This Article examines rules of procedure and process that structure the Buddhist legal system in the Theravāda tradition, the dominant tradition of Buddhism in South and Southeast Asia. Drawing on important Buddhist texts written in Pāli as well as evidence from monastic legal practices in contemporary Sri Lanka, it argues that one can find within the Theravāda tradition a robust body of what H.L.A. Hart would call “secondary rules,” which determine how monks ought to apply prohibitions, manage disputes, and administer sanctions. These include detailed guidelines for making accusations, classifying legal cases, conducting hearings, settling disputes, examining litigants, evaluating evidence and witness testimony, appealing cases, prescribing penalties, and rehabilitating offenders. While these rules share similarities with other systems of state and religious law, Buddhist “rules about rules” not only ensure that disputes are settled properly but that the process of legal action itself both reflects and engenders favorable moral dispositions among monks. Underscoring both the similarities and differences between Buddhist law and other legal systems, this Article invites non-specialists to look (again) at the importance of Buddhist law—one of the oldest and most wide-spread systems of nonstate law—for the broader field of comparative legal studies, from which it has been largely absent.
{"title":"Buddhist Rules About Rules: Procedure and Process in the (Theravāda) Buddhist Legal System","authors":"Benjamin Schonthal","doi":"10.1093/ajcl/avab025","DOIUrl":"https://doi.org/10.1093/ajcl/avab025","url":null,"abstract":"\u0000 This Article examines rules of procedure and process that structure the Buddhist legal system in the Theravāda tradition, the dominant tradition of Buddhism in South and Southeast Asia. Drawing on important Buddhist texts written in Pāli as well as evidence from monastic legal practices in contemporary Sri Lanka, it argues that one can find within the Theravāda tradition a robust body of what H.L.A. Hart would call “secondary rules,” which determine how monks ought to apply prohibitions, manage disputes, and administer sanctions. These include detailed guidelines for making accusations, classifying legal cases, conducting hearings, settling disputes, examining litigants, evaluating evidence and witness testimony, appealing cases, prescribing penalties, and rehabilitating offenders. While these rules share similarities with other systems of state and religious law, Buddhist “rules about rules” not only ensure that disputes are settled properly but that the process of legal action itself both reflects and engenders favorable moral dispositions among monks. Underscoring both the similarities and differences between Buddhist law and other legal systems, this Article invites non-specialists to look (again) at the importance of Buddhist law—one of the oldest and most wide-spread systems of nonstate law—for the broader field of comparative legal studies, from which it has been largely absent.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41479923","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Thomas Bustamante, Emílio Peluso Neder Meyer, Evanilda De Godoi Bustamante
Luís Roberto Barroso is one of the most influential legal scholars in Latin America. In this Article, we challenge his theory of constitutional legitimacy. Barroso believes that the legitimacy of constitutional adjudication stems from three different roles performed by constitutional courts. First, courts play a counter-majoritarian role; second, they have also a “representative role.” Although judges lack votes, they are better positioned than legislatures to interpret the will of the people because they are less vulnerable to partisan interests. Finally, courts can perform an “enlightened role”; they can break the political inertia and lead society to a better future. Although these powers should be used sparingly, courts can act as an enlightened vanguard and push history forward in the interests of the citizens. We argue that these roles are conceptually inconsistent and that the last two roles are not justified. We conclude, in addition, that Barroso’s theory of judicial legitimacy encourages a politicization of adjudication and constitutes a threat to the rule of law.
{"title":"Luís Roberto Barroso’s Theory of Constitutional Adjudication: A Philosophical Reply","authors":"Thomas Bustamante, Emílio Peluso Neder Meyer, Evanilda De Godoi Bustamante","doi":"10.1093/ajcl/avac006","DOIUrl":"https://doi.org/10.1093/ajcl/avac006","url":null,"abstract":"Luís Roberto Barroso is one of the most influential legal scholars in Latin America. In this Article, we challenge his theory of constitutional legitimacy. Barroso believes that the legitimacy of constitutional adjudication stems from three different roles performed by constitutional courts. First, courts play a counter-majoritarian role; second, they have also a “representative role.” Although judges lack votes, they are better positioned than legislatures to interpret the will of the people because they are less vulnerable to partisan interests. Finally, courts can perform an “enlightened role”; they can break the political inertia and lead society to a better future. Although these powers should be used sparingly, courts can act as an enlightened vanguard and push history forward in the interests of the citizens. We argue that these roles are conceptually inconsistent and that the last two roles are not justified. We conclude, in addition, that Barroso’s theory of judicial legitimacy encourages a politicization of adjudication and constitutes a threat to the rule of law.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"260 5","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138518499","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Drawing on over a century and a half of Germany’s experience with a statute that criminalizes (mis)judging, this Article seeks to substantiate that criminal penalties for judges were largely ineffectual, and that courts proved ill-suited to police themselves even with a judiciary-specific criminal statute in place. To reach this conclusion, this post hoc longitudinal study examines German statutory foundations for the crime of “law bending” (Rechtsbeugung), related legal history, and jurisprudence during three distinct periods: (1) the codification of Rechtsbeugung in 1851 through the end of World War II; (2) Rechtsbeugung jurisprudence in postwar Germany, particularly as related to Nazi-era judicial actions; and (3) Rechtsbeugung legislative changes and jurisprudence leading up to and following Germany’s reunification. The German experience with Rechtsbeugung provides a cautionary tale of judges’ unwillingness to hold other judges criminally responsible, even for the worst of judicial transgressions, such as those committed by judges in Nazi Germany. Following German reunification, the court was less lenient in cases of East German judges. In this context, the court came to renounce its postwar Rechtsbeugung jurisprudence in clear and decisive terms, and affirmed convictions of East German judges. Yet, German high court jurisprudence remains elusive to this day.
{"title":"Judging as Crime: A Transatlantic Perspective on Criminalizing Excesses of Judicial Discretion","authors":"D. J. Stute","doi":"10.1093/ajcl/avac003","DOIUrl":"https://doi.org/10.1093/ajcl/avac003","url":null,"abstract":"Drawing on over a century and a half of Germany’s experience with a statute that criminalizes (mis)judging, this Article seeks to substantiate that criminal penalties for judges were largely ineffectual, and that courts proved ill-suited to police themselves even with a judiciary-specific criminal statute in place. To reach this conclusion, this post hoc longitudinal study examines German statutory foundations for the crime of “law bending” (Rechtsbeugung), related legal history, and jurisprudence during three distinct periods: (1) the codification of Rechtsbeugung in 1851 through the end of World War II; (2) Rechtsbeugung jurisprudence in postwar Germany, particularly as related to Nazi-era judicial actions; and (3) Rechtsbeugung legislative changes and jurisprudence leading up to and following Germany’s reunification. The German experience with Rechtsbeugung provides a cautionary tale of judges’ unwillingness to hold other judges criminally responsible, even for the worst of judicial transgressions, such as those committed by judges in Nazi Germany. Following German reunification, the court was less lenient in cases of East German judges. In this context, the court came to renounce its postwar Rechtsbeugung jurisprudence in clear and decisive terms, and affirmed convictions of East German judges. Yet, German high court jurisprudence remains elusive to this day.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-03-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41523841","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Looking across different societies it is clear that there have been many viable systems for managing social order. Each system has particular strengths and weaknesses and its utility depends upon its compatibility to the features of the society within which it exists. This suggestion is supported by empirical research showing that rewards and punishments, social norms, moral values, and legitimacy-based legal orders are all successful in some societies, under some conditions. Social science theories and research findings provide a guide for predicting those situations within with a particular form of authority is most likely to lead to a viable and sustainable social order.
{"title":"Understanding the Psychology of Social Order","authors":"T. Tyler","doi":"10.1093/ajcl/avac001","DOIUrl":"https://doi.org/10.1093/ajcl/avac001","url":null,"abstract":"\u0000 Looking across different societies it is clear that there have been many viable systems for managing social order. Each system has particular strengths and weaknesses and its utility depends upon its compatibility to the features of the society within which it exists. This suggestion is supported by empirical research showing that rewards and punishments, social norms, moral values, and legitimacy-based legal orders are all successful in some societies, under some conditions. Social science theories and research findings provide a guide for predicting those situations within with a particular form of authority is most likely to lead to a viable and sustainable social order.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47150497","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The European-based proportionality doctrine seems to be in vogue in American constitutional scholarship. Recently, the Harvard Law Review has devoted its Foreword by Jamal Greene, to this doctrine. In a provocative and bold article, titled “Rights as Trumps?,” Greene argued that proportionality analysis should be openly adopted in the United States as a more sophisticated and up-to-date doctrine than the rights-as-trumps categorical approach. Current constitutional adjudication, he contended, requires a nuanced and factually based analysis of the sort afforded by proportionality. We argue, contrary to this argument, that proportionality may not be the best doctrinal candidate in the United States, taking into consideration the populist shift in the United States. We wish to make a more general point about the use of proportionality in the new global age of populism. The rise of populism, and the increasing signs of democratic backsliding across the globe, require the employment of a more categorical approach that better serves the purpose of red lining and enhances the democratic process.
{"title":"Proportionality in the Age of Populism","authors":"M. Cohen-Eliya, Iddo Porat","doi":"10.1093/ajcl/avac005","DOIUrl":"https://doi.org/10.1093/ajcl/avac005","url":null,"abstract":"\u0000 The European-based proportionality doctrine seems to be in vogue in American constitutional scholarship. Recently, the Harvard Law Review has devoted its Foreword by Jamal Greene, to this doctrine. In a provocative and bold article, titled “Rights as Trumps?,” Greene argued that proportionality analysis should be openly adopted in the United States as a more sophisticated and up-to-date doctrine than the rights-as-trumps categorical approach. Current constitutional adjudication, he contended, requires a nuanced and factually based analysis of the sort afforded by proportionality. We argue, contrary to this argument, that proportionality may not be the best doctrinal candidate in the United States, taking into consideration the populist shift in the United States. We wish to make a more general point about the use of proportionality in the new global age of populism. The rise of populism, and the increasing signs of democratic backsliding across the globe, require the employment of a more categorical approach that better serves the purpose of red lining and enhances the democratic process.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45279886","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Comparing and contextualizing what judges say about the law is the job of comparative legal analysis. Studying internal and external forces that explain the judges’ choices and their societal effects is the core domain of the comparative study of judicial behavior. Although walls may seem to separate these two projects in terms of their theoretical approaches and methods, the barriers—and the obstacles—are more imagined than real. In an effort to highlight the complementarities between the two areas of studies—and issue what amounts to a standing invitation to comparative lawyers to contribute their specialized knowledge to the analysis of judging—the Article turns first to the aspirations of the study of judicial behavior. Next, we introduce six core theories of judging, along with the methods and data used to assess their implications. Along the way, we flag opportunities for future research, emphasizing potential collaborations among all scholars with an interest in comparative legal analysis.
{"title":"The Role of Comparative Law in the Analysis of Judicial Behavior","authors":"L. Epstein, U. Šadl, Keren Weinshall","doi":"10.1093/ajcl/avac002","DOIUrl":"https://doi.org/10.1093/ajcl/avac002","url":null,"abstract":"\u0000 Comparing and contextualizing what judges say about the law is the job of comparative legal analysis. Studying internal and external forces that explain the judges’ choices and their societal effects is the core domain of the comparative study of judicial behavior. Although walls may seem to separate these two projects in terms of their theoretical approaches and methods, the barriers—and the obstacles—are more imagined than real.\u0000 In an effort to highlight the complementarities between the two areas of studies—and issue what amounts to a standing invitation to comparative lawyers to contribute their specialized knowledge to the analysis of judging—the Article turns first to the aspirations of the study of judicial behavior. Next, we introduce six core theories of judging, along with the methods and data used to assess their implications. Along the way, we flag opportunities for future research, emphasizing potential collaborations among all scholars with an interest in comparative legal analysis.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48965609","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Comparing laws cross-nationally elucidates how they restrain political and societal actors and how actors may use law instrumentally to reach their goals. The Article analyzes the extant use of comparative law in political science and describes areas where a more in-depth comparative study of law may enhance understandings of how law shapes politics, particularly in the areas of governance, judicial behavior, rights protection, and democratic transitions and breakdowns. For meaningful use of comparative law in the study of politics, scholars must use causal research designs for cross-country analysis and rigorously choose cases for more detailed within-country qualitative analyses. Understanding how laws vary cross-nationally and what differences matter has the potential to shape theories and explanations of the explosive and sometimes subtle political changes witnessed in the twenty-first century.
{"title":"The Role of Comparative Law in Political Science","authors":"L. Tiede","doi":"10.1093/ajcl/avab022","DOIUrl":"https://doi.org/10.1093/ajcl/avab022","url":null,"abstract":"\u0000 Comparing laws cross-nationally elucidates how they restrain political and societal actors and how actors may use law instrumentally to reach their goals. The Article analyzes the extant use of comparative law in political science and describes areas where a more in-depth comparative study of law may enhance understandings of how law shapes politics, particularly in the areas of governance, judicial behavior, rights protection, and democratic transitions and breakdowns. For meaningful use of comparative law in the study of politics, scholars must use causal research designs for cross-country analysis and rigorously choose cases for more detailed within-country qualitative analyses. Understanding how laws vary cross-nationally and what differences matter has the potential to shape theories and explanations of the explosive and sometimes subtle political changes witnessed in the twenty-first century.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46874702","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The world has more than 200 states. Many states are federations and hence consist of multiple jurisdictions. Seemingly there is thus ample room for a social science approach to comparative law. In this perspective, each legal order produces a data point. Variance in the solutions adopted by different legal orders is used as evidence that a certain legal design causes greater justice, better political stability, higher welfare, or more equity. The results could motivate the strife for legal betterment, by the way of legal transplants. This Article cautions against the dangers inherent in this empirical enterprise. In a nutshell, the danger results from the fact that mere correlation (some jurisdictions are associated with some outcomes) is not causation (a difference in legal design is responsible for the difference in outcomes). Yet for choosing between alternative legal regimes, causation would be critical. The Article explains why comparative law is a conspicuously challenging source of empirical evidence. It discusses possible solutions.
{"title":"Challenges in the Interdisciplinary Use of Comparative Law","authors":"Christoph Engel","doi":"10.1093/ajcl/avab020","DOIUrl":"https://doi.org/10.1093/ajcl/avab020","url":null,"abstract":"The world has more than 200 states. Many states are federations and hence consist of multiple jurisdictions. Seemingly there is thus ample room for a social science approach to comparative law. In this perspective, each legal order produces a data point. Variance in the solutions adopted by different legal orders is used as evidence that a certain legal design causes greater justice, better political stability, higher welfare, or more equity. The results could motivate the strife for legal betterment, by the way of legal transplants. This Article cautions against the dangers inherent in this empirical enterprise. In a nutshell, the danger results from the fact that mere correlation (some jurisdictions are associated with some outcomes) is not causation (a difference in legal design is responsible for the difference in outcomes). Yet for choosing between alternative legal regimes, causation would be critical. The Article explains why comparative law is a conspicuously challenging source of empirical evidence. It discusses possible solutions.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"115 5","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138518513","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Role of Comparative Law in the Social Sciences: An Introduction","authors":"F. Parisi, Thomas B. Ginsburg","doi":"10.1093/ajcl/avab018","DOIUrl":"https://doi.org/10.1093/ajcl/avab018","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44685172","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Relational sociology, or the idea that relationships are the starting point for empirical research, offers comparative law distinctive analytical frameworks, heuristics, and methods. This Article proposes that these could advance traditional goals of comparative law by reconceiving fundamental categories of law, state, and society in relational terms while broadening the scope of useful comparison, and adopting a processual view of legal communities, legal knowledge, and culture rooted in practical action. It also highlights how comparative law offers sociology opportunities for deeper engagement with law, culture, transnationalism, and the dynamics of different normative orders. A relational analysis of disciplinary knowledge production suggests that deeper cross-disciplinary engagement has been limited less by shared interests than by the structures of academic knowledge production.
{"title":"Relational Sociology and Comparative Law","authors":"Joseph A. Conti","doi":"10.1093/ajcl/avab024","DOIUrl":"https://doi.org/10.1093/ajcl/avab024","url":null,"abstract":"\u0000 Relational sociology, or the idea that relationships are the starting point for empirical research, offers comparative law distinctive analytical frameworks, heuristics, and methods. This Article proposes that these could advance traditional goals of comparative law by reconceiving fundamental categories of law, state, and society in relational terms while broadening the scope of useful comparison, and adopting a processual view of legal communities, legal knowledge, and culture rooted in practical action. It also highlights how comparative law offers sociology opportunities for deeper engagement with law, culture, transnationalism, and the dynamics of different normative orders. A relational analysis of disciplinary knowledge production suggests that deeper cross-disciplinary engagement has been limited less by shared interests than by the structures of academic knowledge production.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46797779","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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