Higher Education Area (12 March 2010).
28. Cassis de Dijon (n 16).
29. Commission, ‘Judicial Training in the European Union’ (n 21).
30. European Parliament Committee on Legal Affairs, ‘Report on the role of the national judge in the European judicial system of 4 June 2008’ (A6-0224/2008, European Parliament 2008).
31. Resolution of the Council and of the Representatives of the Governments of the Member States meeting within the Council on the training of judges, prosecutors and judicial staff in the European Union [2008] OJ C299/1.
32. John Coughlan and others, ‘Judicial Training in the European Union Member States: Study’ (PE 453.198, European Parliament Directorate-General for Internal Policies 2011).
33. ibid.
34. cf Consolidated Version of the Treaty on European Union [2012] OJ C326/13, art 19(1) second sentence. See also Opinion 1/09 on the European and Community Patents Court [2011] ECR I-01137, paras 69–70; Case C-432/05 Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern [2007] ECR I-2271.
35. Maastricht University, ‘European Law School’ <www.maastrichtuniversity.nl/education/bachelor/bachelor-european-law-school> accessed 18 February 2019; Kornet, Nicole, ‘English-Medium Legal Education in Continental Europe: Maastricht University's European Law School: Experiences and Challenges’ in Arzoz, Xabier (ed), Bilingual Higher Education in the Legal Context: Group Rights, State Policies and Globalisation (Brill-Nijhoff 2012)Google Scholar.
36. Maastricht University, ‘Comparative Government’ <www.maastrichtuniversity.nl/meta/328657/comparative-government> accessed 18 February 2019.
37. Maastricht University, ‘Concepts of Criminal Procedure’ <www.maastrichtuniversity.nl/meta/327731/concepts-criminal-procedure> accessed 18 February 2019.
38. Radboud Universiteit, ‘Bachelor European Law School’ <www.ru.nl/opleidingen/bachelor/european-law-school/> accessed 18 February 2019.
39. Tilburg University, ‘LLB Global Law’ <www.tilburguniversity.edu/education/bachelors-programs/global-law/> accessed 18 February 2019.
40. Zweigert, Konrad and Kötz, Hein, An Introduction to Comparative Law (Weir, Tony tr, 3rd edn, Clarendon Press 1998) 33–47Google Scholar; Michaels, Ralf, ‘The Functional Method of Comparative Law’ in Reimann, Mathias and Zimmermann, Reinhard (eds), The Oxford Handbook of Comparative Law (OUP 2008)Google Scholar.
41. Tilburg University, ‘Program and courses LLB Global Law’ <www.tilburguniversity.edu/education/bachelors-programs/global-law/program-and-courses> accessed 18 February 2019.
42. Gregory Vijayendran, ‘Lawyers Go Global’ (Law Gazette, February 2018) <https://lawgazette.com.sg/news/presidents-message/lawyers-go-global/> accessed 18 February 2019; the official website can be found at The Law Society of Singapore, ‘Lawyers Go Global – Help for Singapore Lawyers to Venture Overseas’ <www.lawsociety.org.sg/For-Lawyers/Lawyers-Go-Global> accessed 18 February 2019.
43. For an example of what this can look like, see Hardt, Sacha and Kornet, Nicole (eds), The Maastricht Collection (5th edn, Europa Law Publishing 2017)Google Scholar which comprises a broad selection of legal instruments and provisions in English pertaining to international and European (private) law, comparative (national) public law, and comparative (national) private law.
44. United Nations Convention on Contracts for the International Sale of Goods (adopted 11 April 1980, entered into force 1 January 1988) 1489 UNTS 3.
45. See eg Bermann, George A, ‘Comparative Law and International Organizations’ in Bussani, Mauro and Mattei, Ugo (eds), The Cambridge Companion to Comparative Law (CUP 2012)Google Scholar.
46. In addition to the sources mentioned in (n 14), see eg Desierto, Diane A and Cohen, David J (eds), ASEAN Law and Regional Integration: Governance and the Rule of Law in Southeast Asia's Single Market (Routledge 2018)Google Scholar; Shintaro Hamanaka and Sufian Jusoh, ‘The Emerging ASEAN Approach to Mutual Recognition: A Comparison with Eurppe, Trans-Tasman, and North America’ (IDE Discussion Paper No 618, Institute of Developing Economies September 2016) <www.ide.go.jp/library/English/Publish/Download/Dp/pdf/618.pdf> accessed 18 February 2019; Barizah, Nurul, ‘The Development of ASEAN's Intellectual Property Rights Law; From Trips Compliance to Harmonization’ (2017) 7 Indonesia Law Review 95CrossRefGoogle Scholar; Hsieh, Pasha L, ‘Liberalizing Trade in Legal Services under Asia-Pacific FTAs: The ASEAN Case’ (2015) 18 Journal of International Economic Law 153CrossRefGoogle Scholar; Gary F Bell, ‘Harmonisation of Contract Law in Asia – Harmonising Regionally or Adopting Global Harmonisations – The example of the CISG’ [2005] Singapore Journal of Legal Studies 362; Chief Justice Sundaresh Menon, ‘Keynote Address’ (Doing Business Across Asia: Legal Convergence in an Asian Century, Singapore, 21 January 2016) <www.supremecourt.gov.sg/Data/Editor/Documents/'Doing%20Business%20Across%20Asia%20-%20Legal%20Convergence%20in%20an%20Asian%20Century'%20(Final%20version%20after%20delivery-%20260116).pdf> accessed 18 February 2019; Luca G Castellani, ‘CISG and Harmonisation of Asian Contract Law’ <https://docplayer.net/21550766-Cisg-and-harmonization-of-asian-contract-law-luca-g-castellani.html> accessed 23 February 2019.
47. In addition to the sources mentioned in (n 40), see eg Husa, Jaakko, ‘Metamorphosis of Functionalism – Or Back to Basics?’ (2011) 18 Maastricht Journal of European and Comparative Law 548CrossRefGoogle Scholar; Smits, Jan, ‘Taking Functionalism Seriously: On the Bright Future of a Contested Method’ (2011) 18 Maastricht Journal of European and Comparative Law 554CrossRefGoogle Scholar; Graziadei, Michele, ‘The Functionalist Heritage’ in Legrand, Pierre and Munday, Roderick (eds), Comparative Legal Studies: Traditions and Transitions (CUP 2003) 100CrossRefGoogle Scholar; Husa, Jaakko, ‘Farewell to Functionalism or Methodological Tolerance?’ (2003) 67 Rabels Zeitschrift für ausländisches und internationales Privatrecht [The Rabel Journal of Comparative and International Private Law] 419CrossRefGoogle Scholar.
48. See eg Parisi, Francesco and Luppi, Barbara, ‘Quantitative Methods in Comparative Law’ in Monateri, Pier Giuseppe (ed), Methods of Comparative Law (Edward Elgar 2012) 306Google Scholar; Spamann, Holger, ‘Empirical Comparative Law’ (2015) 11 Annual Review of Law and Social Science 131CrossRefGoogle Scholar; Siems, Mathias, Comparative Law (CUP 2014) chs 5–7Google Scholar.
49. Eg Hoecke, Mark Van, ‘Deep Level Comparative Law’, in Van Hoecke, Mark (ed), Epistemology and Methodology of Comparative Law (Hart 2004) 165Google Scholar; Valcke, Catherine, ‘Comparative History and the Internal View of French, German, and English Private Law’ (2006) 19 Canadian Journal of Law & Jurisprudence 133CrossRefGoogle Scholar.
50. See the classic contributions by Legrand, Pierre, ‘The Impossibility of “Legal Transplants”’ (1997) 4 Maastricht Journal of European and Comparative Law 111CrossRefGoogle Scholar; Watson, Alan, Legal Transplants: An Approach to Comparative Law (2nd edn, University of Georgia Press 1993)Google Scholar; Kahn-Freund, Otto, ‘On Uses and Misuses of Comparative Law’ (1974) 37 Modern Law Review 1CrossRefGoogle Scholar; Teubner, Gunter, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences’ (1998) 61 Modern Law Review 11CrossRefGoogle Scholar. See also Werro, Franz and Dedek, Helge, ‘What We Write About When We Write About Comparative Law: Pierre Legrand's Critique in Discussion’ (2017) 65 The American Journal of Comparative Law vii in the recent special issue of the American Journal of Comparative LawGoogle Scholar.
51. See eg the website created by the Singapore Academy of Law <www.singaporelawwatch.sg/About-Singapore-Law/Overview> accessed 18 February 2018; the brochure by the Law Society of England and Wales, ‘England and Wales: The Jurisdiction of Choice’ (Law Society of England and Wales 2007); and the German brochure adopted in response in 2008, ‘Law – Made in Germany’ (Bundesnotarkammer (BNotK), Bundesrechtsanwaltskammer (BRAK), Deutscher Anwaltverein (DAV), Deutscher Industrieund Handelskammertag e.V. (DIHK), and Deutscher Notarverein (DNotV), Deutscher Richterbund (DRB), 2014) <www.lawmadeingermany.de/Law-Made_in_Germany_EN.pdf> accessed 18 February 2018.
52. cf eg the ASEAN International Mobility for Students (AIMS) Programme which allows students to spend one semester in a university in another ASEAN Member State, with the exception of Cambodia and Myanmar for now, but with the addition of Japan and South Korea.
53. Siems (n 48).
54. Jaakko Husa, A New Introduction to Comparative Law (Hart 2015) 197. In this sense, Husa seems to agree with the point made by Legrand, ‘The Impossibility of “Legal Transplants”’ (n 50) that legal rules consist of more than their ‘bare propositional statement’ and are imbued with context and ideology that is nationally determined.
55. See eg Harding, Andrew, ‘Comparative Law and Legal Transplantation in South East Asia: Making Sense of the “Nomic Din”’ in Nelken, David and Feest, Johannes (eds), Adapting Legal Cultures (Hart 2001)Google Scholar; Gillespie, John, Transplanting Commercial Law Reform: Developing a ‘Rule of Law’ in Vietnam (Routledge 2006) particularly ch 2Google Scholar; Chen-Wishart, Mindy, ‘Legal Transplant and Undue Influence: Lost in Translation or a Working Misunderstanding?’ (2013) 62 International and Comparative Law Quarterly 1CrossRefGoogle Scholar; Kumarasingham, H (ed), Constitution-making in Asia: Decolonisation and State-Building in the Aftermath of the British Empire (Routledge 2016)CrossRefGoogle Scholar.