Kessler on Conciliation in 19th century Europe and the US

Amalia Kessler (Stanford Law) has posted 'Deciding Against Conciliation: The Nineteenth-Century Rejection of a European Transplant and the Rise of a Distinctively American Ideal of Adversarial Adjudication' on SSRN (Theoretical Inquiries in Law, 2009 forthcoming). (The paper was posted back in August, but only notified on the Stanford Working Paper Series last week). This is the abstract:

A sizeable body of literature suggests that informal methods of dispute resolution - and, in particular, conciliation - flourish only in societies marked by extensive social hierarchy. Given this literature, it is quite surprising to discover that in the mid-nineteenth century, the United States embarked on an extensive debate regarding whether to adopt conciliation courts, whose primary function was to reconcile the disputants by persuading them to embrace an equitable compromise. First created by the French Revolutionaries in 1790, conciliation courts were widely established throughout continental Europe. Observing this development, leading American lawyers and politicians - anxious to respond to public complaints about the costly nature of litigation and the growing power of the legal profession, and seeking a solution to the deep social rifts threatened by new forces of urbanization and industrialization - pondered seriously whether the United States ought to follow suit. Debate over whether to embrace such institutions occurred at the very highest of levels - including at the New York Constitutional Convention of 1846, now more famously remembered for giving rise to the Field Code. And a series of states enacted constitutional provisions authorizing their legislatures to create conciliation courts. Ultimately, however, despite the widespread interest in such institutions, these were never meaningfully established - except in the notable case of the Freedmen's Bureau courts of the Reconstruction south. This paper explores this largely forgotten episode in American legal history. It examines why a nation that was radically egalitarian by standards of the time would seriously consider embracing an institution that we tend more commonly to associate with inegalitarian, strongly hierarchical societies - and why, after coming so close to adopting conciliation courts, it ultimately failed to do so. In the process, by situating the debate over conciliation courts in a broader social and legal context, the paper also excavates the origins of the modern, quintessentially American commitment to the virtues of formal, adversarial legal process.

This is comparative legal history on a scale so grand that readers are sure to take issue with at least some details of Kessler's claim. But the argument presented, and the potential for the episode discussed to illuminate persistent questions about American 'distinctiveness', would seem easily to warrant the broad perspective taken. One objection at least that I personally thought might undermine Kessler's thesis, namely that wanting conciliation and successfully implementing conciliation may be two very different things, in particular when it comes to causal explanation, is dealt with to some extent in a footnote that may be worth quoting here (no 11):

"There is a difference, moreover, between a society’s desire to adopt informal methods of dispute resolution (including conciliation) and its ability successfully to do so. A closer reading of the evidence may well show that whatever a society’s reasons for seeking to embrace conciliation, the technique proves successful only to the extent that disputants can be persuaded to defer to the judge’s authority and that this, in turn, is most likely to occur in close-knit communities marked by clear, deeply embedded social hierarchies. Along these lines, it is striking that the French conciliation courts were directly descended from (and in many ways replicated) the seigneurial courts of the corporatist Old Regime".

I'm not fully sure this is the end of this particular difficulty, but Kessler's argument is undoubtedly facinating.

Customary law and Constitutional Law in Africa (New Papers: Tebbe & Andrews)

Two new papers on SSRN deal with the interrelationships between constitutional law, customary law and tradition in Africa. Penelope Andrews (Valparaiso) has posted 'Who's Afraid of Polygamy? Exploring the Boundaries of Family, Equality and Custom in South Africa' on SSRN (Utah L Rev, 2009). The abstract:

South Africa's post-apartheid constitution has been widely admired and constantly referenced by international scholars, and especially international human rights scholars, for its comprehensive embrace of gender equality. But the commitment to gender equality has been tested by other liberatory discourses, including African nationalism and cultural and religious autonomy. My paper will examine the evolution of South African legislation and constitutional jurisprudence in the face of competing imperatives, for example, between equality, legal pluralism, customary law/religious law, and the recognition of polygamy. In particular, I will focus on the Recognition of Customary Marriages Act (the Act), a statute that purports to regulate customary marriages, including the establishment of such marriages, as well as their termination. I evaluate the influence of this statute, if any, on gender equality, and whether its purported protection of women in polygamous marriages, in fact results in such protection.

Nelson Tebbe (Brooklyn Law School), for his part, has posted 'Inheritance and Disinheritance: African Customary Law and Constitutional Rights' on SSRN (Journal of Religion, 2008). This paper's abstract:

This Article concerns the conflict between African traditional rules of inheritance, which feature a rule of male primogeniture, and the post-apartheid constitution, which contains a strong guarantee of gender equality. While that guarantee must ultimately be enforced by the judiciary, this Article argues that the South African Constitutional Court's recent decision to strike down the central African customary rule for property inheritance carries a greater danger of backlash than has commonly been recognized. That risk is particularly grave under current political conditions, which are seeing a shift toward Africanization. Enduring change might more profitably be achieved by Parliament, by provincial and local governments, and by local communities themselves. A recent decision concerning inheritance of the chieftainship suggests that some African communities are already harmonizing customary law and progressive constitutional values. The Article ends by suggesting an approach that incentivizes localized reform, rather than commanding it in the first instance.

Sitaraman on the 'Use and Abuse of Foreign Law in Constitutional Interpretation'

Ganesh Sitaraman (Harvard Law) has posted 'The Use and Abuse of Foreign Law in Constitutional Interpretation' on SSRN (Harvard J of Law and Public Policy, forthcoming). This is the abstract:

This article provides a typology of the uses of foreign law in order to provide insight into whether foreign law can be appropriately used in constitutional interpretation, when, and what the stakes and parameters are in each case. Much of the commentary on foreign law usage has focused on the justifications for using foreign law and the principled or practical arguments against using foreign law. But the focus on the why of foreign law has obscured a more basic question - the ways in which foreign law can be used, that is, the how of foreign law. Focusing on the why of foreign law threatens to generalize arguments into debates on foreign law when it may be more helpful to debate particular methods of foreign law usage. Some methods of use may be more easily justified and others totally unjustifiable. Some scholars have recognized the need to focus on the how of foreign law, but they have identified only a limited set of ways in which foreign law could be used. This limited categorization of foreign law usage prevents clear evaluation of which uses are appropriate. The article's typology demonstrates that most uses of foreign law are not problematic, and as a result, that the foreign law debate should focus specifically on the few uses that are potentially problematic, rather than on foreign law more generally.

As the author himself says: "these days, everyone has something to say about the use of foreign law in constitutional interpretation". Much of the relevant American literature is dominated by the US perspective to such an extent that the main lines of argument are often difficult to follow for outsiders (like myself). Sitamaran's paper, too, is focussed on the US, but his views do have a broader application. And whether you agree with his typology or not, the emphasis on the 'how' question of the use of foreign materials is certainly very welcome.

Köbler in the English Courts: Cooper v Attorney-General

The Times today reported a decision of Mr Justice Plender in the case of Stephen Cooper v Attorney-General (Judgment of 30 September 2008) in the English High Court (The Times, 7 October 2008, 'When judicial error in EC law gives rise to damages'). This is thought to be the first claim brought in the UK for damages based on the cause of action developed by the ECJ in the case of Köbler v Republik Österreich (Case C-224/01).

The claim concerned two judgments of the Court of Appeal of 1999 and 2000, in which the Council for the Protection of Rural England, of which the claimant was a trustee of the London branch, had been refused judicial review of decisions by local authorities in London (R. v London Borough of Hammersmith and Fulham [2000] 2 C.M.L.R. 1021).

According to The Times, "His Lordship (...) deduced from Köbler, Traghetti del Mediterraneo SpA v Repubblica Italiana (Case C-173/03) ([2006] ECR I-5177 and Gestas, an as yet unreported case of the French Conseil d’État, May 19, 2008, that member states had to make good damage caused by individuals by infringements of Community law for which they were responsible, even where the infringement stemmed from a decision of a court adjudicating at last instance, provided that three conditions were met: (i) the rule of law infringed must be intended to confer rights on individuals; (ii) the breach must be sufficiently serious and state liability could not be confined only to cases concerning intentional fault or serious misconduct; and (iii) there must be a causal link between the breach of obligation and the loss or damage sustained by the parties".

Murkens on Comparative Constitutional Law in the Courts

Jo Murkens (LSE Law Department) has posted 'Comparative Constitutional Law in the Courts: Reflections on the Originalists' Objections' on SSRN as an LSE Legal Studies Working Paper (No. 15/2008). This is the abstract:

The controversy surrounding the judicial use of comparative constitutional law is not new. However, the debate has recently been reignited by a number of US Supreme Court justices who have spoken out on the use of non-US law in the Court. Scalia opposes, and Breyer favours, references to 'foreign law'. Their comments, made both within and outside of the Court, have led to a reaction by scholars. Arguably the debate is US-specific as it resembles the different views regarding constitutional interpretation, namely whether the Constitution's original, or rather its current, meaning is determinative. Yet the debate also raises broader issues of constitutional theory and politics: formal vs substantive legitimacy, globalisation of the courts, judicial sleight of hand, the cultural foundations of constitutional law, and the citation of non-primary sources of law in litigation. The present article explores these issues. It rejects radical approaches (either against or in favour of comparative constitutional law) and instead argues for a more modest process which both identifies the national specificity of law and grasps the mediating potential of law as a self-reflexive discourse.

Valcke on Convergence and Divergence in Contract Law

Catherine Valcke (U Toronto Law) has posted her European Review of Private Law article 'Convergence and Divergence between the English, French, and German Conceptions of Contract' on SSRN (University of Toronto Legal Studies Research Paper, No. 08/14). This is the abstract:

This piece aims to highlight the different internal and external perspectives on the English, French, and German law of contractual mistake. While the solutions devised by these three systems in response to mistake issues are functionally equivalent, it is possible to reconstruct the different means internally deployed by each system to reach these solutions into (different) coherent forms of argumentation. Depending on whether one takes an internal or an external perspective, therefore, one could conclude that the three systems are simultaneously converging and diverging.

This is an innovative contribution to the often exceedingly mono-dimensional convergence/divergence debate in European private law. Valcke again - see also her article 'Comparative Law as Comparative Jurisprudence' in 52 Am J Comp L 713 (2004) - demonstrates the importance of integrating multiple perspectives and objects of comparison when engaging in comparative research. Recommended.

The Judicial Systems of the EU Member States (ECJ Research and Documentation Service)

The Research and Documentation Service of the European Court of Justice has published a very useful overview of the judicial systems of the EU Member States, entitled 'Les Juridictions des États Membres de l’Union Européenne: Structure et Organisation', which is available free online, and as a book from the EU Bookshop. The book includes detailed country reports, graphic overviews of judicial systems and appeals procedures, and guides for further reading (all in French). A very handy source of information indeed.

Hat-tip: Felix Ronkes Agerbeek.