The Comparative Method and Law Reform

Abstract

This 1988 LLM thesis examines law reform, the comparative method, and the combination of these two elements. A broad definition of law reform is adopted, to include law reform by legislators and judges, and proposals for law reform from law reform agencies and from academics. It is explained that the comparative method (commonly referred to as comparative law) is still at an experimental stage, and that no particularly rigid method of comparison has been adopted for the purposes of this thesis. The theory of reception and legal transplants is discussed, from Montesquieu to date. Particular emphasis is placed on the debate as to the need to adapt foreign ideas to suit the needs of the donee's present system. It is argued that Montesquieu's strict views are counterproductive.The use of the comparative method in the preparation of legislation is considered - the role of government departments, parliamentary committees and academics; the choice between codification and special statutes.Law Reform Agencies (LRAs) are discussed at length. Useful data was provided by a survey, conducted for this thesis, which was sent to most of the common-law LRAs in the world. 29 completed questionnaires were returned, from the U.K., Ireland, Canada, Australia, U.S.A., Africa and elsewhere. The common-law LRAs are compared with European ministries of justice.Observations are made on the distinction between lawyers' law and social-policy law, the appointment of non-lawyer members to LRAs, the consultation process, implementation rates and finance of LRAs. A table of LRA budgets and a table of LRA implementation rates are set out. There is a study of the use of the comparative method in LRAs.It is argued that judges have a significant law reforming role, despite their dicta to the contrary.The combination of the comparative method and judicial law reform is then considered, as is the suggestive role of judges in law reform (when judges suggest remedial action to the legislature).