POSC 130g 1st Edition Lecture 23 Current Lecture Comparative Law In what ways can the study of comparative law help us understand American law The Comparative Method 1 Unit of analysis 2 Range of institutions 3 Similarities or differences Comparative Judicial Politics 3 basic questions posed by Henry Abraham professor at the University of Virginia How can the judiciary operate How does the judiciary operate How should the judiciary operate Courts Do all societies have courts Martin Shapiro Courts A Comparative and Political Analysis 1986 The logic of the triad it is the role of the third party to end disputes Look at institutions that serve various functions and are tools of various regimes Courts resolve conflicts and serve as a mechanism of social control and perform administrative functions Courts don t look the same in all different societies but all societies have some sort of court or third party that helps with disputes Methodological Issues 1 Projection go to a country and find what you are supposed to find Max Gluckman wrote a book about finding the reasonable man standard He describes what the conflict was and the rule applied to it It is a compilation of cases from village life and in all these cases they were applying the reasonable man test Projection is finding in the data something that represents own system Sometimes projection fails 2 Single country studies 3 Focus on judiciaries Key tool index to Foreign Legal Periodicals Functions of Comparative Law 1 Gap filling look to other countries for other ideas If the legislature is trying to decide a law the legislature might look for best practices about how its done elsewhere 2 Knowledge 3 Unification Other Types of Research 1 Legal transplants moving of a rule or a system of law from one country to another Alan Watson professor at the University of Georgia 2 Legal pluralism refers to the existence of multiple legal systems in the same territory a Indian Child Welfare Act ICWA so many Indian children were forced to be American Congress passed the law that if children were going to be given up to adoption the tribe got to decide who got control of the children Mississippi v Hollyfield mother tried to circumvent or get around ICWA tribe decides who gets ICWA The mother gave birth off the reservation did ICWA still apply What is in the best interest of the child Should the mother decide or the Indian tribe b Sharia Law in Oklahoma courts in the United States could use Islamic law The courts could not use Islamic law challenges in courts say that they can t enforce the law c Fons Strijbosch on Moluccans in the Netherlands case on immigrantssometimes immigrants will hold more strongly to their customs because it helps them identify Netherlands had a strict law that two sister villages could marry There were a lot of causes about incest One couple wanted to get married and not lose touch with their families and villages They went back to the place of origin but they said it wasn t a big deal Customs differ in areas 3 Tribunals regional human rights institutions Families of Law Ideal types Delineation of common features Common Law Civil Law Socialist Law Criticisms obsolete no pure system Common Law 4 periods 1 Anglo Saxon period before Norman conquest which was customary law governed disputes and region 2 Norman conquest formation of common law William the conqueror 1066 1485 Royal courts of Westminster handled royal finance land criminal matters Elaborate procedures Remedies precede rights 3 Equity courts 13th century Equity expression of natural justice Remedies are non monetary injunctive relief Equity courts act when common law fails to provide a remedy 4 Modern period 19th and 20th centuries Rise of sical welfare state Jeremy Bentham argued for simplifying procedures Judicature Acts of 1873 1875 Liberalism dominant until 1914 Key Characteristics 1 Legal reasoning precedent stare decisis Inductive what are the principles at stake Problems associated with precedent precedent could be wrong i e Plessy v Ferguson 3 Accusatory process fight theory rather than truth theory Presumption of innocence cornerstone of common law 5 What is not associated with common law Civil Law Tradition Much older than common law Associated with use of codes used codes to capture everything important in the legal system Early examples Code of Hammurabi The Napoleonic Code 1804 France Social functions of code Codes reflect the value system of that particular area Civil law is found all over the world and in central and south America Codes are supposed to be a social function of consolidating power and unify people around a set of values Key Characteristics 1 Legal reasoning 2 absence of stare decisis 3 deductive deductively apply code prevision to the conflict 4 judiciary opinions usually only one opinion Civil Law 2 Judges a Bureaucrats b Elaborate training c France National School for judges d Lower status that common law e Complex court structure 3 Inquisitoria Process a Judge of instruction has powers of magistrate and prosecutor b Enquete c guilty until proven innocent Implication for due process Questions 1 What are the implications of selecting judges in different ways 2 Are these traditions fundamentally different 3 Where is social change supposed to originate in each system 4 Which is preferable accusatorial or inquisitorial 5 In which system would a judge most like to serve Socialist Law A third family of law Socialist legality Procuracy centralizing agency Advokaturea weak bar Law associated with the sovereign a privilege of the bourgeoisie Promulgation of code Law a tool of politics Functions national security economic growth education Soviet jurists Eugence Oashukanis and Andrei Vyshinski Crime control model favored Criticisms Is socialist law really law Abuse of inquisitorial method No judicial review No separation between law and politics Comparative Public Policy 1 Legal duty to rescue a Good Samaritan laws 2 The unresponsive bystander a Kitty Genovese 23 people saw a lady being murdered and no one reported it b Sherrice Iverson little girl was murdered after being assaulted friend of the assailant saw 3 Question Should there be a duty to help strangers in distress On what basis