Teaching Comparative Law in Singapore: Global and Local Challenges
[This piece will be a chapter in a book currently in editing, Hu Jiaxiang, M de Visser and A Harding (eds), Legal Education in Asia: From Imitation to Innovation (Leiden, Brill, 2018). The story of how this got written is set out in the chapter but I will repeat it here because it might lead to readers being inspired to do something similar with their own courses.
Maartje and I compared notes on our respective, similar, courses at NUS and SMU. We decided to visit each other's classes and co-teach one session. This sparked further thoughts about what we were doing and even more importantly why we were doing it. The outcome was this book chapter; a by-product is that we are both using it at the outset of our courses to provoke students to think about why we study comparative law and what are the particular local as well as global tractions that shape this exercise. I cannot tell you what a pleasure it has been working with this superb young Dutch scholar and mother-of-two-wife-of-Gary Low. The book will be in press at Brill by July].
Andrew Harding & Maartje de Visser
A. Introduction
In
the 21st century it has become impossible for law schools across the
globe to ignore two important, and interrelated, contemporary trends in the
law. The first is that law no longer necessarily stops, as it used to, at
national borders: many countries contemplate, for example, the
extra-territorial application of their regimes governing areas such as
competition, corruption or the environment. The second is that legal practice
is becoming increasingly globalised as a result of a growing incidence of
cross-border transactions, capital flows and migration. It is clear that an
overwhelming majority of law schools have been compelled to re-examine their
curriculum in light of the new and tight embrace between law and global
processes, with a view to preparing their graduates for a world of law that
looks increasingly and radically different from the one in which most of their
teachers were themselves educated.
In the case of Singapore, this logic of legal globalisation is even more
compelling than it might be elsewhere. As a small city-state of less than six
million people with no natural resources, and a developed, highly
sophisticated, service-driven economy, Singapore is already highly integrated
with the rest of Asia and the global economy. It has extensive economic,
cultural, and even familial links to most of the surrounding ASEAN countries
(especially Malaysia), which themselves are integrating rapidly, and farther
afield to China, India, North-East Asia, and other parts of the world. This
state of affairs reflects, to a considerable extent, a deliberate policy
choice: Singapore has the ambition to be - and already is in many ways - a
legal hub for Asia, with expanding arbitration work,[1] and now an international
commercial court populated by international judges drawn from foreign common
and civil law jurisdictions.[2] Singapore is also served
by a large and expanding, but also internationalising, legal profession. Its
major law firms already have a string of offices around the Asian region and
conversely, many foreign firms have a local presence following the
liberalisation of the legal sector from the early 2000s onwards.[3] As the Chief Justice of
Singapore has stated:
[T]he increasingly multi-jurisdictional nature of legal practice makes
dialogue amongst stakeholders in the regional and even the global sphere indispensable
… operating in jurisdictional silos [is] unworkable for the modern commercial
lawyer and for that matter for the judiciaries of today[4]
Both
of Singapore’s law schools – the National University of Singapore (NUS) and the
Singapore Management University (SMU)[5] – have accordingly invested effort in ensuring
that their graduates are adequately prepared for this new legal reality. They
seek to do so, amongst other things, through cultivating an awareness of the
operation of other legal systems in the region and beyond by requiring their
undergraduate students to take a foundational course in comparative law. It is
this educational strategy that we investigate and report on in this chapter, based
on our experience as faculty members responsible, along with others,[6] for delivering this part
of the LL.B curriculum. In preparing the ground for this analysis Professor
Harding visited Dr de Visser’s class at SMU to discuss Asian constitutionalism,
while Dr de Visser visited Professor Harding’s class at NUS to discuss the
fundamental features of the civil law system. Each of us was able to
familiarise him- or herself with the relevant issues covered, as well as the
style and feel of the class; the content of these two courses are quite similar,
some differences in emphasis and material notwithstanding.[7]
Our analysis in this chapter is informed by two questions that reflect
the principal theme of this volume. First, to what extent is emulation of the
conventional, ‘Western’ approach to teaching comparative law appropriate in
Asian legal education? Second, and relatedly, how should Asia’s law schools go
about ensuring that such teaching is reflective of, and responsive to, the
region’s legal idiosyncrasies? For the reasons set out earlier, together with
its relatively long history of comparative law teaching, Singapore lends itself
well to being used as a case study to address these complex issues. Yet, the
reader should not expect to find a prescriptive list of best practices or
startling successes in what follows. Our intentions are more modest: in
charting Singapore’s experience, we seek to draw attention to pertinent
challenges that Asian teachers of comparative law will need to confront, and
offer some strategies that might be adopted in response, in the hope of
contributing to a region-wide – if not global[8] – process of comparing notes
about the nature, purposes and methods of teaching comparative law.
B. Evolution of Comparative Law Teaching in Singapore
We
begin with an historical narrative to expose the major trends that have
informed the design of foundational comparative law courses in Singapore from
their introduction in the mid-1980s to the present day.
We
observe that there are, broadly speaking, two types of rationale for teaching
comparative law. The first is that comparative law enlivens students’
appreciation of the fact that for a given real-world problem, there may be
different legal solutions. This approach not only creates flexibility in
dealing with complex socio-economic problems where the local solution is not automatically
assumed to be the best; it also enables the student to understand his or her
own legal system at a more profound level. Here nothing is simply ‘given’. The
other rationale is that knowledge and appreciation of other legal systems, and
the skills to procure such information, are simply important in view of the
demand of the legal profession for foreign law in the course of litigation or
law reform. While Jaako Husa in a challenging article on teaching comparative
law[10] favours the pedagogical
rationale at the expense of the practical rationale, we argue that in Asia the
latter is at least as important as the former, and certainly Singapore has been
driving resources and new designs in that direction.
Indeed, the very decision to introduce comparative law
teaching in the Singapore law curriculum was justified with reference to the
needs of the legal profession. We should note that this sensitivity of
undergraduate programs to the expectations of the legal complex and the public
service is by no means unique to courses of this nature or to that jurisdiction.
As the contributions of, inter alia, Ahmad
Tajudin and Winston Zee show, questions about the degree to which law schools
should provide vocational training, and the form that this should take, are also
being asked in Malaysia and China; Munin Pongsapan explains how, similarly in
Thailand, the legal profession has for all intents and purposes exerted a
leadership role regarding the development of Thai legal education.[11] For the first decade-and-a-half
following its establishment, NUS’ curriculum was devoted exclusively to the
study of the national legal system and one would search in vain for a course
offered that had the word ‘comparative’ in its title. The impetus to change
this state of affairs came in the form of a 1981 report on the NUS law school
and the direction of its curriculum.[12] Its authors noted that:
Lawyers are also finding it increasingly important to
know about the legal systems and laws of the countries their clients have to
deal with. In particular, we have in mind the legal systems of the other Asean
countries (except Malaysia), Japan and the continental European countries who
have a different legal tradition from ours, namely, the ‘civil law’ tradition.
Since our lawyers have largely been trained in the ‘common law’ tradition, they
should also acquire some working knowledge of the ‘civil law’ legal systems.[13]
This
excerpt clearly shows the principal rationale for exposing Singapore students
to other legal systems: this was deemed necessary – already 35 years ago – to meet
the demands for legal advice on the part of cross-border business ventures.
This practice-oriented thinking has remained a constant theme, not least due to
successive government reports that reprise the needs of the legal fraternity
and the role of legal education in addressing these areas of legal knowledge.[14] Thus, when the government
in 2006 decided that the time was ripe for a second law school[15] and SMU in response
presented its curriculum proposal, there was a consensus among all those
involved that a comparative law course ought to be an integral part of the LLB
program, so that the new law school at SMU might meet its goal of producing
graduates who are ‘able to think across borders’[16] and work in Singapore as
well as in the region. Similarly, a noted local legal practitioner, Michael
Hwang SC, emphasised the professional relevance of studying other legal systems
in his contribution to the 2013 NUS law curriculum review:
[A]ny lawyer wanting to work in a major law firm with exposure to
international transactions will inevitably come across transactions (especially
in the business context) with [Singapore’s] major trading partners like
Indonesia, China, Thailand, Vietnam, Taiwan, Korea and Japan (and in due time,
other emerging Asian nations like Mongolia and Laos) all of which have civil
law traditions (and not forgetting the Philippines, which has a mixture of
legal traditions). There is therefore certainly enough opportunity for
Singapore lawyers to come across transactions and disputes where the governing
law will be one of these national laws[17]
Nonetheless,
as the demands and expectations of the legal complex have shifted, so too has
the rationale for comparative law teaching. The passages just mentioned
emphasise training students in foreign legal systems so that they will be able
to discharge their professional responsibilities to their clients when the
latter engage in dealings with firms located in, or issues arising in relation
to, other jurisdictions. This outward-looking aspect is today complemented by a
more introspective stance: knowledge in comparative law is also seen as
beneficial for the development of the local legal system. With Singapore law
having come into its own,[18] the government has begun
to actively promote the Singapore legal system as the natural ‘partner for
legal solutions in Asia’, as the dedicated website puts it.[19] Competing successfully in
the international market for laws requires inter
alia regular adaptation of legal doctrines and institutions to suit
commercial demands, and the same website touts Singapore law as ‘[continuing]
to absorb and modify the common law as well as best practices from other mature
legal systems’. It should be clear that the identification of legal approaches
employed elsewhere that would warrant transplantation and adaptation to the
domestic sphere necessitates a comparative exercise between the home legal system
and that of the prospective donor.
Accordingly, at present, foreign systems are not only
studied for their own sake at NUS and SMU; these also function as a lens to
help students uncover the premises of legal rules and think creatively about
domestic legal problems. At SMU, this has led one of the authors to require
students to write a comparative essay on a topical legal issue. To direct
attention to the role that comparative law can play in fashioning arguments to
support case briefs before the Singapore courts, students were inter alia asked to consider how two
high-profile local judgments – dealing respectively with a challenge to the
validity of the Penal Code’s Section 377a[20] and a claim for damages
for wrongful birth – would have been decided under the law of at least two
other jurisdictions.[21] Other examples were
framed to mirror topics that local agencies tasked with law reform may have
occasion to consider, such as the need for an Ombudsman and revisions to the
framework governing parental leave. In a parallel process at NUS, students have
discussed comparatively the ‘Confucianisation of law’ with reference to
Singapore’s Maintenance of Parents Act 1995[22] and other regional
examples pertaining to parent-child relationships.
2. From South East England To South East Asia
Criticism
that the NUS law school behaved as if though it were in South East England
rather than South East Asia would not have been too wide of the mark some 20
years ago. The principal foreign jurisdiction studied was England, which, as
the country’s former colonial master, had left a strong imprint on the origins
and contents of Singapore’s legal system.[23]
By way of example, common law subjects such as contract and tort were taught
via a combination of English and local case law.[24] Admittedly, some attention was devoted to regional common law
jurisdictions – notably India and Malaysia in the field of public law – based
on the logic that in this domain a number of the relevant domestic rules were
received from those countries, often pre-independence. In a similar vein, the
1981 report that foreshadowed the introduction of comparative law teaching
envisaged room for the study of the civil law tradition – a topic that will be
revisited later – and explicitly pointed to the merits of studying European continental systems in this
regard, following the then-NUS Vice-Chancellor’s request that the authors of
the report undertake study missions to France and Germany. This, in turn, meant
that the NUS comparative law course in its original incarnation was predicated
on an examination of ‘the European Economic Community (EEC) countries’ to
uncover the methods and structures of civil law systems.[25] Asian legal systems,
including those of fellow ASEAN states, did not otherwise usually feature in
the curriculum. Relatedly, Islamic
law was not taught despite the presence of local shari’a courts in charge of applying Islamic law as personal law
for Muslims.[26]
Today, the comparative courses at
NUS and SMU are firmly Asia-centric at their core, in due recognition of the
country’s geographic location and the growing practical relevance of familiarity
with neighbouring jurisdictions for new entrants to the Singapore legal
profession. The 2006 SMU curriculum proposal declared the chief objective of Comparative
Legal Systems (CLS) to be making students ‘conversant with the legal traditions
and cultures within Asia, especially [those] of Southeast Asia, India and
China’, and this remains the outlook today. At NUS, the decision was taken in
2013 to revise the law
curriculum, inter alia to enhance
students’ exposure to other Asian legal systems, especially those belonging to
the civil law tradition, over the course of their legal studies. As part of this
exercise, its basic comparative law course was rebranded from ‘Comparative
Legal Traditions’ to ‘Legal Systems of Asia’ (LSA). The significance of this
change must primarily be seen in the explicit reference to ‘Asia’ in its title
and the signalling function this may serve for (prospective) students:
content-wise, the course as refashioned simply places even greater emphasis than
before on the reception of the civil law tradition in the region.
In
keeping with the ‘Asianisation’ of comparative law teaching, we are of the view
that a conscious and continuous effort should be made to draw on the law of
neighbouring jurisdictions whenever possible in selecting examples and case
studies for class discussion. For instance, NUS students are introduced to the
comparative law evergreen of the legal transplant by discussing how the English
doctrine of undue influence in family guarantees in the law of contract has
played out in the local context,[27] while the notion of legal
pluralism is taught at SMU by examining how Indonesia, Malaysia, India and
Japan have sought to arrange State-religion relationships.[28]
To conclude this narrative of the evolution of the
Singapore approach to the teaching of comparative law, we should finally note
that when NUS introduced its Comparative Legal Traditions course on the heels
of the 1981 report, it was offered as only one of a total of 18 electives. It
is a testament to the value attributed to the study of foreign legal systems
that both the NUS and SMU courses are today part of the core curriculum[29] and hence mandatory for
all law students – this despite a large expansion in the number of available
elective courses.
C. Some Comments on Context
We
have seen that comparative law teaching in Singapore has become more attuned to
the country’s regional setting over the course of the years, and there is every
reason to expect that other Asian law schools will follow suit with a
comparative component when deciding on the objectives and design of their
courses. This, we argue, requires careful engagement with at least three
interrelated characteristics of the Asian region that are not shared, or at
least not shared to the same degree, by the legal systems as they operate in
Europe and North America.
To start with, the degree and nature of integration in the region where
students are educated and prepared to enter practice matters, not least because
one of the aims traditionally envisaged for comparative law is as an instrument
for legal convergence.[30] A
desire to recreate the famous ius commune
seems to exert a powerful influence over integration endeavours in Europe, with
a concomitant central role for comparative law as a methodological tool for
legal development. Thus, in fashioning proposals for new EU legislative
instruments, the Commission regularly relies on comparative surveys of the laws
in place in the various Member States; the Treaties exhort the Court of Justice
to devise a regime for the EU’s non-contractual liability ‘in accordance with
the general principles common to the laws of the Member States’[31], and
academics in the fields of private law have been active in conducting projects
looking for ‘common cores’.[32]
In addition, the choice of the principle of mutual recognition in lieu of full
harmonisation in a number of policy areas – such as that of justice, freedom
and security – means that national enforcement agencies and courts in the EU are
increasingly expected to be knowledgeable about the legal systems of other
Member States.[33] Given
the often symbiotic relationship between law and the legal profession, this
reality will in turn impact on the manner in which comparative legal education
in Europe is approached. The situation is currently very different in Asia. Countries
in that region do not have a shared legal heritage that they can harken back
to, and those virtues comparative law professors may otherwise have sought to
extoll in class. While there are concerted and intensifying efforts to work
towards legal convergence, notably in the commercial domain, these are very
much a project for the future rather than an established fact. At the time of
this writing there is no evidence of a systematic use of comparative
research-based drafting of policy measures, calling for the involvement of academics
who specialise in, for instance, comparative contract, tort or property law,
and who would in turn be eager to share with their students the experience
accumulated as a result of participating in such projects. Similarly, with the
ASEAN Economic Community and other transnational trading deals such as the Trans-Pacific
Partnership still in their infancy, judges and other legal officers do not face
the same sense of urgency to be intimately acquainted with the policies and
rules in place in different jurisdictions and hence engage in some form of
‘comparative law in practice’ on a regular, if not daily, basis.
This
brings us to a further consideration: the salience of the common-civil law
divide. In Europe, this conventional mainstay of comparative law can be
presented as a distinction of declining practical relevance, as the historical
differences between the two systems are being gradually ironed out via EU legal
instruments and authoritative judicial pronouncements on their correct
interpretation and application in all EU member states. Here too, the Asian
dynamic is different. The discourse around regionalisation in Asia has
emphasised the contemporary importance,
not the marginality of the common-law/civil-law dichotomy.[34] As
Sundaresh Menon has put it, ‘While it is possible to speak in terms of European
law, it is difficult to speak in terms of an “Asia-Pacific” or “Asian” law. Even
[ASEAN] … an established regional body, cannot claim a uniform commercial law.
There is as yet no “Southeast Asian” law, which perhaps is unsurprising given
the lack of common colonial roots and hence the absence of a common legal
tradition’.[35]
Paradoxically,
one might say, in Asia - with the lack of a natural fit for these two major
world systems of law as well as its cultural diversity - the civil-common law
divide is regarded as far more significant than in Europe, due to the
combination of the state of integration projects and the more even distribution
of the two traditions among Asian countries as a result of historical incidents
of colonisation. The civil-common law divide was accordingly the main area
covered in the NUS course for a number of years, and the SMU version for its
part was also organised around this dichotomy when it first ran. The need to keep
devoting adequate attention to the civilian tradition has been underscored by
Michael Hwang, who continued his observations on the commercial realities that
fresh graduate will face as follows:
Taking my own practice area of international arbitration, cases heard in
the SIAC regularly involve the governing laws of China and Indonesia, with
Vietnam becoming more popular … We are also not far from the Middle East, with
which we are rapidly developing trade and economic relations, and about half of
the Gulf countries have civil law traditions as well. Indeed, civil law
traditions have become so prevalent in my practice that I am actively taking
steps to improve my knowledge of the basic principles of civil law, and I would
urge your [NUS] students to undertake that same training both for academic
reasons … as well as for practical reasons of equipping them to face the
requirements of modern legal practice in Singapore.[36]
At
the same time, in teaching the divide, account must be taken of the multiple
sources and influences that have shaped Asian legal systems: China and Vietnam,
for instance, are
informed by socialism, Confucianism, an eclectic policy towards legal transplants,
as well as the civil law tradition. This makes the isolation of discussion of
the civil law - important as this legal tradition and its concepts are in most
private law matters - difficult to achieve when one aims to present an accurate
overview of the region’s legal systems. In other words, the relative
‘messiness’ and ‘legal melting pot’ character of a great many South East Asian
systems means that it would be misconceived to pretend during comparative law
teaching that a student truly grasps their internal logic if he or she can ‘pigeon-hole’
Asian countries as belonging to either the civil law or the common law
tradition.
In
fact - and this is the final contextual feature - comparative law teaching in
Asia must confront the difficult question as to the significance and perhaps
even the meaning of ‘law’ in that region, with its ‘nomic din’.[37]
The challenge here is the very obvious prevalence of a number of pluralisms. As
for religious and ‘classical’ legal pluralism, we note the pervasive
co-existence of State law with customary and religious norms that are perceived
by some parts of the local communities as amounting to ‘law’. In this regard, one
can point to the continued practical relevance of adat law in Indonesia[38]
or the exclusive jurisdiction that Malaysia’s Syariah courts exercise over Muslims in the personal law domain.[39]
Next, Asia exhibits economic pluralism: the region comprises an amalgamation of
developed, middle-income, and developing countries. This brings with it an
element of diversity that arguably shapes the demand for, and the context of,
comparative knowledge on the part of law graduates in ways that differ from
what is expected in other parts of the world where ‘law and development’ or
‘law-and-governance’ initiatives play a much smaller role, if any. Lastly, this
area of the world evinces a dramatic degree of political pluralism, where one
can find every type of regime: from an absolute monarchy in Brunei to military
rule, as in Thailand and Myanmar; dominant party systems in Singapore,
Malaysia, and Japan; stable democracies in India, Indonesia and South Korea;
and one-party socialist states in North Korea, China, Laos, and Vietnam. We can
again draw a parallel with the state of affairs that prevails in Europe and
North America: there, only the first dimension of pluralism seems relevant, and
even then, at a marginal level.
Coming
to terms with Asia’s reality of pluralism partly requires, we believe,
expanding the breadth of foundational courses in this area to include public
law themes to complement the traditional private law leanings of the
common-civil law divide. On the one hand, an
awareness of the manner in which constitutionalism is practiced in Southeast
Asia is useful in making sense of the prospects and pitfalls for further
regional economic integration. On the other hand, there are indications that
developed Asian states, like Singapore or Japan, are also interested in
becoming a legal donor of (aspects of) rule of law models for countries such as
Myanmar, Vietnam or China, and they typically present their frameworks as more
suitable for transplantation in view of their elaboration with reference to
Asian political and economic factors and ideals, in contrast to the Western
version of this notion with its liberal-democratic underpinnings. Exposure to
foreign public law discourses and arrangements may particularly help those graduates
who enter government service, either in realising their country’s ambitions as
a regional provider of a wide array of legal services, or in evaluating the
relative appeal of competing frameworks on offer for transplantation.
By way of example, our students are thus invited to
consider Malaysia’s struggle to deal with the contradiction between Westminster
constitutionalism and Islamic law (at NUS) and to examine the nature of
Indonesia’s brand of secularism and the impact of that country’s blasphemy
legislation in fostering religious harmony (at SMU) – an objective that also
strongly resonates in multi-religious Singapore.[40] The region’s political
pluralism is highlighted, inter alia,
through a debate at NUS on the application of classic notions like the rule of
law and separation of powers in societies such as China and Vietnam in the
context of LSA, while the SMU course devotes time to reflections on the
existence of facets of power (like the military in Myanmar or the monarchy in
Thailand) alongside institutions that represent Montesquieu’s three branches of
government.
The region’s rampant pluralism arguably also calls for
inquiries that extend beyond a ‘simple’ comparison of positive laws and invite
students to think about legal cultures, with all the methodological challenges and requirements for the
background and training of teachers that such an approach entails.
To sum up
this discussion, the existence of considerable variations in regional context
must be duly reflected in the curriculum and methods employed during
comparative law courses, to ensure that students receive knowledge and gain
perspective that are genuinely horizon-extending and actually useful in
tackling comparative law issues arising in the particular Asian setting.
D. Creating a Conducive Learning Environment
In light of what has been said about the
determinants of and influences on undergraduate comparative legal education in
Asia, let us now consider some of the didactic approaches that law schools may
wish to employ.
1.
Fostering
Debate Among Class Participants
As Ault and Glendon have observed, while
comparative law courses in the curriculum may have ‘a variety of functions’, a
goal that seems to be shared among their teachers is to add new dimensions to
the way students think about the law.[41] This
is also true of the foundational courses that we have taught in Singapore for
the past few years: these are conceived as having a ‘perspective’ character, in
that we do not seek
to instruct students systematically in the substantive law of particular
foreign jurisdictions, except by illustrating how a legal system may respond to
a given socio-economic problem. Rather, the approach taken is to explore
relevant themes – both general (eg legal transplantation, legal pluralism,
constitutionalism) as well as specific (eg Islamic legal traditions,
Confucianism, socialist law) – and impart system-specific knowledge in the
sense of cultivating an understanding of the history, philosophy, traditional
institutions, and legal methods (procedures, reasoning) involved in the legal
system under consideration.
We have found that in terms of
pedagogical tools, the use of Socratic questioning is particularly suitable to
stimulate critical thinking among students about competing legal approaches and
to direct their attention to the values and beliefs that underpin both their
own and foreign legal systems. To
illustrate, when comparing the approaches that civil and common
law systems take to tortious liability, students at SMU are quick to recognise
that, pursuant to the relevant statutory and judicial authorities, it is
generally easier to bring a claim for wrongful conduct in civil law
jurisdictions than in those that belong to the common-law tradition, with its
insistence on a duty of care that must be present before one can proceed under
the quasi-general tort of negligence. They initially decry this (in their view)
overly liberal approach and when asked why, proceed to marshal utilitarian
arguments that range from the importance of protecting entrepreneurship from
excessive liability to the enormous financial burdens that excessive litigation
would bring about. When subsequently challenged to think of rationales for
adopting a more generous stance on tortious liability, students are led to
consider the value of societal solidarity, with its appeal to a different set
of moral beliefs. They are further encouraged to reflect on the role of
insurance, including the requirement imposed by some civil law jurisdictions
that all residents purchase general liability insurance, in understanding how
non-legal mechanisms impact on the use of the legal system. In a comparable
vein, students at NUS are asked to think about the merits of studying Japanese
law, and whether the Chinese experience demonstrates that rule of law reforms
propel economic development. The Japanese legal experience, they discover,
indicates that the civil law system as developed in Japan can be beneficial in
securing social solidarity and in dispute resolution; and they come to realise
that China struggles with competing approaches to the rule of law and judicial
independence.
When it comes to the method of
instruction, then, emulation of the West, which pioneered Socratic questioning,
may offer the most solid foundation for comparative legal education in this
region also. To be clear, the virtues of this method in training legally agile minds
are not confined to comparative courses: in his contribution to this volume,
McConnaughay relates how students at Peking University’s School of
Transnational Law have similarly come to appreciate the merits of Socratic
questioning in contrast to being lectured throughout their years in law school.[42] At the same time, we must
bear in mind that abandoning the conventional approach practised by many Asian
universities of having large-scale lectures where students are assigned a
largely passive role requires a change in mind-set that is unlikely to happen
overnight. What is more, while it is certainly possible to employ Socratic
questioning in classes comprising dozens of students – think for instance of
the poignant example set by philosopher Michael Sandel with his “Justice”
seminars at Harvard University – fostering a truly inclusive dialogue is made
easier as class sizes are reduced. Singapore’s two law schools are fortunate to
find themselves in a position where they can afford to instruct their students
in relatively small groups of around 40 students, and to do so throughout the
four-year LLB program for both core and elective courses, including those on
comparative law.[43]
Whether other law schools in the region can follow suit (assuming that the
willingness to do so in principle exists) will depend in large part on resource
considerations such as the student-instructor ratio and the availability of
sufficient classrooms of the requisite size – factors that may well be beyond
their exclusive control.
To the extent that the Socratic
method is chosen as the preferred pedagogical tool, we suggest extending its
reach beyond instructor-led discussion to also encompass student-to-student
dialogues. At SMU, one of the authors has done so by designating part of each
three-hour seminar as the ‘peer teaching segment’. A small group of students –
typically around four – is given the task of conveying a clearly defined aspect
of the mandatory material to the rest of the class, using Socratic questioning.
Topics that have been peer-taught include ‘the effect of supervening events for
contractual performance’, ‘the role of judges and the organisation of the
judiciary in civil and common law traditions’, and ‘the use of, and
preconditions for, public interest litigation’. This approach is decidedly
resource-intensive, since extensive pre-seminar meetings have to be scheduled
to discuss both the content and manner of delivery with the students
responsible for the peer-teaching segment. Initial experiences have however
been very positive. The students in charge of peer teaching are able to
practise their skills in creating a captive audience and listening attentively
to the points raised by their fellow students – qualities that should stand
them in good stead for their future careers in the law. The better sessions
were those combining a more explanatory and a more normative/evaluative
portion, with students explicitly seeking to make sense of variations in
approach and thinking between the jurisdictions covered and encouraging
reflection on what insights the Singapore legal system may wish to draw from
the experiences elsewhere. Several peer teaching groups also chose to structure
their session as a dialogue among their members, with each acting as a
fictional representative of a different (Asian) legal system in a debate on the
legal techniques employed to address a common social problem. This appears to
be a particularly successful strategy in instilling an appreciation for the
ethos of that jurisdiction on the part of the fictional ‘student-ambassador’,
with a knock-on effect on the perception of the merits of the legal techniques
chosen by the system under consideration on the part of the audience.
At NUS, one of the authors implements a different
exercise with a somewhat similar purpose, requiring around five students in
each class to prepare ‘response pieces’ in which they engage with one or more
of the prescribed readings. These ‘response pieces’ must be submitted before class
for feedback and then presented at the start of the seminar.[44] During class, the
authoring students are called upon to present their understanding of the text(s),
together with any tropes for debate that they have formulated, to their peers. In
so doing, they often play a central role in creating traction for discussion. For
example, in 2015 one student was asked to discuss whether Myanmar is a common
law system and whether it should be a common law system; his presentation led
to a discussion embracing close and critical analysis of what we regard as
fundamental to a common law system, and in what respects the developmental
needs of a country in transition can be served by the common law. Similarly, in
another class a student discussed whether socialist law is a separate legal
tradition, leading to critical analysis of law in socialist states and discovery
of socialist elements in changing legal systems in Vietnam and China.
2. Selection Of Course
Materials
Another
issue that must be addressed is the selection of materials: what makes good
reading for the Asian student of comparative law? At first blush, teachers are
spoilt for choice; recent years have seen a veritable explosion in handbooks,
edited volumes and journal articles on comparative law writ large, addressing
everything from methodological quandaries to inquiries into the substantive law
in a number of jurisdictions. A closer look reveals, however, that most of the
leading publications in this field comprise writings that focus on the US and
Europe. To illustrate, the Oxford
Handbook of Comparative Law[45] in its first part
purports to give an account of the evolution of comparative law in the world:
of the eight chapters, five narrate the development of the discipline in
European countries, a sixth describes the United States, while the chapter on
“East Asia” is effectively a case study of the Japanese reception of the German
Pandectist system in the area of private law. Similarly, a country report on
Japanese law is the only Asian element in the Elgar Encyclopedia of Comparative Law (which features 19 other such
reports, in addition to contributions on a host of other substantive topics)[46] and Zweigert and Kötz, in
their classic An Introduction to
Comparative Law also confine themselves to a discussion of Japanese and
Chinese law.[47]
One is left with the impression that the chapters on Asia in these and other
texts are largely tokenistic. Moreover, comparative writings on Asia often
feature the same countries – namely, Japan, India and China (occasionally
supplemented by references to legal practices in South Korea, Taiwan and
Singapore) – to the exclusion of large swathes of a region that has rightly
been characterised as “extraordinarily diverse”.[48] One looks in vain for
papers comparing how Indonesia, Vietnam and Thailand deal with problems in the
law of contracts – like the possibility of literal enforcement or the
interpretation of promises – or the operation of the tort law system in
Cambodia, Malaysia and Myanmar. As for accounts that have a more methodological
slant, these are frequently prepared by American or European scholars who
naturally rely on examples from these parts of the world to illustrate complex
notions such as legal culture or convergence.[49] This reduces the
educational value of such accounts for Asian students who are not intimately
familiar with say, European history or debates on the harmonisation of European
private law, and does little to trigger their interest in the study of
comparative law more generally.
At both NUS and SMU the strategy has
been to mix literature which describes or explains Asian legal systems from the
inside, written by scholars trained in the relevant system, with literature
written by scholars with an external and more comparative law-oriented
approach. That most of the relevant internal literature will be in a language
other than English, the medium of instruction in Singapore, presents a missed
opportunity if not a downright limitation. We pursue this issue below.
For now, let us make clear that
while this ‘eclectic’ approach to the selection of materials may be largely
born of necessity, we in fact consider that there are several good reasons to
continue to do so, even if casebooks and textbooks that draw on examples and
use primary materials from the region are more widely available. As the very
aim of comparative law teaching is to expose students to a range of viewpoints
and ways of thinking about the interplay between law and society, it seems
preferable to prescribe readings by different authors addressing the same
issue. The idea is to create an experience whereby students, when preparing for
class, are already challenged to make sense of the different perspectives and
think critically about which of these they prefer, and why. This, in our
experience, has a positive correlation on the quality and thoughtfulness of the
discussion during the actual seminar. We also believe that combining readings
from various sources serves as an antidote to the tendency among students to
search for the ‘right’ solution, which we consider anathema to the course’s
objective of broadening perspectives and making students more accepting of the
merits of solutions adopted by other legal traditions. What is more, using one
or two textbooks to structure comparative law seminars undervalues the
flexibility inherent in such courses, which do not have a predetermined list of
specific topics that must be addressed in contrast to classic law modules such
as contract or tort law: the latter would surely be seen as incomplete if they
did not feature a discussion of offer and acceptance or the regime governing
vicarious liability respectively. As such, and framed in more positive terms,
comparative law courses provide ample opportunity for innovation as far as
content is concerned. We find ourselves adjusting the selection of materials on
a yearly basis in an effort to tailor the course to what might interest
students in any given year, also bearing in mind local legal issues and
controversies.
On a related note, textbooks that offer a comparative
examination of an area of substantive law may be out-of-date for at least some
of the jurisdictions canvassed within a few years of publication. While change
is a feature of all legal systems, the rapid pace and scale of legislative
reform in Asia – with many countries having recently experienced or presently going
through economic and political transitions[50] – make this risk a
particularly real one for teachers of comparative law in this region. Therefore,
placing too much faith in a handbook may mean that students are inadvertently
exposed to incorrect information, and hence come away with flawed comparative
findings.
In contrast, embracing a dynamic approach to the
assignment of readings seems to us to be beneficial for students – for the
reasons set out earlier – and teachers alike, as the latter are able to adapt a
comparative law course to their particular capabilities and interests, which
makes for more effective teaching and accords well with the reality in many law
schools of having multiple instructors for a single course.
3. The Personal Dimension
More
so than with other law subjects, the learning experience in a comparative law
course also depends – pedagogical tools aside – on the people involved. This
applies to both those in front of the classroom as well as the students. A more
heterogeneous student body, in terms of socio-economic (and ideally also
legal-political) background, views and experiences may impact positively on the
nature and quality of debate during comparative law seminars when it comes to
canvassing the respective merits of alternative models to social problems. Reality, however, may be quite different, as
it also is in Singaporean law schools. Each comparative law class at NUS and
SMU comprises about 40 to 50 students, almost entirely Singapore citizens with a similar English-medium educational
background, high-grade profiles in secondary school or junior college, and
holding similar worldviews.[51] It
is no easy feat to alleviate such a situation. It might be possible to use
admission processes to bring about (more) variation in the composition of the
student cohort, but this may expose Asian law schools – much like their US
counterparts – to protracted debates about the desirability of affirmative
action preferences and the shape that any such policy ought to take. It also
invites reflection on a question raised earlier, that of the role of law
schools vis-à-vis the profession and the extent to which the latter should
reflect, to a greater or lesser degree, the make-up of society as a whole. While
these issues clearly warrant further investigation, space constraints prevent
us from doing so at this juncture. Let us instead highlight two alternative
strategies that we have experience with, and that might be easier to implement.
At SMU, exchange students are allowed to take compulsory undergraduate modules,
including the Comparative Legal Systems course, and a growing number make use of
this possibility.
Conversely,
at NUS, one of the authors has invited visiting young scholars from
neighbouring jurisdictions (Thailand, Vietnam and Indonesia) who are at the law
school to attend his Legal Systems in Asia seminar on the civil law tradition. The
students were asked to cross-examine these visitors and
compare their answers with a view to uncovering the practical significance of a
country subscribing to the civil law tradition: in relation to which legal issues
was it important to resort to knowledge of the civil law system? How does
belonging to this tradition affect law reform and the room and choice to engage
in legal transplantation? How does the civil law impact on local legal culture
or legal consciousness? Such exchanges can be more effective than a mere
reading of textbooks and other materials, however comprehensive and
well-drafted, in correcting initial - and otherwise enduring - misperceptions on the part of students trained
in a common law system as to the functioning of the civil law tradition.
Turning
then, briefly, to the profiles of professors teaching basic comparative
courses, we observe that the experience in Singapore, as in most parts of the
world, is that these do not tend to be scholars who have themselves been
educated in the local universities. Indeed, none of the seven professors who
have taught the NUS course so far are Singaporean nationals;
[52] and the same is true for four of the five
professors who have offered the SMU module to date.[53] All these scholars, however, share the
characteristic of having accumulated substantial cross-systemic legal
experience of one kind or another. A
provocative question that warrants an inquiry in its own right is whether such
a background is simply imperative to provide local students with an effective
induction to foreign legal systems.
E. Final Thoughts
While there
appears to be a natural and obvious fit between the case for teaching
comparative law and the phenomenon of globalisation and discourses of
transnational or ‘world’ law, our main conclusion is that it is important for
foundational comparative courses to take seriously their local (in our case:
Asian) context and embed themselves within that logic and legal setting. This, amongst others, means that one should resist
the temptation of effecting a simple transplant of the curricula or educational
approaches that have been adopted, and work well, in Europe or North America,
even while accepting that the project of deciding on the most suitable approach
in the Asian region is still in its infancy. In fact, we may need to accept
that definitive structures and approaches, let alone future-proof
‘blueprints’ for such courses, will continue to elude us. This is partly due to
the very nature of comparative law subjects which - unlike, say, tax law or the
sale of goods - have a self-defining subject matter. As the needs of graduates
change, this too may necessitate changes to the selection of topics and course
materials covered.[54]
Above all, the emphasis should be on cultivating the acquisition of
adaptability in the process of legal thought pertaining to topical
socio-economic problems, rather than knowledge about the intricacies of
different legal systems which may become out of date very quickly. There are
several challenges that Asian law schools may need to confront in this regard
in the short to medium term.
General-perspective courses of the
kind examined in this chapter cannot be the only encounter of students with
foreign legal systems and other habits of thought during their undergraduate
education. Rather, such courses should be viewed as offering a foundation for
further study in specific, substantive areas of law, especially
those which students are likely to encounter in practice, such as contract,
corporate governance, foreign investment, and dispute resolution systems. This
entails, then, the development of substantive comparative law courses – a
process that is slowly but surely being embraced at Singapore’s law schools. At
NUS, a 2013
curriculum review created more opportunities for the study of other legal
models that supplement the foundational comparative law course. A first-year
compulsory module, ‘Singapore Legal System’, was replaced by a new
first-semester-long module called ‘Singapore Law in Context’, which introduces
the history of the common law and Singapore legal institutions (including
Islamic law) and briefly situates Singapore’s law and institutions in relation
to other legal approaches, notably the civil law tradition. Further, during
their third and fourth year of studies, NUS students are required to choose at
least one module from a ‘basket’ of advanced civil law subjects.[55]
In a similar vein, from 2016 onwards, upper year students at SMU must take
at least one course from the school’s ‘Asian Studies Cluster’ in an effort to
boost their knowledge of laws and policies in the region.[56] Developments along these
lines may require law schools to hire faculty members who are well-versed in
the legal systems deemed relevant for more advanced comparative law courses.[57] The operation of a
visiting professor program, where jurists from other countries are asked to
teach intensive courses in their area of specialisation, can add a good deal to
the available in-house capacity.
Asian law schools in general, and
professors in charge of comparative courses in particular, can further benefit
from a broader inquiry as to the emerging needs of the region in terms of legal
development. Where, for example, do ‘Asian values’ and international human
rights or the rule of law feature? What can individual scholarly communities
contribute to these issues in educational terms? Reflections on these, and
similar questions, are valuable in designing an educational experience that adequately
prepares students for the comparative law queries that await them in their
legal careers – be it in practice, government service or academia.
A final challenge is finding ways to
create opportunities for exposure to other legal systems by a process of
immersion. This conventionally takes the form of having one’s own students and
faculty spend some time at a foreign university, and we readily subscribe to
the benefits of such a practice. In addition, law schools may wish to think
about organising study missions, where students visit a range of institutions
and people who shape the dynamics of the host jurisdiction over the course of a
week or two. Yet another venue for immersion is offered by providing students
with the opportunity of providing community services overseas. The point of
such exercises, both of which are available to students at SMU, is not so much
about cultivating familiarity with a foreign legal system as such, but rather creating
appreciation of the societal context in which a legal system operates and,
accordingly, expanding students’ thinking about the role of law in different
societies and the very meaning to be ascribed to ‘law’.
In the same way that comparative law
courses direct students’ attention to other systems to gain new insights, we
are convinced that for their teachers too, much may be gained from casting their eyes to how
other law schools in the region engage with the challenges of teaching
comparative law, notably in ensuring a sufficiently Asian ‘flavour’. It is our
hope that this chapter may prove to be a source of inspiration for future
collaborative efforts in this regard.
[1] Singapore
International Commercial Court Committee, Report
of the Singapore International Commercial Court Committee (2013) para 6
<www.mlaw.gov.sg/content/dam/minlaw/corp/News/Annex%20A%20-%20SICC%20Committee%20Report.pdf>
accessed 6 May 2017: Singapore is considered among the world’s preferred sites
for arbitration.
[2]Singapore
International Commercial Court, ‘Establishment of the SICC’
<www.sicc.gov.sg/About.aspx?id=21> accessed 7 May 2017; Constitution of
the Republic of Singapore, Art 95(4)(c).
[3] For an overview
with reference to relevant primary materials see G Low, ‘A Globalised Legal
Profession’ in Gary Chan and Jack Lee (eds), The Legal System of Singapore – Institutions, Principles and Practices (Lexis
Nexis 2015) 201-211.
[4] Sundaresh Menon, ‘Transnational Commercial Law: Realities,
Challenges and a Call for Meaningful Convergence’ [2013] Singapore Journal of
Legal Studies 231 (emphasis in original).
[5] These are currently the only two law schools offering
a Singapore LL.B. degree, with annual undergraduate intakes of about 240 and
150 students respectively. A third law school is in the process of being set
up, in line with the recommendation to that effect in the report by the 4th
Committee on the Supply of Lawyers; Ministry of Law, ‘Steering Committee for
Singapore’s Third Law School’ (press release, 27 November 2013).
[6] Teaching of core material in Singapore’s law schools
is largely done via ‘team teaching’, in which each professor teaches all
classes (around 36 contact hours) for one (or more) section(s) comprising 40 to
50 students.
[7] This is no coincidence: as the Committee to
Develop the Singapore Legal Sector notes, ‘With the advent of the second law
school, efforts should be made to ensure that the content of law courses
offered by both law schools have a common core.’ See Report of the Committee to Develop the Singapore Legal Sector
(September 2007), para 2.50 <www.mlaw.gov.sg/content/dam/minlaw/corp/assets/documents/linkclicke1d7.pdf>
accessed 6 May 2017. Oversight in this regard, and the implementation of
recommendations related to legal education, is exercised by the Singapore
Institute of Legal Education.
[8] cf the initiatives
for such a dialogue taken by the International Association of Law Schools, as
highlighted by Francis Wang in his contribution to this volume.
[10] J Husa,
‘Turning the Curriculum Upside Down: Comparative Law as an Educational Tool for
Constructing Pluralistic Legal Mind’ (2009) 10 German Law Journal 913.
[11] Here we leave
aside the more normative question of the demands that legal practice should be
able to impose on legal education, and the legitimacy or otherwise of requiring
law schools to bear (part of) the costs of vocational training of future legal
professionals.
[12] S Jayakumar and
Chin Tet Yung, Report on the Development
of the Faculty of Law – National University of Singapore (National
University of Singapore 1981).
[14] See eg the
Report of the Committee to Develop the Singapore Legal Sector (n 7) (also known
as the VK Rajah Report after the name of its Chair) and the reports by
successive committees on the supply of lawyers.
[15] The impetus for the establishment of the country’s
second law school was the Report by the 3rd Committee on the Supply
of Lawyers in 2006, which justified this move with reference to the expected
demand for legal services and the beneficial effects that institutional
competition would have on the quality and diversity of the local LL.B. degree.
See eg Ministry of Law Singapore, ‘Government Accepts Key Recommendations of
the Third Committee on the Supply of Lawyers’ (press release, 17 August 2006)
<www.mlaw.gov.sg/news/press-releases/government-accepts-key-recommendations-of-the-third-committee-on-the-supply-of-lawyers-and-.html> accessed 6 May 2017.
[16] Singapore
Management University, ‘Proposed Curriculum of School of Law’ of 15 November
2006, para 2.1 (copy on file with the authors).
[17] Statement by
Michael Hwang in response to the 2013 NUS Law School Curriculum Review (copy on
file with the authors and quoted with Mr Hwang’s and NUS Faculty of Law’s kind
permission).
[18] There have been
conscious and concerted efforts to develop an ‘autochtonous’ legal system, on
which see eg Andrew Phang, ‘Of Generality and Specificity – A Suggested
Approach Toward the Development of an Autochtonous Singapore Legal System’
(1989) Singapore Academy of Law Journal 68; TM Yeo & C Bull, ‘Autochthony and Authority in the Law of Obligations’
in HT Chao and others (eds), The Law in
His Hands: A Tribute to Chief Justice Chan Sek Keong (Singapore Academy
Publishing 2012).
[20] Tan Eng Hong v Attorney General [2013]
SGHC 199. See also the later ruling by the Singapore Court of Appeal in Lim Meng Suang and another v Attorney
General [2014] SGCA 53.
[21] ACB v Thomson Medical and Others [2014]
SGHC 36. At the time of writing, the case is on appeal.
[23] G Bell, ‘The
Singapore Legal System in Context – Whither the Concept of a National Legal
System’, in Kevin YL Tan (ed), The Singapore Legal System (2nd ed, Singapore University
Press 1999)..
[24] ‘Local’ meant
Malaysian as well as Singaporean cases (Singapore was part of Malaysia from
1963-5 and shared many legal facets and judicial traditions with Malaysia).
This resonance has obviously become less pronounced as the moment of separation
– 9 August 1965 – further recedes in time.
[25] To be fair, passing reference was also made to the
Japanese legal system and those of Indonesia and the Philippines, although none
of these featured prominently in the content actually studied.
[26] As per the
Administration of Muslim Law Act, Act No. 27 of 1966, § 39, 145 (2010) (Sing.);
see also Ahmad Nizam bin Abbas, ‘The Islamic Legal system in Singapore’ (2012)
21 Pacific Rim Law and Policy Journal 163.
[27] M Chen, ‘Legal
Transplant and Undue Influence: Lost in Translation or A Working
Misunderstanding?’ (2013) 62 Int’l Comp L Q 1.
[28] The chapter on
religion in W-C Chang and others (eds), Constitutionalism
in Asia (Hart Publishing 2014) offers an
accessible introduction to the salient issues.
[29] According to
the 2007 VK Rajah Report (n 7) at p 11, para 2.32: ‘Subjects should be considered “core” they equip the student with
fundamental legal precepts and knowledge that allow the student to progress on
to other more specialist subject areas.’
[30] Indeed,
participants at the first International Congress of Comparative Law, organised
on the sidelines of the Paris World Exposition in 1900, emphasised the role of
comparative law in preparing ‘a common law for the civilised world’.
[32] See notably M
Bussani and U Mattei, ‘The Common Core Approach to the European Private Law’
(1997) 3 Columbia Journal of European Law 339; ‘The Common Core of European
Private Law’ <www.common-core.org> accessed 7 May 2017.
[34] The balance
between civil law and common law jurisdictions is also more even in Asia than
in Europe, where the number of civil law countries far outweighs the number of
common law states.
[37] Andrew Harding,
‘Comparative Law and Legal Transplantation in South East Asia: Making Sense of
the “Nomic Din”’ in D Nelken, and J Feest (eds) Adapting Legal Cultures (Hart Publishing 2001).
[38] For instance in
the area of land law, see Daryono, ‘The Transformation of Land Law in
Indonesia: The Persistence of Pluralism’ (2010) 5 Asian J Comp L 1.
[40] See eg the
Maintenance of Religious Harmony Act, Act No 26 of 1990 (2001) (Sing.),
discussed in J Rajah, ‘Policing Religion: Discursive Excursions into
Singapore’s Maintenance of Religious Harmony Act’ in P Nicholson, P (ed), Examining Practice, Interrogating Theory:
Comparative Legal Studies in Asia (Martinis Nijhoff 2008); Thio Li-ann,
‘Control, Co-optation and Co-operation: Managing Religious Harmony in
Singapore’s Multi-Ethnic, Quasi-Secular State’ (2006) 33 Hastings Const L Q
197.
[41] H Ault and MA
Glendon, ‘The Importance of Comparative Law in Legal Education: United States
Goals and Methods of Legal Comparison’ (1975) 27 Journal of Legal Education
599, 600.
[43] There are exceptions at NUS in some cases, where the
teaching teams feel that the subject is best taught in a ‘lecture-tutorial’
format, with labour-intensive attention to small-group tutorials of around 10
students.
[44] These responses are assessed and weighted at 50% of
the final grade. The other 50% is based on a take-home examination with answers
submitted online within a few hours.
[48] C Saunders,
'The Impact of Internationalisation on National Constitutions' in A Chen (ed), Constitutionalism in Asia in the Early Twenty-First
Century (Cambridge University Press 2014) 412.
[49] See eg J Husa, A New Introduction to Comparative Law
(Hart Publishing 2015); M Siems, Comparative
Law (Cambridge University Press 2014) - although to be fair, both authors
do make reference to non-Western systems on several occasions.
[50] Myanmar offers
a good example in this regard. For a good introduction to that country’s
evolving legal system see M Crouch and T Lindsey (eds), Law, Society and Transition in Myanmar (Hart Publishing 2014).
[51] Men generally have to complete two years of national
service before commencing their university studies.
[52] Their
backgrounds are as follows: British citizen trained in common law but with an
LLM from NUS and expertise in Asian comparative law (PhD in law from
Australia); Canadian citizen trained in the civil law and having expertise in
Asian laws (LLM from the US); Canadian citizen trained in the common law and an
expert in Islamic law (PhD from the UK); US citizen trained in the common law
system and expert in Chinese and comparative law (degrees from US, but taught
in several jurisdictions including China); Chinese citizen trained in Chinese
law and expert in corporate law (PhD in law from NUS); Taiwan citizen trained
in civil law (PhD from US); Vietnamese citizen trained in civil law and expert
in comparative constitutional law (PhD from University of Hong Kong).
[53] Their
backgrounds are as follows: Dutch citizen trained in civil law, but with an LLM
from Oxford and expert in comparative constitutional law (PhD in law from the
Netherlands); Indian citizen trained in common law (degrees from India, the UK
and the US); American citizen trained in history, economics and law with
professional work experience in a civil law jurisdiction; Sri Lankan citizen,
trained in common law and with some work experience in civil law jurisdictions.
[54] On the US experience in this regard, see U Mattei,
‘Some Realism about Comparativism: Comparative Law Teaching in the Hegemonic
Jurisdiction’ (2002) 50 American Journal of Comparative Law 87.
[55] An indicative
list of modules presently offered that fall within this cluster includes:
Chinese Corporate and Securities Law; Chinese Legal Tradition and Legal
Chinese; Contract and Commercial Law in Civil-Law Asia; Foreign Direct
Investment Law in Asia; Introduction to Indonesian Law; Japanese Corporate Law
& Governance; Islamic Law; Law, Governance and Development in Asia; Law and
Development in China; and others. Not all of these modules are taught every
year.
[56] Electives that are part of this cluster include
Chinese Contract Law; Introduction to Chinese History, Culture, Economics and
Law; Law and Policy of Ethnic Relations in Singapore; Foundations of ASEAN Law
and Policy; and the Law Study Missions to several Asian jurisdictions.
[57] For instance, NUS and SMU have, over the years,
employed full-time
faculty with knowledge of many the region’s legal systems (China, India, Japan,
Malaysia, Indonesia, and Taiwan, and Islamic law experts; but not including, so
far, Thailand, Vietnam, Philippines, and some others.)
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