Lost in translation: The need for the judicious use of comparative law

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Pages: 1-14
• Author: Judge AG Binns-Ward
• Date: 16 August 2019
• Citation: (2017) 3(2) JCCL&P 1

1

LOST IN TRANSLATION: THE

NEED FOR THE JUDICIOUS USE OF

COMPARATIVE LAW

JUDGE AG BINNS-WARD†

Judge of the High Court of South Africa,

Western Cape Division, Cape Town

ABSTRACT

Comparative application of law, for its own sake, does not help

much in the quest for legal development. Legal scholars and jurists

should guard against importing concepts of law merely because

they sound interesting or worthy of acceptance. The quickest way

to lose credibility in the application of the law is by importing legal

concepts that have no relevance to the context within which they

are applied. This article cautions against liberal and unrestrained use

of comparative law and argues for the need for its judicious use.

I INTRODUCTION

The world has shrunk in recent decades and internet technology

has magnified the effect, with instant interconnectivity between us

wherever we might be on the planet. This has inevitably given rise

to increased uniformity in the way in which different communities

do things, particularly in the field of commerce. It has also enabled

all of us to be more aware than ever of how other communities do

things. And it is in human nature to seek confirmation that what we

are doing, we are indeed doing well by comparing our means of doing

it with that of our fellow men and women. In the field of law, that

gives rise to the use of comparative law; not as an academic study,

but as a matter of practical application.

Academics have suggested that company law is especially

susceptible to comparative application. The reasoning is that company

law is a type of so–called instrumental law. This latter term is used to

distinguish certain laws from others that, for the purpose, are labelled

‘cultural–based law’. ‘Instrumental law’, inasmuch as company law,

affords the means to regulate forms of business structure that, by

their nature, are socially faceless or neutral concepts, as distinct from

law that is closely identified with the regulation of personal matters,

† Address to the International Symposium on Company Law, IDC Centre, Sandton,

Johannesburg, on 24 August 2017.

(2017) 3(2) JCCL&P 1

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