Q&A with Paula Giliker


“Q&A with…” is a section of the Chilean Blog of Comparative Law in which María Ithurria, President of the Chilean Network of Comparative Law, talks with leading comparatists around the world so that we can know a little more about their experience, their views, and their work. We hope you enjoy them!

 

Paula Giliker is Professor of Comparative Law at the University of Bristol, having previously worked at the Universities of Oxford and Queen Mary, University of London. She is a former Chair of the British Association of Comparative Law, an Associate Member of the International Academy of Comparative Law and is currently Vice-President Elect and Trustee of the Society of Legal Scholars of the UK and Ireland. She has published extensively on comparative private law and the law of obligations (contract and tort) in the common law and in common/civil law. A leading comparative law scholar, she is on the editorial board of the International and Comparative Law Quarterly, the editorial advisory board of the Journal of Professional Negligence and contributes to renowned common law tort practitioners’ text, Clerk and Lindsell on Torts.


Key publications

P Giliker, 'Codification, Consolidation, Restatement? How best to systemise the modern law of tort' (2021) 70 ICLQ 271

P Giliker, ‘Comparative law and legal culture: Placing vicarious liability in comparative perspective’ (2018) 6 Chinese Journal of Comparative Law 265

P Giliker, ‘The influence of EU and European human rights law on English private law’ (2015) 64 ICLQ 237

P Giliker, The Europeanisation of English Tort Law (Hart, 2014)

P. Giliker, Vicarious liability in tort: A Comparative Perspective (CUP, 2010)


 

1. What do you think is the role of a comparatist nowadays?


In my view, today's comparatist has a number of roles. At a basic level, the role of the comparatist is to advocate and demonstrate the benefits of a multi-jurisdictional approach that permits a deeper understanding of the operation of law which would be difficult to achieve by looking at one single jurisdiction. The comparatist must also break down national prejudices and bias and correct misunderstandings of other legal systems – that all civil law is codified; that the common law is primarily found in cases – that are still commonplace in even experienced lawyers. The modern comparative lawyer must also dispel misconceptions that comparative law is “European” or confined to studies within the same legal family. Scholars such as Örücü and Menski have argued strongly and, in my view, convincingly that comparative law beyond Europe offers an immensely fertile field of comparison and has a legitimate place on the global tree of law, although it may require addressing some ‘white’ colonial presuppositions.[1] The comparatist must further explain how to do (and not do) comparative law and remind others that simply listing the law in several countries in an article is not “comparative” law in that does not enhance our understanding of the relevant law and is simply a compilation of knowledge.


2. What made you take an interest in comparative law?


I was fortunate to be able to study French and German at school to a high level and considered applying to study English and French law at university. I was, however, offered a place to study Law at the University of Oxford which, at that time, did not offer a joint degree in Law with Law Studies in Europe (I am happy to say it does now!) However, the Law degree in Oxford did offer an undergraduate option in Comparative law, which focused on English and French law to which I was naturally drawn. I had no idea at the time that studying a specialist Comparative Law unit at undergraduate level was in fact a rarity in UK law schools or the degree to which I was privileged to study Comparative Contract and Tort Law with John Bell and Anne de Moor (at undergraduate level) and Bernard Rudden and Simon Whittaker (at postgraduate level). Given such tutors, it is perhaps not surprising that when I decided to do a PhD, my first thought was to undertake it in comparative private law, examining pre-contractual liability from the perspective of English and French law.


3. What comparatist has influenced your approach to comparative law the most?


This is a difficult question, particularly for a comparatist who has been researching comparative law for thirty years as I continue to learn from the people I meet at conferences and whose work I read. I owe much to my wonderful tutors in Oxford, especially John Bell who installed in me the discipline of studying and researching comparative law, but also the need to explore ideas in their context. John’s work has long been an inspiration, but I have also become a better academic lawyer in that, throughout my career, he has urged me to go the extra mile and encouraged me to do better. As I have developed as a scholar, I have also learned much from ground-breaking work by Rodolfo Sacco and Günter Frankenberg, forcing me out of my common law comfort zone and making me think more deeply about how we should compare and why we do so.


4. What are your three favourite books on comparative law? Why?


So hard to choose! If I were to single out three books, they would be, first, The Oxford Handbook of Comparative Law 2nd edn (OUP, 2019) edited by Mathias Reimann and Reinhard Zimmermann. This is a fantastic feast of a book (now available as an e-book) which allows the reader to dip into the history of comparative law, different approaches to the discipline with coverage of a variety of different subject areas. The contributors are leading authors in the discipline, from Reinhard Zimmermann and Michele Graziadei to James Gordley and Annelise Riles. Not to be read in one sitting but savoured gradually!


Secondly and thirdly, two books that have had a particular influence on my research are John Bell, French Legal Cultures (Butterworths, 2001) and John G Fleming, The Law of Torts 9th edn (Thomson Reuters Australia, 1998) - both highly recommended. Bell quite rightly forces us as comparative lawyers to look beyond the rules – what actually shapes law? We need to consider legal cultures (note the plural) and consider what perceptions, attitudes, values and modes of reasoning underpin the operation of the law. My choice of Fleming may be surprising, but what, on its face, is a textbook on tort law published for the Australian market is actually a comparative treatise identifying the core elements of the common law of torts. Fleming challenges us to understand the law of torts, again not just as a set of rules but as a set of principles that shape our understanding of when and why the common law of wrongs holds a person liable. In adopting a multi-jurisdictional approach which refers to tort law from across the common law world, this work provides us with a critical appreciation of tort law. Fleming’s background (he came to England from Germany in 1935, having been born Alfred Gunther Kochmann, and emigrated to Australia in 1949) gave him exceptional comparative insights into this area of private law. Whenever I seek inspiration as a tort lawyer, Fleming is my first port of call.


5. What do you think is the basis for good work in comparative law?


I take the view, expressed excellently by Vernon Palmer in his seminal article in the American Journal of Comparative Law,[2] that there is no one formula for “good” comparative law. As Palmer remarks, “good method is a function of variables, that method should be adapted to the purposes of the project and the individual circum- stances of those who pursue it, and that a multiplicity of methods has been a source of enrichment in the best comparative work.” For those working in my own field of comparative private law, I do believe that good comparative work requires an understanding of the legal system in a broader sense – its operation, values, and influences both legal and non-legal – and, when working in a different language, a good command of the nuances of legal language. My current project is a comparative common law study of the doctrine of vicarious liability in tort, examining its operation across the common law world, which includes, of course, the global North and South. While all the jurisdictions in question use English as the language of the courts, the study nevertheless will address how such language is used, to what extent what looks like a common legal formula actually operates differently in each jurisdiction and the extent to which the law has been influenced by domestic issues (e.g. statutory intervention; availability of insurance; state-based compensation schemes) and global problems (e.g. to what extent is vicarious liability being relied upon to deal with claims of institutional child sexual abuse and how should it react to the disintegration of traditional employment relationships?) It is an ambitious project, benefiting greatly from the involvement of local legal experts and seeks, as all my work does, to go beyond the surface legal rules to a deeper understanding of the operation of the law.


6. Is there any advice you would like to share with early-career researchers aspiring to become comparatists?


First, please do consider undertaking comparative work. It may not be easy – in a sense you are doubling, tripling etc your workload – but I do believe the insights you gain make it well-worth the effort. Secondly, persevere but be realistic. As researchers we often find it difficult to overcome obstacles, be they access to materials (particularly problematic during the pandemic) but also difficulties in understanding the significance of legal development in an unfamiliar legal and socio-economic background. Sometimes we have to give in – the sources are just not there, we lack the data to test our thesis, or our linguistic skills are not up to the mark. Other times, it is a case of finding another strategy. Here talking to someone helps. I have been fortunate to have a number of sounding boards over the years and it makes a huge difference. For PhD students working on comparative projects in the UK and Continental Europe, please do consider attending the annual postgraduate workshop of the British Association of Comparative Law (BACL). This forum allows PhD students to present their work, get feedback from comparative law experts and meet fellow Comparative Law PhD students (see https://british-association-comparative-law.org/postgraduate-workshops/). I was delighted to host two online PGR workshops for BACL this year and met some outstanding postgraduate students who are clearly the stars of the future! The Society of Legal Scholars also runs an annual conference each year which includes a PhD section and a specialist Comparative Law Subject Section and strongly encourages ECRs to present their work and network with comparative lawyers, young and old. There is also a mentoring programme for ECRs attending the conference (see The SLS - Society of Legal Scholars). As someone who gave her first comparative law research paper at the SLS, I can only recommend it!


 

[1] W. Menski, ‘Beyond Europe’ in E Örücü and D Nelken (eds), Comparative Law: A Handbook (Hart Publishing, 2007).

[2] ‘From Lerotholi to Lando: Some Examples of Comparative Law Methodology’ (2005) 53 American Journal of Comparative Law 261.

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