I'm reading a new paper by professor Vivian Curran, entitled "Re-Membering Law in the Internationalizing World". It's about the issues arising from the pervasive interaction of legal communities, specifically within the context of the EU and the ECHR. Central to the article is a study on the sort of legal translations at work when a case - here Pretty v. UK - first travels from a domestic legal order to the ECHR system and then is reported back to the legal orders of (other) Member States. So far it's absolutely fascinating, and I'm hoping to post some thoughts and questions later this week. For now, here's the abstract and some quotes.
This article examines some of the challenges to understanding new, non-national legal configurations as contexts of origin color understandings and evaluations of legal standards allegedly shared across legal communities. It examines a case on assisted suicide, Pretty v. U.K., decided by the European Court of Human Rights. The case illustrates mechanisms of legal integration in the European court, followed by a process of dis-integration that occurred when the decision was reported to the French legal community. The French rendition reflected a legal community’s inability to process common law information through civil law cognitive grids. The article addresses both the capacity of law to internationalize, and the sorts of comparative inquiries necessary to perceiving what lurks unseen, as the world experiences superimposed legal norms and claims, some mutually contradictory. It also discusses the peculiar relation of past to present in the establishment, evolution and transformation of legal significance. The European court engaged in decision-making affected by unspoken associations with the Nazi past that collided with the needs of a society transformed by modern medical technology. The “remembering” of law that this article addresses thus involves (1) recompositions of law as it increasingly ignores old borders and categories; and (2) the ongoing need to examine law’s past meanings in order to understand its present incarnations and, most importantly, to imagine its potentials in our time of flux and of increasingly complex and elusive non-national legal constructs.
And some quotes:
-On legal integration and faulty translations: "A hidden layer beneath apparent legal integration reflects resistance to the new that is not willful, but results from classifications and categorizations that reprocess the non-national through categories incapable of absorbing the new because the categories themselves have not been altered so as to have the capacity to admit the new" (on p. 11-12)
-On the aptly named 'civilianization of case law': "The application of a precedent to a future dissimilar case is a reinsertion of the civil law tradition into what is being called a common law respect for case law" (on p. 15)
Vivian Grosswald Curran
Re-Membering Law in the Internationalizing World
University of Pittsburgh School of Law Working Paper Series, No. 18/2005
Document: Available through Bepress