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Global Justice Reform

Global Justice Reform: A Comparative Methodology

Hiram E. Chodosh
Copyright Date: 2005
Published by: NYU Press
Pages: 227
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  • Book Info
    Global Justice Reform
    Book Description:

    Global Justice Reform critiques and rethinks two neglected subjects: the nature of comparison in the field of comparative law and the struggles of national judicial systems to meet global rule of law objectives. Hiram Chodosh offers a candid look at the surprisingly underdeveloped methodology of comparative legal studies, and provides a creative conceptual framework for defining and understanding the whys, whats, and hows of comparison. Additionally, Chodosh demonstrates how theories of comparative law translate into practice, using contemporary global justice reform initiatives as a case study, with a particular focus on Indonesia and India. Chodosh highlights the gap between the critical role of judicial institutions and their poor performance (for example, political interference, corruption, backlog, and delay), discussing why reform is so elusive, and demonstrating the unavoidable and essential role of comparison in reform proposals.Throughout the book, Chodosh identifies several sources of comparative misunderstanding that impede successful reforms and identifies the many predicaments reformers face, detailing a wide variety of designs, methods, and social dilemmas. In response to these seemingly insurmountable challenges, Chodosh advances some novel conceptual strategies, first by drawing on a body of non-legal scholarship on self-regulating, emergent systems, and then by identifying a series of anti-dilemma strategies that draw upon insights about the nature of comparison.

    eISBN: 978-0-8147-9035-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xii)
  4. PART I: In Search of Methodology

    • 1 Introduction
      (pp. 3-8)

      In the dawn of a new millennium, most national legal systems have made sweeping commitments to three areas of substantive political and economic reform. First, traditionally authoritarian political systems have sought to achieve democracy through popular elections,⁴ more accountable and transparent public service, and the effectuation of domestic human rights protections.⁵ Second, governments have loosened their grips on economic systems,⁶ embraced a freer marketplace, and recognized a broader range of real and intellectual property rights.⁷ Third, the international community has embarked on a nearly uncontrollable and irreversible process of globalization. Unprecedented daily flows of capital,⁸ technology,⁹ goods,10services,11information,12and...

    • 2 The Comparative Method: Which Method?!?
      (pp. 9-27)

      This chapter draws critical attention to the inadequacy of currently available explanations of the comparative method. Part A stresses the significance of comparison in the development of human intelligence and judgment in nonlegal and legal decision making within domestic and global contexts. Part B demonstrates that the study of comparative law has dedicated inadequate attention to explaining how comparisons are (or should be) made. Part C evaluates alternative justifications for the relative inadequacy of these explanations.

      Comparison pervades all forms of human decision making. Thus, from the minutiae of daily decisions (e.g., preferences of music¹ or computer software²), potentially life-altering...

    • 3 Comparing Comparisons
      (pp. 28-62)

      The conclusion to chapter 2 identifies three general choices in the process of comparison: purpose, content, and mode of differentiation. This chapter raises more specific issues about each of these choices and provides a preliminary basis for comparing (and developing rationales for the acceptance or rejection of) legal comparisons. It also identifies and evaluates the choice of comparative purpose. Part A addresses the tension between the three major purposes of comparative law—understanding, reform, and unification—and the underlying purpose of developing an autonomous discipline. Moreover, it emphasizes the need for specificity in the identification of purpose. Part B addresses...

  5. PART II: In Search of Justice Reform

    • 4 The Most Neglected Branch
      (pp. 65-78)

      As discussed in the introduction,⁴ many national legal systems have made sweeping commitments to democracy and human rights, to free, knowledge-based economies, and to globalization and the reduction of cross-national barriers. In pursuit of these commitments, countries have generated an enormous amount of new substantive law, including civil rights, criminal justice reform, commercial legislation, constitutional law,⁵ and free trade agreements and regional economic unions.⁶ The fulfillment of these commitments poses a formidable institutional challenge. The realization of the right to vote, the right to contract and protect property, and the ability to trade with other societies without predatory tariffs or...

    • 5 Between Rocks and Hard Places
      (pp. 79-100)

      Beyond the daunting nature of the problems to be surmounted, why does reform in so many countries, including Indonesia and India, appear to be so elusive? Why does the mere passage of a new law not immediately translate into a successful change in institutional behavior? Why do reforms often fall victim to the very forces of corruption and delay they are designed to address?

      The following discussion outlines a number of significant impediments to effective reform (with particular emphasis on poor comparative understanding of the nature of the problems and their solutions), the common failures that result, and the perplexing...

    • 6 Emergence from the Dilemmas
      (pp. 101-120)

      With the foregoing conceptual, economic, and political impediments to reform and the predicaments they create, the emergence of justice reform appears extremely unlikely. How will judicial systems like those of Indonesia, India, and so many other countries emerge from these nearly paralytic dilemmas of justice reform? And what help, if any, is greater attention to methodological comparisons of alternative designs and methods of reform?

      This chapter provides a set of preliminary, modest answers to these two pressing questions. Proceeding from the description of the neglected condition of submerging judicial systems in chapter 4, part A examines the very process (and...

  6. 7 Conclusion: The Prospects for a Comparative Methodology in Global Justice Reform
    (pp. 121-126)

    Part I of this book focuses on the weaknesses of comparative methodology. Chapter 2 evaluates explanations of the comparative method. Its part A emphasizes the importance of comparison in legal decision making and commentary. Its part B points out the general inadequacy of current explanations of the comparative method. Finally, its part C considers alternative justifications for the specific lack of attention to methodological problems and concludes that the complex nature of comparison best explains comparison’s methodological underdevelopment. Chapter 2 illuminates the need for greater attention to comparison as the theoretical foundation of comparative legal studies. Chapter 2 also notes...

  7. Notes
    (pp. 127-198)
  8. Bibliography
    (pp. 199-220)
  9. Index
    (pp. 221-226)
  10. About the Author
    (pp. 227-227)