Table Of ContentADVANCES IN POLITICAL SCIENCE
An International Series
Published in cooperation with the
International Political Science Association
Series Editor
Richard L. Merritt
University of Illinois
Editorial Board
Helio Jaguaribe de Mattos, Conjunto Universitdrio
Cdndido Mendes
Hans Klingemann, Freie Universitdt Berlin
Jean Laponce, University of British Columbia
Arend Lijphart, University of California, San Diego
John Meisel, Queen's University, Kingston
Marcel Merle, Universite de Paris I (Sorbonne)
Elinor Ostrom, Indiana University
Vadim S. Semenov, Institute of Philosophy, Moscow
Michitoshi Takabatake, Rikkyo University
Volumes published in this series:
1. THE EMERGING INTERNATIONAL ECONOMIC ORDER:
Dynamic Processes, Constraints, and Opportunities (edited by Harold K.
Jackobson and Dusan Sidjanski)
2. MANAGING INTERNATIONAL CRISES (edited by Daniel Frei)
3. WHY GOVERNMENTS GROW: Measuring Public Sector Size (edited
by Charles Lewis Taylor)
4. INNOVATION IN THE PUBLIC SECTOR (edited by Richard L.
Merritt and Anna J. Merritt)
5. COMMUNICATION AND INTERACTION IN GLOBAL POLITICS
(edited by Claudio Cioffi-Revilla, Richard L. Merritt, and Dina A.
Zinnes)
COMPARATIVE
JUDICIAL
SYSTEMS
Challenging Frontiers in
Conceptual and Empirical Analysis
John R. Schmidhauser
Editor
Butterworths
London Boston Durban Singapore Sydney Toronto Wellington
All rights reserved. No part of this publication may be reproduced or transmitted in any
form or by any means, including photocopying and recording, without the written
permission of the copyright holder, applications for which should be addressed to the
Publishers. Such written permission must also be obtained before any part of this
publication is stored in a retrieval system of any nature.
This book is sold subject to the Standard Conditions of Sale of Net Books and may not
be resold in the UK below the net price given by the Publishers in their current price list.
First published 1987
© International Political Science Association, 1987
British Library Cataloguing in Publication Data
Comparative judicial systems: challenging frontiers
in conceptual and empirical analysis. — (Advances
in political science)
1. Law and politics 2. Comparative law
I. Schmidhauser, John R. II. Series
342 K3165
ISBN 0-408-03165-4
Library of Congress Cataloging-in-Data
Comparative judicial systems.
(Advances in political science; [6])
In part based on papers presented at the conference
organized by the Research Committee for Comparative
Judicial Studies of the International Political Science
Association and held at Mansfield College, Oxford
University, April 6-8,1981.
Bibliography: p.
1. Courts—Congresses. 2. Judicial review-
Congresses. 3. Judicial process—Congresses.
I. Schmidhauser, John R. (John Richard), 1922-
II. International Political Science Association. Research
Committee for Comparative Judicial Studies.
III. Series.
K2100.A55 1981 347'.012 87-13151
ISBN 0-408-03165-4 342.712
Phototypesetting by En to En, Tunbridge Wells
Printed and bound in Great Britain by Anchor Brendon Ltd, Tiptree, Essex
FROM THE SERIES EDITOR
Advances in Political Science: An International Series reflects the aims
and intellectual traditions of the International Political Science
Association: the generation and dissemination of rigorous political
inquiry free of any subdisciplinary or other orthodoxy. Along with its
quarterly companion publication, the International Political Science
Review, the series seeks to present the best work being done today (1)
on the central and critical controversial themes of politics and/or (2) in
new areas of inquiry where political scientists, alone or in conjunction
with other scholars, are shaping innovative concepts and
methodologies of political analysis.
Political science as an intellectual discipline has burgeoned in recent
decades. With the enormous growth in the number of publications and
papers and their increasing sophistication, however, has also come a
tendency toward parochialism along national, subdisciplinary, and
other lines. It was to counteract these tendencies that political scientists
from a handful of countries created IPSA in 1949. Through
roundtables organized by its research committees and study groups, at
its triennial world congresses (the next of which takes place in August
1988 in Washington, DC), and through its organizational work, IPSA
has sought to encourage the creation of both an international-minded
science of politics and a body of scholars from many nations (now from
more than forty national or regional associations), who approach their
research and interactions with other scholars from an international
perspective.
Comparative Judicial Systems: Challenging Frontiers in Conceptual
and Empirical Analysis, edited by John R. Schmidhauser, is the sixth
volume in Advances in Political Science: An International Series. Like
its predecessors, it comprises original papers which focus in an
integrated manner on a single, important topic — in this case,
comparative judicial structures and processes — and its authors, from
various countries and social systems, take differing approaches to the
central theme. The volume itself represents a particular aspect of the
International Political Science Association's research program: the
chapters were first presented at a conference organized at Mansfield
College, Oxford University, by the IPSA Research Committee for
Comparative Judicial Studies.
Richard L. Merritt
FOREWORD
The Conference by the Research Committee for Comparative Judicial
Studies of the International Political Science Association — held at
Mansfield College of Oxford University from April 6-8,1981 — which
gave birth to many of the papers incorporated into this volume, proved
to be a genuine, indeed an outstanding success. That success represents
a tribute to its leading organizer, John R. Schmidhauser of the
University of Southern California; its local host-manager, John Boal
and the scholars of the Centre for Socio-Legal Studies, Wolfson
College, Oxford University; and to the twenty-one dive1rse participants.
The latter, having travelled from all over the world to a delightfully
hospitable, if dreary, rainy, and raw Oxfordshire, delivered thirteen
formal papers and six viva voce presentations in six extended sessions,
characterized by lively and informed debate.
Of the high scholarship and, in a good many instances, pioneering on
the still all-too-neglected front of Comparative Judicial Studies, the
quality of the papers speaks for itself. To one who was among a handful
of American political scientists who met in a Dallas hotel in 1964, in an
admittedly humble endeavor to give birth to a more or less organized
attempt to incorporate the study of Comparative Judicial Studies into
political science curricula in the United States, the Mansfield
Conference's achievement provided a genuine source of pride and
satisfaction. It had been a long road from that Dallas meeting —
involving a "small band of brothers", to wit, the quintet of Professors
Becker, Danelski, Fleming, Schubert, and myself. Traffic on that road
was aided by diverse individual pre-Dallas efforts on the comparative
studies front by such scholars as Professors Cappelletti, Cole, Corry,
Ehrmann, Friedrich, Kirchheimer, Loewenstein, McWhinney, and
Tingsten. It would be joined in post-Dallas days by the significant
contributions of such diverse "traditionalists", "conventionalists", and
"behavioralists" as Professors Gadbois, Galanter, Grossman, Jacob,
Kommers, Krislov, Nagel, Pritchett, W. F. Murphy, Schmidhauser,
Steamer, Tanenhaus, Ulmer, and others.
The scholar's quest ought to be for the attainment of learning and
understanding, here that of the diverse theories and practices that
inform judicial processes throughout the world, coupled with their
derivative application and, conceivably, adaption or adoption within
the parameters of the "art of the possible". The latter is what the
political and judicial process is all about. Thus, scholars seek answers
to the three basic questions political scientists in public law perpetually
do, and must, ask. These were neatly summarized by professors
Murphy and Tanenhaus, as follows: "(1) How can the judiciary
operate? ... (2) How does the judiciary operate? ... (3) How should
the judiciary operate? (1972:20)". The scholarly assemblage of the
Mansfield Conference provided sundry lessons, some that may even
prove to be seminal, within that aforementioned "art of the possible". It
may be useful to attempt to elucidate some of these lessons by way of
identifying references to the papers and commentaries that provided
the sine qua non of the three days of that so useful enterprise:
1. Although the fact of life may be more implicit than explicit, in the
final analysis the Comparative Judicial Process in democratic or soi-
disant democratic states finds a gravitation toward similarities rather
than differences, at least in terms of ultimate, rather than penultimate,
impact and effect upon the governmental process in a free, or relatively
free society.
2. While the appellate structure in general and the highest
appellate tribunal in particular still hold what is perhaps majority
fascination, we have indubitably come to recognize that we wish to,
indeed that we must, study more than legal systems; that functional
analysis without more does not render a complete picture of the
Comparative Judicial Process. In short, we are dealing with
considerably more than just conflict resolution.
3. Indeed, the concept of "comparative" government is at last
coming to be recognized as a veritably broad one. No longer
conceptionally or linguistically confined to a study of diverse states or
nations and their cultures, it is a concept that may well be profitably
applied vertically as well as horizontally; or, to put it differently, intra as
well as interstate, country, or division.
4. Although there is no doubt that the study of the Comparative
Judicial Process evinces roles and results that are tending to pinpoint
similarities rather than differences in governmental impact, the very
real differences that a priori characterize the nature of the judicial
process within separate states and their societies nonetheless must be
researched, examined, and understood.
5. Given man's increasing striving toward and assertion of the goals
of freedom of the person and absence of excessive governmental
restraint, both the interest in and analysis of the state of that freedom,
of the lines and limits of liberty and equality, happily characterized a
good many, perhaps most, of the Conference's papers as well as the
purposes of the sub-discipline.
6. Judicial review which, whatever its genesis — arguably Greek,
Roman, French, or even English — is still demonstrably present, at least
in theory, in some sixty sovereign states (although it may be truly
effective in probably no more than a dozen, if that many) will and
indeed should continue to occupy our most acute, arguably central,
concern and attention. One may well note the spate of books on judicial
review and "line-drawing" on the parameters of the judicial role that
have appeared since 1976 in the United States alone: Berger, Choper,
Ely, Gabin, Lusky, A.S. Miller, and Perry. Judicial review and its inter-
organ dispute-results were thus fortunately not neglected by the
Conference's members.
7. A viable theoretical mold remains elusive, as does a foolproof
model: there is a patent need for a social theory, a political theory. The
quest is neither facile nor predictable. But scholarly assemblies such as
the 1981 Mansfield College Conference on Comparative judicial
Studies may go a considerable way toward realizing that desirable goal.
As the pages of this remarkable collection of essays demonstrate, that
Conference constitutes a significant effort; its contributions are indeed
of high quality and promise.
Henry J. Abraham
University of Virginia
Charlottesville, Virginia
NOTES
1. The following countries were represented at the Conference: Bangladesh, Canada,
England, India, Italy, the Netherlands, Scotland, Sweden, and the United States.
References
MURPHY, W. F. and J. TANENHAUS (1972). The Study of Public Law. New York:
Random House.
PREFACE
Comparative Judicial Systems: Challenging Frontiers in Conceptual and
Empirical Analysis comprises a comprehensive and cohesive
collection of investigative essays by a group of well-qualified scholars
who are significant contributors in the field of comparative judicial
institutions and politics.
The essays are organized in accordance with the progression of
scientific inquiry in the field. Part 1 deals with comparative models,
conceptual frameworks, and the problems inherent in developing
them. Part 2 treats a wide variety of single nation analyses, most of
which are devoted to efforts at mapping the bases for scientific
investigation of comparative judicial politics. Part 3 comprises a
number of multi-nation analyses. These begin with imaginative
descriptive conventional pairing of the judicial characteristics of more
than one nation and extend to serious efforts at rigorously developing
and applying criteria for conceptual equivalence of such
characteristics.
This book builds upon the pioneering efforts of the fine scholars
noted among the pre- and post-Dallas contributors by Professor
Abraham in his Foreword. Yet in a more immediate sense it is the
outgrowth of the intense, critical exchanges which characterized three
international conferences, the panel discussions of the 1979 IPSA
meeting in Moscow, USSR, the 1981 conference of the Research
Committee on Comparative Judicial Studies at Mansfield College,
Oxford, England, and the 1982 IPSA meeting in Rio de Janeiro, Brazil.
I should like to thank two universities for the opportunity to
participate and edit this volume — my own institution, the University of
Southern California, and the University of Virginia, which provided an
intellectually stimulating setting for a visiting professorship in the
academic year, 1982-1983.
John R. Schmidhauser
PART I
COMPARATIVE MODELS AND
CONCEPTUAL FRAMEWORKS
