Comparative legal research
Comparative legal research is a type of research methods that bases its focus on policy and the legal framework in a country concerning specific issues. The research usually includes a review of legislation in the country of interest and a comparison of similar legislation from other countries with the aim of reinforcing a notion or proving the need for a different perspective on some pertinent issues. For instance, the issue of concern in Charlotte Villiers’ article is gender discrimination in the boardroom, placing the spotlight on legislation in the United Kingdom. Villiers chooses Spain and Norway as her countries of choice for the development of her comparative research. An individual may choose from a diverse range of legislation, including international legislation such as the United Nations Declaration of Human Rights and Freedoms, depending on his or her aim for the research.1
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One of the main purposes of comparative legal research is the analysis of specific legislation in relation to the topic of concern while adding weight into it by comparing it with similar legislation that is already in use in another country. In her article, Villiers analyses possible legislation that could be implemented in the United Kingdom, which regulates discrimination, employment and requirements on payment on matters relating to women and their participation in the corporate boardrooms.
She analyses the Sex Discrimination Act 1975, the Equal Pay Act 1970 and the Work and Families Act 2001 in a bid to assess and determine their adequacy in curbing discrimination against the employment of women in corporate boardrooms, especially in large public corporations. In her analysis of the adequacy of the legislation, she indicates the main provisions in comparison to the current practice in order to prove that the current legislation is insufficient, and hence requires an amendment2. In addition, Villiers compares the legislation to similar legislation being used in Norway and Spain.
Secondly, comparative legal research highlights areas of weakness in the legislation in question in comparison to another similar but better legislation being used in another state3. An analysis of an issue of concern and the respective legislation usually indicates areas of lack in the legislation that forms part of a researcher’s argument, which in most cases comprises a review and often the amendment of the legislation that is under scrutiny. There are loopholes in the current legislation in the United Kingdom with regard to safeguarding women against discrimination in the corporate boardroom, especially in relation to promotions and payment4.
Villiers is keen to note that although the current legislation provides an avenue for recourse in cases of discrimination during the recruitment and initial employment stages in the corporate world in the UK, it fails to provide for measures against indirect discrimination, as is usually the case when it comes to selection for boardroom positions and payments. She highlights factors such as stereotyping, informal subjective decisions, and the individual’s natural way of discrimination and prejudice as cases that cause difficulties in legal redress.
Thirdly, comparative legal research forms an avenue for the justification of the need for new legislation or an amendment to the current legislation in an effort to make it better. It provides a researcher with the opportunity to make prescriptive recommendations that include the need for new legislation, with proof of its necessity from legislation in other countries or areas of study. For her article, Villiers indicates the existence of a gap in current legislation in the UK and the need for the implementation of new legislative amendments that would fill the existing gap5.
She describes provisions in Norway, Spain, and the effects they have had in dealing with a similar problem in the countries due to the implementation of new legislation that could solve the problem at hand. For instance, she describes how the enforcement of quotas in Norway requiring the employment of forty per cent of each gender into boards of each public corporation and all companies in the stock market has led to a substantial rise in the number of women in the boardrooms.6
Comparative legal research presumptions of similarities
In the conduct of comparative research, scholars highlight two predominant presumptions, namely the presumption of similarity and presumption of difference. The two presumptions stem from the notion that in the research, the researcher assumes that the subjects of comparison bear either similar features or similar differences that aid the researcher in the development of strong arguments in the research. Both presumptions apply in research involving a qualitative analysis and quantitative analysis alike.
The presumption of similarity is a principle of comparative research that states that researchers, in their arguments, choose subjects, objects or circumstances that match the subject of their discussion in support of their viewpoint. For instance, in Villiers’ article, she compares legal provisions that could be introduced in the United Kingdom with those in Norway and Spain in support of her prescription for legislative provisions that encourage the selection of women in the corporate boardrooms in the United Kingdom.
Scholar Gerhard Danneman states that one of the main characteristics of the principle in relation to legal comparison is the similarity of legislation or circumstances surrounding the subject of the study. In this article, Villiers picks Norway and Spain because of their similarity in the circumstances in terms of discrimination of women in corporate boardrooms that once existed before the new legislation that protects women against prejudice and discrimination in the boardrooms had been implemented. The two states also share similarities with the United Kingdom in terms of their historical background with the problem.
In history, women in all three states have experienced the same level of discrimination when applying for directorship positions and the subsequent payment issues after appointment into the said positions7. The author also chooses to include countries such as Canada and the United States of America that currently experiences the same problem and lack solutions, as is the case with the United Kingdom. She provides statistical data indicating that women in Canada occupy 14% of directorship positions while in the United States of America there is equally a similar percentage, of about 15%8. Although the presumption proves valuable in supporting the author’s objectives for the research, Michael Green states that it is important to note that other factors govern the resultant outcome of circumstances in states that serve as comparison thus the results of the research serve better suggestive guidelines than the prescriptive solutions.9
Comparative legal research presumptions of differences
A presumption of difference is one in which the author perceives a difference in circumstances or the subject of discussion in the enhancement of her argument. In most cases, the presumption of the difference principle applies as negative reinforcement for an argument. For instance, an author may choose to prove why certain legislation would not be appropriate by displaying the negative effects its application has had on another country. 10
In other words, the presumption of difference is simply the opposite of the presumption of similarity. While the presumption of similarity is based on the better legislations used in Norway and Spain with a view of making the UK legislation similar to those, the presumption of difference looks into the legislation of the UK from the negative perspective with a view to make it look worse than others or inferior to them. For instance, the UK legislation on the rights of women to have equal rights as men in the boardroom is incomparable to the same legislation in Norway and Spain.
The author uses a presumption of difference in answering her research question: Has that time arrived in the UK? By using the cases of Norway and Spain as the main points in making a comparison, she makes the UK legislation look inferior to those of Norway and Spain, and hence making the readers feel the urgent need to look into that matter. Therefore, both the presumption of similarity and presumption of difference is used to create an impression that would drive the reader into getting the seriousness of the research problem, and hence creating anxiety for the need of an urgent solution to the highlighted problem. That explains why the author chose to stand by the presumption of difference as it emphasises the seriousness of the problem of lacking legislation that would boost the empowerment of women at corporate boardrooms.
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Author’s Choice of Jurisdiction Compared
Villiers chose to stand by the jurisdiction that women need to be empowered at the corporate boardrooms in the UK. She asked a leading question as to whether the time has come for the UK to pass legislation that would push for the implementation of gender equality in the corporate boardrooms. She stresses the advantages of having a large number of women at the corporate boardroom that would be experienced more than the ones being experienced today.11
She used the comparison of Norway and Spain legislations on the problem as the key points of adding weight to her jurisdiction. She finds out that women in both Norway and Spain are more empowered than women in the UK are, and uses that fact as a key point of comparison. In addition, she says that women in the UK were once ahead of those in the above two countries, but the passing of the legislation has resulted in a big difference in the advantage of women in the two countries. 12
However, she highlighted some advantages of having more women in the boardroom that would not add much weight to her jurisdiction. For instance, she points out that more women participating in the decision-making process would result in better performance of businesses than they have been performing. I want to disagree with her on the basis that performance of a business does not rely on who made the decision, but rather the nature of the decision and the ability of such a decision to bring forth the desired results.
However, she could have twisted that point in another way and make it valuable. For instance, she could have said that more women participating in the decision-making process in the corporate women would ensure that the rights of women are well-governed and protected and hence improve their working environments. That would also result in women performing better than they have been performing. Comparing the performance of corporations in Norway and Spain with those of the UK, the differences cannot be said to be due to empowering women by having them in large numbers at the decision-making processes. Rather, the morale of women can be said to be much higher for those in both Norway and Spain than in the UK due to them having better working conditions than their counterparts do in the UK do.
Her choice of jurisdiction is also added weight by the fact that research has shown that women are better performers than men are at the levels of top leadership positions are. The case is not always true, but there is a higher chance of a man abusing his office than a woman abusing her powers. Hence, the battle of sex game comes into play in arguing who is better in a certain position, with regard to gender. The case is not always true as the issue of abusing powers in the office is a matter of moral authority rather than natural instincts.13
Going by her choice of jurisdiction, there is a great need for the implementation of the legislation that would help to see more women are empowered in the UK. It is necessary for women to have equal rights as men just as the men were granted the right to paternity leave in the Work and Families Act of 2006. The problem that we have today is seemed to be based on both the culture and men fearing women empowerment.14
Culturally, women were supposed to carry out household chores as men went for work. However, the feminist movements fought for the rights of women to be economically empowered as men. Majority of men were reluctant, as they perceived the empowering of women as if would free them from household chores, but lastly, they were empowered. On the other hand, men retained more rights than women at the working environments, which have resulted in women realising that time has come for them to fight for the rights of being at the decision making organs.
Once again, men are reluctant as they perceive the move as intended to deny them some rights to the advantage of women, but the author is not up against the battle against men but the rights of women for the benefit of all inclusively. Hence, her choice of jurisdiction has come at the right time for the UK, but more education ought to be done in order for the majority to understand the importance of empowering women and giving them equal rights as men.
In addition, the performance of corporations appears better to many, but Villiers and other researchers such as the European Union see it not yet better. Their view is based on the notion that most of the participants in the boardroom are men and judging by the superiority of gender; men are more reluctant than men are. In addition, she argues that men are well known for failing to attend such crucial meetings that women if given a chance, would attend in larger numbers. Hence, the performance of businesses would improve if more women were given a chance to participate in the boardrooms.
The extent to which this article embodies prescriptive legal scholarship
The article is partially a descriptive argument, but some legal scholarships have been applied to add some weight to the research question. This approach is essential where the research is both comparative and descriptive, as is the case of Villiers’ case. The issue of the rights of women in society has been emphasised by numerous legal scholars, human rights, and research institutions all over the world15. However, she ought not to have relied much on them, as it would appear shallow research. Hence, a great need to make it descriptive as a legal scholarship would only add weight to her independent argument.
Research ought to be independent and a unique way of finding a solution to a problem that affects society. To make research unique, the researcher is supposed to identify a problem that has a knowledge gap. The knowledge gap is identified using other research findings that do not recommend the highlighted problem. Gender inequality has been a common research problem, but Villiers used it as a boost to her research question, which made it appear uniquely developed research.
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Villiers, C, ‘Achieving gender balance in the boardroom: is it time for legislative action in the UK’, Legal Studies, vol. 30, no. 4, 2010, pp. 533–557.
- G James, ‘The Work and Families Act 2006: legislation to improve choice and flexibility’, Industrial Law Journal, vol. 35, no.3, 2007, p. 272.
- M Ryan & S Haslam, ‘The glass cliff: evidence that women are over-represented in precarious leadership positions’, British Journal of Management, vol.81, no. 7, 2009, p.101.
- R Adams & D Ferreira ‘Women in the boardroom and their impact on governance and performance’, Journal of Financial Economics, vol. 94, no.2, 2009, p. 293.
- J Grosvold, S Brammer & B Rayton ‘Board diversity in the United Kingdom and Norway: an exploratory analysis’, Business Ethics: A European Review, vol. 3, no. 7, 2009, p. 345.
- J Rosener, Women on corporate boards makes good business sense, 2003. Web.
- C Villiers, ‘Achieving gender balance in the boardroom: is it time for legislative action in the UK?’, Legal Studies, vol. 30, no. 4, 2010, p. 537.
- M Large & M Saunders, ‘A decision-making model for analysing how the glass ceiling is maintained: unblocking equal promotion opportunities’, The International Journal of Career Management, vol. 2, no.2, 1995, p. 23.
- United Nations Global Compact, United Nations Development Fund for Women and UN Global Compact, Women’s Empowerment Principles: Equality Means Business, 2011. Web.
- F Millikens & L Martins ‘Searching for common threads: understanding the multiple effects of diversity in organisational groups, Academy of Management Review, vol. 21, no. 8, p. 402.
- M Becht, L Enriques & V Korom, ‘Centros and the cost of branching’, Journal of Corporate Law Studies, vol. 171, no. 9, 2005, p. 43.
- E Carracciolo, ‘New Labour, new dads: the impact of family friendly legislation on fathers’, Industrial Law Journal, vol. 318, no. 6, 2007, p. 89.
- M Innes, Investigating Murder: Detective Work and the Police Response to Criminal Homicide, Oxford University Press, Oxford, 2008, p.94.
- D Rosenblum ‘Feminising capital: the economic imperative for women’s corporate leadership’, Berkeley Business Law Journal, vol.9, no. 7, 2009, p. 90.
- A Konrad, V Kramer & S Erkut ‘The impact of three or more women on corporate boards’, Organisational Dynamics, vol. 37, no. 7, 2006, p. 67.
- R Anderson & H Baker, Corporate Governance: A Synthesis of Theory, Research, and Practice, John Wiley, New York, 2010, p. 91.