Vivian Grosswald Curran

Comparative Law and Language

Comparative law is law’s cybernetics, or “theory of messiness.” It attempts to steer through the messiness of the foreign by reordering it into the language of the familiar without betraying the original. It is needed urgently in contexts of unrecognized metamorphosis, and today metamorphoses are burgeoning in murky areas outside of law’s traditional categories of either the national or the international. The less apparent, the less visibly foreign, the foreign is, the more comparative law has a task of translation involving the formation of a vocabulary to transmit new configurations that resist detection and articulation. This essay examines the centrality of translation to processes of language and meaning construction, and links translation to comparative law as a model for the study of similarity and difference, the universal and the particular. The debate in comparative law over the relative importance of similarity and difference among legal systems has its counterpart in linguistics in conflicting views about whether commonalities among languages are fundamental or marginal. These issues situate both language and comparative law between mutually contradictory aspirations of universalism and pluralism which have stalked the evolution of both fields. Despite appearances of the ascendancy of universalism in today’s world, it is not difference and pluralism that are receding, but, rather, that former domains of pluralism and difference recede, while others emerge. Like language, inevitably imprecise and perpetually in flux, comparative law can not be frozen once and for all, to be captured for future application if only it is developed with sufficient acuity and insight. It shares what Isaiah Berlin attributed to philosophy and distinguished from the scientific: it does not carry within itself the method of its own solution, and therefore must be reinvented in each generation, destroying its own past rigidities and methods of decoding and transmitting, in order to construct a new modality of analysis, a new vocabulary better adapted to changed meaning. Comparative law shares with language the pitfalls of miscommunication and misunderstanding, as well as the potentials of learning to see, to communicate and to shed light in that elusive, inevitable, shifting and ever-reconfiguring space that, like language, it occupies between the same and the other.

Dealing in Difference: Comparative Law's Potential for Broadening Legal Perspectives

Comparative law is a field which by definition deals with and analyzes the other, the different. This characteristic suggests its immediate relevance for major intellectual legal debates and practical legal issues of our time which also focus on the role of the different or other. The diverse communities in contemporary democracies, previously unnoticed within what formerly frequently passed for homogeneous legal cultures, pose increasing and disconcerting challenges to constitutional laws ability to protect the rights of all of a states constituencies.1 Similarly, the emerging European Union of the next millennium will have to cope with issues of distinctive national traditions and sovereignty within a developing body politic that strives to attain arguably incompatible goals of political and cultural freedoms and, simultaneously, supranational uniformity in legal standards and in political and civil rights. Modern theoretical work in legal scholarship reflects these national and international concerns. Feminist and critical race theory have focused on how to reconcile concepts of justice and equality with the recognition of differences within and among communities whose needs may appear to be mutually irreconcilable, and whose discourses may appear to be mutually incommunicable.2 Contemporary legal and societal issues, as well as contemporary scholarly develop-

At the Crossroads of Law and Society: The Trial of Mendel Beilis

Abstract The trial of Mendel Beilis lies at the crossroads of numerous points of interests. It reveals on one level the intensity of one mans rise in an existential sense to the demands of a situation into which he was thrust suddenly and utterly without warning. From this perspective, it is a story of captivating human and psychological interest. The legal proceedings reflected a torn and complex society on the verge of implosion, as well as one in which the tsarist judicial system, although subject to corruption and fraud at the highest levels, nevertheless had a considerable measure of independence. The trial oscillated between a story of the failures and the triumphs of justice. Finally, the trial reflected and animated fierce anti-Semitism as well as unexpectedly dedicated and enlightened support for Beilis in the Christian world of Russia and beyond, with the incipient Russian Revolution as an important context. I try to illustrate these various intersecting points of interest with the assistance of sources such as the trial transcripts, Beiliss memoirs, the memoirs of one of his defense lawyers, O. O. Gruzenberg, and Léon Poliakovs analysis of anti-Semitism in Russia during that period.

Obligations III: Cultural Immersion, Difference and Categories in US Comparative Law

Appreciating each legal culture according to that culture’s own perspective implies a readiness to concede that the standards by which one measures law and legality in one’s own culture need not be universally valid, and that the acculturation one has received in one’s own system colors and limits one’s vision and understanding. Immersion comparison need implies the need to be open to all differences beneath the surface, and even in spite of surface similarities, as well as the possibility of differences at the most fundamental level. We struggle today with deciding if laws and legal arguments should be gender and color-blind, at the risk of failing to validate circumstances and characteristics unique to women and racial minorities. Should laws and legal arguments make gender and color distinctions, or perpetuate dangerous stereotypes of inequality in that manner? Those legal theories, such as feminist and critical race theory, that have brought these issues to the attention of American law schools, share origins of marginalization, exclusion and exile with comparative law and with the emigre-comparitists. They do not only emanate from, and reflect, marginalized populations, but also generally suffer from marginalization within the academic curriculum of law schools. The insights they have provided into the constitution of our legal system stem in part from the greater facility that an outside observer may have in detecting features of a legal culture so entrenched and unquestioned as to be taken for granted by the insiders.

From Nuremberg to Freetown: Historical Antecedents of the Special Court for Sierra Leone

The trajectory from Nuremberg to the Special Court for Sierra Leone is one of tragedy and triumph. Since Nuremberg, the idea has been that no one may commit crimes of jus cogens with impunity. Among the functions of the post-conflict tribunals has been the inscription of memory, the definition of a national narrative, and the giving of a voice to former victims. In the face of crimes of tremendous enormity and horror, judgment necessarily grows in a symbolic dimension. Sometimes this is because the defendants can only be convicted of a small percentage of the crimes they committed due to evidentiary problems. Always it is because victims never can be restored to their status quo ante. Horrors that may be said to rival those that preceded the Nuremberg trials have been repeated, not, it seems, deterred, yet states today are binding themselves to each other through international treaties in an almost universal movement. This introductory chapter examines some of the roots of the Nuremberg trials as the foreparent of the Special Court for Sierra Leone.