POSC 130g 1st Edition Lecture 23 Current LectureComparative LawIn what ways can the study of comparative law help us understand American law?The Comparative Method1. Unit of analysis2. Range of institutions3. Similarities or differencesComparative Judicial Politics3 basic questions posed by Henry Abraham, professor at the University of VirginiaHow can the judiciary operate?How does the judiciary operate?How should the judiciary operate? CourtsDo 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 disputesLook 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” orthird party that helps with disputesMethodological Issues1. 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 conflictwas and the rule applied to it. It is a compilation of cases from village life and in all thesecases, they were applying the reasonable man test. Projection is finding in the data something that represents own system. Sometimes projection fails. 2. Single country studies3. Focus on judiciariesKey tool: index to Foreign Legal Periodicals Functions of Comparative Law1. 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. Knowledge3. UnificationOther Types of Research1. Legal transplants- moving of a rule or a system of law from one country to another; Alan Watson, professor at the University of Georgia2. Legal pluralism- refers to the existence of multiple legal systems in the same territorya. 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 immigrants- sometimes 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 institutionsFamilies of LawIdeal typesDelineation of common featuresCommon LawCivil LawSocialist LawCriticisms- obsolete, no pure systemCommon Law4 periods1. Anglo-Saxon period before Norman conquestwhich was customary law governed disputes and region2. Norman conquest: formation of common lawWilliam the conqueror1066-1485Royal courts of Westminster handled: royal finance, land, criminal matters.Elaborate proceduresRemedies precede rights3.Equity courts13th centuryEquity- expression of natural justiceRemedies are non-monetary- injunctive reliefEquity courts act when common law fails to provide a remedy4. Modern period19th and 20th centuriesRise of sical welfare stateJeremy Bentham- argued for simplifying proceduresJudicature Acts of 1873-1875Liberalism dominant until 1914Key Characteristics1. Legal reasoningprecedent- stare decisisInductive- what are the principles at stakeProblems associated with precedent, precedent could be wrongi.e. Plessy v Ferguson 3. Accusatory process“fight theory” rather than “truth theory”Presumption of innocence- cornerstone of common law5. What is not associated with common law?Civil Law TraditionMuch older than common lawAssociated with use of codes- used codes to capture everything important in the legal systemEarly examplesCode of HammurabiThe Napoleonic Code (1804)- FranceSocial functions of codeCodes reflect the value system of that particular areaCivil law is found all over the world and in central and south AmericaCodes are supposed to be a social function of consolidating power and unify people around a set of values. Key Characteristics1. Legal reasoning2. absence of stare decisis3. deductive- deductively apply code prevision to the conflict4. judiciary opinions- usually only one opinionCivil Law2. Judgesa. Bureaucratsb. Elaborate trainingc. France- National School for judgesd. Lower status that common lawe. Complex court structure3. Inquisitoria Processa. Judge of instruction- has powers of magistrate and prosecutorb. Enquetec. guilty until proven innocentImplication for due processQuestions1. 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 LawA third family of law?Socialist legalityProcuracy- centralizing agencyAdvokaturea- weak barLaw associated with the sovereign- a privilege of the bourgeoisiePromulgation of codeLaw a tool of politicsFunctions- national security, economic growth, educationSoviet jurists: Eugence Oashukanis and Andrei VyshinskiCrime control model favoredCriticismsIs socialist law really law?Abuse of inquisitorial methodNo judicial reviewNo separation between law and politicsComparative Public Policy1. Legal duty to rescuea. Good Samaritan laws2. The unresponsive bystandera. Kitty Genovese: 23 people saw a lady being murdered and no one reported itb. 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