Abstract:
This article explores the source ‘general principles of international law’ from the point of view of comparative law scholarship. The currently accepted definition of general principles and methodology for identifying such principles are critiqued. The criterion of the representativeness of the major families of legal systems, to which courts and tribunals tend to pay lip service rather than applying rigorously, is meant to anchor general principles in state consent, but is not a sound technique either for identifying principles of relevance to international law or for preventing judges from referring only to the legal systems they know best. Furthermore, the emphasis on extracting the essence of rules results in leaving behind most of what is interesting and useful in what judges may have learned by studying municipal legal systems. Comparative scholarship is an obvious, rich, and strangely neglected source of guidance for international judges who wish to draw insights from legal systems outside international law.
Ellis, Jaye, General Principles and Comparative Law (2011). European Journal of International Law, Vol. 22, No. 4, 2011.
Purpose
Thursday, January 10, 2013
Translating Civil Law 'Objectivity' with an Adversarial Brain: An Ethnographic Perspective
Abstract:
The act of translation encompasses more than the transfer of linguistic meaning. It also involves the transfer of larger cultural and epistemological meanings (Wolf, 2011). When legal texts are the object of translation, the process includes the “mechanism of the law” (Šarčević 2000:1). The role of a linguist and translation theory in this process is contested (Harvey 2002) as some scholars have argued that legal texts possess a unique communicative function often overlooked by linguists (Šarčević 2012:189). While legal scholars have questioned linguists’ claims to participate the law related interpretation process, this chapter sidesteps that debate (Poirier 1995: 1034). Instead I address the problems of subjectivity and interpretation that legal scholars themselves face as they attempt to analyze the role that law plays on unfamiliar turf. I identify and detail two challenges embedded in comparative legal jurisprudence. One stems the pitfalls that legal scholars encounter when they rely on legal texts as a source of understanding rather than investigating how the law actually functions on the ground. The second stems from the comparative legal scholar’s subjectivity.
In the field of comparative law, these "translation" errors as well as problems of subjectivity colored English-language scholarship regarding the objectivity of German prosecutors for several decades. I show how scholars' use of German codes as a proxy for German practice led scholars to claim that the German criminal justice system effectively controlled prosecutorial discretion. While new scholarship on German plea bargaining practices attempts to destroy the myth of limited discretion, it misses the role that organizational culture and training play in shaping decision-making processes. Drawing from my fieldwork in Germany, I use examples from my own experience to show the dangers of researcher subjectivity. The paper concludes with a call for further comparative research that goes beyond am examination of foreign texts and explores foreign legal practices.
Boyne, Shawn Marie, Translating Civil Law 'Objectivity' with an Adversarial Brain: An Ethnographic Perspective (January 9, 2013).
The act of translation encompasses more than the transfer of linguistic meaning. It also involves the transfer of larger cultural and epistemological meanings (Wolf, 2011). When legal texts are the object of translation, the process includes the “mechanism of the law” (Šarčević 2000:1). The role of a linguist and translation theory in this process is contested (Harvey 2002) as some scholars have argued that legal texts possess a unique communicative function often overlooked by linguists (Šarčević 2012:189). While legal scholars have questioned linguists’ claims to participate the law related interpretation process, this chapter sidesteps that debate (Poirier 1995: 1034). Instead I address the problems of subjectivity and interpretation that legal scholars themselves face as they attempt to analyze the role that law plays on unfamiliar turf. I identify and detail two challenges embedded in comparative legal jurisprudence. One stems the pitfalls that legal scholars encounter when they rely on legal texts as a source of understanding rather than investigating how the law actually functions on the ground. The second stems from the comparative legal scholar’s subjectivity.
In the field of comparative law, these "translation" errors as well as problems of subjectivity colored English-language scholarship regarding the objectivity of German prosecutors for several decades. I show how scholars' use of German codes as a proxy for German practice led scholars to claim that the German criminal justice system effectively controlled prosecutorial discretion. While new scholarship on German plea bargaining practices attempts to destroy the myth of limited discretion, it misses the role that organizational culture and training play in shaping decision-making processes. Drawing from my fieldwork in Germany, I use examples from my own experience to show the dangers of researcher subjectivity. The paper concludes with a call for further comparative research that goes beyond am examination of foreign texts and explores foreign legal practices.
Boyne, Shawn Marie, Translating Civil Law 'Objectivity' with an Adversarial Brain: An Ethnographic Perspective (January 9, 2013).
Friday, December 21, 2012
'One Size Can Fit All' – On the Mass Production of Legal Transplants
Abstract:
Law reformers like the World Bank sometimes suggest that optimal legal rules and institutions can be recognized and then be recommended for law reform in every country in the world. Comparative lawyers have long been skeptical of such views. They point out that both laws and social problems are context-specific. What works in one context may fail in another. Instead of “one size fits all,” they suggest tailor made solutions.
I challenge this view. Drawing on a comparison with IKEA’s global marketing strategy, I suggest that “one size fits all” can sometimes be not only a successful law reform strategy, but also not as objectionable as critics make it to be. First, whereas, “one size fits all” is deficient a functionalist position, it proves to be surprisingly successful as a formalist conception. Second, critics of legal transplants often insists on what can be called “best law” approach, whereas in law reform, what we sometimes need is law that is just” good enough” law. “Third, legal transplants no longer happen in isolation but rather on a global scale, so that context-specific rules are no longer necessarily local.
This is not a plea for formal law, for commodification of laws, and for “one size fits all”. But it is a plea to overcome the romanticism and elitism that may lurk behind the seemingly benign suggestion that law reform must always be tailored to the specific societal context.
Michaels, Ralf, 'One Size Can Fit All' – On the Mass Production of Legal Transplants (December 19, 2012). ORDER FROM TRANSFER—STUDIES IN COMPARATIVE (CONSTITUTIONAL) LAW, Günter Frankenberg ed., Elgar, 2013.
Law reformers like the World Bank sometimes suggest that optimal legal rules and institutions can be recognized and then be recommended for law reform in every country in the world. Comparative lawyers have long been skeptical of such views. They point out that both laws and social problems are context-specific. What works in one context may fail in another. Instead of “one size fits all,” they suggest tailor made solutions.
I challenge this view. Drawing on a comparison with IKEA’s global marketing strategy, I suggest that “one size fits all” can sometimes be not only a successful law reform strategy, but also not as objectionable as critics make it to be. First, whereas, “one size fits all” is deficient a functionalist position, it proves to be surprisingly successful as a formalist conception. Second, critics of legal transplants often insists on what can be called “best law” approach, whereas in law reform, what we sometimes need is law that is just” good enough” law. “Third, legal transplants no longer happen in isolation but rather on a global scale, so that context-specific rules are no longer necessarily local.
This is not a plea for formal law, for commodification of laws, and for “one size fits all”. But it is a plea to overcome the romanticism and elitism that may lurk behind the seemingly benign suggestion that law reform must always be tailored to the specific societal context.
Michaels, Ralf, 'One Size Can Fit All' – On the Mass Production of Legal Transplants (December 19, 2012). ORDER FROM TRANSFER—STUDIES IN COMPARATIVE (CONSTITUTIONAL) LAW, Günter Frankenberg ed., Elgar, 2013.
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