Comparative Judicial Systems. Challenging Frontiers in Conceptual and Empirical Analysis PDF
Preview Comparative Judicial Systems. Challenging Frontiers in Conceptual and Empirical Analysis
ADVANCES IN POLITICAL SCIENCE An International Series Published in cooperation with the International Political Science Association Series Editor Richard L. Merritt University of Illinois Editorial Board Helio Jaguaribe de Mattos, Conjunto Universitdrio Cdndido Mendes Hans Klingemann, Freie Universitdt Berlin Jean Laponce, University of British Columbia Arend Lijphart, University of California, San Diego John Meisel, Queen's University, Kingston Marcel Merle, Universite de Paris I (Sorbonne) Elinor Ostrom, Indiana University Vadim S. Semenov, Institute of Philosophy, Moscow Michitoshi Takabatake, Rikkyo University Volumes published in this series: 1. THE EMERGING INTERNATIONAL ECONOMIC ORDER: Dynamic Processes, Constraints, and Opportunities (edited by Harold K. Jackobson and Dusan Sidjanski) 2. MANAGING INTERNATIONAL CRISES (edited by Daniel Frei) 3. WHY GOVERNMENTS GROW: Measuring Public Sector Size (edited by Charles Lewis Taylor) 4. INNOVATION IN THE PUBLIC SECTOR (edited by Richard L. Merritt and Anna J. Merritt) 5. COMMUNICATION AND INTERACTION IN GLOBAL POLITICS (edited by Claudio Cioffi-Revilla, Richard L. Merritt, and Dina A. Zinnes) COMPARATIVE JUDICIAL SYSTEMS Challenging Frontiers in Conceptual and Empirical Analysis John R. Schmidhauser Editor Butterworths London Boston Durban Singapore Sydney Toronto Wellington All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, including photocopying and recording, without the written permission of the copyright holder, applications for which should be addressed to the Publishers. Such written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. This book is sold subject to the Standard Conditions of Sale of Net Books and may not be resold in the UK below the net price given by the Publishers in their current price list. First published 1987 © International Political Science Association, 1987 British Library Cataloguing in Publication Data Comparative judicial systems: challenging frontiers in conceptual and empirical analysis. — (Advances in political science) 1. Law and politics 2. Comparative law I. Schmidhauser, John R. II. Series 342 K3165 ISBN 0-408-03165-4 Library of Congress Cataloging-in-Data Comparative judicial systems. (Advances in political science; [6]) In part based on papers presented at the conference organized by the Research Committee for Comparative Judicial Studies of the International Political Science Association and held at Mansfield College, Oxford University, April 6-8,1981. Bibliography: p. 1. Courts—Congresses. 2. Judicial review- Congresses. 3. Judicial process—Congresses. I. Schmidhauser, John R. (John Richard), 1922- II. International Political Science Association. Research Committee for Comparative Judicial Studies. III. Series. K2100.A55 1981 347'.012 87-13151 ISBN 0-408-03165-4 342.712 Phototypesetting by En to En, Tunbridge Wells Printed and bound in Great Britain by Anchor Brendon Ltd, Tiptree, Essex FROM THE SERIES EDITOR Advances in Political Science: An International Series reflects the aims and intellectual traditions of the International Political Science Association: the generation and dissemination of rigorous political inquiry free of any subdisciplinary or other orthodoxy. Along with its quarterly companion publication, the International Political Science Review, the series seeks to present the best work being done today (1) on the central and critical controversial themes of politics and/or (2) in new areas of inquiry where political scientists, alone or in conjunction with other scholars, are shaping innovative concepts and methodologies of political analysis. Political science as an intellectual discipline has burgeoned in recent decades. With the enormous growth in the number of publications and papers and their increasing sophistication, however, has also come a tendency toward parochialism along national, subdisciplinary, and other lines. It was to counteract these tendencies that political scientists from a handful of countries created IPSA in 1949. Through roundtables organized by its research committees and study groups, at its triennial world congresses (the next of which takes place in August 1988 in Washington, DC), and through its organizational work, IPSA has sought to encourage the creation of both an international-minded science of politics and a body of scholars from many nations (now from more than forty national or regional associations), who approach their research and interactions with other scholars from an international perspective. Comparative Judicial Systems: Challenging Frontiers in Conceptual and Empirical Analysis, edited by John R. Schmidhauser, is the sixth volume in Advances in Political Science: An International Series. Like its predecessors, it comprises original papers which focus in an integrated manner on a single, important topic — in this case, comparative judicial structures and processes — and its authors, from various countries and social systems, take differing approaches to the central theme. The volume itself represents a particular aspect of the International Political Science Association's research program: the chapters were first presented at a conference organized at Mansfield College, Oxford University, by the IPSA Research Committee for Comparative Judicial Studies. Richard L. Merritt FOREWORD The Conference by the Research Committee for Comparative Judicial Studies of the International Political Science Association — held at Mansfield College of Oxford University from April 6-8,1981 — which gave birth to many of the papers incorporated into this volume, proved to be a genuine, indeed an outstanding success. That success represents a tribute to its leading organizer, John R. Schmidhauser of the University of Southern California; its local host-manager, John Boal and the scholars of the Centre for Socio-Legal Studies, Wolfson College, Oxford University; and to the twenty-one dive1rse participants. The latter, having travelled from all over the world to a delightfully hospitable, if dreary, rainy, and raw Oxfordshire, delivered thirteen formal papers and six viva voce presentations in six extended sessions, characterized by lively and informed debate. Of the high scholarship and, in a good many instances, pioneering on the still all-too-neglected front of Comparative Judicial Studies, the quality of the papers speaks for itself. To one who was among a handful of American political scientists who met in a Dallas hotel in 1964, in an admittedly humble endeavor to give birth to a more or less organized attempt to incorporate the study of Comparative Judicial Studies into political science curricula in the United States, the Mansfield Conference's achievement provided a genuine source of pride and satisfaction. It had been a long road from that Dallas meeting — involving a "small band of brothers", to wit, the quintet of Professors Becker, Danelski, Fleming, Schubert, and myself. Traffic on that road was aided by diverse individual pre-Dallas efforts on the comparative studies front by such scholars as Professors Cappelletti, Cole, Corry, Ehrmann, Friedrich, Kirchheimer, Loewenstein, McWhinney, and Tingsten. It would be joined in post-Dallas days by the significant contributions of such diverse "traditionalists", "conventionalists", and "behavioralists" as Professors Gadbois, Galanter, Grossman, Jacob, Kommers, Krislov, Nagel, Pritchett, W. F. Murphy, Schmidhauser, Steamer, Tanenhaus, Ulmer, and others. The scholar's quest ought to be for the attainment of learning and understanding, here that of the diverse theories and practices that inform judicial processes throughout the world, coupled with their derivative application and, conceivably, adaption or adoption within the parameters of the "art of the possible". The latter is what the political and judicial process is all about. Thus, scholars seek answers to the three basic questions political scientists in public law perpetually do, and must, ask. These were neatly summarized by professors Murphy and Tanenhaus, as follows: "(1) How can the judiciary operate? ... (2) How does the judiciary operate? ... (3) How should the judiciary operate? (1972:20)". The scholarly assemblage of the Mansfield Conference provided sundry lessons, some that may even prove to be seminal, within that aforementioned "art of the possible". It may be useful to attempt to elucidate some of these lessons by way of identifying references to the papers and commentaries that provided the sine qua non of the three days of that so useful enterprise: 1. Although the fact of life may be more implicit than explicit, in the final analysis the Comparative Judicial Process in democratic or soi- disant democratic states finds a gravitation toward similarities rather than differences, at least in terms of ultimate, rather than penultimate, impact and effect upon the governmental process in a free, or relatively free society. 2. While the appellate structure in general and the highest appellate tribunal in particular still hold what is perhaps majority fascination, we have indubitably come to recognize that we wish to, indeed that we must, study more than legal systems; that functional analysis without more does not render a complete picture of the Comparative Judicial Process. In short, we are dealing with considerably more than just conflict resolution. 3. Indeed, the concept of "comparative" government is at last coming to be recognized as a veritably broad one. No longer conceptionally or linguistically confined to a study of diverse states or nations and their cultures, it is a concept that may well be profitably applied vertically as well as horizontally; or, to put it differently, intra as well as interstate, country, or division. 4. Although there is no doubt that the study of the Comparative Judicial Process evinces roles and results that are tending to pinpoint similarities rather than differences in governmental impact, the very real differences that a priori characterize the nature of the judicial process within separate states and their societies nonetheless must be researched, examined, and understood. 5. Given man's increasing striving toward and assertion of the goals of freedom of the person and absence of excessive governmental restraint, both the interest in and analysis of the state of that freedom, of the lines and limits of liberty and equality, happily characterized a good many, perhaps most, of the Conference's papers as well as the purposes of the sub-discipline. 6. Judicial review which, whatever its genesis — arguably Greek, Roman, French, or even English — is still demonstrably present, at least in theory, in some sixty sovereign states (although it may be truly effective in probably no more than a dozen, if that many) will and indeed should continue to occupy our most acute, arguably central, concern and attention. One may well note the spate of books on judicial review and "line-drawing" on the parameters of the judicial role that have appeared since 1976 in the United States alone: Berger, Choper, Ely, Gabin, Lusky, A.S. Miller, and Perry. Judicial review and its inter- organ dispute-results were thus fortunately not neglected by the Conference's members. 7. A viable theoretical mold remains elusive, as does a foolproof model: there is a patent need for a social theory, a political theory. The quest is neither facile nor predictable. But scholarly assemblies such as the 1981 Mansfield College Conference on Comparative judicial Studies may go a considerable way toward realizing that desirable goal. As the pages of this remarkable collection of essays demonstrate, that Conference constitutes a significant effort; its contributions are indeed of high quality and promise. Henry J. Abraham University of Virginia Charlottesville, Virginia NOTES 1. The following countries were represented at the Conference: Bangladesh, Canada, England, India, Italy, the Netherlands, Scotland, Sweden, and the United States. References MURPHY, W. F. and J. TANENHAUS (1972). The Study of Public Law. New York: Random House. PREFACE Comparative Judicial Systems: Challenging Frontiers in Conceptual and Empirical Analysis comprises a comprehensive and cohesive collection of investigative essays by a group of well-qualified scholars who are significant contributors in the field of comparative judicial institutions and politics. The essays are organized in accordance with the progression of scientific inquiry in the field. Part 1 deals with comparative models, conceptual frameworks, and the problems inherent in developing them. Part 2 treats a wide variety of single nation analyses, most of which are devoted to efforts at mapping the bases for scientific investigation of comparative judicial politics. Part 3 comprises a number of multi-nation analyses. These begin with imaginative descriptive conventional pairing of the judicial characteristics of more than one nation and extend to serious efforts at rigorously developing and applying criteria for conceptual equivalence of such characteristics. This book builds upon the pioneering efforts of the fine scholars noted among the pre- and post-Dallas contributors by Professor Abraham in his Foreword. Yet in a more immediate sense it is the outgrowth of the intense, critical exchanges which characterized three international conferences, the panel discussions of the 1979 IPSA meeting in Moscow, USSR, the 1981 conference of the Research Committee on Comparative Judicial Studies at Mansfield College, Oxford, England, and the 1982 IPSA meeting in Rio de Janeiro, Brazil. I should like to thank two universities for the opportunity to participate and edit this volume — my own institution, the University of Southern California, and the University of Virginia, which provided an intellectually stimulating setting for a visiting professorship in the academic year, 1982-1983. John R. Schmidhauser PART I COMPARATIVE MODELS AND CONCEPTUAL FRAMEWORKS
The list of books you might like
