Wednesday, June 1, 2011
The question of whether and how to translate foreign legal terms has long bedeviled comparative legal studies. (Indeed, I have already assumed what needs to be demonstrated by calling the foreign terms "legal.") No two systems are exactly equivalent; how do we decide that the person who in the foreign system's language is called "fremistan" should be called (for example) "judge" in our system? Obviously, we have to have our own definition of what a "judge" is; it won't do to say that we should just defer to the foreign system's definition and not "impose" our own definition, because the foreign system doesn't use the word "judge"; it calls the person a "fremistan." For all we know before the fact, that describes someone who leads an orchestra by waving a baton.
A great way to get up to speed on this issue is to look at the Bohannan-Gluckman debate (Paul Bohannan, "Ethnography and Comparison in Legal Anthropology," in Laura Nader (ed.), Law in Culture and Society (1969): 401-418 and Max Gluckman, "Concepts in the Comparative Study of Tribal Law," in ibid.: 349-367); here are excerpts. The issue is discussed with relation to China in Thomas B. Stephens, Order and Discipline in China (1992): 3-12. (For a critique of Stephens, see the always-insightful Teemu Ruskola, "Law Without Law, or Is 'Chinese Law' an Oxymoron?", 11 Wm. & Mary Bill of Rights J. 655 (2003).)
This is all by way of preface to talking about whether the institution in China called fayuan (法院) and conventionally translated as "court" should indeed be translated that way. The issue came up recently in a discussion on the Chinalaw listserv, and it seemed worth a blog post.
One contributor commented (slightly edited), "Are Chinese courts real courts in the modern sense? I think the answer is positive; at least they are expected to make impartial decisions and solve disputes."
I think the answer is actually quite difficult, as can be seen if we think about other institutions that are expected to make impartial decisions and solve disputes. Take administrative law judges in the US: would we say that they are institutionally a "court"? What about arbitration tribunals? What about a disciplinary tribunal within an institution (for example, a university) that hears complaints about employees? In all these cases, it seems to me that the answer is, "Well, sort of yes in one sense and sort of no in another sense." And then we have to explain what we mean. It doesn’t seem obvious to me that Chinese judges are more like Article III US federal judges than they are like ALJs, if we have to choose between the two very imperfect analogues. I think there’s a temptation to think, "Well, China must have courts somewhere – we can’t posit a legal system without a court system" and then to focus on fayuan as the most likely candidate (which they would be if the premise were true).
An interesting practical question is where the burden of proof should lie in discussions of this question, and whether that should vary depending on the forum and the purpose of the discussion. Is it for the deniers to show that fayuan aren’t really courts, or for the proponents to show that they really are? As a practical matter, US courts seem to take the position that all countries have well functioning court systems worthy of the name unless it can be shown otherwise, but if we think about it I’m not sure why that should be the default rule. Suppose one party says, "Here’s what a foreign court did," and the other party says, "That wasn’t a court!" Or even more perplexingly, adds, "This institution, not the one pointed to by the other party, is really the foreign country’s court." Whoever’s deciding the question of who’s right has to have their own definition of what constitutes courtness as well as a way of allocating the burden of proof. But these issues don’t seem to get serious consideration. Deference to foreign courts (I really should say "courts") is a matter of etiquette, not justice, and US courts are (or at least in my opinion should be) in the latter business, not the former. And even if we want to defer, we still have to know beforehand that the foreign institution in question really is a court (by our definition of deference-worthy institutions) before we defer to it. There is simply no avoiding the issue.
I might add that deference shown by courts within a system to each other is a different issue; in the US, for example, it's not outlandish to have a default presumption that the judgment of another state's court was made in accordance with procedures that passed constitutional muster.
Tuesday, May 31, 2011
Here’s an excellent piece by Stanley Lubman on recent trends in the court system: in brief, judges are being urged to mediate instead of adjudicate.
The push to mediation seems to be based on an entirely untested, unproven, and intuitively dubious premise: that a mediated compromise outcome results in greater social harmony than an adjudicated outcome. Sure, the party that would have gotten less in adjudication will be feeling good, but the party that would have gotten more in adjudication won’t be feeling very harmonious, I’ll wager.
On the question of “how would they know?”: Remember that what’s being proposed here is a change in policy. Therefore, (1) some parties will have some sense of what they might have gotten under the old policy, and (2) those that don’t will have to be kept in ignorance of what they might have gotten before the government decided to make adjudication more costly, and deliberate obfuscation doesn’t seem to me to be the basis of sound social policy.
One can see the push to mediation as being win-win in one situation: where the relative cost of mediation versus litigation is achieved by lowering the cost of mediation instead of raising the cost of litigation. Parties move toward mediation through a carrot instead of through a stick; nothing to object to there. But I do wonder whether this is how increased mediation rates are actually being achieved.