Ambassador George Bruno:
It is becoming more challenging to explain the contradictions arising with respect to US behavior regarding torture, wiretapping Americans without a court order, suspending habeas corpus, incarcerating indefinitely citizens without civil trial or access to attorneys, choosing presidents by 5-4 decisions of the US Supreme Court, our disavowal of long standing treaties, having the largest prison population in the world, and our imposing the death penalty on minors and the disabled. These actions have all served to diminish US standing in the world in recent years. What could be improved about our system, compared to other countries? What aspects or values should be imported to the US?
One of the key distinctions between China and the U.S. is the prevalent form of legal reasoning and the importance of precedent. Legal professionals in China, as in many civil law countries, tend to use a deductive reasoning process--that the conclusion can be reasoned from the main principles (e.g., those set forth in the Civil Code). Case law need not, and in most cases should not, be consulted. In common law countries, we tend to use an inductive reasoning process--that the conclusion can be drawn from the facts or from a series of minor principles. Moreover, we also use analogical reasoning--that if the facts are similar enough to a previous case, then a similar principle should apply. If we can distinguish the facts, then we may argue that the previously applied principles need not apply. Thus, common law lawyers must be versed in statutory law, case law, and other legal sources (such as legislative history and public policy considerations) to make legal conclusions.
Given these different legal reasoning processes, one of the most difficult aspects of explaining the U.S. legal system to Chinese lawyers is the role of stare decisis--and how it influences legal thought and shapes legal doctrine.
Justice Joseph Nadeau:
They are often shocked at the number of people confined to prisons in United States and believe it is a function of wealth, class and ethnicity. Also, I am often asked if we in the US really have all the rights that we claim. They have a hard time believing that we are protected from infringement of those rights by the government. I think recent disputes over prisoner rights, search and seizure and actions taken after 9/11 contribute to this skepticism.
The concepts that I have had the most difficulty explaining to my foreign counterparts have been federalism, the seperation of powers, and the relative openess of our court proceedings.
Michael Th. Johnson:
Many of the people from post-communist and/or civil law systems see parts of our system as curious and very entertaining and more concerned with gamesmanship than a real search for the truth. This perception misses the essential purpose of our system as a process that protects the rights of individuals by rigorously and openly testing the authority of the state when it tries to deprive citizens of their liberties under the law. We Americans have a deep and somewhat unique confidence in the ability of our society to endure a hundred “miscarriages of justice” better than the abuse of the rights of a single citizen.
The histories of less stable countries tell their citizens that the rights of the individual must sometimes be sacrificed for the stability of the state. An Attorney General of a country in conflict once told me in respect to a routine practice that frequently resulted in the incarceration of an accused unlawfully for periods of several weeks that this was not of concern. “After all” he said, “they are only in jail for a few weeks. This is not a problem for us.”
I have found that what is least understood is our adversary system. In most other legal systems the courts are much more involved in gathering evidence. Also in much of the world the idea of establishing the law through case law is not understood. In most countires they are extremely bound by statutes... Where we think that if something is NOT prohibited it is allowed, whereas they think if it not permitted it is not allowed.
Yes. They don't understand how a jury fits into the process.