Week 3 - Comparing judicial reasoning Flashcards
(14 cards)
Professor Adams argues that one can not do comparative law on the basis of a ‘lonely planet’ guide, but rather use good binoculars. What does he mean by this?
A lonely planet guide offers basic information one is looking for. But, good binoculars symbolize the tools needed to zoom in and observe legal systems closely, while providing the ability to zoom out for a broader perspective at the same time.
Familiarity of the language of the legal system being analyzed is essential for a comprehensive understanding of its depth. What options does the researcher have for explaining foreign legal terms?
- Translating them via translation engines. These however may not provide accurate interpretations of legal concepts.
- An equivalent. A full equivalent is nearly impossible, because legal language is specific to a system and culture. A near-equivalent is also an option, but this is only an option if your public isn’t full of legal experts.
- Leave terminology untranslated. This is an option, however, the researcher must be able to explain what it means. This is the best option.
- Paraphrasing. This means that you are going to explain the term in your own words without looking for a translation.
- Neologism. You give an existing word or expression a new meaning.
According to Oderkrik, based on what should you select a case and/or a country for a comparative research?
Objective: the choice depends on what your aim is and what you want to know.
Subjective: the choice depends on your personal capacities, like language, time and experience.
Oderkirk has given five guidelines for when choosing cases and/or countrys for your legal research. What are these guidelines?
- If your aim is reflection, there are hardly any limitations, as long as you are looking for both differences and similarities.
- If your aim is to formulate new legislation, you should chose a legal system that can teach you something.
- If your aim is to formulate new legislation on a supranational level, you should chose the systems that need to be harmonized or the systems that can teach you something.
- If your aim is to improve legislation on a supranational level, you need to chose legal systems that can teach you something.
- Limiting factors: your choice is always dependent on your personal capacities.
Professor Adams compared the reasonings of the highest courts in the United States and France. He saw that the judgement in the United States was 154 pages long, whilst in France it was 3 sentences long. How did American scholar John Dawson react to this?
John Dawson criticized the French court for their extremely concise decisions. He comments that this type of judicial decisions is based on a tradition from a long time ago.
According to Dawson, the function of the highest court is to demonstrate to the world at large that the high court in exercising its exceptional powers, had arrogated nothing to itself and is merely enforcing law. By being concise, the French courts are not shaping or interpreting law, but merely explaining how it works.
Mitchel Lasser studied the French judiciary system in depth. To what conclusions did he come?
According to Lasser, in the French judiciary system, there is a hidden argumentative universe in which the French magistrats (judges) don’t argue in terms of formalist application of codified law.
This world cannot be seen in the formal judgments. Behind the scenes, the French judges do discuss the cases and its societal impact. Because of this, Lasser concludes that the French judges are more than a repeater of the lawmakers.
The French people have big trust in their highest court, even though they only see a few sentences every judgement. Why do the people trust the judges that much?
The judges undergo strict training and selection. Because of this, the people believe that the judges represent the values of the French people.
According to professor Adams, there are two ways to look at the American end the French judicial systems. What are these?
- Traditional point of view. The French official judicial discourse (rechterlijke uitspraken) is more formal, because they give short and abstract judgments, with the emphasis on applying law. The US official judicial discourse is more open-ended, because they create long, motivated judgments.
- Novel point of view. According to this view, the US judicial discourse is more formal, because the judges are including everything in the judgement. The French system is more open-ended, because of the unofficial judicial discourse that is not visible in the judgement.
According to Dawson, the French court couldn’t be able to get away with their extremely concise judgements.
What was the problem with the criticism on the French judicial system by Dawson?
Dawson couldn’t explain the differences between the systems, because he looked at the French system with American spectacles on. There was a bias.
Because Dawson was bias, he couldn’t explain how the French system has been functioning for all these years relatively well.
The challenge of the civil law style of argumentation is: “How to
maintain legislative supremacy while at the same time encouraging and yet controlling judicial interpretative authority”
The challenge of the American system is: how can we be
transparent, and should we be argumentative?
How can these different challenges in the different systems be explained?
The different systems fase different challenges, because in each system democratic legitimacy means something else.
In the US, it is seen as reasoning openly and clearly, whilst in France the democratic legitimacy occurs through trust in the highly educated judges that will not take the role of the legislator.
Regarding the differences between the French and US judiciary system, two research questions can be formulated.
How do different legal systems deal with the problem of
the legitimacy of the judicial decision in the context of a
short argumentation?
How can the French judicial decision be understood,
and what is in that context the meaning of legitimacy and
the function of judicial argumentation?
Which one is the bad question, and why is it not a good one?
The first question isn’t good. Within this question, there is a bias and tunnel vision.
In the second research question, this bias is eliminated.
Apart from the criticism of Dawson and Lasser, there was also criticism in France. Former president of the French cour de cassation Guy Canivet had criticism. What was his criticism on the French system?
According to Canivet, the judicial debate has to be made comprehensible to society at large. This means that the judges should be more transparent in their judgements. Not only lawyers should be able to understand the judgements, but every person in society.
Canivet states that the American judge drafts its decisions from a pedagogical perspective. They contain a broad explanation of the facts, what the problem is, what rules apply and why they make certain decisions. In France the decisions are written by lawyers, for lawyers.
What are the rules of thumb when comparing?
- You should not only be aware of what is going on at the stage, but also what is going on backstage.
- Comparative research is a learning experience, not a lonely planet. One should be open for similarity, difference and the unpexpected.
- One should become aware of his assumptions, and not project characteristics of his own onto the object of scholarly attention. (vermijd ‘ethno-centrism’: de neiging om je eigen systeem als normaal of superieur te beschouwen).
- Each legal system should in first instance be judged upon in its own terms, because the shape of it is always an answer to a specific ‘problematic’.
- Don’t be satisfied too soon with your findings.
- Cast the research net wide. You should look beyond your own direct interests.
Adams, M. (2018). Structuur, praktijk en theorie van rechtsvergelijkend onderzoek.
Adams states that focussing solely on official laws can restrict our understanding of legal systems. Explain this in the light of euthanasia laws across Europe.
Some countries have explicit legislation on euthanasia, whilst other regulate similar practices under different terms, like pain management.
Also, there are non-legal sources that significantly influence the behavior of stakeholders on a certain subject like euthanasia. Think about materials like expert advice or medical codes.
Social norms also play a big role in legal practices. Sometimes there is a disjunction between legal norms and social practices.
