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

JurisdictionSouth Africa
Published date16 August 2019
AuthorJudge AG Binns-Ward
Date16 August 2019
Citation(2017) 3(2) JCCL&P 1
Judge of the High Court of South Africa,
Western Cape Division, Cape Town
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.
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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