## Vranken 1

Reading Vranken’s Western Legal Traditions’s chaper 1: ‘System Building in Law’ on the train the other day, two things became immediately obvious:

• the state of comparative law now is the same as what the state of linguistics was in mediæval times a thousand years ago
• the study of comparative law requires an anthropologist

The first point is from having dipped into Rita Copeland and Ineke Sluiter (eds.), Medieval Grammar and Rhetoric: Language art and literary theory, AD 300–1475 (Oxford University Press, 2009), where the conceptual constructs used back then are similar to the ones Comparative Law uses now, mapping other systems to one’s (ideal) own, and proceeding from there.

The second point has already started, it turns out. For example, ‘Recognition of the social construction of facts and taxonomies would be a good start.’ – Günter Frankenberg, ‘Critical Histories of Comparative Law’, in Markus D Dubber and Christopher Tomlins (eds.), The Oxford Handbook of Legal History (Oxford University Press, 2018), 43–62, p 55.

Setting up binary opposites as a comparison method doesn’t really get anyone any further. Especially as both systems, Civil and Common, are somewhere in the middle, not at the poles.

It’s like saying a practitioner will never need or use theory, and a theoretician will never need to think about practical matters.

(A)                         (B)
written→‘on the papers’     verbal→‘day in court’
deductive                   inductive
applied principle           derived principle
abstract & abstruse→panel   case-based & facts→jury
intellectual                pragmatic
theoreticians               practitioners
university trained          inns-of-court pupillage
codified→cassation          incremental→precedent

An analogy:
How will we compare ball sports?

Tennis, football, baseball, cricket, basketball, volley ball, lacrosse, polo, croquet, pool and snooker. Golf. Handball.

They need a round(ish) object, and two teams of one or more players.

Activities involving hands and feet only; involving a hand-held implement.

Single-player on a side; multiple players.

Darts could count as an honorary ball-sport, being individual player(-at-a-time) or team play (one at a time), with hand involvement, although the object being manipulated isn’t round. Not entirely.

Another analogy is comparing alphabets:

А Б В Г Д Е Ж З И К Л М Н О П Р С Т У Ф Х Ц Ч Ш Щ Ъ Ы Ь Э Ю Я

A user of the ABC: What to make of Cyrillic?

Some letters are the same shape as Roman letters (АЕОТ), others similar (ИЯ), and others not (ЖШЧ). Physicists and mathematicians would recognise that some are Greek-shaped (ГДПФ). Greek heritage explains why some letters look the same as Roman ones, but are pronounced differently (Р = R, С = S). And so on. So the STOP sign says СТОП.

Α Β Γ Δ Ε Ζ Η Θ Ι Κ Λ Μ Ν Ξ Ο Π Ρ Σ Τ Υ Φ Χ Ψ Ω

Mapping horizontally, letter to letter, or system component to system component, does nor make things simpler or easier to understand. In fact, it adds in an extra layer of mental effort, an emulation-transformation step, which loses/adds information as the boundary is crossed.

Is Common Law IOR, and Civil Law ЮЯ?

—-

Martin Vranken, Western Legal Traditions: A Comparison of Civil Law and Common Law (The Federation Press, 2015).

## The Bite of Precedence

Ever practical.

It’s interesting that, for newcomers, when the phrase ‘bound by precedent‘ is heard, the natural instinct is to think that it encapsulates the entire system (and so is easy to remember), and when the realization later arrives that it is actually more ‘bound by precedent when the case is like-for-like‘, the amount of reading that that implies then de-encapsulates the pithy summary and there is nothing to memorise in the now opened-up vistas of scouring the landscape for cases (via an extensive reporting, indexing and cross-referencing system), on the one hand, and of the analogical and classificatory deep and agile reasoning now required, on the other hand. It’s a lot of work and effort, with the answer at the end turning into: It depends.

At this point, the stream of prospective law students splits into two: one plunging in and on, and the other going off to water other meadows.

*

It’s also interesting that the courts, over the centuries, did not consolidate and codify things beyond the practice and procedure level, choosing, instead (although there were exceptions), to elaborate rules and principles further rather than conceptually prune and simplify. The matter is, politely, left to the legislature, if it feel so inclined. (And recent ones are inclined, witness the financial regulation flurry.)

*

It’s also interesting, again, the Common Law knows about Civil Law.

More fully in this particular case (which was about how to treat the evidence of what used to be called a lunatic*):

Partly that had to do with Civil Law not having to publicly guide a jury through the maze of facts, probably: a case fell within the ambit, or it didn’t (or the threshold ‘can’t decide’).

—–

*Spoilers: the witness understood the obligations of an oath.

## Looking at the Other Side

French series Nu (created by Olivier Fox, 10 episodes x 20 minutes; a second series is in the works: “nu” in French means “naked” or “nude” in English, take your pick) posits a near-future where the Transparency Act is in force and everyone is required to go nude as a security measure.

The story follows police officer Franck as he comes to terms with the surprising new world after waking from a coma and eventually begins work on a murder case. The nudity premise allows for some inverted situational comedy in the dialogue and visuals – for example, in the morgue, as the officers get updated on the forensics from the autopsy, the camera pans across the soles of the victim’s shoes (instead of the traditional trope of bare feet) and one of the officers says they still can’t used to it (the victim on the examination is fully clothed, rather than the traditional fully naked).

And so on.

In a remarkable parallel with how Civilians and Common Law lawyers see each other’s systems (or rather, don’t), the camera in Nu is, apart from four or five set pieces, enamoured of tight head-and-shoulder close-ups, long distance shots, objects in front, pre-emptively shifting upwards just before characters begin to stand. Not to mention looking away and/or upwards when framing action or when a character moves into frame.

Totally the un- of Nu.

Likewise, in the legal sphere (and this is probably an unintended outcome of having Napoleon on the world stage for a bit), there is a (partially instinctive) thread in Common Law viewings of Civil Law that anything French is by definition allergenic as to logic and legal usability, and the mind’s camera looks away or de-focuses or both. All the Civil Law tradition in England (such as Admiralty) is conveniently de-scoped from the comparison, and the local procedures are automatically deemed superior. And of course the favour is returned.

It’s interesting how unconscious it is.

## Precedents

Having a 2012:320-style reference is a bit twee in the case of well-known works; \citetitle does the trick, plus a customised pinpoint reference format defined using the classics package.

Since a biblatex bib file is a database, and biblatex allows the definition and creation of new datamodels and associated formatting, new styles for any structured data can be created, e,g, for star names, for amateur astronomers and science fiction writers

or for artworks, for non-physicists and science fiction writers:

The code for the bibart entry and formatting:

\RequirePackage{filecontents}
\begin{filecontents*}{\jobname.bib}
@bibart{monalisa,
artist = {Leonardo da Vinci},
title = {Mona Lisa},
origtitle = {La Gioconda},
year = {c1503},
provenance = {The Louvre},
origprov = {Musée du Louvre},
city = {Paris},
medium = {oil on wood (Lombardy poplar)},
dimensions = {77 x 53 cm},
type = {painting}
%type painting
%style Renaissance
%school
%movement
%specimenname
%specimen
%description %e.g, Roman copy of Greek original
}

\end{filecontents*}
\begin{filecontents}{bibart.dbx}
\DeclareDatamodelEntrytypes{bibart}
\DeclareDatamodelFields[type=field, datatype=literal]{
title,
origtitle,
year,
}
\DeclareDatamodelFields[type=list, datatype=name]{
artist,
}

\DeclareDatamodelFields[type=field, datatype=verbatim]{
provenance,
city,
medium,
dimensions,
style,
}
\DeclareDatamodelEntryfields[bibart]{
artist,
title,
origtitle,
year,
provenance,
city,
medium,
dimensions,
style,
}
\end{filecontents}

\documentclass[english,12pt]{article}
\usepackage{xcolor}
\usepackage{fontspec}

\newfontface\frff[Scale=4,Colour=blue]{Rough Fleurons Free}
\newfontface\fri[Scale=4,Colour=darkgreen]{Royal Initialen}

\usepackage{babel}
\usepackage{csquotes}
\usepackage[datamodel=bibart, backend=biber]{biblatex}
%\usepackage{hyperref}

\begin{filecontents*}{english-bibart.lbx}
\ProvidesFile{english-bibart.lbx}[2018/07/19 english with additions for artworks]
\InheritBibliographyExtras{english}
\DeclareBibliographyStrings{%
inherit = {english},
mass = {{mass}{mass}},
by = {{by}{by}},
luminosity = {{luminosity}{luminosity}},
edited = {{edited}{edited}},
}
\end{filecontents*}
\DeclareLanguageMapping{english}{english-bibart}

\DeclareFieldFormat[bibart]{name}{#1}

\DeclareFieldFormat[bibart]{title}{\mkbibemph{#1}}

\DeclareFieldFormat[bibart]{origtitle}{\mkbibemph{#1}}

\DeclareFieldFormat[bibart]{year}{%
\mkbibbold{#1}}

\DeclareFieldFormat[bibart]{provenance}{%
#1}
\DeclareFieldFormat[bibart]{city}{%
#1}
\DeclareFieldFormat[bibart]{medium}{%
#1}
\DeclareFieldFormat[bibart]{dimensions}{%
#1}
\DeclareFieldFormat[bibart]{style}{%
\textsc{#1}}

\newbibmacro*{artist}{%
\printnames{artist}%
}

\newbibmacro*{artworkname}{%
\printfield{title}%
\printfield{year}%
}

\newbibmacro{provenance}{%
\printfield{provenance}%
\printfield{city}%
}% end bibmacro

\newbibmacro{medium}{%
\printfield{medium}%
\printfield{dimensions}%
}% end bibmacro

\DeclareBibliographyDriver{bibart}{%
\usebibmacro{artworkname}%
\bibstring{by}
\usebibmacro{artist}%
\usebibmacro{medium}%
\usebibmacro{provenance}%
\usebibmacro{finentry}}

\usepackage{changepage}

\usepackage{fontspec}
\setmainfont{Cambria}

\usepackage{graphicx}

\begin{document}
\listoffigures
%\nocite{*}
When Leonardo did his famous work\cite{monalisa}, the \citetitle{monalisa}, the whole world was amazed.

The fullcite, \fullcite{monalisa}, as for a caption.

\begin{figure}
\centering
\includegraphics[width=0.5\textwidth]{picturefilename.jpg}
\end{figure}

\printbibliography
\end{document}

## Comparative Law beneath its Overlays

On of the really annoying things about comparative law is the amount of other stuff that gets in the way.

Language and procedure, understandably enough, but patronising and jingoistic attitudes, credulous reporting, spurious claim-making, propagandists blowing their own horn and self-important windbags blowing their own trumpet, co-opting of the media into personal political skirmishes, fuelling moral panics (for various reasons), and more besides, do not help – and perhaps that is the intention.

Take a recent trawl through the Thesis Sea, of theses touching on a relatively recent international case, and the thesis writers have come across all of these things. The foundational concept is language, and how it is used to present reality and reinforce perceived reality.

Here’s a list:

• Bc. Květa Suchá, “Concept of National Identity in News Reporting” (2010, Masaryk University, Faculty of Arts, Department of English and American Studies: English Language and Literature)
• Daniela Oelke, “Visual Document Analysis: Towards a Semantic Analysis of Large Document Collections” (2010, Universitat Konstanz im Fachbereich Informatik und Informationswissenschaft)
• Shelley Dove, “Doubly deviant, doubly damned?: The Response to Violent Female Offenders” (2011, University of Portsmouth, Institute of Criminal Justice Studies)
• Andrew J. Mascelli, “Impact of the Italian Language and Culture on the Amanda Knox Trials” (2013, The Pennsylvania State University Schreyer Honors College – Department of Spanish, Italian And Portuguese)
• Deidre Freyenberger, “Amanda Knox: A Content Analysis of Media Framing in Newspapers Around the World” (2013, East Tennessee State University, Professional Communication)
• Ulrike Tabbert, “Crime through a corpus: The linguistic construction of offenders, victims and crimes in the German and UK press” (2013, University of Huddersfield)
• Rosalind Theresa Waterhouse, “Satanic abuse, false memories, weird beliefs and moral panics: Anatomy of a 24-year investigation” (2014, City University London, Department of Journalism)
• Alexx Bonovich, “Masked Victims: Examining the Violence of Femme Fatales in Contemporary Film Noir Cinema” (2015, DePaul University, Media and Cinema Studies)
• Louise White, “”Labelled a murderer” – A discursive analysis of Amanda Knox’s construction of innocence” (2015, Loughborough University)
• Alisa Narbutas, “Knocking Amanda Knox – How Newspapers put Women on Trial” (2016, Faculty of Journalism & Media Communications, Griffith College Dublin)
• Emily Meredith Bosch, “Alter Egos / Alternative Rhetorics: Belle Knox’s Rhetorical Construction of Pornography and Feminism” (2016, Communication Studies and the Graduate Faculty of the University of Kansas)
• Ella Fegitz, “Post-feminism in Italy and the legacy of Berlusconism: an analysis of media representations of female subjectivity and sexuality in the age of Berlusconi.” (2017, Goldsmiths College, University of London, Media and Communications Department)
• William B. Ollayos, “Women On Trial: Translating Femininity Through Journalism” (2017, University of Massachusetts Amherst, Department of Comparative Literature)
• Bianca Szkuta, “Investigation into the variables affecting DNA transfer in forensic casework” (2017, Deakin University)
• Danielle Lenth, “Life, Liberty, and the Pursuit of Justice: A Comparative Legal Study of the Amanda Knox Case” (2014, University of the Pacific, McGeorge School of Law)
• Bc. Irena Selucká, “Tense Choice in Indirect Speech” (2011, Filozofická fakulta Univerzity Palackého, Katedra anglistiky a amerikanistiky)

Other than the DNA one, they’re all about language.

The one about Berlusconi might require a bit of explanation: he has been waging a long-running campaign against the Italian judiciary, and playing in the political space while owning a large chunk of the media.

Besides the US-sourced generic panic about Satan, there was also a moral panic in Italy at the time relating to foreigners and attacks on local women. And a general-purpose but vaguer panic about students and drugs and morals. The media (mostly male) just lapped it up and outraged all over the place while having an excuse for talking about sex in public (the talk, that is). On top of everything else, some ‘journalists’ had ulterior motives and scores to settle…

Waterhouse uses a phrase, “credulous and uncritical”, which to me seems apt in general, for describing what “reporting” is, in the copy-paste era.

Tabbert finds that reporting on crime uses linguistic features to “pre-convict offenders and to invoke a feeling of insecurity and fear in the public”.

Dove finds “public opinion is struggling to maintain pace [with gender equality]. This appears to be illustrated prominently within the responses to female violent offenders as it appears deeply instilled and pervasive stereotypes remain persistent.” And then that overlaps with noir presentation of narratives, which feed back into expectations and reporting.

As Oelke says, “manually evaluating the available sources is often not feasible”. That is the crux of the matter: who do we trust?

Lawyers, by definition, have to read a lot and know how expensive and time-wasting superficial reading is. Constructing reality through language is what they do as a day job. They may have an answer to the question about trust, if they don’t contribute to the problem.

“Talk of humility is a matter of pride for the vainglorious, and of humility for the humble. Likewise, Scepticism and doubt are matters of affirmation for the affirmers. Few people speak humbly of Humility, chastely of Chastity, doubtingly of Doubt. We are but liars, duplicitous and contradictory to ourselves.We hide from ourselves, and we mask ourselves from ourselves.”

On a typographical note, note the daisy ornament marking the paragraph,

## Legal Translating

Rainbow with a foot in both camps

Being an interpreter in court requires a depth of skill and mastery not much seen elsewhere.

Translating a court case and judgment, from one jurisdiction and system to another, requires an even greater mastery.

You can’t just go, “X is like Y” (even though it may be), because it is too misleading for those who have never been on or seen the other side.

The French for ‘London’ is Paris.

On the other hand, with willing listeners in the tour group, two systems, although different at street-level, will have similarities and equivalences at a more abstract, functional level: deciding a question of fact, for example, will be the task of the tribunal of fact (however constituted), and so a court-panel in France or Italy, made up of career judges and community citizens acting as a board, can be referred to as a ‘jury’ in that respect, even though how they are selected and how they enter and leave the courtroom and where they sit is different. (More like a grand jury than the petty jury of TV shows.)*

*TV is another influence on how people** perceive a court case  should be like.

**Including law students.