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Published online by Cambridge University Press: 24 February 2006
Global Justice Reform: A Comparative Methodology. By Hiram E. Chodosh. New York: New York University Press, 2005. 240p. $45.00.
This book is a greatly needed assessment of the methodologies used to study and implement justice reform. By asking a range of pointed questions on judicial reform whose answers have largely been assumed, Hiram E. Chodosh lays bare basic concepts and debates in order to understand whether they are truly logical, consistent, and useful. The scrutiny with which the author subjects the field of comparative law helps make it much more rigorous, since, as he points out, even an empirically rich comparative framework will result in poor findings if its methodology is inconsistent and its objectives unclear. He carefully explains comparative method, illuminates approaches ranging from cross-national comparisons to intranational comparisons, and analyzes benefits of comparisons, such as the creation of continuums. With this comprehensive and insightful assessment, he criticizes comparative law's failure to adopt a method for objectively assessing the results and value of a comparison that is “flexible enough to grasp a wide variety” of processes and institutions (p. 17). He shows how classifications, prototypes, evaluation mechanisms, and other building blocks of comparative study are often too deterministic or unclear, and how the lack of objective criteria leaves central debates—such as over the wisdom and practicality of transferring a feature of one country's legal system to another—unresolved. “Without clarity of purpose,” he concludes,” it is difficult to determine the content of what to report” (p. 16).
This book is a greatly needed assessment of the methodologies used to study and implement justice reform. By asking a range of pointed questions on judicial reform whose answers have largely been assumed, Hiram E. Chodosh lays bare basic concepts and debates in order to understand whether they are truly logical, consistent, and useful. The scrutiny with which the author subjects the field of comparative law helps make it much more rigorous, since, as he points out, even an empirically rich comparative framework will result in poor findings if its methodology is inconsistent and its objectives unclear. He carefully explains comparative method, illuminates approaches ranging from cross-national comparisons to intranational comparisons, and analyzes benefits of comparisons, such as the creation of continuums. With this comprehensive and insightful assessment, he criticizes comparative law's failure to adopt a method for objectively assessing the results and value of a comparison that is “flexible enough to grasp a wide variety” of processes and institutions (p. 17). He shows how classifications, prototypes, evaluation mechanisms, and other building blocks of comparative study are often too deterministic or unclear, and how the lack of objective criteria leaves central debates—such as over the wisdom and practicality of transferring a feature of one country's legal system to another—unresolved. “Without clarity of purpose,” he concludes,” it is difficult to determine the content of what to report” (p. 16).
The author's extraordinary knowledge of the literature, presented in a way that enriches but never overwhelms the main argument or structure, alone makes the book a valuable resource. He develops classifications of scholarship centered on a wide range of methods, approaches, and theories, giving the reader an overview of the literature unmatched by any previous work. This review of the field is also central to the book's critique—while the field of comparative law is broad, he says, the choice of criteria in most comparisons seems to be set by “the context and the motivations of the person making the comparison,” rather than scientific method (p. 25).
The application of this critique to the functioning of judicial systems is also extremely valuable. Chodosh takes each stage of justice reform, from planning to outcomes, and lays out its varied weaknesses, outcomes, and analytical shortcomings. He looks at reforms from every angle, pairing them in ways, such as top down versus bottom up and external versus internal, opening up valuable new perspectives. The book's comparison of the different values, features, and aims of a judicial system—such as efficiency, access, accountability, and independence—provides a solid foundation on which to define these features in different contexts, to map their interactions, and, most crucially, to evaluate the impact of specific reforms on them.
Where Global Justice Reform falls short, though, is in applying its own framework to actual trends and cases. The author's critique of comparative law's dichotomous frameworks and pat approaches toward international legal unification are accurate, but not always complete. Many international developments, for instance, are based less on “transference” than on combinations of international influences, regional dialogues, national inputs, administrative needs, and societal pressures. Adoption of new criminal process codes throughout Latin America and the use of universal jurisdiction for past rights abuses are two such examples. The book similarly misses a wider analytical process by downplaying how even methodologically challenged studies generate responses that develop and sharpen comparative methodology. Using a Supreme Court's rulings to measure its independence from the executive, for example, often leads to responses that point out weaknesses, such as the failure to account for the importance of the cases to the executive.
More broadly, the book does not delve enough into the great demands that it says democracy places on a judiciary. Analysis of the case studies of Indonesia and India, countries flooded with such demands, is disappointingly limited. The background and current dilemmas of these countries' judicial systems are discussed, from executive controls to case bottlenecks. The book also recognizes the extensive politization of the judiciary and of judicial reform, from influence by political parties in judges' selection to interference by private interests in specific cases to judicial officials' own resistance to change. But the analogy of “slime,” used to illustrate how “emergent” judicial systems draw on a wide range of influences and stimuli, is too abstract to accommodate historical, political, and societal conditions. It cannot explain why certain problems are targeted, whether unrealistic reforms are a product of sloppy planning or deliberate maneuvering, or the political and institutional context in which a reformer “simply has to make a value choice of which error is better to avoid in the context of that particular system” (p. 115). The passage on the importance of timing for Indonesia's judicial commission blueprint, for example, should explain how uncertainty created by conditions such as violence and frequent regime change make timing particularly critical in that country.
Such inclusion is not easy, of course, but can be done through a focus on specific issues central to judicial reform. Examples of particular importance to internally diverse democracies like Indonesia and India are ethnicity, decentralization, and mediation. Huge populations of multiple ethnicities, spread out over an extensive territory, usually crease pressure for a decentralization that incorporates local needs, traditions, and forms of alternative dispute resolution (ADR). So how far can government-sponsored ADR go to defuse judicial disputes in different regions? How much should local officials be a part of a nationally directed reform? Focusing on such questions can help provide a template, as the author states, that can incorporate differences. Studies of how new democracies in Europe and Latin America have been institutionalizing indigenous and local legal norms is another possible starting point for a comparative methodology that includes the interactions of actors and institutions.
Focus on such incorporation is less of a criticism of this remarkable book than a way of using the many instruments it forges. Narrowing the distinction between “conceptual approaches” and “political, cultural, and financial considerations” (p. 123) is a way to extend an approach that already advances understanding of justice reform and the policies that implement it. By dismantling and reconfiguring comparative law, this highly original and engaging work also gives that field of study a much-needed boost.