Comparative legal cultures - by Joxerramon Bengoetxea


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Course teached by Joxerramon Bengoetxea and Heike Jung at the International Master's in Sociology of Law (2011-2012). International Institute for the Sociology of Law - Instituto Internacional de Sociología Jurídica, Oñati.

The purpose of this course is to introduce basic notions about law, legal thinking, the legal order and its sources, the legal professions and legal cultures. Some of the major debates in Comparative law will be dealt with - comparability, adaptation, transplants, influences, convergence, transitions. At the end of the intensive, one-week course each student should be able to make a presentation about their own legal culture
1. Introduction to Legal Cultures
Try to indentify what experiences you've had with the law, with the courts, and lawyers
The concept of law. The idea of a legal culture. Tradition, culture, family. Major Legal families in the World. Comparative Law, PLuralism and Anthropology.
Basque Legal Culture
2. Understanding a Foreign Legal Culture
Experiences: think of how difficult it seems to understand other legal cultures and other laws
3. Elements of a Legal Culture
Which would you say are the main elements of your legal culture and to what extent do they depend on or do they transcend the existing laws?
4. Social Systems of Order and Regulation
How is order maintained in society and what influence does this have on the dominant legal culture?
5. Varieties of Legal Cultures
Presentation and Discussion of our own Legal Cultures; each student will apply the notions discussed in the course to introduce the specific features of their own culture.

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Comparative legal cultures - by Joxerramon Bengoetxea

  1. 1. Rights and legal culture <ul><li>Starting point: whether you start from rights or from duties, you will reach very different conclusions – ask around the class and see how for many it is duty before right. Dworkin bases his whole concept of law on rights. What is behind the right? An interest or a duty? </li></ul><ul><li>Rights are system relative, never absolute, and this opens up the avenue for pluralism of normative orders and of laws. For natural law and religion they are absolute </li></ul><ul><li>Technical, legal discourses on rights à la Hohfeld (rights-claims, right and duty, liberty as no duty, powers v disability, liability v immunity) become rather technical, the domain of lawyers, discourses from other domains of practical reason are less technical, more symbollic </li></ul>
  2. 2. Culture of control -1 <ul><li>Why do people follow (obey) (comply with) the law: fear of sanction, normality, </li></ul><ul><ul><li>Chicago school, Tyler and Lindh, the group, legitimacy, economy, sanctions, very much imbued with culture, morality </li></ul></ul><ul><li>State and criminal law are linked, but also local standards (social morality) and CL are linked </li></ul><ul><li>What relevance does criminal law have for our living together? Law is not only about deterrence. Togetherness, the social glue, solidarity and civic cohesiveness, related to legal education, (positive general prevention, as different from special prevention – sanction oriented), </li></ul>
  3. 3. Culture of control - 2 <ul><li>Cultural defenses, and the issue of minorities (Alsion Renteln), eg honor or traditional killings </li></ul><ul><li>Cultural-social-political peculiarities and ideosyncracies, some particular issues that make the majority tick in one society, eg polygamy and the role of women, domestic violence, </li></ul><ul><li>On the other hand there are some crimes considered everywhere as serious crimes </li></ul><ul><li>Policing and enforcement are also very interesting to compare, models of procedure, inquisitorial, adversarial (acusatorial-prosecutor initiated procedure) Jury and lay people, Justs and the sporting theory of justice, Role of politics and prosecution, electing prosecutors </li></ul>
  4. 4. Culture of control - 3 <ul><li>D Garland: Local meaning, sensitivity, </li></ul><ul><li>Some cases for discussion: </li></ul><ul><ul><li>The death penalty (remember the Japanese </li></ul></ul><ul><ul><li>Corporal punishments </li></ul></ul><ul><ul><li>Apology of terrorism and Political crimes </li></ul></ul><ul><ul><li>Drug addiction v trafficking </li></ul></ul><ul><ul><li>Tax evasion and fraud </li></ul></ul><ul><ul><li>Corporate criminal liability </li></ul></ul>
  5. 5. Culture of control - 4 <ul><li>Return of punitiveness in Late modernity – welfarism and enlightenment are over – emotions and values are back, CL is cultural </li></ul><ul><li>The culture of sanctions and punishment as different from the culture of offences: retaliation v humane containment, re-socialisation and re-education, deterence and prevention, clinical theories, fair compensation to society and retribution, </li></ul><ul><li>Human Rights culture – third layer of law à la Tuori and is this the same idea as M Delmas-Marty? </li></ul>
  6. 6. Judicial decision-making v alternative dispute resolution - 1 <ul><li>Solving dispute (mediation, conciliation) v making a decision (litigation – saying the law), dyadic and tryadic systems </li></ul><ul><li>Professionals and lay persons, lay-judges, mixed systems </li></ul><ul><li>Partners or rivals? </li></ul><ul><li>Styles of decision making and legal reasoning </li></ul><ul><li>Procedure v substance </li></ul>
  7. 7. Judges and alternatives - 2 <ul><li>Dire la loi, jurisdiction, knowing the formulae of the law, likeness of judges and priests, Montaigne (S XVI) </li></ul><ul><li>Judges; professional or lay, esp in criminal justice, 1150 damages v punishment distinction </li></ul><ul><li>Mixed tribunals, lay and professionals, sometimes lay judges on their own, sometimes with law clerks and assistants </li></ul><ul><li>The jury is the lay participation par excellence, unbiased peers? Is it democratic justice? </li></ul><ul><li>Complex relation between law and democracy, jury nullification when the jury decides counterfactually to avoid a certain penalty and… </li></ul><ul><li>What about judges appointed by election e.g USA (Minnesota guidance)? Vs carreer judges and how they are appointed, by whom? Ministry of justice v Council of Judiciary? State exams or legal practice? </li></ul><ul><li>Ideally you need a good balance between lay and professionals </li></ul>
  8. 8. Judges and alternatives - 3 <ul><li>Where does the authority of the judge come from? Remember Weber: traditional (from the king, from the community) v charismatic (the kadi judge, the law-lords?) or the rational-bureaucratic (the state exam and professional career) </li></ul><ul><li>Mediation as the modern variant of the justice of the peace, mediation tries to solve the dispute rather than decide the case </li></ul><ul><li>Partners – collaborators(judges, prosecutors, other collaborators) versus rivals </li></ul>
  9. 9. European legal culture v LC of the EU <ul><li>European not just EU, EEA, Roman Law, Bologna, etc </li></ul><ul><li>Supranationality and European integration, the State above and below and polycentricity, asymmetric federalism </li></ul><ul><li>Human Rights as the common grammar and constitutional pluralism </li></ul><ul><li>Soft law and new governance (Commission practice) </li></ul><ul><li>EU: main features, supranational, uniformity, directly applicable and effective, effectiveness, institutional autonomy, non discrimination, fundamental market freedoms, spill-over functionalism and pragmatism </li></ul><ul><li>Integration through law: the Court, the Treaties, the regulation , the decision and regulatory approaches, no common administration, no common procedures, the driective as a tool for harmonisation, soft law and recommendation, Common Codes </li></ul>