Chapter 3 - Comparative Law, Anti-Essentialism and Intersectionality: Reflections from Southeast Asia in Search of an Elusive Balance

Summary

My motivations for undertaking this essay were partly biographical. I was raised in Canada and undertook my initial legal training there. I then went to the United Kingdom for postgraduate studies and now work in Southeast Asia. By way of larger background, my family has roots in East Africa and before that in India. Through all of this geographical diversity runs the influence of the English common law; lawyers in all these jurisdictions would immediately recognize a reference to rotten snail-tainted ginger beer, and why that helps to answer the question “Who is my neighbour?”, and also with the assertion that, in summertime, village cricket really is the delight of everyone. At the same time, these jurisdictions are very diverse. They are historically and culturally shaped by different forces and incorporate in their legal systems very different influences. Canada has a written criminal code, but this is different from the written penal code in India and Singapore, although those last two are so similar that debates about section 377A of the Penal Code in Singapore would immediately be comprehensible to an Indian lawyer. An Indian, Singaporean, Australian and Canadian lawyer may also share a reference to the case of Liversidge v. Anderson, though it is interpreted differently in these jurisdictions. If your “tribe” is the Kikuyu or the Kalenjin, for example, your customary or indigenous law will have a greater place in the contemporary law of your country (Kenya) than if your tribe is the Haida or Cree in Canada. Muslim personal law is officially recognized in India through the regular courts, and in Singapore and Kenya through the Syariah and Kadi courts respectively; it has a rather lesser role in Canada and the United Kingdom. The list could go on.

In considering the jurisdictions with which I have personal connections, therefore, I am struck by the paradox of familiarity and similarity, on the one hand, and of opacity and difference on the other. Students at my university in Singapore, for example, have no problem in considering and receiving precedents from the United Kingdom or Canada or India, but they would hardly think of Cambodia or Thailand or Indonesia: jurisdictions that are geographically so much closer. When they travel to other common law environments on exchange, they know that they share a language — literal, legal and metaphorical — with their new classmates.