VOL. 6 NO. 10 (October, 1996) pp. 141-44.

COURTS, LAW , AND POLITICS IN COMPARATIVE PERSPECTIVE by Herbert Jacob, Erhard Blankenburg, Herbert M. Kritzer, Doris Marie Provine, Joseph Sanders. New Haven, CT: Yale University Press. $45 cloth, $20.00 paper.

Reviewed by: Susan Sterett, University of Denver.

Courts and lawyers have been a significant part of governance throughout western industrialized states, but the American scholarship on courts and lawyers has tended to focus largely on American courts. That has led to skewed perspectives in a variety of subfields within political science. At the risk of oversimplifying, I'd like to outline the difficulties that the lack of attention to the politics of other legal systems has led to, even if the only purpose of study is to understand the American system, which it should not be. Stating the problem with the limits on attention to politics of legal systems will illuminate why collections such as Jacob, Blankenburg, Kritzer, Provine and Sanders are important.

Within public law, when gestures toward comparison have been made, they have sometimes been little more than gestures that have tended to reaffirm American assumptions about the distinctive importance of the American legal system. So, for example, it has often been possible to state that American courts are more "activist," or involved in politicized decisions because the United States has the power of judicial review and a written constitution to interpret that is unlike that of any other state. Such a perspective makes no sense of the rather extensive constitutionalist review that has been significant in postwar Europe. Furthermore, it ignores all that goes on in courts that does not depend on or require constitutionalist review, including the handling of divorce and family law issues, personal injury and crimes.

Within comparative politics, courts have historically largely been ignored, sometimes with the justification that courts have been irrelevant to the questions of political development and public policy that most often concern political scientists. Hard-headed approaches have also held that because courts have neither purse nor sword, they cannot engage other major political institutions. The cost of that has been an inability to incorporate into political analysis the constitutionalist politics, both domestic and supranational, that have provided major points for political dispute in western states. An unwillingness to examine legal institutions systematically and comparatively has, therefore, impoverished our understanding both of American politics and of politics abroad. These complaints, common to those who work in comparative law and politics, are finally starting to become outdated as monographs, edited collections and symposia in journals have begun to appear. When attempts to synthesize work and frame it for students begin to appear, the possibility that the field is actually a field rather than a hope a few individual scholars have becomes real.

This book recognizes the beginning status of the field, identifying the book's purpose as two-fold: to provoke further research in the field and to educate students (pp. 3-4). Each author addresses a different state in separate chapters: Herbert Jacob discusses the United States, Herbert Kritzer discusses the United Kingdom, Doris Marie Provine writes about France, Erhard Blankenburg discusses Germany, and Joseph Sanders addresses Japan. Most chapters tell several stories to state and illustrate basic themes about the legal system. Because it has chapters on individual states, it is not as American-centered as a comprehensive text for American students can so easily be. Furthermore, while constitutionalist review looms large, as it so often does, each chapter also attends to basics of court structure within the national states they study. They also address the organization of criminal courts and the handling of personal injury claims.

The essays in this collection run loosely in parallel. In a thoughtful and useful introductory essay, Herbert Jacob explicitly discusses the difficulties of determining what is to be compared and how they are to be compared. An interest in systematic comparison tends to lead analysts toward variables that seem easily compared cross-nationally, such as background characteristics of judges or appeal rates in courts. Such analysis makes the basis of comparison explicit, but the different contexts and the possibility that the variables are differently significant cross-nationally usually remains unexplored. More holistic case studies attendant to context more clearly reveal the national significance of the material under discussion, but can make the basis of comparison difficult.

In his introductory chapter, Herbert Jacob outlines comparative issues. He argues that courts make policy and serve social control and legitimation functions, and that each chapter will address those themes. While the themes are broadly enough defined that indeed each chapter does address them, they are broadly enough defined that the chapters have substantial room to depart from them, as Jacob acknowledges (pp.11-14). This book emphasizes a holistic and contextualized approach (pp.3-4).

The chapters rely on stories to get points across. Some stories highlight issues within the legal system. Herbert Jacob discusses the criminal justice system in the United States by taking the reader through a case. In his chapter on Britain, Herbert Kritzer provides stories to illustrate the significance of judicial review, which is largely procedural overview of administrative action and which has been significant in creating a sense that the courts are now deeply implicated in politics. These stories make the material of the legal system accessible in a way that would be useful in teaching.

Other stories are dramatic episodes from within individual legal systems. For example, Doris Marie Provine in her chapter on France provides an extended discussion of the distribution in France of HIV contaminated blood. Those infected took a criminal suit against the government. Provine tells the story and discusses it as exemplifying the use of law in enacting a moral drama (pp. 220-230). The story is compelling and tragic. It would also be a useful way to begin to discuss different cross-national frameworks for government regulation, for example. The lack of a common explanatory framework across chapters makes it difficult to know what to make of stories such as this one, distinctive to a particular legal system, in a comparative context. Surely it illustrates that important public dramas are addressed in France as they are in other national states, perhaps despite a once-dominant sense that courts were only important in American public life. But how and why is it interestingly different from or similar to the place of public dramas in law in other national states? While the collection includes a concluding chapter by Jacob drawing some themes together, the question of the basis of comparison is a difficult one to answer.

Similarly, Joseph Sanders addresses the question of liability for disastrous mercury poisoning in Japan in Minamata that left many people badly injured (pp. 349-358). The story is significant in itself and tells us the complexity of environmental regulation and personal injury liability.. Because the stories are so rich, they would make excellent teaching tools. Indeed, many important points about the legal systems in the different state/societies are illustrated by stories, not often enough illuminated by reference to common explanatory or interpretive frameworks. Sanders's discussion of legal consciousness in the context of liability is one illustration of the advantages of making comparisons more explicit. In discussing liability for automobile accidents Sanders does draw comparisons with how other Western industrialized states have handled liability, and uses the work to raise questions about the standard Western story that the Japanese emphasize social harmony over rights (pp. 354-358).

The stories, even if not constructed with parallel aims, are part of what could make the book a useful teaching tool. A difficulty rests not in the different use of stories but the different use of concepts. Erhard Blankenburg's chapter embodies this problem most substantially. Blankenburg chooses to define "legal culture" at the beginning of his chapter. He defines it in a way more all encompassing than what most who would study culture would choose and indeed explicitly chooses to distinguish his conception from those usually used in law and society work. Instead of understanding culture as concerning common frameworks of meaning and/or practice, Blankenburg includes the body of law, legal institutions, patterns of litigation, and beliefs about law (at p. 256). With such an all-encompassing understanding of culture, it is difficult to see what work the concept of culture does. More than that, introducing general concepts that are not used across chapters detracts from the purpose of providing information for students. Joseph Sanders uses the concept of legal consciousness (pp. 358-65), which Blankenburg alludes to in his outline of legal culture (pp. 255-256). Jacob's American chapter mentions rights consciousness (pp.50-51). All are important and related concepts. The lack of uniformity provides no difficulty for the book's stated purpose of pointing out the need for further research; scholars make choices about conceptual frameworks all the time. It does, however, make building systematic comparisons for students somewhat difficult.

Since the book urges further research, I would like to outline a direction that I believe is fruitful. First, it is difficult to tell why we choose to make law a focus for analysis in itself. What issues are legal is not only a nationally and culturally variable question. It is not only nationally and culturally variable; it is also a matter of happenstance. So the question of HIV contaminated blood became a major legal/political issue in France, involving the government and questions about its integrity. It is not one in the United States, although there have been large numbers of liability cases. If we were to use the story to build comparison, we would need to think about several questions. What is it that is being compared? Public dramas that involve law? State organization and involvement in medicine? What is the basis of comparison? Without seriously thinking through these questions it is difficult either to explain differences and similarities between legal systems or to interpret the meanings of issues within legal cultures. One useful tack is to take a field of interest--whether divorce, equal employment opportunity, or personal injury liability--and see how that field of questions is addressed in different legal/political systems, with courts and lawyers as one set of players, though not the only one. Such questions would clearly be constructed within the framework of a particular governing system and might well take us beyond the strict confines of the legal system itself. Divorce, for example, is not handled by what in the United States we would recognize as legal officials. But to take a substantive issue such as divorce allows us to examine why issues are legal in one context and not in another, or how courts participate in making a field of politics and policy in different areas. Sally Kenney's work on fetal protection in Britain and the United States is exemplary. Defining a study by field of interest rather than the institution itself would help to avoid the problem of simply noting the accidents of what gets to be a legal issue in different state/societies. Second, more synthetic comparative work on legal systems would be useful if they used analytical frameworks explicitly a part of other social science work, so that scholars cannot treat the study of law as something wholly apart. This collection makes visible the value of pursuing comparative work on law and integrating it into the study of other institutions.