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Comparative Courts and Law

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Alexei Kondrackyj

on 21 October 2014

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Transcript of Comparative Courts and Law

Shapiro’s Mediation Continuum:
What is Comparative Courts and Law?
Involves an analysis between two or more legal systems, in one or more legal issues or areas of law or,

a single case study concerning the development or change in a state's legal system
Courts and the Judicary
Judiciary:
the system of courts within a country
Judicial Independence and Judicialization
Comparison: Judicialization of politics and political appointment systems, Canada and the United Kingdom
is the increasing reliance, on courts as
a means to address public policy questions and political controversies.
The Judicialization of Politics:
Court Systems
Comparative Courts and Law
Comparisons
Macro:

Comparing a whole legal system or a whole area of law.
Micro:
Comparing a specific issue or problems within or between states.
Courts:
A particular form of tripartite dispute resolution that substitutes law and office for consent.
United States
France
How do you tell what a court is?
Judge
Go-between
Mediator
Arbitrator
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The Functions of Courts
Dispute Settlement
Courts adjudicate
legal disagreements
between contracting
parties
Administrative

Review
Courts review the legal
validity of administrative
decisions
Enforcement
Courts monitor police and prosecutors as they use the state’s coercive power
Constitutional Review\Judicial review
Courts hold other state actors accountable to constitutional, procedural and rule of law expectations.
Two Main Types of Constitutional Review

Strong Review
Weak Review
Judical Independence:

The belief and ability of judges to decide cases as they think appropriate, regardless of what other people and especially politically powerful officials or institutions desire
Protections:

Normative
Structural
Canada
Old System:
PM controlled
United Kingdom
Old System:
PM controlled
Judical Expansion:
Judical Expansion:
Charter of Rights and Freedoms
European Convention on Human Rights
New System:
New System:
Legislative input
Professional Commission
Legal Cultures
What is a Legal Culture:

“A set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in society and the polity, about the proper organization and operation of a legal system and ideas about the proper way that law should be created and applied.”

- Merryman, John Henry.
The Civil Law Tradition
. Stanford, CA: Stanford University Press, 1985.

Common Law
Legal system in which judges base their decisions not only of their understanding of written law, but on their understanding of past court cases
Civil law
Legal system in which
judges may only follow the law as written and must ignore past decisions. Each case is considered a separate and unique event.
United States and Australia
Domestic legal culture and human rights treaties:
Commonalities:
Former British colonies

Common Law Countries

Countries have Strong form judicial review

Countries have an individualist conception
of the law
Differences:


Revolutionary v. peaceful separation

Codified Bill of Rights v. No codified Bill of Rights
Full transcript