Global Justice Reform

A Comparative Methodology

Hiram E. Chodosh

• Publisher: NYU Press
• Year: 2005
• ISBN:
  9780814772317
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Global Justice Reform critiques and rethinks two neglected subjects: the nature of comparison in the field of comparative law and the struggles of national judicial systems to meet global rule of law objectives. Hiram Chodosh offers a candid look at the surprisingly underdeveloped methodology of comparative legal studies, and provides a creative conceptual framework for defining and understanding the whys, whats, and hows of comparison. Additionally, Chodosh demonstrates how theories of comparative law translate into practice, using contemporary global justice reform initiatives as a case study, with a particular focus on Indonesia and India. Chodosh highlights the gap between the critical role of judicial institutions and their poor performance (for example, political interference, corruption, backlog, and delay), discussing why reform is so elusive, and demonstrating the unavoidable and essential role of comparison in reform proposals.

Throughout the book, Chodosh identifies several sources of comparative misunderstanding that impede successful reforms and identifies the many predicaments reformers face, detailing a wide variety of designs, methods, and social dilemmas. In response to these seemingly insurmountable challenges, Chodosh advances some novel conceptual strategies, first by drawing on a body of non-legal scholarship on self-regulating, emergent systems, and then by identifying a series of anti-dilemma strategies that draw upon insights about the nature of comparison.

PART I
In Search of Comparative Methodology

There is no such thing as The Scientific Method—as the scientific method, that is the point: there is no one rounded art or system of rules. . . . The face-saving formula is that although there is indeed a Scientific Method, scientists observe its rules unconsciously and do not understand it in the sense of being able to put it clearly into words.¹

The key to comparative studies is the comparison of comparisons.²

The methodology of a science is its rationale for accepting or rejecting its theories or hypotheses.³

1

Introduction

A. The Promise and Limits of the Comparative Method

In the dawn of a new millennium, most national legal systems have made sweeping commitments to three areas of substantive political and economic reform. First, traditionally authoritarian political systems have sought to achieve democracy through popular elections,⁴ more accountable and transparent public service, and the effectuation of domestic human rights protections.⁵ Second, governments have loosened their grips on economic systems,⁶ embraced a freer marketplace, and recognized a broader range of real and intellectual property rights.⁷ Third, the international community has embarked on a nearly uncontrollable and irreversible process of globalization. Unprecedented daily flows of capital,⁸ technology,⁹ goods,¹⁰ services,¹¹ information,¹² and people¹³ currently permeate national borders.

As democracy, markets, and globalization spread, intensify,¹⁴ and even collide,¹⁵ decision-makers and commentators increasingly compare conflicting, interacting, and transforming laws¹⁶ and institutions of national legal systems.¹⁷ These comparisons serve critical and overlapping purposes. First, they enhance an appreciation of similarities and differences among competing laws and institutions. Second, they inform law reform initiatives designed to advance these increasingly widespread policy commitments. Finally, comparisons inform the creation of private¹⁸ and public international law and supranational institutions.¹⁹ Accordingly, contemporary comparative law scholars champion the comparative method as an indispensable tool of legal science, law reform, and international conflict resolution and unification.²⁰

Repeated cheers for the comparative method, however, beg a provocative question: What exactly is the method? Specifically, which objectives do comparisons serve? Which phenomena should be compared? How should they be contrasted and differentiated? As Dean Pound aptly wrote nearly seventy years ago, “[M]uch if not all depends on . . . what is compared and how it is compared.”²¹

If comparisons are indispensable, one may justifiably wonder how well legal comparisons meet these contemporary needs. If the putative utility of the tool is dependent on the quality of its performance,²² comparative and international legal scholars might be expected to provide a method for evaluating the effectiveness of different comparisons. This would entail a theory or a methodology of comparison capable of explaining how comparisons are or should be made in light of their underlying purposes. Do they shed light on the similarities and differences of national legal systems for purposes of cross-national understanding, reform, or unification? This book takes a critical (and potentially reconstructive)²³ look at explications of comparative methodology with this pressing question in mind.²⁴

The search renders (and explains) a series of disappointing findings.²⁵ The critique reveals that the discipline of comparative legal studies currently offers little explanatory insight or practical guidance about the nature of comparison.²⁶ Compared to methodological and theoretical debate in other related disciplines, including anthropology,²⁷ political science,²⁸ linguistics,²⁹ history,³⁰ sociology,³¹ economics,³² accounting,³³ and philosophy of science,³⁴ a theory or methodology³⁵ of legal comparison appears to be significantly underdeveloped³⁶ in three critical respects.

First, comparative legal scholarship has not explained adequately what the comparative method is or should be. Second, the discipline appears to lack a conceptual framework for doing what may be the key to its success:³⁷ that is, the ability to compare comparisons (which might be termed metacomparison).³⁸ Third, without this metacomparative ability, comparative law has not yet formalized justifications for distinguishing superior from inferior comparisons.³⁹ In sum, the comparative method fails to exhibit what Peter Medawar called a “rounded art or system of rules,”⁴⁰ a framework for Alasdair MacIntyre’s notion of “comparing comparisons,”⁴¹ or Mark Blaug’s emphasis on a “rationale for accepting or rejecting”⁴² legal comparisons.⁴³

B. The Importance of Comparative Method in Justice Reform

Twenty-first-century global commitments bring new practical importance to these philosophical concerns. Democracy, human rights, and free markets (and the substantive law made in the wake of these commitments) presume a strong role for impartial and effective adjudication systems (or some functional equivalent). Accordingly, the courts and supporting public and private institutions are a critical component of widely championed global objectives. The desired features of judicial institutions (themselves derived from comparative understanding),⁴⁴ however, appear increasingly elusive to obtain in practice. Underfunded, undersupported, undertrained, and underprotected, the courts in many countries function as the most neglected branch of government. Political and economic interference with impartiality and substantial delays in the judicial process undermine core values of judicial performance.

The judicial systems of Indonesia and India provide rich and important examples of severe problems and the underlying factors that contribute to them. In Indonesia, weak terms of judicial employment, vague ethical norms and weak disciplinary systems, and opaque procedures have produced conditions conducive to political and economic interference with impartial judicial decision making. In India, ineffective court management systems, fragmented and discontinuous proceedings, and unattractive alternatives to trial lead to vicious cycles of backlog and delay. Attempted reform interventions (e.g., a judicial commission for Indonesia and court mediation for India) appear to be weak remedies for a profoundly systemic array of problems. In these countries and elsewhere, institutional justice reform efforts (to combat political interference, corruption, or backlog and delay) often presuppose financial and political support that is sadly lacking.

Reforms also rely in part on shaky comparative theories about which features of a judicial system cause or alleviate these problems. Comparative theories fall into two frequently overlapping categories. Latitudinal (cross-national) theories rely on cross-national comparisons of a reforming system and another arguably well-functioning one. Longitudinal (intranational) theories rely on comparisons of the current features in the status quo with anticipated alterations and their expected impacts. Indeed, even if they are not motivated or guided in any way by cross-national comparisons, reform proposals necessarily rely on the second type of comparison.

For example, efforts to enhance judicial independence, combat corruption, or reduce backlog and delay are profoundly comparative in nature. The terms in which the aims are expressed, the models advocated (whether foreign or future), and the methods of distinguishing successful (or failing) systems require a series of comparisons. The right degree of independence and accountability presupposes an agreed value or aim (among alternatives, e.g., impartiality or responsiveness to the will of society); the correct selection of which features in the system to alter (e.g., terms of employment); and a threshold for distinguishing sufficient from insufficient gradients of independence. The successful reduction of backlog and delay requires the assignment of different weights to time well or poorly spent, the alteration of purportedly inefficient components or processes, and a normative determination of how long various legal matters should take to resolve or decide in light of the judicial product or private settlement derived from the process.

Successful justice reform may be at least in part dependent on the quality of the particular cross- or intranational comparisons that serve to justify specific proposals. These embedded comparisons, however, are frequently unclear in purpose, skewed in their choice of content, or imprecise as a basis of reform design or determination. Shaky comparisons may further weaken needed reforms.

To illustrate these points from a broad array of examples, with particular attention paid to contemporary reforms in Indonesia and India, this book critically observes the distressing condition of contemporary justice systems, the deep impediments to reform, focusing on weaknesses in comparative understanding that tend to undermine reform determinations, and the resulting perplexing dilemmas faced by reformers. In response to these problems, the book also sketches some novel approaches to thinking about reform by drawing on the metaphor of emergent systems (e.g., slime mold, computer software, urban neighborhoods) and articulating multiple strategies to overcome a series of common design, method, and social dilemmas. The critical attention to questions of comparative methodology in reform thus attempts to illuminate more promising paths for justice systems to emerge from their seemingly insuperable predicaments.

C. A Road Map

To initiate critical attention to the underdevelopment of comparative methodology,⁴⁵ chapter 2 explains why the question of comparison is significant, evaluates the inadequacy of current explanations, and explores why so little appears to have been achieved. Part A emphasizes the importance of comparison in general and of legal comparison in both domestic and global contexts. Part B critically illustrates the common tendency to avoid detailed explications of the comparative method. Part C explores alternative explanations for this inadequacy and argues that comparisons are neither too uniform, heterogeneous, nor incomparable to justify satisfaction with the current condition of methodological underdevelopment. Part C concludes that the complex nature of comparison best explains the inattention to sig...

Table of contents

• Cover
• Title page
• Copyright
• Dedication
• Contents
• Preface
• PART I: In Search of Methodology
• PART II: In Search of Justice Reform
• Notes
• Bibliography
• Index
• About the Author