American University Washington College of Law-George Washington University Law School-Georgetown University Law Center recently hosted The XVIIIth International Congress of Comparative Law / Le XVIIIe Congrès International de droit comparé (under the auspices of L’Academie Internationale de droit compare/International Academy of Comparative Law & the American Society of Comparative Law). The Congress website contains downloadable pdfs of General and National Reports, on a wide array of comparative law topics prepared by internationally renowned scholars.
The Canada Report entitled “The Complexity of Transnational Law” by Prof. Helge Dedek (Pan-Canadian National Reporter- Assistant Professor of Law, Faculty of Law, McGill University) with Alexandra Carbone, (Student-at-Law, Oslers LLP) will be of particular interest to Canadian comparative law scholars, practitioners and judges. Here is an excerpt:
“Unsurprisingly, the discourse on the fragmentation and complexity of transnational law is fragmented itself; indeed, the complexity of transnational law is the focal point of many different discourses that partly overlap and intertwine. In addition to the law and social science discourse on transnational law, there is a less interdisciplinary, one might say, more traditionally “legal” discourse in legal academia that tries to capture the phenomenon of globalized law in the terms of a legal “system” or “order” that has expanded beyond the nation-states.Furthermore, there is, of course, the discourse of the practitioners of state law: lawyers and judges who have to cope with the phenomenon of transnationality while working within the institutional framework of the exercise of state power. While theoretical pluralism tells us to let go of the traditional preoccupation with state law, the participants of the actual state law discourse, those involved in the official machinery of “lawyer’s law”, have to reconcile such transnational influx with the task of upholding and enforcing state law; non-state “law” in the pluralist sense has to be translated back into the language of “law” understood as the order posited (or at least: endorsed) by the sovereign, represented by the judge.As these systems of national and transnational legality collide, the comparatist reenters the scene. Is it not to be expected that the reaction to the challenge transnational law poses to “traditional”, state-based conceptualization of law and administration of justice, to ideas of legal pluralism, varies according to the respective institutional framework, but also according to more elusive factors such as tradition and legal culture? It will be our task to describe the response this particular aspect of the transnational challenge, the complexity of transnational law, has met in Canada, in Quebec and the common law provinces, taking into account the varieties of discourses, which are fragmented (one might say: horizontally) according to the degree of theoretical abstraction and (one might say: vertically) along substantive sectoral lines.
We will divide our inquiry into two major sections. We will first set out on a quest to find a trace of a specifically Canadian “legal culture” in response to the challenge such global legal pluralism poses to national legal discourse (Part B). In doing so, we will, firstly, outline the reactions to the complexity of transnational law in academia and legal education. Then, we shall proceed to the responses of the judiciary; we will give some examples of what we think of as a general “pluralist” tendency among Canadian judges, indicative of a willingness to embrace complexity as part of a societal and legal reality.In the second major part of our inquiry (Part C), however, we will turn to the technical complexity of transnational law as a matter of legal “craftsmanship”. We will first outline the intricacies involved in the process of implementation of international instruments in Canadian law, which in the past has been a source of insecurity for judges in regard to which laws they are supposed to apply. Finally, we will discuss in more detail the problematic repercussions of the technical complexification of law in core areas of private law, focusing on what might be called the “plight” of the United Nations Convention on Contracts for the International Sale of Goods10 (hereinafter CISG or “the Convention”) in Canada.”