A Critical Commentary of Chapter 2 in the Book Comparative Legal Traditions In A Nut Shell By Mary Ann Glendon, Paolo Wright-Carozza and Colin Picker.
Chapter 2 focuses on the legal structures in civil law jurisdictions as opposed to other legal systems. First, the authors consider the parliamentary system of government that exists in civil law jurisdictions. They also provide a clear definition of what a parliamentary government is and what it entails while contrasting it with the presidential system of government. The chapter reveals the close connection that exists between the parliaments relate with the ‘the government’, which consists of the prime minister and the cabinet. Accordingly, the authors observe that parliament has the ultimate influence with regard to the enactment of laws in a parliamentary system. This aspect that is different in a presidential system where the executive, led by a president, appears to have substantial powers in comparison to the powers of the parliament. In this regard, the authors hint that the different power shift between the two systems is because elected parliamentarians appoint the president in parliamentary systems while presidents in a presidential system has the direct mandate of the electorate. Consequently, the chapter reveals that there is no clear separation of power between the executive and the judiciary unlike in adversarial systems where power separation among three branches of government is clearly defined (Glendon 63). Further, the authors evaluate the role of the constitution and provision of fundamental rights within the French civil law system noting that civil codes guaranteeing the rights were enacted before the constitution hence there is more reliance on the codes rather than the constitution. Regarding judicial review, the chapter reveals the difficulties that exist while seeking to review government actions in France and England but observes that in Germany, Italy, and United States judicial review is a vigorous process. Finally, the chapter evaluates the existence of different courts that handle different nature of cases, that is, public law courts and ordinary courts.
Pros
Generally, the content in chapter two regarding legal structures within civil law systems is informative. The information is simple and short, which makes it easy to comprehend. The comparisons that the authors make in their discussions regarding the civil law system in France and other jurisdictions such as the United States provides the reader with a general overview of different legal systems and this provides a good foundation for one to undertake further research into comparative legal systems.
Cons
Although the chapter provides enlightening information regarding the legal structures in civil law jurisdictions, the information is shallow and only provides a general overview of the structures. As such, a person needed a deeper understanding of the systems is not likely to rely solely on the information that the authors provide. Accordingly, the chapter lacks current data and this is apparent when the authors provide that the membership of the Council of State consist of public administrators who do not have different backgrounds and training from the ordinary judicial officers (70). The truth is that the membership of the current Council of State includes high-level judicial officers of administrative law such as the Master of Requests. As such, the chapter has some information that reflects the old regime that is now irrelevant.
It is also important to note that the authors do not provide in-text citations or footnotes to acknowledge the source of the information they provide in the chapter. This makes it difficult to verify the information they provide, which also makes it difficult for a person seeking to have a deeper understanding of the discussion to search for more information from other scholarly sources. In the absence of sufficient detail regarding the subject, it is difficult to assess the validity of the conclusions that the authors make. As such, a reader who wants to make further inquiries regarding the information provided in the chapter regarding the civil law systems will have to carry out independent research on the same. Ultimately, lack of footnotes and in-text citations makes it difficult for any person carrying out an academic research about civil and/or adversarial legal systems to use the information that the authors present because they appear to rely too much on personal opinion rather than previous scholarly research.
Work Cited
Glendon, Mary Ann, Paolo Wright-Carozza and Colin Picker. “Legal Structures in Civil Law
Nations” In Comparative Legal Traditions In A Nut Shell by Mary Ann Glendon, Paolo Wright-Carozza and Colin Picker. West Academic Publishing, 2008.
