Cosmopolitan Goal of Comparative Law and its Impact on the Legal Profession

In Bar Council of India v. A.K. Balaji and Ors., a division bench of the Supreme Court held that foreign law firms and foreign lawyers cannot practice legal profession in India either in the litigation or in the non-litigation side. However, it was clarified that there is no restriction to visiting the country for a temporary period on a “fly in and fly out” basis for giving legal advice to their clients on foreign law and on international legal issues. In this blog post, I discuss the impact of the cosmopolitan goal of comparative law on the legal profession in light of globalization.

Legal Cosmopolitanism

Cosmopolitanism is interested in global topics without suggesting global uniformity. It presents an openness to other peoples, cultures and experiences, accepting the potential of mixtures between one’s own and foreign cultures.[i] Legal cosmopolitanism aims at fostering unbiased understanding and appreciation of other legal systems and eliminating prejudice and parochialism in comparative studies.[ii] The idea of cosmopolitanism was originated from the Greek and Roman philosophies and was introduced in comparative law by Immanuel Kant. In order to respect the cosmopolitan right of others, one has to use reasons and be tolerant to people from outside of their community. His construction of the cosmopolitan right suggested a relationship between cosmopolitanism and rationality. In order to achieve the cosmopolitan ‘goal’, comparative scholars aim to acquire a deep understanding of different legal systems by avoiding the cultural differences to eliminate biases and prejudices. This requires them to understand a foreign legal system from the perspectives of the people who live there and not from their own perspectives.

Rationality helps to overcome the influence of individual perspectives and becomes the means to achieve the goal of cosmopolitanism. It has been argued that comparative law cannot work without the idea of rationality.[iii] However, shattering parochial perspectives (bias and prejudice) is hardly an easy task. If scholars insist solely upon this doctrine then they run the risk of creating a new kind of parochialism masked by the irrationality hidden under the superficial name of ‘rationality’. Legal cosmopolitanism is sometimes wrongly understood as uniformity or universalization of law. It has been argued that equating legal cosmopolitanism with ‘legal assimilation’ may ultimately lead to ‘legal eschatology’ which presupposes that all legal systems should ultimately move towards a single mode.[iv] It creates an idealistic rule of law typically based on a particular Western legal order at the expense of ignoring the importance of local culture and customs. It creates extremely biased and parochial views and results in a serious distortion of the concept of cosmopolitanism, which values both unity and diversity. In order to tackle ‘legal eschatology’, it is essential for the comparativists to possess cosmopolitan spirit which facilitates the development of knowledge and methods that are capable of avoiding parochial and biased views. Siyi Huang suggests calling such spirit as an ‘ideal’ rather than a ‘goal’ however, she prefers to call it a ‘goal’ only because ‘ideal’ may seem so impossible that it discourages people from pursuing it. As it is extremely improbable to completely destroy parochialism which is deeply inherited in human nature, calling cosmopolitanism an ideal of comparative law would be more appropriate. Nevertheless, it does not affect the essence of comparative law which is to strive for developing an unbiased understanding of different legal systems.

Impact on legal practice

The bias in favour of the local legal system is reflected in legal practice which usually bars graduates from other jurisdictions to practice in the domestic courts. Even the courts think their business is of a rather parochial nature and not worth the effort of comparative research.[v] It has been argued that in the present status quo, global legal practice is quite uncertain.[vi] However, with the development of information technology, the legal profession is rapidly moving towards globalisation. As global legal practice assumes cosmopolitan individuals who are familiar with different legal cultures[vii], most lawyers who are trained in their domestic jurisdiction, are not quite ready to practice in foreign environments.

Francis Bacon argued that ‘lawyers should free themselves from the bonds of their own national systems in order to evaluate objectively its merits and drawbacks’.[viii] In his opinion, comparative assessment driven by a cosmopolitan outlook is not merely a normatively preferable option but an analytically superior one. Lawyers and law students exposed to constitutional jurisprudence, institutions and practices of different legal systems, would develop a deeper and more cosmopolitan view of their own law. It would also help them in their legal system where the domestic law is of a plural legal nature. Also, constitutional practice in a legal system might be improved by emulating constitutional mechanisms employed elsewhere.[ix] As comparative law goes beyond mere knowledge of foreign legal rules and broadens the understanding of how legal rules work in context,[x] it would prepare future global lawyers for the upcoming globalisation of legal practice.

Conclusion

The cosmopolitan goal or ideal of comparative law can be achieved by eliminating biases and prejudices with the help of rationality. However, inherited parochialism creates misunderstanding regarding the true spirit of this ideal. While acquiring deep understanding of different legal systems, comparative scholars should neither be biased in favour of the hegemony of a legal system nor should they create counter-hegemony. They should not criticise a legal system only on the basis of it not possessing certain features of the other system that they admire. The cosmopolitan spirit facilitates the development of methods that are capable of avoiding parochial views which is pervasive in legal education as well as in legal practice. As far as India is concerned, comparative law is not a compulsory part of the curriculum in the undergraduate course which usually results in a narrow and parochial understanding of even the domestic legal system. It has also been suggested that we may ask whether the students and lawyers studying and practicing law with their parochial vision; have enough interest in this direction.[xi] Regardless, new interest can always be cultivated in young students and lawyers to better equip them for the era of liberalisation of legal profession. Future domestic and global lawyers would find it difficult to survive in the globalised legal practice without a deep understanding of different legal systems including their own.

[i] Mathias Siems, Comparative Law 854 (2018).

[ii] Siyi Huang, The Cosmopolitan Goal (Ideal?) of Comparative Law: Reassessing the Cornell Common Core Project 3(3) Cambridge Journal of International and Comparative Law 795-824, 818 (2014).

[iii] See A Riles, Introduction, in A Riles (ed.), Rethinking The Masters of Comparative Law 1, 16 (2001).

[iv] Supra note 2 at 806.

[v] Mark Van Hoecke (eds.) Epistemology and Methodology of Comparative Law 127 (2004).

[vi] Rostam J. Neuwirth, On the Origin of Legal Diversity by Means of Comparative Law, or the Role of Legal Education in the Solution of Legal Conflicts  in  Indian Yearbook of Comparative Law  53 (Mahendra Pal Singh & Niraj Kumar eds., 2019).

[vii] C. Jamin & W. Van Caenegem (eds.), The internationalisation of legal education 1, 5 (2014).

[viii] Francis Bacon, De dignitate et augmentis scientiarum (1623).

[ix] See, Mark Tushnet, The Possibilities of Comparative Constitutional Law 108 Yale L. J. J 1225-1309 (1999)

[x] Supra note 1 at 47.

[xi] Esin Örücü, The Enigma of Comparative Law: Variations on a Theme for the Twenty-first Century 72 (2004).


ABOUT THE AUTHOR

Shantanu Pachauri

Shantanu is an advocate registered with the Bar Council of Uttar Pradesh. He did his LL.M. in constitutional and criminal law from National Law University, Delhi and completed B.A.LL.B.(Hons.) from National Law Institute University, Bhopal. His research interest lies at the intersection of constitutional and criminal law. He may be reached at https://www.linkedin.com/in/shantanupachauri/.

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