Encyclopedia of Sociology Vol

‘‘chaos’’ may be useful in a strictly descriptive sense, it is better to speak of these changes in the term employed by Schumpeter (1976) as winds of ‘‘creative destruction,’’ for they did not simply destroy but created what we speak of as the modern world. What they destroyed was basically feudalism and the concept of status fixed at birth as well as the conception of a divinely ordained, and hence unchangeable, social universe. In Weber’s classic phrase, we witnessed a ‘‘disenchantment of the world’’ which left humans, in the words of the existentialists, fated to create their own world and take responsibility for it. This meant that law was secular, torn loose from any religious basis, but focused instead on what came to be called ‘‘positive law,’’ that is law enacted by legislatures and parliaments. The transformation was not merely procedural but involved substantive changes in the assumptions of legal rights. These were the now-familiar rights stated in the American and

French revolutionary documents—rights to liberty and property, the opportunity to change one’s status through one’s own efforts, the right to own land in one’s own person rather than merely, as in feudalism, as a serf or dependant of a feudal lord.

Along with these changes came fundamental changes in loyalty and allegiance. Instead of fealty and subordination to lord or guild master, allegiance came to be narrowed to a single, overarching focus on the nation-state. The power of the church was similarly destroyed or greatly attenuated, as in England, and with that decline went the jurisdiction of ecclesiastical courts as well, though some of the traditions of canon law as, for example, in civil procedure (where courts make use of written records of proceedings and much less, than in common law systems, of oral testimony in trials), were retained.

Although the state and the law created by legislators came to make up the substance of law, it should be noted that in time it became evident that some controls were necessary on the state itself. In the United States, this control is institutionalized in the doctrine of the separation of powers, especially the ability of the courts to rule on the constitutionality of legislative enactments as well as the authority and legality of administrative acts and regulations. The civil law countries also elaborated a separation of powers but a very different one. The concern there was the enormous power judges had during the feudal period to act, usually in

support of the landed classes and the aristocracy. As Stone (1986) points out, the French parlements (panels of judges) had almost limitless power— they could arrest seditious persons, ban public gatherings, evaluate regulations of all kinds, supervise guilds and universities, and act as censors of public morals. Somewhat similar powers were enjoyed by the audiencia as representatives of royal power by the Spanish conquerors of Latin America. Such power led to their becoming wealthy and powerful, which led, in the case of France, ironically, to their own undoing. Although their vast powers might (and did occasionally) act as a break on royal powers, instead in a final act of defiance of the royal power, they threatened to resign on the very eve of the French Revolution. The Constituent Assembly voted to place them on indefinite vacation and then abolished them altogether. In a sense, their very arrogance and posturing led to a recognition that they would be a permanent obstacle to the new freedoms the revolutionaries wished to establish. A result was that there was a serious attempt to reduce the judge forever to a mechanical figure who would simply carry out the expressed will of the parliament in the name of the people. As such, the judge would have no inherent powers at all but would become a clerk or servant.

He was not to presume even to interpret the will of the parliament. But how was that to be achieved?

The answer was to create a code that could answer all legal questions for the judge. In terms of the triadic model, two adversaries would argue before a neutral third who would simply delve into the code, find the answer, and impose the solution on them. In practice, as we can see from our vantage point, matters could never be so simple. As time went on, the concept of a legislative or code monopoly of law gave way to systems whereby the judge could declare legislative or administrative acts unconstitutional, but the process involved much hedging by being careful, at first, at least to locate the places in which such review could take place outside the ordinary court systems in special constitutional courts (often not even called courts) as in France, Germany, Italy, and Spain, and in most Latin American countries, though in the latter, more influenced by U. S. practice, they were less reluctant to call them courts. There was little of this problem in England, which changed more slowly, retained more feudal practices, and, most important, did not go through a

bloody revolution to achieve the doctrine of parliamentary superiority (though the British did cut off at least one head and became, for a time, a republic).

Although one often speaks of common law systems as made up of cumulative, judge-dominat- ed case systems, and Civil law countries as code systems, Merryman (1985, ch. v) reminds us that the contrast is overdrawn and misleading. All American law students are forced to master the Uniform Commercial Code, and many states routinely refer to their laws as ‘‘codes.’’ So too, there are code nations, such as Hungary, that actually did not enact a code until it became a socialist state, although it was a Civil law country before then. Instead, what is distinctive of codes in civil law systems is that they are unified documents that seek to express the spirit, ideology, and goals of the new state the revolution has created. Thus, the French code, the Code Napolèon of 1984, sought to express the ideology of the French Revolution— liberty, equality, and fraternity—in every clause. It was intended to be a blueprint for a utopia. Thus, every attempt was made to abolish or at least hide any earlier statutes or laws that were inconsistent with it and try to make a fresh start. Law would now begin with the Code Napolèon.

Further, in lines with the French Declaration Rights of Man and of the Citizen, the Code Napolèon must be one that the average Frenchman could read and interpret for himself without ‘‘humiliating’’ himself by going through clerks, officials, and other overlords to get to the courts. As such, lawyers would be unnecessary. For this to be possible, the code must be complete—without gaps. Everything would be covered. Although manifestly impossible, the Germans did make a valiant attempt to do so in the Prussian Landrecht of 1794, which laid out some 17,000 detailed ‘‘fact situations’’ that were felt to cover everything that could come up, thus eliminating any need for lawyers or interpreters. It failed, but it is a striking illustration of how persuasive was the ideology of the French Revolution, which created the belief that it could be done. In the Code Napolèon and others following it, the goal of completeness is achieved but only by broad statements that practically invite judicial interpretation. (For example, the Italian Civil Code of 1942 tells judges to follow the intention of the legislature, and if it is not entirely clear, then to reason by ‘‘analogy.’’)

Germany, under Bismarck, did enact a code in the full sense but in what can only be seen as a very Germanic manner. The Code Napolèon began with certain assumptions about human nature (equality, liberty, etc.) and tried to produce a humanistic code that would, presumably, have universal application. Under the influence of Savigny, a major German historian, that approach was felt to be inappropriate. Instead, he insisted (in the face of heated controversy) that the German code (and he did agree that a code was necessary), since it was intended to represent the spirit of German society, must be based on the German volkgeist (folk spirit). But it was first necessary to decide what that was. To that end, and with help of German romantic writers, he felt it necessary to plumb German history for the basic elements of the volkgeist and build the code up from those elements. That code would then be not only historically oriented but also scientific (in being built up by logical and empirical deduction from basic principles) and professional. This code would not be revolutionar- y—quite the contrary—but would be a true code in being built up, paragraph by paragraph, from principles that could stand on their own as a legal document and manifesto of the new Germany. One difference from the French code was that with its complexity and its dependence on the many historical details that went into the volkgeist, it would require lawyers to explain and interpret it.

Nevertheless, it was careful, like the French, to make sure judges would have little power, perhaps even less than was the case in France. For answers, the German litigant, with the help of his lawyers, was to go to the code and, above all, not to seek answers as American and common law lawyers do. That would just return power to the judges again.

Codes were also enacted in the many countries in Europe and elsewhere that followed the

French or German systems (Japan tried doing both, with a dollop of the U. S. model thrown in as well (Haley 1991), though the German model eventually triumphed). When a code was shown to have gaps, scholars (in keeping with the tradition of drawing on the juriconsults in Roman law) would develop a new principle, as in an example provided by Watson (1981), wherein a doctrine similar to the British concept of estoppel was developed to cover cases where a person had acted contrary to his usual practice but others had come to rely on this new behavior. But when a new

interpretation (rather than a gap) was the problem, the court would draw on similar cases, not as precedents but to use as a basis for a new principle that would be held to govern the case at hand. In this manner, the spirit of a code based on permanent principles would be maintained.

The German approach to codification had a lasting effect in emphasizing the dominant role of the scholar in civil law systems generally. Although the scholars were everywhere evident, in the case of Germany, Savigny and his followers felt that in creating what they considered to be a code based on ‘‘scientific’’ principles they were creating a body of law that was indeed scientific in a sense not unlike that of the physical sciences. It was built up from empirical elements, could be found to be true or false, subject, as any science is, to modification as new facts came in. It came to be called ‘‘legal science,’’ which remains the dominant school of thought even up to the present, however much criticized. It had its own concepts, such as a ‘‘juridical act,’’ and was systematic in structure and therefore an infinite distance from such American schools of thought as ‘‘legal realism.’’ Above all, the Pandectists (as they came to be known, from the Latin word for Justinian’s Digest—pandectae) felt their great strength was their purity in being divorced from politics and everyday life.

Actually, as Merryman (1985, pp. 65) points out, the Pandectists were far from being value free. The doctrine was shot through and through with the basic assumptions of nineteenth-century European liberalism—private property, liberty of contract and, above all, individualism. They were most limited in their concept of law as a matter of transactions between private individuals, an assumption that was to collapse in the growth of giant collectivities, such as corporations and labor federations and, most important, the increased role of the state in managing economic and social life. Although civil law systems recognize the distinction between private and public law, even dividing up law in just that way, they hardly anticipated, nor could they, the merging of the two systems as states began to manage private life, and as private relations became imbued with public consequences as with pollution, the spilling over of populations across borders and, still later, the emergence of new national groups or even nations and new communities such as the European Community (cf. Gessner, Hoeland, and Varga 1996).

It is clear from the above that the Uniform

Commercial Code in the United States, though called a code, has nothing in common with the civil law codes. It is not animated by any underlying utopian principles, it makes no claim to answer all questions, and it makes no attempt to supersede any laws. Instead, it is a collection that seeks to bring some order into the many elements of commercial law. States are free to ignore it (though few do so), and new laws can be tacked onto it at any time. It remains judge-made law, with judges being free to draw on it or not for precedent as they please.

Legal science did leave one imprint on American law, though a minor one. Case law, as taught in

American law schools, was thought of as a kind of science, with cases as the raw materials. Conclusions from case accumulations might generate principles with wide applications. An attempt to state these principles took the form of what were called restatements, which are, from time to time, quoted by judges as they go about making law.

JUDGES

As we have noted, the position of judges in civil law countries is vastly different from that in common law countries, especially the United States. Merryman

(1985) points out that judges are not only respected in the United States but that some, such as Marshall, Holmes, Brandeis, and Cardozo, are culture heroes. The opinions of U. S. Supreme

Court judges are studied carefully, as noted earlier, for hints of policy changes and guidance on how to proceed in deciding on difficult issues such as euthanasia, product safety, and whether schools may require bilingualism of its teachers. There seems no limit to areas into which judges may wander. Nor do judges hesitate in passing judgment on any law (if appropriate, of course) or even on the private life of the President of the United States. As has often been noted, American law is judge-made law built up from cases that lawyers have presented for decision (and, note, the judge must limit himself to such presentations, since he is very limited in his power to bring up issues on his own initiative). The supreme doctrine is that of stare decisis, whereby judges are required to follow decided cases; new cases must be compared to those already decided. If similar facts, then a similar decision. If the facts are significantly different, then there is a different decision. As noted by

Clark (Merryman 1991, p. 898), this need to do such case research, which falls on the shoulders of lawyers, helps explain (though only partly) the fact that the United States has more lawyers per capita than any other country for which we have reliable statistics.

Nothing could be further from that image among civil law judges. To begin with, the status of ‘‘judge’’ is usually much lower than is the case for common law judges. A civil law judge is a government employee, a civil servant, appointed to his position, whose career will follow that of other civil servants in rising by seniority and merit. His prestige is not necessarily low but reflects the prestige of civil servants at his level. He likely identifies with other civil servants, though more closely with judges, resulting in a certain insularity from the general public and its concerns. He is particularly isolated from any creative role in decision making. In line with the continuing suspicion of the dangers of judicial power going back to the parlements of pre-Revolutionary France (as well as similar excesses in other countries), he must not interpret the law or review legislation. As noted, he is a kind of expert in the application of the law to particular cases. More recently, constitutional review has begun to make its appearance in Austria, Spain,

Italy, and Germany, but this goal is achieved not through giving judges in the ordinary courts new powers but rather through the creation of special constitutional review bodies that often are not called ‘‘courts’’ but that in time perform court functions.

This is not to say that appeal from judicial decisions was or is impossible. Quite the contrary, appeal is common but still dominated by attempts, at least in form, to restrict the power of judges. Thus, in France, appeal for what is claimed to be a misinterpretation of a law may be made to the Court (originally called a tribunal) of Cassation which could quash an incorrect interpretation by a lower court. It would indicate the correct interpretation but then remand it to the lower court to modify its ruling. The courts could ignore this decision but in practice would rarely do so. The process was time-consuming, and, in the case of Germany, the higher court would not only quash the lower decision but go ahead and revise the decision itself. It was also possible to appeal administrative rulings, though not, as in the American case, by declaring a law unconstitutional or

lacking in validity because of vagueness or for being over-broad. Instead, another body outside the court system was created. These might be what would amount to administrative courts, with a council of state at the top, a process seen not only in France but also in Italy and Belgium, as well as in Germany and Austria, where they were actually called administrative courts. Such attempts to counter state power were not necessary in a country such as England, where courts have the power of quo warranto (questioning the legality of an act by a public official) and mandamus (the ability to order a public official to perform as required by law). As noted, similar powers are possessed by ordinary American courts, though it is difficult for courts to use them.

The attempts to control the power and initiative of judges was tied up with another concern of civil law traditions; namely, the search for certainty. As long as judges had interpretive powers, the law was a tool in their hands that could be twisted to suit particular interests. Instead, the hope was that if the code plus legislation was clear and complete the judge would not need to exercise any initiative. Such a concern with certainty is not foreign to common law, either—persons need to know what the law says for law to be a guide to behavior. However, in civil law there is little that resembles the concept of equity at law. Equity—the power of a judge to limit the harshness of a law or to adapt the law to fit particular situations—gives him great powers. In England, equity reached its greatest development in the creation of chancery courts as a way of appealing to the king against what was felt to be an unjust rule of law. Civil law countries, though occasionally, and grudgingly, conceding a place for equity, preferred to confine it to the legislature, which might grant equitable powers to a court for a particular case or might make what amounts to an equitable grant of power to a court by telling it that, when the law is unclear, the court is to see to it that the parties acted ‘‘in good faith.’’ But the suspicion of judicial discretion remains and is not always a simple prejudice. Thus, the Nazi regime in Germany was able to make use of such discretion by using the courts to provide a patina of legality to its racist decrees, a process more difficult in Mussolini’s Italy, where discretion was more restricted.

One other important difference is that the English and American courts include in equitable

powers that of contempt. A litigant or witness who refuses to follow court processes or who refuses to carry out the will of the court may be subject to the contempt power, which can include fines and imprisonment. This degree of power is quite unknown in civil law countries where it is felt to give the judge what amounts to discretion to impose criminal penalties in civil cases. The civil law judge must, in comparable cases, limit himself to drawing on the person’s property which may, of course, be felt by the person, as no less painful than a period in prison might be for others.

THE LEGAL PROFESSIONS

In the United States, lawyers, as well as the general public, think of the legal profession in the singular, though specialties are recognized. This is especially the case, as noted earlier, since such a high proportion are in private practice (well over 70 percent) as compared, for example, to only 33 percent in Germany, 42 percent in Colombia and only 23 percent in Chile. The United States also has a very low proportion of the profession acting as judges (only 3 percent) compared to 17 percent in Germany, 23 percent in Chile, and 42 percent in

Colombia. (Clark 1982, figures are for the 1960s and 1970s). In Germany, 70 percent of positions in general administration are filled by persons trained in law.

Apart from differences in distribution, the path to a legal career is very dissimilar in different cultures. In the United States, aspiring lawyers go to a graduate law school, then sit for the bar exam (often after an intensive cram course that prepares them for that exam), then after passing the bar (in most states, the success-rate percentage is over 60 percent, and higher for first-time exam takers) he or she enters directly into practice in a firm, in a small-firm partnership, or as a solo. There they learn as they go along. Persons may, and many do, shift around from service in a government department to a public prosecutor office to the corporate law office of a private firm, or elsewhere. They may run for political office and may end up being rewarded for service by appointment or election as judge of a lower-level court and, for a few, high judicial office in a circuit or even a supreme court.

In England, the distinction between solicitor and barrister, though less rigid than in the past, continues. The would-be barrister takes his pupilage

under a barrister in one of the Inns of Court where he may, under good conditions, receive an apprenticeship and possible appointment after passing an examination. Only barristers may argue cases in the higher courts. Solicitors maintain direct contact with clients, collect fees, and assist barristers in their work. Solicitors are now being allowed to argue cases in some lower courts. Some barristers may develop honored reputations, a few being chosen as judges as the culmination of a distinguished career. There is almost no shifting to other careers on the part of barristers and very little among solicitors. In that respect, they resemble the lawyers in civil law countries.

In civil law countries, a young lawyer must make an early choice as to whether he wishes to be a judge, a government lawyer, a regular lawyer in private practice, a public prosecutor, or a notary. If he finds later he made a mistake, exit to another legal career is difficult, and does his experience in one does not translate into credits in another. He spends his whole career in the one field, a process that often leads to rivalry and conflict between the fields. An attempt to deal with this problem is made in Germany (and some other countries) in the referendarzeit, where a lawyer spends two or so years of practical training as a government lawyer, a judge, and in private practice. If lawyers choose to be judgse, they will begin their career in a lowlevel court but may move up as openings occur. Although this career process isolates the judges who take on guild-like characteristics as civil servants, it also means that judges are often better trained than is frequently the case in the United States (where it is not uncommon for judges to have had no judicial experience whatsoever). Further, the quality of judging may be higher since candidates are chosen from among the best law school graduates. At the top in constitutional courts, for example, the quality of decision making is the equal of that found anywhere.

Public prosecutor in Civil law countries are much like U. S. district attorneys, but they also are required to represent the public interest in proceedings between private persons in court situations. In Italy and France, the prosecutor is also a member of the judiciary, allowing some shifting back and forth from prosecutor to judge. Some degree of shifting back and forth also takes place in Germany. Those lawyers working for the government in administrative positions are career

bureaucrats. Closest to the U. S. lawyer in private practice is the French avocat (distinctions such as those between the avoues, who acted as solicitors in appeals courts, and the conseil juridiques, who give general advice and represent clients before commercial courts, are gradually being eliminated or reduced in significance), the German anwalt or Italian avvocato (Merryman et al., p. 918). Much different from that known in the United States is the notary who receives legal training and is an important person. He drafts important legal instruments, such as corporate charters, wills, and instruments transferring land, as well as contracts.

Most important, he authenticates documents. Once he does so, the instrument is accepted in court without further question. They also have monopolistic control over assigned territories. In Germany the services of a notary are required to validate legal documents for purchase, sale, and mortgage of land, for official records of decisions of company meetings, and for sale of shares in a private company (Merryman et al., p 911). Academic lawyers are found in a law school where they carry on the tradition of the old Roman juriconsult. However, most academic lawyers work for a professor with little or no pay, and wait for a vacancy that may never come. In Latin American countries, such persons may hardly earn a living, having to take on regular work as a lawyer in private practice or in public office.

CIVIL AND CRIMINAL PROCEDURE

Something should be said, in brief, about variations in procedure between the two systems. Here, the word ‘‘civil’’ is used in contrast to criminal.

There is no trial or jury in civil cases, as may often be the case in the United States, though not in England. The entire process is different. The presence of a jury in the United States forces an acceleration of the entire process because of the difficulty and expense of getting the jury assembled and empanelled. Once that is the case, the court proceeds immediately with the trial in an attempt to conclude as quickly as possible.

In Civil law jurisdictions, civil cases go much more slowly. There is a brief preliminary stage when pleadings are submitted to a hearing judge. Next follows an evidence-taking, where the hearing judge takes notes and prepares a written record. That is later submitted to the deciding judge

who receives briefs from the counsel and listens to arguments. All of this takes the form of a series of meetings as each issue is brought to the attention of the hearing judge. There is little surprise as each lawyer is notified of each issue as it comes up, and, without a jury, there is no cross-examination. Generally, questions are passed to the judge who may conduct the investigation. There are fewer of the rules of evidence familiar to American lawyers (such as the exclusionary rule whereby illegally gathered information is excluded from trial), though a number of rules are employed, such as excluding biased persons from testifying, as well as taking what is called a ‘‘decisory oath’’ in some countries. There is in many countries a ‘‘loser pays’’ rule, referring mostly to legal fees, though the amounts are usually limited by a court schedule. Contingent fees are usually considered illegal (France) or unethical (Germany) but are found in Japan, Indonesia, and Thailand (Merryman et al., p. 1026). Many foreign legal authorities are appalled by its prevalence in the United States, feeling that a lawyer should not be personally given a stake in the outcome of a case.

Although substantive criminal law is similar in both systems, civil law jurisdictions, in line with the revolutionary principle of limiting the power of judges, reject the American practice, which gives the judge power to award penal and general damages in criminal cases, not to speak of the contempt power (which is very rare), instead insisting the judge be limited to what is provided for in legislation. The contrast is often drawn (or overdrawn) between what is called the ‘‘accusatory’’ model in the United States and the ‘‘inquisitorial’’ model in civil law countries. Historically, the accusatory procedure is felt to have been a development from that of private vengeance in which the interested parties would be the main participants. Instead of settling their dispute by direct conflict or feud, a legal procedure would involve a neutral third party who would seek to secure a settlement.

In such a triadic situation, as noted at the outset, the object was to secure an outcome that would settle the matter by leaving each party feeling justice had been done. In earlier times, when trial was by battle, ordeal, or other ways, although seeming to be a throwback to a time of ‘‘barbarous’’ cruelty, these methods, apart from their presumed psychological effects (the guilty party

feeling he would be caught and so offering confession at once), had the virtue that they brought the conflict to an end, and prevented further acts of vengeance that would disturb the peace of the community. With the accusatory practice, presumably conflict would also be terminated but might go on if each party felt justice had not been done.

The inquisitorial model introduced the state as an active participant in the trial. Now the judge, who is after all a representative of government, is in a coalition with the prosecution against the third party, the defendant. Although this biases the process, in practice, the introduction of the jury, the fact that proceedings are oral, as well as limitations on the power of the judge all combine to make the system fair, though excesses did and continue to exist.

The criminal trial is in three parts: the investigative phase, with the public prosecutor assuming an active role; the examining phase, presided over by a judge who assumes an active role in examining the evidence; and preparing a record and the trial. Judges may, if warranted, end the proceedings if they feel the evidence is not conclusive, or they may decide the case should go to trial. The accused is entitled to legal representation as well as the right to inspect the material the judge has collected. He can be questioned, but not sworn, and he or she may refuse to answer. Unlike the

American system in which a defendant, if sworn, may then be cross-examined, no comparable procedure exists, though a refusal to answer by the accused may be taken into account by the jury. British judges assume a more active role in the trial process than is the case in the United States. However, this is not ‘‘inquisitorial’’ in a narrow sense but rather a reflection of the fact that in the

English procedure the judge determines the relevancy of evidence, rather than the strict exclusionary and other rules emphasized in American courts. To do their jobs, English judges are much more willing to question witnesses or even raise issues

(Glendon et al., 1982, ch.. 10).

Until the 1980s, plea bargaining was considered to be undesirable practice, only possible in

America. But judicial scholars increasingly asked how could civil law jurisdictions possibly handle all the criminal cases they had to decide without some form of plea bargaining? After a spirited debate and careful research, it was finally concluded that

plea bargaining, though not exactly like that used in America, was in fact being used in European countries. In the case of Germany, Hermann (1991) reports that some kind of plea bargaining takes place in from 20 to 30 percent of all cases. While far from the American percentage of 90 percent, that is still considerable, particularly since it is accompanied by other forms of sentence reduction and mitigation of offenses. It is widely employed in complex cases, such as white-collar crimes, tax evasion, and drug offenses, which present nearly impossible evidentiary problems, as well as less serious crimes, which are settled with a fine. It is rare in cases involving violent crimes, however. Bargaining occurs at all stages of a criminal proceeding, often with the active participation of the judge, who may even take the initiative. A settlement may take the form of the accused agreeing to pay a sum of money to a charitable organization. Other alternatives include penal orders that are similar to nolo contendere pleas in which the accused agrees to a fine—usually for minor misdemeanor cases, such as traffic cases. Pleas also occur if the accused makes a confession. Normally, a confession does not lead to avoidance of a trial, as is the case in America. Instead, it usually leads to a reduction in the sentence. Other countries are also beginning to allow plea bargaining as many had been doing, but are now doing more openly. The most striking example is that of Italy, which even uses the term patteggiamento, the Italian word for bargain (Piazzi and Marafioti 1992; Merryman et al., pp. 1100 ff). However, there is no reduction of the charge, as in the American system, but there is a maximum reduction of one-third of the normal sentence, which may not exceed two years, which has the effect of limiting the practice to cases with shorter normal sentences. In Italy, as is the case in other civil law countries, the trial decision is made by a panel of judges, a practice which, however costly, is defended as superior to the American practice, which places what is felt to be excessive power in the hands of a single judge.

WILL COMMON LAW AND CIVIL LAW

SYSTEMS PERSIST?

Although we have focused on differences between the two systems, and the differences are indeed substantial, there is considerable movement toward the convergence of common and Civil law systems. The attempts to severely limit the power

of judges have, over the years, been recognized as excessive and more a holdover from fears of arbitrary and class-based favoritism of judges. From the refusal to place limits on the power of legislatures, Civil law countries have developed constitutional limitations, even in the form of courts, though often hidden under other names. Historically, Civil law countries divided the field between private and public law, with most of the concern historically being with civil law (law of persons, marriage, contracts, torts, etc.). Public law was felt to be the concern of legislatures or the sovereign.

However, the coming of the modern state has led to an enormous growth of administrative law, along with appropriate court systems, leading to situations not much different in essence from those found in developed common law countries.

Civil codes have receded in significance as state legislatures and parliaments enact more farreaching laws never contemplated in earlier times, particularly those associated with large-scale industry, the welfare role of governments, complex bodies of labor law, and especially with the emergence of the government as an economic participant in national affairs. Perhaps of greatest significance is the emergence of new international entities, especially the European Community, before which national codes have been slowly giving way. Of course, that tendency may be reversed, but it seems strongly in process. On the other hand, common law countries have recognized the advantages of classic civil law procedures, such as the importance of certainty in legal decision making, though such certainty is sought not through a code but by a succession of cases. The power of judges to make decisions has been the object of attempts by the U. S. Congress to place caps on awards for injury, as well as the attempt of persons to bypass courts and seek justice through changes in legislation, as in cases of pollution, abortion, and other public issues.

Is one system better than the other? The question is unanswerable in that form. Even though civil law authorities continue to be suspicious of lawyers, they discover they must have them and grant them powers they would prefer not to. That is, of course, a well-known problem in the United States as well. Each system must be understood in the context of the culture and social structure of the country that employs it. Ultimately, any question of superiority must be answered in terms of

how well the system serves the legal needs of the country. Most countries, in fact, employ a mix of systems in which one finds bits and pieces of both common law and civil law systems.

REFERENCES

Atiyah, P.S., and Robert S. Summers 1987 Form and Substance in Anglo-American Law. Oxford: Clarendon Press.

Black, Donald 1993 The Social Structure of Right and Wrong. San Diego, Calif.: Academic Press.

Bohannon, Paul J. (ed.) 1967 Law and Warfare: Studies in the Anthropology of Conflict. Garden City, N.J.: Natural History Press.

——— 1957 Justice and Judgment Along the Tiv, London: Oxford University Press.

Boigeol, Ann 1998 ‘‘The French Bar: The Difficulties of Unifying a Divided Profession.’’ In Richard L. Abel and Philip S. C. Lewis, eds., Lawyers in Society: The Civil Law World, vol. 2, 258 ff.

Caplow, Theodore 1968 Two Against One, Englewood

Cliffs, N.J.: Prentice-Hall.

Clark, David S. 1975 ‘‘Judicial Protection of the Constitution in Latin America.’’ Hastings Constitution Law Quarterly 2:405–442.

——— 1982 ‘‘The Legal Profession in Comparative Perspective: Growth and Specialization.’’ American Journal of Comparative Law 30, Supp.:163, 169.

Damaska, M. 1978 ‘‘A Foreign Perspective on the American Judicial System.’’ In T. J. Fetter, ed., State Courts: A Blueprint for the Future. Williamsburg, Va.: National Center for State Courts.

Dworkin, Ronald 1977 Taking Rights Seriously. London:

Duckworth.

Eisenstein, James, and Herbert Jacob 1977 Felony Justice: An Organizational Analysis of Criminal Courts. Boston: Littel, Brown.

Engel, David M. 1978 Code and Custom in a Thai Provincial Court: The Interaction of Formal and Informal Systems of Justice. Tucson: University of Arizona Press.

Ewick, Patricia, and Susan S. Silbey 1998 The Common Place of Law. Chicago: University of Chicago Press.

Feifer, George 1964 Justice in Moscow. New York: Simon

and Schuster.

Felstiner, William, Richard L. Abel, and Austin Sarat 1980–1981 ‘‘The Emergence and Transformation of Disputes: Naming, Blaming and Claiming. . .’’ Law and Society Review 15:631–654.

Fuller, Leon 1969 The Morality of Law. New Haven, Conn.: Yale University Press.

Galanter, Marc 1992 ‘‘Law Abounding: Legalization Around the North Atlantic.’’ Modern Law Review 55:1–24.

———1983a ‘‘Mega-Law and Mega-Lawyering in the Contemporary United States.’’ In Robert Dingwall and Philip Lewis, eds., The Sociology of the Professions. London: Macmillan.

———1983b ‘‘Reading the Landscape of Disputes: What We Know and Don’t Know (and Think We Know) About Our Allegedly Contentious and Litigious Society.’’ UCLA Law Review 31:5–71.

———1983c ‘‘The Radiating Effects of Courts.’’ In Keith O. Boyum and Lynn Mather, eds., Empirical Theories About Courts. New York: Longman.

———1974 ‘‘Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change.’’ Law and Society Review 9:95–125.

———, and Thomas Palay 1991 Tournament of Lawyers. Chicago: University of Chicago Press.

Gessner, Volkmar, Armin Hoeland, and Csaba Varga

(eds.) 1996 European Legal Cultures. Dartmouth:

Aldershot.

Gibbs, James L., Jr. 1963 ‘‘The Kpelle Moot: A Therapeutic Model for the Informal Settlement of Disputes.’’ Africa 33 ( Jan.):1–11.

Glendon, Mary Ann 1987 Abortion and Divorce in Western Law. Cambridge, Mass.: Harvard University Press.

———, Michael Wallace Gordon, and Christopher Osakwe 1982 Comparative Legal Traditions in a Nutshell. St. Paul, Minn.: West Publishing Co.

Gluckman, Max 1954 The Judicial Process Among the Barotse of Northern Rhodesia. Manchester, Eng.: Manchester University Press.

Gross, Edward 1998 ‘‘Lawyers and Their Discontents.’’ Society 36 (Nov./Dec.):26–31.

Gulliver, P. H. 1969 ‘‘Dispute Settlement Without Courts: The Ndendeuli of Southern Tanzania.’’ In Laura Nader, ed., Law in Culture and Society. Chicago: Aldine.

Haley, John Owen 1991 Authority without Power. New York: Oxford University Press.

——— 1978 ‘‘The Myth of the Reluctant Litigant.’’

Journal of Japanese Studies 4:359–396.

Heinz, John P., and Edward O. Laumann 1982 Chicago Lawyers: The Social Structure of the Bar. New York: Basic Books.

Hermann, Joachim 1992 ‘‘Bargaining Justice—A Bargain for German Criminal Justice?’’ University of Pittsburgh Law Review 53:755–776.

Howell, P. O. 1954 A Handbook of Nuer Law. London: Oxford University Press.

Jacob, Herbert 1996 ‘‘Courts and Politics in the United States.’’ In Herbert Jacob et al., ed., Courts: Law & Politics in Comparative Perspective. New Haven, Conn.: Yale University Press.

——— 1983 ‘‘Courts as Organizations.’’ In Keith O. Boyum and Lynn Mather, eds., Empirical Theories About Courts. New York: Longman.

Klein, John F. 1976 Let’s Make a Deal. Lexington, Mass.: Lexington Books.

Kritzer, Herbert M., W. A. Bogart, and Neil Vidmar 1991 ‘‘The Aftermath of Injury: Cultural Factors in Compensation Seeking in Canada and the United States.’’ Law and Society Review 25:499–543.

Lev, Daniel S. 1972 ‘‘Judicial Institutions and Legal Culture in Indonesia.’’ In Holt Claire, ed., Culture and Politics in Indonesia. Ithaca, N.Y.: Cornell University Press.

Levasseur, Alain 1970 ‘‘On the Structure of a Civil Code.’’ Tulane Law Review 44:693–719.

MacLachland, Colin M. 1974 Criminal Justice in Eighteenth Century Mexico: A Study of the Tribunal of the Acordada. Berkeley: University of California Press.

Magnet, S. Rodgers 1980 ‘‘The Right to Emergency Medical Assistance in the Province of Quebec.’’ Revue du Barreau, Tome 40, Numero 3, Mai-Juin, 373–447.

Merryman, John Henry 1985 The Civil Law Tradition>. Stanford, Calif.: Stanford University Press.

———, Davis S. Clark, and John O. Haley 1994 The Civil Law Tradition: Europe, Latin America and East Asia. Charlottesville, Va.: Michie.

Mnookin, Robert, and Lewis Kornhauser 1979 ‘‘Bargaining in the Shadow of Law: The Case of Divorce.’’

Yale Law Journal 88:950–997.

Nader, Laura 1969 ‘‘Styles of Court Procedure: To Make the Balance.: In Laura Nader, ed., Law in Culture and Society. Chicago: Aldine.

Nelken, David (ed.) 1997 Comparing Legal Cultures. Dart-

mouth: Aldershot.

Pospisil, Leopold 1958 Kapauka Papuans and Their Law. New Haven, Conn.: Yale University Publications in Anthropology, No. 54.

Rosen, Lawrence 1989 The Anthropology of Justice. New York: Cambridge University Press.

Rosenn, Keith S. 1992 ‘‘A Comparison of the Protection of Individual Rights in the New Constitutions of Colombia and Brazil.’’ University of Miami Inter-Ameri- can Law Review 23:659–691.

Ross Marc Howard 1993 The Culture of Conflict. New haven, Conn.: Yale University Press.

G.Roth, and C. Witticg 1978 Economy and Society. Berkeley: University of California Press.

Rouland, Norbert 1994 Legal Anthropology. Stanford,

Calif.: Stanford University Press.

Sarat, Austin, and Thomas R. Kearns (eds.) 1998 Law in the Domains of Culture. Ann Arbor: University of Michigan Press.

———, and Stuart Scheingold (eds.) 1998 Cause Lawyering. New York: Oxford University Press.

Schumpeter, Joseph A. 1976 Capitalism, Socialism and Democracy. New York: Harper and Row.

Shapiro, Martin 1986 Courts: A Comparative and Political Analysis. Chicago: University of Chicago Press.

Simmel, Georg 1902 ‘‘The Number of Members as Determining the Sociological Form of the Group.’’

American Journal of Sociology 8:1–46, and 158–196.

Starr, June 1992 Law as Metaphor: From Islamic Courts to the Palace of Justice. Albany, N.Y.: State University of New York Press.

Stone, Bailey 1986 The French Parlements and the Crisis of the Old Regime. (excerpted from Merryman et al., eds., 436–437).

Stone, Thomas 1979 ‘‘The Mounties as Vigilantes: Perceptions of Community and the Transformation of Law in the Yukon, 1885–1897.’’ Law and Society Review 14:83–114.

Watson, Alan 1977 Society and Legal Change.

Wolff, Kurt H. (trans, ed., and Introd.) 1950 The Sociology of Georg Simmel. New York: Glencoe Press.

Zamudio, Hector Fix 1979 ‘‘A Brief Introduction to the Mexican Writ of Amparo.’’ California Western International Law Journal 9:306–348.

Zweigert, Konrad, and Hein Kotz 1987 Introduction to Comparative Law (trans. Tony Weir). Oxford: Clarendon Press.

EDWARD GROSS

COURTSHIP

Given the social centrality of the family institution and the role of courtship in the family formation process, it is not surprising that the study of courtship has received attention from several disciplines. Anthropologists have described practices

in primitive and other societies, historians have traced courtship patterns in America from colonial to contemporary times, psychologists and social psychologists have examined intraand interpersonal components of relationships, and sociologists have developed research-based theories explaining the process of mate selection, and have investigated various courtships dynamics. Here, some attention will be given to each of these approaches, along the way selectively noting scholars who have made major contributions.

Historically, according to Rothman, the term courtship applied to situations where the intention to marry was explicit (if not formally—and mutual- ly—stated). Courting was the broader term used to describe socializing between unmarried men and women’’ (Rothman 1984, p. 23, italics in original).

Scholars have disagreed as to whether dat- ing—a twentieth-century term for a primarily recreational aspect of courting—should be considered a part of courtship since, according to Waller (1938) and others, dating may be merely thrillseeking and exploitative, and not marriage oriented (but see Gordon 1981 for an opposing view). However, wooing (that is, seeking favor, affection, love, or any of these) may be integral to courtship and yet not result in marriage. For present purposes, then, courtship will be understood in its broadest sense—as a continuum from casual to serious. Thus, ‘‘the unattached flirt, the engaged college seniors, the eighth-grade ‘steadies,’ and the mismatched couple on a blind date are all engaging in courtship’’ (Bailey 1988, p. 6).

Queen, Habenstein, and Quadagno’s (1985) classic text provides much of the basis for the following brief and highly generalized overview of some mate-selection patterns unlike those found in contemporary America. Some of these systems involved little or no courtship. For example, among the ancient Chinese, Hebrews, and Romans, marriage was arranged by male heads of kin groups. Among the ancient Greeks and until recently among the Chinese, many brides and grooms did not meet until their wedding day. Around the turn of the century (1900), infant marriages were the rule among the Toda of south India, and the bride was deflowered at about age ten by a man who was not of her clan and not her husband. In medieval

England, contrary to the literature of chivalry, love