Featured Scholarship in Comparative Law

Marel Katsivela, Responsabilité délictuelle et responsabilité extracontractuelle au Canada. Une étude de droit comparé, Montréal, Éditions Themis, 2021.  

The present book constitutes, to our knowledge, the first attempt of a detailed comparative analysis of various themes regarding tort liability (common law) and extra-contractual liability for personal acts (civil law-Québec) in Canada. The book is mainly written in French – only some of the cases in the book are reproduced in English. A comparative study of this kind has no real limits as to the subjects to be treated. Those chosen for this book are the tort of negligence and its elements (duty of care, standard of care, factual causation, causal proximity, injury), certain intentional torts and their defenses (common law) and the personal extra-contractual liability (the classic triptych of fault, causation and injury in article 1457 of the Civil Code of Quebec) and its defenses (Québec civil law). Each subject is studied in common law and in civil law on the basis of statutes and / or case law / precedent and doctrine and is accompanied by a comparative analysis.  

In comparing the fragmented duty of care (Chapter 1) regarding the tort of negligence and its corresponding concept at civil law (general duty of care) the book analyses in more detail both concepts and their importance for each legal tradition in Canada.  

Regarding the standard of care (chapter 2) the book describes the principles governing the (breach of the) standard of care (tort of negligence – common law) and the fault (extra-contractual liability – liability for personal acts – civil law – article 1457 CcQ). More specifically, the study focuses on the reasonable person and his conduct in the two legal traditions of Canada. The author tries to determine the degree of convergence of the applicable rules in this area. The research of civil law and common law sources of law unveils a remarkable convergence of these rules as well as differences. 

Causation (chapter 3) is a common concern in common law and in civil law in the area of the tort of negligence (common law) and extra-contractual personal liability (civil law) in Canada. The book undertakes a comparative analysis of this concept and identifies the similarities, differences and level of convergence of the rules governing it. Even if there are approximations to be made regarding the applicable rules governing causation in common law and in civil law, differences do not lack. The convergence of applicable rules is only present in part in this area. 

Likewise, the author seeks to identify similarities and differences that govern this concept of injury (Chapter 4) in the context of extracontractual liability resulting from one’s personal acts under Quebec civil law and the common law tort of negligence in Canada. While the applicable rules in this area only partially converge, the legal concerns remain by and large similar. This is quite a remarkable area of law from a comparative law perspective. 

The book finally compares the defenses (Chapter 5, 6) of the extra-contractual liabi­lity for personal acts in Quebec civil law with those of the tort of negli­gence and intentional torts at common law in Canada in two separate chapters. In doing so, it seeks to identify the similarities and differences in the applicable rules in the two Canadian legal cultures. The comparative study reveals that the intentional torts/tort of negli­gence defenses at common law find an equivalent in extracontractual liability for personal acts in civil law and vice versa. In addition, these defenses / corresponding concepts often present conceptual similarities but also differences. This demonstrates the presence of similar concerns and a certain degree of convergence of the applicable rules of the two Canadian legal traditions. 

The similarities and differences in treatment identified regarding the subjects examined in this book, demonstrate that the convergence of the applicable rules is present but that it remains relative and dependent on the particular issue being addressed. This relative convergence should not be seen as a weakness of the law applicable in tort and extracontractual liability in Canada. On the contrary, it constitutes a flagrant proof to what extent the two Canadian legal cultures with equal value at the national level can deal with the same questions sometimes in a similar way and sometimes differently while respecting the foundations and values ​​that govern them.  

As this book is the first work of its kind and the first book written by the author, its content will be improved and enriched over the years. It has been a considerable challenge and such an enriching experience to examine in more detail the mentioned areas of law and compare them. The author believes in the respect of both legal traditions and tries to reflect this in the book. It seems that the way forward for Canadian law needs to take into account both legal cultures in further converging applicable principles….or not! 

Colonial India and the History of Modern Jurisprudence

Assaf Likhovski

Histories of jurisprudence and legal thought in the nineteenth and early twentieth centuries are focused on developments that occurred in Europe and North America. At that time, European powers ruled much of the non-western world, but the assumption of most intellectual historians of modern law is that nothing interesting happened outside the West. 

More than a quarter of a century ago, while working on the history of legal thought and legal education in British-ruled Palestine, I came across files stored in the UK National Archives in London that dealt with the legal education system of British India. I knew something about the history of legal education institutions in the UK and the US, but I did not know anything about the history of the Indian system of legal education. Going over the files, I discovered that British officials in nineteenth century India created a large academic system (larger than the one that existed in the UK at the time). I also discovered that the institutional and intellectual history of this system has not been thoroughly explored in the scholarly literature. 

At the time, my research focused only on the history of law and legal thought in Mandatory Palestine, and I did not pursue the matter, hoping that someone else would explore it. A few years ago, I decided to revisit the Indian materials, focusing specifically on the nature of jurisprudential theories which were taught in India during the period of British rule. I knew that in other territories of the British Empire, such as Egypt and Palestine, there were interesting jurisprudential developments that occurred as a result of the encounter of western legal theories with the legal and political reality of these territories, and I was interested in finding out whether this was also the case in colonial India. 

In 2017, I spent several months in libraries such as the British Library and the Library of the School of Oriental and African Studies in London, exploring the Indian sources. I discovered many jurisprudential works written in India during the British period. Some of these works were written by English lawyers who taught law in India. Other works were produced by local Indian scholars. Many of the dusty volumes that I discovered still had uncut pages. Nobody, it seems, opened them since they were deposited in the libraries approximately a hundred years ago. I, however, found these works, and their forgotten authors, fascinating.

Specifically, I discovered three unique aspects that characterized many of these works. First, the gap between English theories and Indian legal realities led some Indian authors to question key Western notions about the nature of law (such as the definition of law suggested by legal philosopher John Austin that law was the command of a sovereign). Second, some of the works produced in India were more influenced by state-of-the-art Continental and American legal theories (such as early twentieth century sociological jurisprudence) than the equivalent English works, which were far more intellectually insular. Sometimes this was due to the fact that the authors of these works had some Continental training, and sometimes the non-English influence reflected a wider anticolonial nationalist move away from English culture. Finally, the influence of Indian nationalism also led some Indian legal scholars to create a distinctive genre of jurisprudential works: Texts that used modern Western jurisprudential theories to describe the main features of Hindu (and, to a lesser extent, also Islamic) law. 

These aspects of Indian jurisprudential works, I argue in the article that I wrote based on my research entitled A Colonial Legal Laboratory? Jurisprudential Innovation in British India, illustrate a broader phenomenon: the fact that legal scholars in imperial peripheries such as India were not always passive receivers of ideas produced at the center of empires, but in some cases created works containing interesting jurisprudential insights. The notion that India was a “legal laboratory” in which legal scholars experimented with new ideas has already been discussed in the literature, largely based on examples taken from the fields of legislation (the codification of English law in nineteenth-century India) or forensic science. My article explored the extent to which India was also a site of jurisprudential innovation. 

India was not unique in this respect. Similar developments occurred elsewhere in the British Empire. I already mentioned British-ruled Egypt and Mandatory Palestine, but there were other British territories (such as Hong Kong) where the British established academic institutions which taught law, and where legal scholars sought to reconcile English theories with the local legal reality. Indeed, preliminary investigations made since I completed my article show that the features that I identified in Indian jurisprudential works can also be found in works produced in non-western territories outside the British Empire, such as China and Japan, in the late nineteenth and early twentieth centuries.

I am now working on a project that analyzes and compares the history of legal thought in India, Mandatory Palestine, and Egypt. I hope that once this project is completed, it will contribute to the creation of a truly global history of modern jurisprudence, one that pays attention not just to Western thinkers and their ideas, but also to the way in which these ideas spread around the globe in the last two centuries, and the ways in which non-Western thinkers used these ideas in the study of their own indigenous legal systems.

Hyper-legalism and Obfuscation: How States Evade Their Obligations Towards Refugees

Daniel Ghezelbash

The 1951 UN Convention Relating to the Status of Refugees creates certain obligations for states in relation to protecting refugees. These protections were agreed to by the international community in the aftermath of World War II in response to the failure of governments around the world to provide refuge to those fleeing Nazi Germany. However, many states are turning their backs on these obligations by implementing progressively more restrictive asylum and border-control measures. 

States continue to pay lip service to their protection obligations, while at the same time adopting measures aimed at keeping asylum seekers away. This is achieved through extraterritorial measures that create barriers preventing asylum seekers from reaching their destinations and seeking protection. This includes measures preventing asylum seekers from boarding planes and travelling by air, as well as intercepting and returning asylum seekers travelling by land and sea. Wealthy democracies often outsource these actions to private entities or poorer neighbouring states in a bid to evade accountability. The barriers to accessing protection have become even greater in response to the COVID-19 pandemic, with many states citing public health concerns in order to completely shut their borders to asylum seekers.

These policies push the boundaries of what is acceptable under international law, exploiting gaps in the international refugee protection regime. States have adopted two main strategies in pursuing this goal of evasion. The first is hyper-legalism— an overly formalistic bad-faith approach to interpreting international legal obligations. Hyper-legalism occurs as states manipulate and exploit perceived gaps in the international refugee protection regime. States claim to comply with the letter of international law but fail to uphold its spirit. Arguments around territory and jurisdiction are rife for hyper-legal reasoning. States have attempted to read down the extraterritorial scope of their international obligations. At the same time, they have developed legal fictions to allow them to treat certain asylum seekers who are physically present in their territory as not being ‘present’ as a matter of domestic law. A related tactic involves states legislating around what they see as inconvenient aspects of their international obligations, redefining what those obligations entail in domestic statutes and regulations.

States are aware of the limits of hyper-legalism. Some actions are so egregious under international law that no amount of formalistic sophistry could legitimize them. In such circumstances, some states have resorted to the tactic of obfuscation. Obfuscation is achieved through secrecy about what actions the government is taking and deliberate silence as to the purported legal justifications. The tactic works best when government actions against asylum seekers are being undertaken far away from the public gaze, such as push-back operations at sea, and remote detention. Obfuscation has also been achieved through the criminalisation of whistleblowing by government officials in the asylum context. By carefully controlling the flow of information about their actions, governments can avoid accountability. With no evidence available to the contrary, their claims as to the compliance of their actions with international law cannot be challenged. 

The use of hyper-legalism and obfuscation by governments around the world is undermining the international protection regime. However, they can be challenged with the right strategies. Hyper-legalism can be countered with a good-faith, integrated approach to international law, in line with the rules of treaty interpretation set out in the Vienna Convention on the Law of Treaties. By definition, hyper-legalism departs from the requirement in Art 31(1) that a treaty ‘be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.’ Moreover, hyper-legalistic argument often involve a selective approach to international legal regimes, with governments cherry picking norms that support their actions while ignoring those that do not. This can be countered through a systemic integration of the overlapping normative regimes that govern interaction between governments and asylum seekers and refugees—including the Refugee Convention, human rights treaties, the law of the sea, and treaties aimed at suppressing transnational crime. These arguments can be executed both in the context of strategic litigation, but also in the court of public opinion. Cogent arguments in relation to the legality of policies under international law may have the power to sway public opinion, which in turn can create momentum for policy change.

Resisting governments’ attempts at obfuscation requires a very different approach. When we do not know what actions, the government is taking or what the purported legal justifications are, no amount of legal reasoning will be enough to make a compelling case as to legality. We are left to hypothesize, and default to criticizing secrecy, rather than the legality of the underlying actions. Some limited legal options may be available, such as challenging secrecy laws, or making freedom of information requests. Where we cannot compel governments to reveal what actions they are undertaking, then we must adopt strategies that place independent observers (whether physical or virtual) in the spaces where obfuscation takes place. This form of ‘counter-surveillance’ is already happening with numerous initiatives around the world led by researchers, activists, and refugees themselves using surveillance and other data collection techniques to expose human rights violations. 

For those who wish to push-back, it is hoped the strategies outlined here will assist in their efforts to compel governments to abide by their international obligations towards asylum seekers and refugees. Such efforts are needed now more than ever, to ensure that the sweeping asylum restrictions introduced in response to the COVID-19 pandemic do not become permanent.

Language Skills and Comparative Law – Finding a Balance?

Jaakko Husa
University of Helsinki

Theoretically oriented scholarship on comparative study of law makes it clear that language is important. More generally, law and language are deeply intertwined and for a comparative law scholar this causes a specific problem concerning information about foreign law. Now, legal language even within a one system is a complicated phenomenon, as it requires special knowledge in order to be understood correctly. Legal language is a paragon of language for specific purposes (LSP) that is created and used by legal professionals. It is through language we become familiar with the content of the law. It is through language that we use the law. For comparatist the language issue concerns the challenge of understanding foreign legal language. In many cases, language erects barrier for comparative research. 

For comparatist, legal language comes with specific problems that are caused by the ambiguity of legal language, which is duplicated when there is more than one language. It goes without saying that language skills (the ability to benefit from legal information in foreign languages) are of particular importance in comparative study of law. Nobody is seriously denying that this is the case although in research practice people have different approaches to the problem. Perusing the most popular comparative law journals shows that English translations are widely used without further ado. What should one think of this state of affairs?

It is commonplace to argue that it is recommendable to acquire the primary sources from official legal materials (statute books, case registries, and preparatory material for legislation) of the systems that are included in the comparison. Either the researcher or those assisting them require sufficient knowledge of the foreign language(s) in question. Today, however, language related problems are mitigated by the fact that materials from different legal systems are available as translations in broadly known languages (mostly in English, sometimes in French or German) exist. Accordingly, it is not impossible to obtain translated material through the various websites, many of which are free of charge while others hide behind the paywall. Machine translation has also been taking huge steps forward, although, machine translations are tricky and not fully reliable as legal language is a LSP.

The issue with language is certainly not a new one. For such a classical comparative law scholar as Ernst Rabel, language was a façade that shrouded law’s substance from an outsider. Language was an obstacle to proper understanding. As Oliver Wendell Holmes famously noted, “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.” How things stand concerning language and comparison is that it is more widely acknowledged today that language is distinctly important for comparative study of law. Something not to be ignored, to be sure. 

However, among scholars there are different views on the significance of language in actual research. While academically ambitious comparative law scholars underline the importance of knowing many languages, others are happy with translations as they rely virtually completely on materials in English. What we might label as serious comparative law scholars refuse to rely solely on translations, thus, they are necessarily confronted with the inconveniences concerning the translation of foreign legal language (terminology, concepts etc.). Those relying on translations do not have this problem, thus, linguistically sensitive comparatists may sneer at their work.

The practical question for comparative law researcher is simple: How many languages one should master. Surely, nobody can master a huge amount of foreign languages and, besides, it would not make sense to use several years of trying to learn foreign languages before one can actually do research. Then again, comparative law scholars of today – by and large – stress the importance of language skills and nurture doubts when they see comparative studies based on translations penned by people who seem to be virtually monoglots. 

In my view, the question of “how many” lacks nuance. This is simply because comparative law research is not a monolith. Consequently, linguistic skills needed are different depending on the specific purpose of each research. Different methodologies have different requirements. Language issue should not be discussed in a vacuum as if all comparative law researchers would necessarily need similar kinds of skills. This is not the case.

In essence, the knowledge interest (why and what kind of knowledge is sought after) has an imperative significance. If one is to make deep-level comparative study of law between a very small number of legal systems (say 2 or 3), then, it is indeed important to have sufficient skills in languages in question. Relying purely on translations would not make it possible to understand the deeper levels of law. Yet, having sufficient skills means ability to read and translate those languages. Full mastery of a foreign language is completely different issue as comparatist has the need to understand the foreign materials, not the need to be fully fluent in all aspects of the languages in question. For comparative law researchers foreign languages are, primarily, source languages not languages for communication.

On the other hand, if one were to compare a great number of legal systems, then, it would make absolutely no sense to require linguistic skills in all of the compared systems’ languages. I argue that a simple rule of thumb may be helpful: The more qualitative the comparative study is, the more important language skills are. The more quantitative the comparative study is, the less possible it is to have language skills in all of the compared systems. It is about balancing.

In conclusion, before making over-generalizations about language skills in comparative study of law one needs to think what kind of comparative research one is doing. Only after considering this, it becomes possible to ensure that one’s linguistic skills match to the kind of research one pursues doing. None of this is to argue that language skills would not be crucial for comparative study of law; however, there is also a need to be realistic. 

Welcome to the ASCL Blog

The ASCL is delighted to announce the launch of its blog. The blog aims to host contributions on any topic related to comparative law: its purpose, methodology, case studies, and also theoretical reflections on topics of global interest. It features new books, important articles in comparative law scholarship and opinion pieces. 

Our ambition for the blog is to liven our community of comparativists. It will help us engage in an intellectual exchange on legal problems all around the world. The blog’s aim is to ensure prompt communication among comparativists on issues that are topical and attract international interest. As such it will fill a gap in this area.

We welcome contributions by scholars at all stages of their academic career. The blog will be peer-reviewed and attempt to be representative of various communities around the world. We will ensure that our blog serves the values of diversity and pluralism. 

We invite contributions from scholars from all over the world. 

Ioanna Tourkochoriti (Chair of the ASCL Website Advisory Committee)


Máximo Langer (ASCL President)

AI’s “Black Box” Problem

Simon Chesterman

A résumé screening algorithm declines to shortlist any women for a job; a sentencing program concludes that a defendant has a high risk of reoffending but won’t say why. Who is responsible when technology makes decisions on behalf of humans — in some cases following processes that are impossible to understand?

AI is transforming the way businesses operate, with breathless talk of a fourth industrial revolution adding trillions to global economic output by 2030. Such systems are becoming more pervasive and more complex — reliance on them is growing even as the ability of non-specialists to understand them diminishes. This presents an accountability problem: if decisions are made by a ‘black box’, who is responsible when things go wrong?

‘Opaque’ means difficult to understand or explain, but it is helpful to separate out three reasons for this difficulty. The first is that certain technologies may be proprietary. Companies that invest in an AI system don’t want their competitors getting access to it for free. A second form of opacity may arise from complex systems that require specialist skills to understand them. These systems may evolve over time, sometimes patched by different IT teams, but they are in principle capable of being explained.

Neither of these forms of opacity — proprietary or complex — pose new problems for law. Intellectual property law has long recognized protection of intangible creations of the human mind and exceptions based on fair use. To deal with complex issues, governments and judges routinely have recourse to experts.

The same cannot be said of a third reason for opacity, which is systems that are naturally opaque. Some deep learning methods are opaque effectively by design, as they rely on reaching decisions through machine learning rather than, for example, following a decision tree that would be transparent, even if it might be complex.

To pick a trivial example, the programmers of Google’s AlphaGo could not explain how it came up with the strategies for the ancient game of Go that defeated the human grandmaster, Lee Sodol, in 2016. Lee himself later said that in their first game the program made a move that no human would have played — and which was only later shown to have planted the seeds of its victory.

Such output-based legitimacy — optimal ends justifying uncertain means — is appropriate in some areas. Medical science, for example, progresses based on the success or failure of clinical trials with robust statistical analysis. If the net impact is positive, the fact that it may be unclear precisely how a procedure or pharmaceutical achieves those positive outcomes is not regarded as a barrier to allowing it into the market.

Legal decisions, on the other hand, are generally not regarded as appropriate for statistical modelling. Though certain decisions may be expressed in terms of burdens of proof — balance of probabilities, beyond reasonable doubt, and so on — these are to be determined in individualized assessments of a given case, rather than based on a forecast of the most likely outcomes from a larger set of cases. 

There is a growing literature criticizing reliance on algorithmic decision-making with legal consequences. A significant portion now focuses on opacity, highlighting specific concerns such as bias, or seeking remedies through transparency. Yet the challenges of opacity go beyond bias and will not all be solved through calls for transparency or ‘explainability’.

Addressing these challenges is helped by clarifying why there is a problem with proprietary, complex, and natural opacity in the first place. 

One reason is that ‘black box’ decision-making may lead to inferior decisions. Accountability and oversight are not merely tools to punish bad behaviour: they also encourage good behaviour. Excluding that possibility reduces opportunities to identify wrongdoing, as well as the chances that decisions will be subjected to meaningful scrutiny and thereby be improved.  Volkswagen, for example, wrote code that gamed tests used by regulators to give the false impression that vehicle emissions were lower than in normal usage. Uber similarly designed a version of its app that identified users whose behaviour suggested that they were working for regulators in order to limit their ability to gather evidence.

A second reason is that opaque decision-making practices may provide cover for impermissible decisions, such as through masking or reifying discrimination. An example is Amazon’s résumé-screening algorithm, which was trained on ten years of data but had to be shut down when programmers discovered that it had ‘learned’ that women’s applications were to be regarded less favourably than men’s. Unintended biases may also be revealed due to the training data, such as the well-known problems with facial recognition. Different problems can arise with selection and weighting of variables. An ostensibly neutral metric like productivity of employees, for example, might adversely impact women if it does not account for the fact that they are more likely than men to take maternity leave.

Thirdly, the legitimacy of certain decisions depends on the transparency of the decision-making process as much as on the decision itself. A well-known case in the United States challenged reliance upon a proprietary sentencing algorithm called COMPAS. Although the trial judge ruled out probation because the algorithm said the defendant had a high chance of reoffending, the Supreme Court of Wisconsin upheld the sentence on the basis that the score it generated was supported by other independent factors and ‘not determinative’ of his sentence. It went on, however, to express reservations about the use of such software, requiring that future use must be accompanied by a ‘written advisement’ about the proprietary nature of the software and the limitations of its accuracy.

The means of addressing some or all of these concerns is routinely said to be through transparency. Yet while proprietary opacity can be dealt with by court order and complex opacity through recourse to experts, naturally opaque systems may require novel forms of ‘explanation’ or an acceptance that some machine-made decisions cannot be explained — or, in the alternative, that some decisions should not be made by machine at all.

This post discusses issues considered in more detail in “Through a Glass, Darkly: Artificial Intelligence and the Problem of Opacity”, American Journal of Comparative Law (2021).

Simon Chesterman is Dean of the National University of Singapore Faculty of Law and Senior Director of AI Governance at AI Singapore. His latest book is “We, the Robots? Regulating Artificial Intelligence and the Limits of the Law” (Cambridge University Press, 2021).