The contemporary limits of Latin America and the Caribbean as a legal space

The states and jurisdictions south of the Rio Bravo (alternatively known as the ‘Rio Grande’ in the United States) form a very large historical, cultural, economic, and geographic region usually known as ‘Latin America’. Geographically speaking, these states encompass, with some exceptions that culturally belong to ‘Anglo-America’, the south-western corner of North America where a territorially diminished Mexico serves as regional borderline with the United States; most of the Central American isthmus and South America; and, finally, some island states and island colonies that sit within the waters of the Caribbean basin. By 2005, around 543 million people lived in this area of the world. It has recently become fashionable to say that the next decade, even the next century, will belong to Latin America. For pundits on the left the region stands as the remaining chance in the world for true pluralism, alternative democratic experiments, and sustainable development; with almost equal enthusiasm, businessmen and economic analysts on the right see in the region an expanding middle class that, with its entry into consumerism, will fuel global markets.

Due to demographic and economic pressures, however, around 30 million Latin Americans have migrated towards the economically central regions of the world (mainly to the United States and western Europe). In their backpacks and suitcases they have not taken with them their laws as have, for example, immigrants of Muslim persuasion. In their new milieus, Latin Americans have had to learn the trappings and requirements of what many take to be a more demanding and rigorous rule of law than the one they used to know in their homelands: many of them turn into disempowered ‘illegal aliens’, for example, who stick almost neurotically to the legal speed limit for fear that, if caught, they will not only be issued with a ticket but perhaps also deported. In situations of disempowerment and cultural disorientation, then, compliance with the law (i.e., how to become the all-important ‘law-abiding person’ or better, perhaps, the ‘authority-obeying’ individual of US culture) demands pervasive attention to detail and even to appearance. For a Latin American living in the First World, the concept of ‘jaywalking’ becomes legally and culturally meaningful for the first time.

Introduction

The availability of democracy is usually presented as a prerequisite for any evaluation, be it political, economic, or legal, of any country, and as an imperative to pursue (with or without Western help) for all societies that do not enjoy it.

Here it cannot be discussed how political scientists define democracy and the bases for those definitions, nor can it be debated whether the ‘just’ is inherent in notions of democracy. What is evident in the global arena, however, is that besides those who consider the non-democratic societies to be pathological, there are those who view our democracies as local expressions of a particular culture and those who, for given places and ages, discuss the merits of different forms of government, including those of an autocratic or epistocratic nature. Nowadays the latter views recur in particular in and about east Asian and Islamic societies. It is difficult to challenge any of these perspectives without being dogmatic and in a way that respects the cultural differences of the ‘others’. Yet one can start by noting two points. First, entrusting power to a wise or an autocratic elite presupposes agreement about the ‘wisdom’ and the qualities of these elites, which, in turn, requires a social body generally sharing homogeneous values. These are requirements that one cannot take for granted for the long term, particularly today, in the majority of known societies. Second, in non-democratic forms of government, there are no guarantees of the rulers’ culture and preferences remaining in step with the changing needs of the society. The lack of adaptation to societal needs, on the one hand, does not deter authoritarian shifts aimed at imposing the ruler’s views on the social body, and, on the other hand, makes it certain that its inner flexibility and receptiveness to change make democracy preferable ‘over time’. This ought to be considered as crucial, and also biologically inevitable, if each generation, and each of us, accepts that it answers to the next and subsequent generations like a tenant to the landlord.

Looking at comparative law in the broader context of other disciplines helps us to understand the field mainly for two reasons: distinguishing it from other disciplines shows more clearly what comparative law is; and relating it to cognate subjects shows how it interacts with neighbouring fields, especially how it contributes to, benefits from, or overlaps with them.

As a result, contrasting comparative law and its neighbouring disciplines has long been a standard exercise performed in many introductions (treatises and casebooks) to the field; these exercises are usually brief and necessarily superficial (see ‘Further reading’, section 1). Today, there is also a plethora of essays which explore the relationship between comparative law and a particular neighbouring discipline in greater depth; these essays are often extensive and sophisticated (‘Further reading’, section 2).

There is a traditional list of disciplines to which comparative law has routinely been related: the study of foreign law, private and public international law, legal history, the sociology of law, and, sometimes, legal philosophy. Today, one should add at least transnational law, legal anthropology, and the economic analysis of law. To be sure, any such list is somewhat arbitrary, in particular because it could plausibly be extended, for example by including linguistic studies. Even further extension, however, would make the list unmanageable in the context of this survey.

The encounter of anthropology and law

Anthropology is a schizophrenic discipline. Often riven by mutually excluding factions and orientations – sometimes embodied in rival sub-disciplines, sometimes displayed over the course of a single individual’s career – the main fault line commonly separates claims of cultural uniqueness from claims to the discovery of universal features of human social and conceptual life. To some the question is not unlike that posed in philosophy and other disciplines: are human communities so incommensurable as to frustrate any useful generalizations, or may one overcome this seeming diversity by the discovery of deeper structures and principles that demonstrate unity at the level from which variation is itself generated? From the side of the particularists comes the claim that such generalizations are either trivial or untrue; from the side of the universalists comes a set of theories – functionalist, structuralist, evolutionary – each of which may claim total explanatory power. Whether the particular domain for pursuing this debate lies in a sub-field of the economic, the familial, the political, or the religious, the capacity of the ideas generated in one domain to contribute to the broader issues raised in the discipline as a whole are, notwithstanding the more exaggerated claims, often simultaneously significant and limited. Nowhere is this truer than in the contributions of anthropology to the study of law.

Until recently, comparative legal studies were devoted essentially to private law. While this European-born, nineteenth-century focus survived emigration, it often caused legal comparison to stay at the periphery of legitimate scholarship, particularly in the post-war twentieth-century United States. An opening outside traditional private law studies has now presented itself, and comparative law research with broader concerns has increasingly appeared and gained proper recognition. However, because of its displacement from centre stage, comparative private law as it was usually understood in academia is today in a state of crisis and in search of a new profile. Even in practice, the proper content and role of comparative private law have faced new challenges. In the light of these changes, a specific chapter on comparative private law in a book dealing with legal comparison appears to be quite justified.

Indeed, while economic globalization and neoliberal ideology have given private ordering unprecedented importance, there is at the same time a growing sense that private law cannot be meaningfully separated from its operational context. Comparatists increasingly agree that an inquiry within confines of ‘technical’ private law betrays a laissez-faire bias and ignores the social and public dimension of the questions addressed. Further, a growing number of scholars claim that comparative research must derive from an interdisciplinary and theoretical approach, and no longer consist only of describing and comparing the static and mechanical content of positive foreign rules and precedents. In this approach, comparison in private law tries to give meaning to the functioning of law in its given social context. With this more comprehensive and less doctrinal understanding, private law loses its mythical neutrality and reveals instead its cultural, economic, and political nature.

Introduction

It has been observed that it is foolish, even dangerous, to attempt to provide a summary description of a topic as vast as the East Asian legal tradition. I shall nevertheless proceed with such an attempt, with the important qualification that what follows is the description of an East Asian legal tradition – namely, what I call the classical legal tradition of East Asia, or by way of analogy, a kind of East Asian ius gentium. Although it is a historically significant tradition, by no means does it exhaust the entire East Asian legal universe. To suggest so would, indeed, be foolish.

Yet the very notion of an East Asian legal tradition itself – whether characterized as singular or plural – requires some further methodological observations. First, just what does the term ‘East Asia’ encompass? Second, what do we mean by a ‘legal tradition’? The answer to neither question is obvious. After addressing these preliminary considerations, I shall turn to developing the broad outlines of a classical East Asian legal tradition.

Locating East Asia

Historically, the eastern end of the Eurasian landmass has known a variety of systems of legal ordering. On the one hand, it is obvious that it is impossible to identify a single, all-encompassing, homogeneous East Asian legal tradition that has endured over time. On the other hand, it is not unjustified that this volume should have a chapter with just that title. Whether or not there is a stable historical or geographical referent that corresponds to the term, the East Asian legal tradition clearly exists as an object of knowledge: volumes have been written on it. (It is also occasionally referred to as the ‘Far Eastern legal tradition’ – an outdated term that gratuitously privileges Europe as a global standard of propinquity.)

Introduction

The civil justice system of every modern state presents a tapestry of intertwined threads. The resulting image reflects the laws providing for redress of selected grievances, the remedies available to the aggrieved parties, the institutions available for resolving disputes, and the processes followed by those institutions. All of these are informed by the fundamental elements of the society – its political system, its economic arrangements, and its culture. In this chapter we are concerned primarily with dispute-processing institutions. All modern states have established judicial systems designed to accomplish the basic tasks of finding the relevant law and applying it in an efficient and fair manner to the actual facts underlying the dispute. The differences among them are about how to achieve these goals. We shall describe significant features of modern systems, discuss the difficulties of categorizing them, and try to account for the differences among them by looking at broader issues of politics, culture, and history. We close with some observations about the future of procedure in an ever-globalizing world and of the challenges for procedural comparatists.

Before we parse the varieties of disputing in the modern world, we alert the reader to the tunnel-vision dangers of assuming that ‘official’ dispute institutions tell the whole story. Even in the most ‘officialized’ countries, informal systems, usually grouped under the catch-all heading of alternative dispute resolution or ‘ADR’, supplement the formal, court-based processes. Still more is this the case in those societies that have yet to succumb completely to modernity. As Werner Menski powerfully reminds us, large groups of people are still at least partially, or even predominantly, oriented towards traditional ways of thought and living. Taking a different path, H. Patrick Glenn argues that the informal law of the less developed world (what he calls ‘chthonic’ law) is but one of several – perhaps many – legal traditions, including the Talmudic, Islamic, Hindu, civil law, and common law. The dispute processes, or ‘civil justice’ (as we might call it) of each of these traditions largely mirror the world views of those who are steeped in them.

Introduction

The Islamic legal system consists of legal institutions, determinations, and practices that span a period of over fourteen hundred years and arise from a wide variety of cultural and geographic contexts that are as diverse as Arabia, Egypt, Persia, Bukhara, Turkey, Nigeria, Mauritania, Mali, Indonesia, and India. Despite the contextual and historical contingencies that constitute the complex reality of Islamic law, rather paradoxically the Islamic legal legacy has been the subject of widespread and stubbornly persistent stereotypes and over-simplifications, and is highly contested and grossly understudied at the same time. Whether espoused by Muslim or non-Muslim scholars, highly simplified assumptions about Islamic law, such as the belief that Islamic legal doctrine stopped developing in the fourth/tenth century, the presumed sacredness and immutability of the legal system, or the phenomenon of so-called Qadi justice, are, to a large extent, products of turbulent political histories that contested and transformed Islamic law (or what is commonly referred to as Shari’a) into a cultural and ideological symbol. As part of the legacies of colonialism and modernity, Islamic law was then transformed into a symbolic construct of highly contested issues such as legitimacy, authenticity, cultural autonomy, or traditionalism, and reactionism, or religious oppression. Intellectually, there is a continuing tendency to treat Shari’a law as if it holds the keys to unlocking the mysteries of the Muslim heart and mind or, alternatively, as if it is entirely irrelevant to the formation and dynamics of Muslim societies. In all cases, however, because of the disproportionately politicized context of the field, Islamic legal studies remains largely undeveloped, and the discipline is plagued by inadequate scholarship, especially in the field of comparative legal studies. It is important to stress the point because, for all the generalizations one often encounters in the secondary literature on Islamic law, the reality is that, considering the richness of the legal tradition, our knowledge of the institutions, mechanisms, and micro-dynamics, discourses, and determinations of Islamic law in various places and at various times is very limited.

Introduction: what is law and economics?

The economic analysis of law investigates the answer to two fundamental questions: (i) a positive question concerning the impact of laws and regulations on the behaviour of individuals, in terms of their decisions and the implications for social welfare; and (ii) a normative question concerning the relative advantages of laws in terms of efficiency and social welfare. To answer these two questions, law and economics applies the methodology of microeconomic analysis. Microeconomic analysis makes certain simplifying assumptions, namely that individuals respond to incentives and make their decisions in a rational way, comparing costs and benefits, given all the available information. More recent developments have relaxed the assumption of full rationality to adopt a more realistic limited rationality assumption in the context of the so-called behavioural law and economics. Another assumption is that the welfare of society is measured by aggregating the individual welfare of its members.

Law and economics, or the economic analysis of law, is today one of the most influential scholarly methodologies in American legal thinking. The origins of the field can be traced back to the eighteenth and nineteenth centuries, for example, with the writings of Bentham, but economic analysis of law gained notoriety with the articles of Nobel laureates Ronald Coase and Gary Becker, and the books of Guido Calabresi and Richard Posner. In the last forty years, law and economics has expanded to all areas of the law, starting with those with more obvious economic significance (antitrust and regulation, tax, corporate governance, bankruptcy, employment) to the hard core of legal studies (contracts, tort, property, crime, and civil and criminal procedure) and new areas of the law (such as family law, environmental law, or constitutional structure). Comparative law is no exception. In fact, the extension of recent applications of economic methodology to comparative law has raised the question of the extent to which economic analysis of comparative law is by now a new, independent discipline.

The term ‘international organization’ covers a wide field, from the International Red Cross to the Food and Agricultural Organization, the World Trade Organization and the European Union. The place of comparative law in the establishment and functioning of these institutions will thus vary greatly according to the organization. It is nevertheless possible to identify certain recurring aspects relating to the establishment, functioning, and control of international organizations in which comparative law has an actual or potential role to play. This is unsurprising because law itself is present in all these dimensions of international organization activity.

First, international organizations themselves represent the result of decisions of both a legal and a political character. Second, international organizations, once created, become legally anchored within one legal system or another, the characteristics of which must be understood by all who may come into contact with it. Third, international organizations commonly engage in prescriptive or normative activity by which secondary law (i.e. law generated by the organization as distinct from the law that created the organization itself) comes into being. Fourth, some of the most important international organizations from a legal point of view have as a mission the developing of draft treaties that are intended to be signed and ratified by a sufficient number of states to come into force or the production of model legislation that national legislatures may enact into law. Fifth, whether an international organization generates legal norms or engages in a quite different set of activities, it is more likely than not operating according to a more or less formal set of procedures that may either have been prescribed for the organization on its founding or established by the organization itself as and when it began conducting its activities. In either case, for the organization itself, those procedures very much constitute law. Sixth, more and more international organizations perform adjudicatory functions, which require that they both apply legal norms and observe legal procedures. Seventh, and finally, international organizations may be subject to external legal norms that further constrain their freedom of action.

Introduction

The notion of mixed legal systems is essentially a modern idea that increasingly shapes discussions about the nature of the world’s legal systems. A mere fifty years ago, mixed systems were treated as legal aberrations and were scarcely discussed. The focus was on a coherent ordering of les grands systèmes, and no space was found in taxonomies for composites and hybrids. Under the influence of ‘mixed jurisdiction’ studies and legal pluralism, however, there is growing awareness that mixed systems, whether restrictively or expansively defined, are a widespread and recurrent reality. They have recurred too often and have endured too long to be regarded as accidents and anomalies. A recent study maintains that ninety-one legal systems may be categorized as ‘civil law’, and forty-two are ‘common law’. However a higher number – ninety-four – are listed as ‘mixed’ systems. The study arranged these mixtures into ten subcategories, under such rubrics as ‘Common law and Muslim law’, ‘Civil law and customary law’, ‘Muslim law and customary law’, and ‘Common law and civil law’. It is thus apparent that all the traditions discussed in the earlier chapters of this Companion – the Western, East Asian, Jewish, Islamic and sub-Saharan – have provided the legal material from which this vast array of hybrids was created. (See the appendix to this chapter for the legal systems listed.)

An important difference of opinion, however, exists over the proper meaning and constituent elements of a mixed system. Scholars in the ‘mixed jurisdiction’ tradition, who follow the footsteps of early British comparatists (see section 17.2 below), tend to restrict its scope to a single kind of hybrid where the most comparative research has been done – mixtures of common law and civil law. In that perspective the number of mixed systems in the field shrinks to fewer than twenty around the world. However, many scholars under the influence of legal pluralism (including the comparatists who conducted the Ottawa study just mentioned) use a more expansive, factually oriented definition that enlarges the field and has no obvious limits.

Constitution as law, instrument, and culture

‘Constitution’ – like ‘nation’, ‘state’, ‘democracy’, and ‘sovereignty’ – appears as one of the central icons and also one of the most ambiguous ideological structures in the pool of cultural representations of modernity. Constitutions react to the individual and societal need for orientation by offering a language of rights and values and to the requirement of authoritative decisions by allocating and balancing power within an institutional arrangement. Hence constitutions are not cages of norms, but texts situated in contested fields of ideas and interests and run through by competing interpretations.

In general, comparative constitutional scholarship, rather than expressly addressing the question ‘what is a constitution?’, pragmatically settles on a couple of meanings – or less. Dominant is the notion of the constitution as a higher or supreme law. Superiority is ascertained, technically, by the systematic ranking of constitutional norms at the top of the legal hierarchy, above the ordinary laws, and by the methodological rule that laws have to be interpreted in conformity with the constitution. Genetically, a constitution qualifies as law when it is produced by a law-making body, such as a constitutional assembly or convention, and then is adopted according to legally prescribed procedures (referendum or qualified parliamentary decision). What looks like a routine under the rule of law implies a paradoxical creatio ex nihilo: a people constitutes itself in performing the act of adopting a constitution and has always already been presupposed as empowered to sign the said constitution. This self-empowerment of ‘we the people’, or ‘we the nation’, belies the mystical basis of constitutional authority.

Introduction

In the work of comparative lawyers, language is essential to the process of acquiring knowledge of foreign law. Information on foreign law is in fact embedded in the language, which is expression of the culture, of the particular set of values, and – finally – of the mentality of lawyers, representing the legal system under analysis. Law and language are cultural phenomena that must be studied taking into account time and context.

That is why translation of legal information has always been considered one of the core questions of comparative law. At the same time reflection on legal translation has offered comparative lawyers the occasion to learn more about the multiple relationships between law and language.

On the one hand such reflection has developed a specific interest on the history and the development of legal languages, while on the other hand it has focused on the technicalities and the specific problems of legal translation.

More recently, comparative lawyers have focused their attention on more specific topics that highlight the various interconnections between law and language, like the policies of multilingualism in the European Union, the use of English as a legal lingua franca, and the related problems of translation.

Overview

The field of administrative law is inextricably bound to two phenomena that trace their origins to the nineteenth century: the rise of large state bureaucracies designed to fulfil a complex array of societal needs and the development of liberal democratic norms of social organization and public authority. Much of administrative law can be understood as an attempt to work out the tension inherent in these two phenomena: the recognition that the attainment of public purposes is contingent on a cadre of full-time employees, paid by the public purse and loyal to the state, and, at the same time, the belief that public authority is legitimate only if embedded in democratic politics and liberal societies. To put it more succinctly, these are the objectives, on the one hand, of neutrality and expertise, and, on the other hand, of democracy and liberal rights.

The common aspiration of making public administration both capable and accountable serves as the springboard for the comparative analysis in this chapter. I begin with a discussion of what, in the law, is taken to be the hallmark of modern bureaucracy – the legal guarantees of civil service employment – together with national variations in the professionalization of administration and contemporary efforts to cut back on civil service guarantees. I then turn to three important types of accountability: the contestation of administrative action before the courts, the involvement of organized interests in administrative policymaking, and informal accountability to the general public through parliamentary ombudsmen and transparency guarantees. These categories serve as a framework for exploring the similarities and differences that shape contemporary administrative law systems. The chapter concludes with the increasingly important phenomenon of the globalization of administrative law and the rapid migration of administrative principles across legal systems throughout the world, both national and international. In line with the intellectual purpose of this volume, I have omitted topics that have traditionally been considered peripheral to the field or that fall at the intersection with other disciplines, for instance the constitutional powers of the executive branch over public administration and the empowerment of private groups through self-regulation, and refer the reader to the bibliography at the end of the chapter for guidance.

The structure and sources of law in the Jewish tradition

Judaism is fundamentally a religion of law, a law that governs every facet of the human condition. Jewish tradition maintains that the Torah – the first five books of the Bible that include the Written Law transmitted by Moses at Mount Sinai as well as the Oral Law accompanying it – contains not merely a set of laws, but also canons of interpretation and principles according to which conflicts among the rules of law may be resolved. Maimonides, the pre-eminent early medieval philosopher and expounder of the Torah, records the doctrine that the Torah will not be altered, either in its entirety or in part, as one of the Thirteen Principles of Faith. The divine nature of the Torah renders it immutable and hence not subject to amendment or modification.

Although the Torah itself is immutable, the Sages of the Talmud teach that the interpretation of its laws and regulations is entirely within the province of human intellect. The Torah is divine, but ‘lo ba-shamayim hi’– ‘it is not in the heavens’ (Deuteronomy 30:12); it is to be interpreted and applied by man. A remarkable corollary to the principle of the immutability of the Torah is the principle that, following the revelation at Sinai, no further heavenly clarification of doubt or resolution of ambiguity is possible. Clarification and elucidation are themselves forms of change. Since there can be no new revelation, a prophet who claims the ability to resolve disputed legal points by virtue of his prophetic power stands convicted by his own mouth of being a false prophet.

Comparative criminal justice: a long neglected discipline on the rise

A past of oblivion

Traditionally, legal comparison has been mostly associated with private law. One of its masters, Gino Gorla, pointed out that ‘[comparative law] methodology has been conceived essentially, if not exclusively, in connection with civil law’. Born and developed within the private law arena therefore, comparative law in its modern foundation has for years paid almost no attention to criminal justice. Things today are rapidly changing, however. New international dynamics ask for a deep understanding of the similarities between criminal legal systems rather than of their differences, pushing criminal justice into the realm of a modern comparative law methodology, one that takes an integrative approach instead of a contrastive one.

The search for a common grammar among legal systems has been typical, indeed, of the private law domain since the second half of the twentieth century, when the need for legal uniformity stemmed from galloping globalization. Under the impact of a dramatic worldwide intensification of the transnational exchange and movements of persons, goods, and capital, private comparative law scholars began to search for a common core of legal systems. Since the Cornell seminars, they have incrementally succeeded in refining a methodology that looks beyond the narratives and discourses to grasp the deep similarities between legal systems. Closely associated with the principle of state sovereignty, however, criminal law and criminal procedure instead remained consigned within the boundaries of a contrastive comparison, one that limits itself to the analysis of the differences between legal systems (rather than searching for similarities) and that consequently is less interested in challenging the representation that each system gives of itself.

Introduction

In the first half of the nineteenth century, the historical school usefully and also abusively derived legal difference from differences in national culture and national history. Towards the end of the century, it was common to understand systems as flowing in their details from a large conceptual characteristic (for example, codified versus common law; place on the evolutionary spectrum running from status to contract; formal rationality versus qadi justice). In the next period, the dominant mode was to understand systems as having adopted varied solutions to common functional problems.

These methodologies of comparison are related to the juristic methodologies of their times. Weber’s typology of modes of legal rationality, with German pandectism at the top, was a manifestation of the classical legal thought that was declining as he wrote. The functionalist method is patently consonant with the emergence of social legal thought, whose slogan was that law is a means to social ends and whose juristic method was teleological.

In contemporary legal thought, ‘balancing’ or ‘proportionality’ is a prevalent legal methodology. Is there an equivalent comparative methodology? A preliminary answer would be that one way to understand any particular difference between two contemporary legal systems is as the product of different balances between conflicting considerations, be they principles or policies, rights, powers, or whatever.