Our friend in Ireland has returned, posting two comparative
articles from SSRN on the Irish Society of Comparative Law Blog. The first is by a member of Juris Diversitas, the second someone I hope will become one someday:
Shawn Marie Boyne, Translating Civil Law 'Objectivity' with an Adversarial Brain:
An Ethnographic Perspective (January 9, 2013)
The
act of translation encompasses more than the transfer of linguistic meaning. It
also involves the transfer of larger cultural and epistemological meanings
(Wolf, 2011). When legal texts are the object of translation, the process
includes the “mechanism of the law” (Šarčević 2000:1). The role of a linguist
and translation theory in this process is contested (Harvey 2002) as some
scholars have argued that legal texts possess a unique communicative function often
overlooked by linguists (Šarčević 2012:189). While legal scholars have
questioned linguists’ claims to participate the law related interpretation
process, this chapter sidesteps that debate (Poirier 1995: 1034). Instead I
address the problems of subjectivity and interpretation that legal scholars
themselves face as they attempt to analyze the role that law plays on
unfamiliar turf. I identify and detail two challenges embedded in comparative
legal jurisprudence. One stems the pitfalls that legal scholars encounter when
they rely on legal texts as a source of understanding rather than investigating
how the law actually functions on the ground. The second stems from the
comparative legal scholar’s subjectivity.
In
the field of comparative law, these "translation" errors as well as
problems of subjectivity colored English-language scholarship regarding the
objectivity of German prosecutors for several decades. I show how scholars' use
of German codes as a proxy for German practice led scholars to claim that the
German criminal justice system effectively controlled prosecutorial discretion.
While new scholarship on German plea bargaining practices attempts to destroy
the myth of limited discretion, it misses the role that organizational culture
and training play in shaping decision-making processes. Drawing from my
fieldwork in Germany, I use examples from my own experience to show the dangers
of researcher subjectivity. The paper concludes with a call for further
comparative research that goes beyond am examination of foreign texts and
explores foreign legal practices.
Jaye Ellis, General Principles and Comparative Law (2011). European
Journal of International Law, Vol. 22, No. 4, 2011.
This
article explores the source ‘general principles of international law’ from the
point of view of comparative law scholarship. The currently accepted definition
of general principles and methodology for identifying such principles are
critiqued. The criterion of the representativeness of the major families of
legal systems, to which courts and tribunals tend to pay lip service rather
than applying rigorously, is meant to anchor general principles in state
consent, but is not a sound technique either for identifying principles of
relevance to international law or for preventing judges from referring only to
the legal systems they know best. Furthermore, the emphasis on extracting the
essence of rules results in leaving behind most of what is interesting and
useful in what judges may have learned by studying municipal legal systems.
Comparative scholarship is an obvious, rich, and strangely neglected source of
guidance for international judges who wish to draw insights from legal systems
outside international law.
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