Globalization of Law Lecture Series: Lecture 1 | Globalization and Comparative Law
“Globalization and the Comparative Law”, the first lecture of the Globalization of Law Lecture Series offered by the Institute for International and Area Studies (IIAS) of Tsinghua University in the fall semester 2022-23, was delivered on the afternoon of October 7, 2022 in Classroom 205, the Central Building. The lecture was presented by Lu Nan, associate professor of Tsinghua University Law School and member of the Teaching Committee of the IIAS, and moderated by Ma Yue, assistant professor at the IIAS. Scholars and students from universities across the world, including researchers and doctoral students of the IIAS, as well as other people interested in related topics attended the lecture in person or online.
This lecture consists of four parts: Definition of Globalization of Law, Shortcomings of Traditional Legal Studies, Advantages of Comparative Law, and the Three Core Propositions of Studies of Globalization of Law. At the start of the lecture, Professor Lu Nan pointed out that attention of researchers in law and legal studies had largely been directed towards Western countries, but with the globalization of law, their attention has gradually shifted to developing countries. We can only properly address new legal concerns in the context of globalization by turning our focus from developed countries to developing countries. After that, Prof. Lu introduced globalization and globalization of law and explained the difference between ‘globalization of rule of law’ and ‘globalization of law’ by providing relevant instances. Prof. Lu believes that ‘globalization of rule of law’ refers to the social phenomenon that more and more transnational affairs are interpreted from a legal perspective and handled by legal means, while ‘globalization of law’ refers to the worldwide progression of transnational legal structures as well as the integration of legal structures across countries.
Prof. Lu then analyzed the shortcomings of traditional legal studies. Traditional legal studies refer to legal knowledge, discourses and methodology formed after the West marched into the nation-state stage in the second half of the 16th century. Traditional legal studies present many ideal types, including the national-international law dichotomy, the closedness and autonomy of the legal system, modern law and the secular theory of law, the rational bureaucracy of modern nation-states, and legal instrumentalism. These ideal types seriously hinder the development of studies of globalization of law, and are not conducive to the real and productive interaction between law and legal studies and regional and country studies.
Next, Prof. Lu discussed the advantages of comparative law. As the name suggests, comparative law is comparative study of legal phenomena, which include not only provisions of law but also legal instruments, systems, and concepts. Among them, the legal system is also an important subject of regional and country studies. Compared with traditional legal studies, comparative law has four major advantages in dealing with the subject of globalization of law. First, it erases the distinction between national law and international law, and traces the history of legal traditions. Second, it blurs the line between religious and secular law and focuses on the source of meanings and functional effectiveness of the subjects being researched. Third, it places the legal elite and the general public on the same side and investigates the society in which the law is rooted. Fourth, it diverts focus away from the distinction between the West and non-West and presents a viewpoint from non-Western countries. Fifth, legal pluralism is preferred over legal monism in comparative law. After defying the aforementioned five conventions, we must reorganize the current knowledge system and reconsider the globalization process. According to Prof. Lu, the three main tools of comparative law are the legal system, legal transplants, and legal culture. He went into great length to explain the three concepts.
Prof. Lu then explored the three core propositions in the studies of globalization of law, namely, redefinition of the global legal landscape, reconsideration of legal dissemination, and cross-cultural comparison. In response to the first proposition, Prof. Lu believes that we need to remap the world’s law based on a new theoretical foundation. The nation-state scale on the existing map of the world’s law cannot be eliminated because there are too many details about countries. As a result, problems that can be reflected by the current world’s law map are limited. The current map is too static and macroscopic to accurately depict the specific dynamic changes. Finally, he cited Ugo Matteil, an American scholar in comparative law, arguing that dichotomy has to be included in legal mapping in order to better grasp the diversity of the legal system and that this will serve as a guide for regional and country studies. Prof. Lu contends that the problem with the theory of legal transplantation, which ignores the complexity of hierarchical division and legal transplantation and the diversity of legal models to be transplanted, is that it oversimplifies the issue of legal dissemination, whereas legal dissemination can reflect complexity. Prof. Lu then discussed the topic of cross-cultural comparison, which he considered to be the foundation of regional and nation studies. He suggested that when studying a country’s laws, we should not only concentrate on the study of the law itself, but also have a thorough understanding of the history, economy, and society of the target country. We should also immerse ourselves in the target country’s culture and view the law as a component of that culture. We should approach law as trans-cultural phenomena from an observer’s perspective.
In the question-and-answer session at the end of the lecture, Prof. Lu had a lively discussion with scholars and students about the basic concepts worthy of reflection and reconstruction in law, the significance of law in the comparative study of cultures, and global governance.
Lu Nan, associate professor of Tsinghua University School of Law and member of the Training Steering Committee of the IIAS, has a Juris Doctor degree from Tsinghua University Law School. His areas of interest include comparative law, legal culture, legal theory, and sociology of law. He has published a number of papers and articles, including Advantages and Disadvantages of Comparative Law in the Age of Globalization, The WJP Rule of Law Index: Origin and Evolution, The Status and Role of Non-Western Cultures in Comparative Law Teaching and Research, and The Invisible Commercial Law: New Trends in Legal Transplantation in the Era of Globalization, and edited a number of books including Discover Comparative Law, Handbook of Jurisprudence, and Globalization of Law: China and the World.
Text editor: Ding Ruilin
Typography editor: Cheng Yao
Proofreaders: Dong Hui and Ma Yue