“The world of law is a complex and confusing place,” says Jaakko Husa, a professor of law and globalisation at the University of Helsinki. The role of states as producers of norms has diminished.
A phenomenon not always understood in legal science. Particularly in the continental jurisprudential tradition, statute books are considered the appropriate source when looking for solutions. Traditionally, interpretation of the law relies on finding the right statute and applying it in a correct manner.
Husa calls this pigeonholing:
“Finnish law is an independent pigeon-hole, while justice in Russia, for example, is another. On top of that, various intergovernmental agreements and the European Union comprise a system of their own.”
The world of law cannot be pigeonholed.
Yet, this has little relation to the realities of law.
Husa gives an example of a Finnish pensioner who has married a Moroccan national in Spain, after which the pensioner has died, leaving an inheritance. Dividing the inheritance requires wrangling with the Finnish law of succession, Spanish family law and possibly even Islamic law. That may well confuse a lawyer used to dealing with a single pigeonhole.
In corporate law, the trend is also leading away from national compartmentalisation.
“International businesses shy away from national courts of law, which are considered ponderous and expensive. They much more prefer handling disputes through settlement procedures, where mediators then have to base their arguments on several legal systems and institutions.”
This is a strong point for lawyers educated in the Anglo-Saxon legal system, familiar with the system of precedents. Husa points out that they approach each case separately in a solution-oriented manner.
As a researcher, Husa is particularly interested in how continental legal education is able to react to globalisation.
“In the current situation, the training begins with the relevant national pigeonhole, after which international affairs and globalisation are discussed towards the end of the training. I think this should be turned upside down, beginning from the complexity of the world by applying various approaches to similar problems.”
But could the globalisation of law result in a worldwide harmonisation of jurisprudence?
“That’s what certain parties wish for, but I don’t really believe that will come to pass,” Husa answers.
Business life will most certainly require common rules, but, for example, family law is so culturally bound that it cannot become global. How would polygamous marriages be recognised in countries where marriage is by definition between two individuals? Furthermore, the concept of constitutional state is often understood differently.
“I don’t foresee any universal solutions, but we have to keep applying law and live with judicial diversity.”