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Bar News - May 23, 2008

Across the Globe, NH Bar Members Discuss Rule of Law

The NHBA website on Law Day, May 1, launched an "International Rule of Law –NH Bar Members Across the Globe" section. In addition to providing information about the efforts of Bar members working on international service or rule of law projects, these members are taking time to answer questions about their work – what they are doing, and what they are learning from others.

The following is one of the questions our volunteers are answering. Check the website yourself and add your own comments.

Are there particular areas of our system that are the most difficult for people from other cultures to understand?

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.

John Smagula, Law Professor, Chair of the China Program at Temple University School of Law:
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…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.

Retired NH Supreme Court 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.

NH Federal Defender Bjorn Lange, a member of the NH-Vologda Rule of Law Partnership:
The concepts that I have had the most difficulty explaining to my foreign counterparts have been federalism, the separation of powers, and the relative openness of our court proceedings.  

Michael Th. Johnson, now working in Kabul, Afghanistan, working for the US Department of State in the Afghanistan Justice Sector Support Program.
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." 

Maurice Geiger, of Justice Works, now in Haiti, working on a justice reform project.
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 countries 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.

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