Tuesday, February 4, 2014

Keeping Up with the Common Law O'Sullivans? The Limits of Comparative Law in the Context of Military Justice Law Reforms

Mike Madden of the Office of the Judge Advocate General of the Canadian Forces has a thought-provoking article on military justice reform in the latest issue of the Alberta Law Review. Here's his lede:

"The purpose of this article, simply stated, is to make two points--one specific, and one general in nature. Through a case study that considers recent and ongoing military justice developments in Ireland and Canada, this article argues that critical differences in the domestic and international politico-legal climates of the two countries render comparative study of their military justice systems problematic for law reform purposes. On a broader level, the Irish/Canadian case study also highlights some of the dangers inherent in using comparative law to transplant concepts from one jurisdiction to another when crafting domestic legislation. Ultimately, the article argues that the scholarly study of comparative law remains necessary in order to critique unprincipled calls for law reform that are based solely on legal developments in foreign jurisdictions."

Towards the end, the author cautions: "Simply put, the pictures that are presented to decision-makers through some comparative law reform proposals are, at best, blurred and cropped representations of the realities that they purport to describe, regardless of how well-meaning the intent that underlies such proposals might be."

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