Beyond Language and Geo-political Biases: An Agenda to Revalue Comparative Law

Comparative law has always struggled to find its place in international legal scholarship. Some scholars have tried to make sense of the differences and similarities between what comparativists and internationalists do. Yet we remain in an era of doubt about the value of cross-border, multi-linguistic comparisons. This has been a long era. German Professor of comparative law, Bernhard Grossfeld wrote back in 1984 of a ‘deep skepticism’ about the ‘non-transferability of law’. Much more recently, scholar of gender and international law, Darren Rosenblum, described comparative law’s unpopularity, with its ‘near-empty dance card’.

Yet I was reminded of comparative law’s true value when I uncovered an overlooked provision in a 2004 Anti-Violence against Women and their Children Act, enacted in the Philippines when Gloria Macapagal Arroyo was the Philippines’ 2^nd female President. The law came to light as part of the groundwork for The Woman President, a comparative study of the difference women leaders make on the lives of fellow women through the legislation enacted during their tenures. For those less familiar with the global struggle against gender-based violence, this law was particularly remarkable because it contained a provision for 10 days paid leave from work for victims of family and domestic violence, and protection from reprisal – dismissal or discrimination – if a victim sought to use such workplace leave. Now, more than ever, Australia as a nation is conscious of the value of such reforms.

Yet when New Zealand introduced 10 days of paid leave for victims of violence in 2019, it was named ‘a global landmark’ and ‘a milestone’. When Australia introduced paid leave for victims in 2022, an earlier 2010 local council agreement that provided twenty days’ paid leave for victims in the Shire Council was incorrectly named ‘the world’s first entitlement’ and a ‘natural case study’. In this writing – scholarly and popular press – not only has the Philippines been frequently overlooked but so too have Spain, Puerto Rico and seven other Latin American jurisdictions that my research revealed had all enacted paid workplace leave for victims between the Philippines back in 2004 and Australia 18 years later. Except for the occasional reference to Spain, none of these other Spanish-speaking jurisdictions rate a mention in the English-language reporting that I have found.

Why look to other legal systems?

Germany jurist Günter Frankenberg once described comparative law as being like travel: ‘travelling offers opportunities for learning both about one’s own country and culture and about other countries and cultures’. Frankenberg cautioned that in travel, ‘one must make a conscious effort to achieve distance from the assumptions and confidences that defend one from the uncertainties brought on by the un-usual’. Now more than ever, in times of global crisis, we need to be doing the challenging work of traveling across borders to gather the legislative lessons and shed ourselves of the assumptions that are stopping us seeing legislative good practice.

René David and John Brierley had a humbler way of valuing comparative law. It is simply useful ‘in gaining a better understanding of one’s own national law and in the work of improving it’. So, what is stopping us?

Linguistic biases and geo-politics

International scholar Odile Ammann describes in her research a linguistic bias in legal scholarship that rises to a ‘linguistic imperialism’. The dominance of English is asserted. In turn, English is viewed as the language that is good, strong and trustworthy and therefore other languages as weak and of less value. International lawyer, Anthea Roberts, too raised her concerns about the emergence of English in international law as the ‘lingua franca’. In her book, Is International Law International? Roberts suggested that ‘People, materials, and ideas move more easily within linguistic communities than between such communities’. Yet, Roberts goes on, it may be that ‘these communities are having the same debates, only in different languages’.

Here I extend this suggestion by directing attention to what is lost where the debates that may be vibrant and robust in one set of nations speaking the same language are not making their way across borders to others. In turn, rich legislative experiences go unnoticed until many years later when they become known in the Anglophone world. Of course, this English language imperialism is felt both across countries but also nationally. For instance, the Philippines is a nation with 175 individual languages; while Tagalog-based Filipino is the national language according to the 1987 Constitution, it has made few inroads into the Filipino legal system, where English continues to dominate.

Nonetheless, there are some Spanish-language laws from Latin America that have been widely regarded in English academic literature as pioneering ‘firsts’. Argentina’s legislation to establish transgender rights has been, rightly, noted as ‘ground-breaking’; Ecuador’s constitutional protections of the right to nature have been named ‘pathbreaking’. There may, therefore, be other factors at play that both amplify English-language biases while obscuring good practices in the overlooked jurisdictions.

The geopolitical values that underpin global evaluations of which countries lead in the struggle to become more gender equal come to the fore. As a global community, we continue to label certain nations as the world leaders on gender equality, often the Nordic ones. The World Bank’s Women, Business and the Law report has even named 14 countries in which “no inequalities” across gendered lines are said to exist in the eight areas measured by the Index, including in Belgium, Denmark, France, Latvia, Luxembourg, and Sweden. Countries such as Sudan, Pakistan and Bangladesh sit at the other extreme, driving a sense that there is little to gain from these Third World nations. In the words of Indian feminist scholar Ursula Butalia, ‘there is a sense that feminist gains made in the west are what every other part of the world needs to aspire to. If you have not aspired to being somewhere along that ladder you’re a poor cousin; you’re left behind.’

Paid leave for victims of violence is a subject that offers us a lens to interrogate these failings of comparative legal scholarship and to ask how comparative law scholars can do things differently to enable law reformists to benefit from the good practices that may have emerged in some countries many years ago. In some respects, the hesitancy of comparative law scholars to venture too far beyond one’s borders is understandable. Rosenblum reminds us that comparativists tends to contextualise, to seek local meaning to interpret law and law’s relationship to a specific culture. Fluency in language and a deeper cultural knowledge than may be available to an outsider is often required. Arguably this task of undertaking comparative studies that are rigorous, nuanced and both global and localised has overwhelmed the comparative legal scholar who has therefore been unable to broaden the scope of laws included in their scan.

Importantly, we must ask to what extent we can forgive legislators in Anglophone nations for not considering legislation in other languages. Spanish is considered one of the ‘supercentral’ global languages. in other words, even though it is overlooked by English-language legislators and scholars in this area of law reform, it is still a globally dominant language. One can only begin to imagine what practice is lost by having inaccessible to the Anglo world a much greater diversity of languages beyond the twelve or so that are the world’s most dominant.

Clearly it is time to fill up comparative law’s dance card. As Frankenberg said, the goal is a worthy one: ‘to reform and improve the laws, to further justice and to better the lot of humankind’.

 

Note: This ANZSIL Perspective is based on ‘Comparing whose laws? Interrogating biases in comparative law and scholarship through the lens of domestic violence workplace leave’ published in the International Journal of Comparative Labour Law and Industrial Relations, 40(2) (2024), pp. 239-274.