COMPARATIVE JURISPRUDENCE

International and Comparative Jurisprudence



International and Comparative Jurisprudence

Introduction

The paper focuses on the comparison between Australian Law with Chinese Law. The study of courts in comparative perspective has a long history in the discipline of political science. C. Neal Tate (2002a) notes that articles dealing with international judicial systems were published nearly 100 years ago in some of the first American political science journals. However, the study of comparative judicial politics faded from the forefront of the discipline of political science for several generations, until social scientists began to again analyze legal systems comparatively, starting in the 1960s. In the last several decades, there has been a virtual explosion of research dealing with judicial structures and processes in comparative perspective. This chapter provides an overview of some of the most significant recent research on comparative courts and also examines the trends and future directions for comparative judicial scholarship. Obviously, only the general trends in comparative courts scholarship can be discussed here due to space limitations; for a more detailed listing of work in the field, the reader is advised to consult Tate (2002a, 2002b), which provides a comprehensive bibliography of books and articles in the subfield of comparative judicial systems.

This chapter first reviews the primary theories of judicial decision making, then examines constitutional and appellate courts in comparative perspective, including the differing forms of judicial review found throughout the world, then provides an overview of comparative trial systems, and concludes with suggestions for future directions in comparative judicial politics research.

Courts and Legal Systems

The study of courts in comparative perspective requires that one first determine exactly what constitutes a court. Early work in the comparative study of judicial systems attempted to provide this definition. An important study is Theodore Becker's Comparative Judicial Politics: The Political Functioning of Courts (1970). In this study, Becker defined a court as follows:

(1) a man or body of men (2) with power to decide a dispute, (3) before whom the parties or advocates or their surrogates present the facts of a dispute and cite existent, expressed, primary normative principles (in statutes, constitutions, rules, previous cases) that (4) are applied by that man or those men, (5) who believe that they should listen to the presentation of facts and apply such cited normative principles impartially, objectively, or with detachment, … and (6) that they may so decide, and (7) as an independent body. (p. 13)

A functionalist definition of court is given by Martin Shapiro in his important book Courts: A Comparative and Political Analysis (1981). Shapiro suggests that courts serve three major functions: conflict resolution, social control, and lawmaking. By lawmaking, Shapiro refers to interstitial lawmaking, which consists of filling in the gaps in statutory or customary law, and also to the judicial creation of law and policy. He notes that, although the existence of judicial policy making is frequently denied, the phenomenon exists in all courts and judicial systems.

These early works are notable because they laid out the foundations on which more advanced analyses in comparative ...