Law and Justice around the World

A Comparative Approach

Mikaila Mariel Lemonik Arthur

• Publisher: University of California Press
• Year: 2020
• ISBN:
  9780520971585
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

Law and Justice around the World is designed to introduce students to comparative law and justice, including cross-national variations in legal and justice systems as well as global and international justice. The book draws students into critical discussions of justice around the world today by:

• taking a broad perspective on law and justice rather than limiting its focus to criminal justice systems
• examining topics of global concern, including governance, elections, environmental regulations, migration and refugee status, family law, and others
• focusing on a diverse set of global examples, from Europe, North America, East Asia, and especially the global south, and comparing the United States law and justice system to these other nations
• continuing to cover core topics such as crime, law enforcement, criminal courts, and punishment
• including chapter goals to define learning outcomes
• sharing case studies to help students apply concepts to real life issues

Instructor resources include discussion questions; suggested readings, films, and web resources; a test bank; and chapter-by-chapter PowerPoint slides with full-color maps and graphics. By widening the comparative lens to include nations that are often completely ignored in research and teaching, the book paints a more realistic portrait of the different ways in which countries define and pursue justice in a globalized, interconnected world.

CHAPTER 1

The Study of Comparative Law and Justice

CHAPTER GOALS

1.Understand why the study of comparative law and justice is an important area of study and how it can be useful for justice and legal system professionals.

2.Become familiar with basic terminology used in the study of comparative law and justice.

Consider map 1. You will see that the countries of the world are each colored black or one of three shades of grey. What do you think these shades represent? What do Brazil, Kazakhstan, and Israel have in common? Russia, Algeria, and Papua New Guinea? Mexico, South Africa, and Iceland? Or perhaps hardest to explain, the United States, Saudi Arabia, Belarus, and Somalia? Take a moment, and make a guess.

Map 1 A map of the world.

Those who contemplate this map often struggle with the question of what it depicts, and they come up with a variety of explanations, ranging from aspects of world history to issues of global economics. The actual answer is that the map depicts countries’ policies about the death penalty (Amnesty International 2017). The lightest grey countries, like Mexico, South Africa, and Iceland, have completely abolished the death penalty—no one can be sentenced to death in those countries. The medium grey countries, like Russia, Algeria, and Papua New Guinea, still have the death penalty on the books but have abolished it in practice, meaning they do not currently sentence people to death or carry out judicially imposed executions. The darkest grey countries, like Brazil, Kazakhstan, and Israel, retain the death penalty, but only for cases of extraordinary or exceptional crimes, such as treason or military offenses. Finally, the black countries, like the United States, Saudi Arabia, Belarus, and Somalia, retain the death penalty for ordinary crimes—whether only for murder, as in the United States, or for a wider variety of offenses.

The study of comparative law and justice can help us understand patterns like those we observe in map 1. People who study comparative law and justice have done the work of gathering and compiling the data that lets us group and categorize countries. More sophisticated analytical work can then be carried out to try to understand why countries do what they do and what the consequences of these differences might be. Some of these explanations regarding the death penalty can be found in chapter 7. But for now, let’s consider why we study comparative law and justice in the first place.

WHY STUDY COMPARATIVE LAW AND JUSTICE?

People often think of law, crime, and justice as local issues. In countries like the United States, Canada, India, and Australia especially, law is fairly localized, with different states, provinces, and regions taking somewhat different approaches to law enforcement, punishment, and criminalization. So why, then, is it important to take a global perspective on these issues?

Well, there are a number of reasons. First of all, we live in an increasingly globalized world. The sociologist George Ritzer defines globalization as “the worldwide diffusion of practices, expansion of relations across continents, organization of social life on a global scale, and growth of a shared global consciousness” (Ritzer 2011:166). Let’s consider what each of these four elements means.

By the worldwide diffusion of practices, Ritzer means that things that are done in one place become done everyplace. There are a wide variety of examples of such diffusion. Pizza and sushi are found all over the world today, not just in Italy and Japan, respectively. Similarly, many religions are practiced worldwide rather than solely in a specific nation or region. Soccer, cricket, and other sports are played around the globe. And movies—whether they come from Hollywood, Bollywood, or Nollywood—are viewed in countries far from those in which they were produced.

By the expansion of relationships, Ritzer is referring to the growth in connections between people and governments across the globe. Before globalization took hold, people would generally have known only others living nearby, and governments would have had ties only with neighboring nations. Now, countries on opposite sides of the world can forge alliances, and people can build and maintain personal and business relationships across oceans. Such relationships, and the practices embedded in them, lead to new ways of organizing social life. Consider the example of stockbrokers’ work schedules. When financial markets were local, traders worked the hours their local stock exchanges were open. But today, with global economic relationships and trades across multiple exchanges, brokers’ work lives have been reshaped to reflect the global marketplace. Thus, a stockbroker in New York may need to start work at 4 A.M. so they can talk to clients in London as their workday begins or check in with the Tokyo office as the day there comes to a close. Finally, Ritzer argues that globalization has brought with it a new level of global consciousness. By this, he means that we see ourselves as part of a global world and are conscious of the interconnections between people and between nations.

Another definition of globalization, which takes a slightly different perspective, refers to globalization as “the intensification of worldwide social relations which link distant localities in such a way that local happenings are shaped by events occurring many miles away and vice versa” (Giddens 1990:64). While it is clearly the case that some local events always affected distant areas—for example, when volcanoes erupt, they result in not only local destruction but also global weather changes—globalization as a social phenomenon emerged with the development of global travel and global communications technologies. Therefore, we can say that globalization began during the ages of exploration and colonization in the 1500s and 1600s and that its pace intensified in the 1800s with the development of steamships (see figure 1) and telegraphs.

Figure 1 The SS Great Western, the first purpose-built transatlantic steamship, in 1838 (lithography created by Napoleon Sarony, A. Robertson, and H. R. Robinson).

Globalization has led to increased interaction among countries in relation to issues of law, crime, and justice. Our world must grabble with global problems like environmental catastrophe, world war, cross-border crime and terrorism, and human migration. Without a global approach, we cannot understand how and why these problems arise, what their consequences are, and what approaches might most effectively reduce the harm they can cause. Limiting this harm, whether by intervening when problems arise or by working to prevent them from arising in the first place, requires countries to work together. And working together requires that people understand one another’s perspectives, approaches, norms, and values.

As countries have worked together on various global and regional problems, they have built a complex array of global justice institutions. Historically, these institutions were limited to bilateral or multilateral treaties and alliances between nations. Today, though, we have many more global organizations and institutions. Some of these are global, like the World Trade Organization, and others are regional, like the African Union. Some, like the United Nations and the European Union, deal with a broad spectrum of issues, and others, like Interpol and the International Criminal Court, deal with a narrow set of topics and tasks. Without people who are willing to work with those from quite different national contexts to find solutions that are acceptable everyone, such global institutions could never be built. Again, this type of work requires understanding across legal, political, and value systems.

Taking a global perspective on issues of law, crime, and justice therefore enhances our international understanding in our increasingly globalized world, and it establishes the basis for cooperation between countries. But that is not all it does. It also allows people who work within or make policy for legal and justice systems in a particular national context to learn from the ways that other groups or nations do things (Breyer 2018). For example, Norway has an unusual prison system, discussed in chapter 7, which provides prison inmates with much more freedom of activity and movement and treats them much more like they would be treated outside the prison walls (Slater 2017). Yet Norwegian prisoners are much less likely than prisoners in many other countries to be returned to prison in the first few years after their release. Could prison authorities in other countries learn something from Norway’s approach? Would adopting some of Norway’s practices reduce recidivism elsewhere? Questions like these can extend to any area of the legal system, whether it is an analysis of the effects of making Election Day a national holiday in the United States, a study of the consequences of requiring all employers to provide paid vacation time to their employees, or an investigation into what happens if most police officers are not permitted to carry firearms.

Thus, it is clear that it is important for people who care about legal and justice systems, whether as policymakers, employees, or observers, to learn about what other countries do. There are even career paths devoted to working specifically on questions of global justice, often through nongovernmental organizations (NGOs). These include global NGOs focused on specific issues or causes, as well as those focused more generally on global access to justice. For example, The Hague Institute for Innovation of Law (HiiL), based in the Netherlands, works to develop policies to ensure that people all over the world have access to justice and legal services when they need them to help resolve disputes (HiiL 2017). Other options include employment in a global governance organization like the United Nations, in a country’s foreign service, or as a consultant who works with countries struggling with particular issues. For example, Independent Diplomat is a consulting firm that helps countries develop political strategies and navigate international law (Independent Diplomat n.d.). It has worked on issues as disparate as how the low-lying Marshall Islands will be able to cope with climate change and sea-level rise and how the non-self-governing territory of Western Sahara can work toward autonomy.

But even if your career will not ever relate to global law and justice or directly benefit from an understanding of how legal and justice systems in other countries have addressed particular problems and issues, it is still useful to learn about and pay attention to the rest of the world. In our increasingly globalized context, what happens on the other side of the planet can have real consequences for our lives, whether by shaping our economic opportunities, contributing to climate change, or creating or avoiding a global military conflict. And so many of us are caught unaware by these processes—from the military service member who has not learned enough world geography to know where the countries to which he or she may be deployed are located to the small business person planning to import a trendy new food product without developing an understanding of the complex dynamics of cross-border trade regulations, from the parents planning an international adoption to the senior citizen sitting in a recliner and tryi...