Chapter 1 introduces students to the various approaches used to pursue comparative legal studies. It especially presents the orthodox “legal families“ approach to macro-comparative law. The chapter then considers several critiques of that tradition. H. Patrick Glenn challenges the concept of “legal families“ and suggests a “legal traditions” framework to replace it. The chapter then presents the social-contextual approach to comparative law as promoted by Legrand. Finally, the chapter urges students to recognize the ethical implications of comparative law through Frankenberg’s concepts of “distancing” and “differencing.”

This chapter recapitulates the dual institutional framework and the empirical findings of this book. It then discusses how the findings contribute to ongoing policy and theoretical debates.

Over the last two decades, the international community has increasingly turned its attention towards the phenomenon of human trafficking. While the majority of States have adopted legislation criminalising trafficking, and many also passed legislation aimed at protecting trafficked persons, compliance with international and domestic standards is often questioned. This chapter explores processes before, and decisions by, judicial, quasi-judicial and specialised non-judicial bodies as determinants of anti-trafficking efforts – understood as factors shaping governments’ anti-trafficking efforts and influencing compliance with and implementation of international standards. Deploying a comparative approach and building on the results of a large-scale project exploring the determinants of anti-trafficking efforts globally, this chapter evaluates four case studies (Argentina, Brazil, Cyprus and the United Kingdom). It outlines how judicial, quasi-judicial and specialised non-judicial bodies’ role is perceived by anti-trafficking stakeholders, and how these mechanisms interact with other determinants in influencing anti-trafficking efforts at the domestic level.

This chapter explores the intersection of transnational law with contemporary corporate governance laws and principles. Corporate governance, with its complex array of public and private actors, fits naturally within the modern concept of transnational law as a species of law that "can no longer be viewed through a purely national lens." Financial markets today are global and interconnected and events, such as the 2007-2009 global financial crisis and the COVID-19 crisis, exemplify the risk of contagion across those markets. Not only can corporate governance problems transcend national boundaries, so too can their solutions, which often involve regulatory efforts that operate at a transnational level. The chapter explores, from a transnational perspective, the transmission of laws and norms that are designed to constrain directors’ conduct and enhance corporate accountability. It focuses on two key examples of such accountability mechanisms-fiduciary duties and corporate codes. The chapter examines, for example, the global transmission of corporate governance and shareholder stewardship codes. These codes, which are a relatively recent phenomenon, play an important role as “norm creators.” The chapter assesses the transmission of laws and norms against the backdrop of convergence and path dependence theories of corporate governance.

This chapter will use the historical evolution of fiduciary norms in Japan and East Asia to examine the intersection of fiduciary law and transnational legal ordering theory. Various strands of fiduciary notions arrived in East Asia as part of modernization effort beginning in the late nineteenth century. The civilian regulation of conflicted transactions and duty of care was introduced in Japan, South Korea, and Taiwan as part of Civil Code and Commercial Code, which was followed by statutory introduction of common law trust in early twentieth century, and American corporate governance theory after World War II. Singapore and Hong Kong adopted English common law and equity jurisprudence along with legislations that follow UK and Commonwealth models, which were frequently updated to meet the demands of international financial market. While tensions among common law, civil law, and indigenous norms were conspicuous during the early phases of modernization and reception, more recent decades of globalization have seen greater scale and dynamics of transnational interactions, most notably the rise of UK-style soft law initiative. Throughout the regional history, fiduciary norms have been shaped by shifting colonial pressures and economic hegemony, wars, revolutions, and financial crises, as well as legislative imitation and academic learning. By way of conclusion, this chapter argues that while fiduciary law presents a rich field for exploring process of transnational legal ordering, the theory of transnational legal ordering provides a valuable framework to understand both historical and contemporary evolution of fiduciary law both in individual jurisdictions and across jurisdictional borders.

In recent years, fiduciary law has moved toward the center of scholarly attention in the common law world.1 In spite of its “elusive” nature,2 enough instances of fiduciary relationships occur across a wide variety of legal areas that many – with good cause – describe it as a distinctive field.3 Courts as well as scholars in common law jurisdictions deal concepts and ideas concerning fiduciary law back and forth.4 Although civil law countries have no tradition of the trust as a legal institution,5 courts and scholars alike term relationships based on some kind of personal or professional trust “fiduciary.”6 German law subjects guardians,7 trustees in bankruptcy,8 attorneys,9 and others to a specific set of fiduciary duties, the most important of which is a duty of loyalty.10 France has introduced “la fiducie,” a substitute for the common law trust.11 Indeed, civil law countries have long combined property and contract law in order to fashion substitutes for the common law trust. Contract-based Treuhandverhältnisse – that is, relationships of trust – have been a staple part of the German legal discourse for several decades, if not centuries.12 And in recent years, the trust as a legal institution is gaining ground in civil law jurisdictions, following national recognition of the Hague Trust Convention by countries such as Italy and the Netherlands.13

This chapter introduces the aims and scope of this handbook. In this handbook, we seek to showcase the diverse perspectives offered by contributors from all over the world concerning topics of comparative law. We begin by outlining the proposition that one’s culture and identity shape what we do and how we think, but we also suggest that understanding law in a global context requires us to transcend a radical scepticism about the comparative law enterprise and also avoid exclusionary ‘identity politics’. We proceed by explaining the structure of the handbook and summarising the key contents of each chapter in the handbook.

One of the main characteristics of international law is its claim to ‘universality’. International law’s body of rules and practices is generally supposed to apply to every state and individual member of the world. This chapter challenges the perception that international law cannot be viewed through comparative lenses, as well as the idea that legal comparativism is a set of methodologies to contrast only domestic and regional legal systems and concepts. The underlying argument of the chapter is that behind common rules and shared aspirations of principles, members of an international system may adopt very different approaches, doctrines and procedures of internalisation. That invites an important role for comparativism. The chapter exemplifies this broad research agenda through a panoramic analysis of international human rights law and international environmental law, in both cases looking at foreign relations law and its constituencies in different legal realities.

The relationship between comparative law and legal history has been a topic of interest for a long time. But reflections on how methods could combine the historical approaches of legal systems around the world with theoretical or jurisprudential points of view really began with Edouard Lambert’s 1903 book La fonction du droit civil comparé. Using the two meanings of ‘jurisprudence’ (as case law in French language and as legal theory in English), Lambert proposed comparing positive rules while bearing in mind the weight of history and its limits. Following this path, this chapter explores critical and constructive approaches to comparative law through legal history. In the first part of this chapter, history is used to criticise simplistic conceptions of comparative law like ‘legal families’ and ‘national spirit’. In the second part, historical-jurisprudential approaches are defended as a means of more clearly delimiting legal phenomena and facilitating a deeper analysis of the dynamics of law. In conclusion, scholars are and should remain open to developing a diversity of historical-jurisprudential approaches.