Law & Humanities Blog |
- Legal Education and the Value of Comparative Law
- Thinking About Law
- Mayor To Judges: Watch Movies and Learn Your Craft
| Legal Education and the Value of Comparative Law Posted: 20 Mar 2013 03:37 PM PDT Christopher L. Blakesley, University of Nevada, Las Vegas, School of Law, is publishing Law, Language, Crime, and Culture: The Value and Risks of Comparative Law, forthcoming in volume 49 of the Criminal Law Bulletin. Here is the abstract. Words, language, culture, and literature are so important to us human beings that it should come as little surprise that they are part of our law. This article considers language and law in general with a focus on issues of criminal justice, both domestic and international. I examine how and why comparative law is valuable in a criminal procedure course, and generally for domestic and international criminal justice. My examination begins by looking back to our common roots in crime, punishment, and expiation, with a special focus on the role of torture and its impact on current criminal justice systems. Comparative law also serves as a springboard from which to ponder law and philosophy in the context of a basic or advanced criminal procedure course. International criminal courts provide a useful example of the value and challenges of comparative law because they are actually experiments in mixing legal systems and procedures as they function in the arena of international law. Although wholesale or simplistic borrowing is wrong and often harmful, carefully comparing how disparate systems resolve similar problems is most helpful. To elucidate this, I use the examples of "verdict" and "to represent." They look the same on paper, but manifest quite differently in practice in America and in Europe — prime examples of why comparative analysis can be so illuminating. It should not be surprising that comparative analysis is crucial to courses or parts of courses in international or transnational criminal law, as functionally, those are mixed systems — requiring a mixture of international law and domestic law or of international law and that of two or more domestic legal systems. This is especially so in international law, which functions as a mixed jurisdiction essentially comprised of Romano-Germanic and Common Law elements and approaches. Those who understand and can work with both the Romano-Germanic and the Common Law systems will be more able to understand the nuances of international law, its methods, analytical style, and sources. This will help them succeed in practice, scholarship and teaching. This article and the benefits of comparative analysis apply to the study of most subjects in any legal system. My points apply to practitioners, students, policy makers, judges, human rights activists, and many more professions, especially as the world shrinks. Comparative analysis of the sort I suggest herein provides a deeper understanding of the subject, in addition to some understanding of foreign systems. Law is at least partially a form of language; it arises from the culture and language of the various nations and peoples of the world. Comparative study is more than a leisure activity. It provides insight into law (even one's own, in its deepest cultural sense) and a more transparent prism through which to understand law, culture, and language, including one's own law, culture, and language, acting like a perfect prism through which we perceive not merely a white light (a country's legal system), but all the colors that are essential parts (culture and language) of that white light. Revealing those colors — those essential parts — allows us to analyze and compare them and gain a far deeper understanding of a country's legal system. To be sure, law is more than just language, but its essence has many of the characteristics and fullness, including the cultural imprint, that a language has. Perhaps, too, there is a spiritual or cosmological element to law, language, and scholarship. |
I use the term "language" not only its usual sense of the words we use to speak and write, but also as a metaphor for law as language which includes all the cultural depth that imbues language with its soul or spirit.Download the article from SSRN at the link. 
Huang Qifan, mayor of the Chinese city of Chongquig, says judges should look to Hollywood films for assistance in making judicial determinations. During a panel discussion at the National People's Conference in Beijing on March 18, the mayor noted that the heroes of action movies represent good, which wins out over evil. A visceral example of the reach of popular culture into the bastions of power. More here from the Hollywood Reporter.
Posted: 20 Mar 2013 03:31 PM PDT
Hanoch Dagan, Tel Aviv University Buchmann Faculty of Law, has published Law as an Academic Discipline. Here is the abstract.
Is law an autonomous academic discipline, distinct and isolated from neighboring fields? Or is it merely an object of academic research that borrows its conceptual framework from the humanities or the social sciences? The choice between these two alternatives — and a possible third, middle position — is important both in itself and as the foundation of a critical analysis of specific institutional arrangements concerning such issues as professional associations, specialized journals, and, most notably, advanced legal education. This essay investigates the two extreme alternatives of autonomy and assimilation, and offers a preliminary account of a midway position, claiming that relevant lessons from the social sciences and the humanities are always potentially relevant to law but never exhaust the theoretical inquiry of it.Download the paper from SSRN at the link.
Past as well as current theories of law's autonomy do not fully account for the necessary extra-doctrinal underpinnings of legal materials, nor do they sufficiently appreciate the justificatory burden entailed by the prospective effects of every significant legal pronouncement. These shortcomings, however, do not imply the collapse of law as an academic enterprise robust enough to justify a separate category. Using the theories and methods of other disciplines definitely enriches our understanding of law, but these helpful exercises never suffice because they do not pay appropriate attention to the nature of law as a set of coercive normative institutions and, furthermore, tend to fragment rather than synthesize the interdisciplinary lessons of law. Legal theory compensates for both these limitations by focusing on the work of society's coercive normative institutions and through its synthetic character.
Legal theory studies the traditions of these institutions and the craft typical of their members, while continuously challenging their outputs by demonstrating their contingency and testing their desirability. When performing these tasks, legal theory necessarily resorts to law's neighboring disciplines. At its best, however, legal theory is more than a sophisticated synthesis of relevant insights from these friendly neighbors, because legal theory is consciously reflective on persistent jurisprudential questions regarding the nature of law, notably the relationship between law's normativity and its coerciveness, given law's institutional and structural characteristics.
Mayor To Judges: Watch Movies and Learn Your Craft
Posted: 20 Mar 2013 08:58 AM PDT
Huang Qifan, mayor of the Chinese city of Chongquig, says judges should look to Hollywood films for assistance in making judicial determinations. During a panel discussion at the National People's Conference in Beijing on March 18, the mayor noted that the heroes of action movies represent good, which wins out over evil. A visceral example of the reach of popular culture into the bastions of power. More here from the Hollywood Reporter.
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