NCJ Number
78759
Date Published
1981
Length
252 pages
Annotation
This textbook proposes a new model for the study of courts, one that emphasizes the different modes of decisionmaking and the multiple political roles that characterize courts in various political systems. It can be used as a basic text in comparative law or as the basis for a more general theory of the nature of judicial institutions.
Abstract
The book begins with a set of propositions about the behavior of courts as political actors. It argues that courts are not independent but part of the political regime. The author points out that courts often create their own legal norms, mix mediation with litigation to reach compromise solutions, and offer appeal not primarily for the protection of individual rights but as a device by which central political regimes consolidate their control over the countryside. These propositions are expounded by a comparative method which examines each claim in the context of the legal system which seems most likely to negate it. Thus, concerns about judicial independence have been placed against the background of the system that is generally regarded as the most independent -- English common law. The questioning of preexisting legal rules is studied in the system that is supposed to exemplify best the subordination of the judge to statutory law -- the code law systems of Western Europe. Mediation and litigation are studied in the imperial Chinese system, thought to rely almost exclusively on mediation; the political utility of appeal is pursued in the one major legal system that does not generally employ appeal -- traditional Islam. Reference notes and an index are provided. (Author abstract modified)