Report from M-EPLI talk with Prof. Dr. Thomas Coendet- “Comparative Law as a Means of Legal Reasoning?”

By Dr. William Bull and Doris Beganovic

 

On the 13th of September 2017, M-EPLI had the honour of welcoming Prof. Dr. Thomas Coendet, the respected Swiss lawyer and current professor at KoGuan Law School in Shanghai, to give a talk on the topic of “Comparative Law as a Means of Legal Reasoning?”.

Firstly, some insight into comparative law should be given. Comparative law is the act of comparing the law of one country to the law of another, by and large first being the law of a foreign country and second being the law of one’s own country. The essence of comparison is looking at one legal data in both systems and then focusing on similarities and differences between them.  In most of the countries in Europe, legal decisions are based on legal reasoning that stems from the domestic jurisdiction. Judges do not usually look to foreign jurisdictions to guide their decisions or to create their arguments by engaging in comparison between the foreign law and their own.

However, Prof. Dr. Thomas Coendet disagrees with that approach. He believes that the comparative approach in legal reasoning is more advantageous and efficient than purely relying on domestic law. The talk started with a description of the power and functions of comparative law as a means of legal reasoning. Firstly, the definition of legal reasoning was given as taught by Harald Wohlrapp. Legal reasoning is thought to be best described by a pragmatic theory, which holds that the truth of a statement consists in its practical consequences, especially in its agreement with subsequent experience. Furthermore, Wohlrapp sees argumentation as a tool and measures the validity of an argument by the number of objections that were brought against it and not by the argument as such.

Comparative reasoning should be a part of legal reasoning first and foremost because it represents the normative model, by contrast to the empirical one which is currently in vogue. The normative model maintains that by looking at different legal systems we can see how they deal with the same problem and consequently have the option of choosing a solution which actually exists in practice and not just in theory. Principles that comparative argumentation should follow include asymmetry, coherence and specificity. They include asymmetry because the solution should be found in the domestic law, which is the starting and ending point of the search. Foreign jurisdictions are only used as a means of consultation, which is best illustrated by the principle of coherence, a principle that indicates that every solution has to be found among well-established norms of domestic law. Lastly, the principle of specificity demands that the solution was not the one prevalent in the domestic jurisdiction.

Subsequently, Prof. Dr. Coendet described the methodological structure of comparative legal reasoning. This combines three concepts: the density of comparative analysis, small and large comparative projects and dialogical and trialogical comparison. The density of comparative analysis indicates how deeply we have to delve into different legal systems in order to find a solution and therefore varies on a case-by-case basis. Secondly, small comparative projects are limited and allow the judge to engage in a dialogue with foreign law alone. On the other hand, large projects demand from a judge to engage in a more profound comparison and if a judge is not competent to do so on their own, they have to ask someone else to do it with them. This leads us to the last methodological concept in the structure of comparative reasoning, namely the dialogue and trialogue. As already mentioned, in the dialogue the judge acts as a comparatist and undertakes the task of comparing and finding a solution on their own. The judge needs to fulfil certain requirements to be competent to do so; that is to say they must have knowledge of the language and about the politics, economy and history of the envisaged foreign country. Deciding which country to compare with depends on evident similarities between countries such as a similar economic, social and historical background. Another important characteristic of a judge is that of critical self-inquiry; to know when he/she cannot do it alone and rather must choose to engage in a trialogue. Other parties in a trialogue will usually be another judge or a legal scholar, even though there are no strict rules on that.

Prof. Dr. Coendet’s presentation was followed by a discussion among the M-EPLI members regarding the practical results of using the comparative approach in legal reasoning. The question that was mostly prompted was: What if other jurisdictions do not have the same problem or do not recognize it as a problem, meaning they do not even have the necessary legislation? The answer given by Prof. Dr. Coendet was based on a history. The solution is to research the jurisdiction’s history, which could potentially reveal that the foreign country had similar problems in the past or still does. We would not necessarily find a solution but a work of legal scholars dealing with a similar topic would undoubtedly help.

To conclude, comparative legal reasoning paints quite a different picture in the legal system of one’s country. It definitely brings with it a new approach and opens a variety of new questions and answers as well. Due to the ongoing globalization process, it is only a matter of time that the comparative approach towards legal reasoning will start gaining in importance.

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