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Lecture 3) Comparing judicial reasoning - Coggle Diagram
Lecture 3) Comparing judicial reasoning
Language and translation
Familiarity with the language of the legal system being analyzed is essential for a comprehensive understanding of its dept.
It is hardly possible to find a full equivalence because the legal language is so specific to each system and culture.
When conducting a comparative analysis with near-equivalent terms, it is important to consider the audience and context.
It is crucial to acknowledge the differences and avoid misleiding translations.
It is also possible to leave the terminology untranslated.
You should be able to explain the similarities and differences in the comparative analysis. This can be achieved by paraphrasing and neologism: giving a new meaning to an existing word or expression.
Highest courts' reasoning: American versus French
United
States
: Heller case (2008) - they gave a 150-page judgement.
France
: they gave the judgement in a few sentences.
Mitchel Lasser
French magistrate argue not in terms of formalist application of codified law, but in terms of the social repercussions of their past, present and future judicial decisions.
French courts do discuss the cases, but more 'behind the scenes'.
Open-ended and unstructured terms of equity and justice
French magistrate demonstrate a very different conception of the institutional competence the French judiciary, one that addresses the concerns of French academic doctrine in a way that the syllogistic French judicial decisions obviously do not.
In France the analysis of the checks and balances of the judicial system is based on:
Conclusions.
Concepts of Verdicts.
Doctrine.
Case Notes.
Annual Report for the Minister of Justice.
The French trust their highest court (Cour de Cassation), because judges undergo strict training and selection based on meritocracy. The French judicial system represent the 'key notions' of centralization, hierarchy and expertise, with the Cour de Cassation on top.
John Dawson
Criticizes the French courts for their extremely concise decisions.
The stereotyped style of modern French judicial opinions is a survival from a time that is now remote but has not been forgotten.
He suggests that the ideas of that style have also survived, that the primary function of a Supreme Court is to demonstrate to the world at large that the Supreme Court is exercising its exceptional powers, has usurped nothing, and is merely upholding the law.
By being concise, French courts are not shaping or interpretating law, but merely explaining how it works. This supports the old notion regarding the Trias Politica.
''Whereas'' clauses
Judges are essentially acting as instruments of the law.
It implies that judges may not exercise personal agency in interpreting or applying law. Judges have te duty to make and explain decisions. Avoiding this responsibility by only applying the law without acknowledgement is considered unacceptable. It conceals their actions and denies their active role in the legal process.
Dawon was not able to explain the differences between the French and American higher courts' reasoning because he looks at the Franch with American spectacles (bias). According to Dawson the French courts' could not get away with all this.
The challenge of the civil 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
: ''How can we be transparant, and should we be argumentative?''
John
Bell
:
One can only understand the foreign legal system by casting the net wide and looking through an internal point of view.
Professor Adams: two ways of looking at this
Traditional point of view
France: more formal.
United States: more open-ended.
Novel point of view
United States: more formal.
France: more open-ended.
Rules of thumb
Practicing comparative law is a '
learning experience
', not a 'lonely planet'. A comparatist must not be a tourist following a predetermined route. He must be
open to similarities, differences and the unexpected
.
Cast the research net widely
, if possible and necessary.
A comparatist must not only be aware of what is happening
on stage
(the stage and the decor), but also of what is happening
behind the scenes
.
A comparatist must become
aware of his assumption
s and not project his own characteristics onto the object of his scientific attention (getting rid of 'ethnocentrism'). But pragmatism helps.
Each legal system must
first be judged on its own terms
, because its form is always a response to a specific 'problem'. Let the systems speak for themselves first (this is related to the language issue), and then you can be critical.
Don't be satisfied too soon
with your findings (especially if you are satisfied with what you find).