Lecture 3 | Comparing judicial reasoning

Question 1

What did Prof M. Adams say about the link between comparative law, a lonely planet guide and binoculars?

Answer 1

• says you can’t do comparative law on the basis of a lonely planet, you should rather use good binoculars with attention for similarities and differences.
• lonely planet guide: offers just basic info and surface-level insights someone is looking for
• good binoculars: symbolize the tools needed to zoom in and observe legal systems closely

Question 2

What does language and translation mean in comparative law?

Answer 2

• primary choice: you should speak the language of legal comparison
• secondary choice: sometimes research circumstances may require it -> translating
  > use a near-equivalent, or;
  > leave local terminology untranslated
  > use a new term or redefine an existing one to describe the legal concept

Question 3

What does the highest courts’ reasoning mean of the US and France

Answer 3

US: very complex, long
France: short, just the statement of what the court thinks

Difference is in justification

Question 4

What is the comment by American scholar J. Dawson about the highest courts’ reasoning: American vs. French?

Answer 4

he raised the question about personal responsibility of judges. as a judge you have a responsibility to make choices and to motivate your choices, which are being avoided this way. this is not acceptable! they hide behind and refuse to admit to doing more than just applying the law

Question 5

What is the analysis by M. Lasser about the highest courts’ reasoning: American vs. French? -> he critised Dawson

Answer 5

• french approach to judicial decision-making is heavily influenced by the country’s history and political culture, which places a strong emphasis on the role of the state and the collective will of the people.
• french judicial system represents hierarchy, experise and centralization.

Question 6

What does the critic on Dawson by Lasser contain?

Answer 6

• Dawson cannot explain the difference between France and USA: he looked at France from the American perspective.

he did not put away his tacit knowledge. he did not look of the internal point of view of France (hermeneutic approach), and put the systems side by side but not put them into dialogue, he also did not cast the net wide (looking for underlying reasons), getting under the skin of the system, lonely planet guide.

• so Dawson has applied US meaning to the French system: BIAS! he did not take into consideration that there are different systems, different kinds of thinking

Question 7

What does a good research question contain?

Answer 7

Good research question:  should be open, not limited, allowing you to consider all the important concepts/contexts.
- Not: how do different legal systems deal with the problem of the legitimacy of the judicial decision in the context of a short argumentation?: Bias and tunnelvision.
- But: how can the French judicial decision be understood, and what is in that context the meaning of legitimacy and the function of judicial argumentation?

Question 8

What does the Rule of thumb mean?

Answer 8

1. comparatists should be putting the legal systems into dialogue
2. comparatists should zoom in and look at similarities (pair of binoculars)
3. comparatists should use their tacit knowledge and make it explicit
4. each legal system should in the first instance be judged upon in its own terms (language aspect)
5. don’t be satisfied too soon with your findings, especially if you like what you find.
6. cast the research net wide, if possible and necessary (underlying reasons)