Dolores Donovan
University of San Francisco, Law, Emeritus
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Though in many ways rooted in indigenous Chinese custom and political tradition, the Chinese legal system nevertheless bears the imprint of Western influence. This article uses the Chinese criminal justice system as the medium for... more
Though in many ways rooted in indigenous Chinese custom and political tradition, the Chinese legal system nevertheless bears the imprint of Western influence. This article uses the Chinese criminal justice system as the medium for exploring the foreign legal traditions -- particularly the civil law tradition of continental Europe and the socialist law tradition of the Soviet Union -- that have influenced the modern Chinese system of law. This Article examines six elements of the structure of the formal criminal justice system, placing special emphasis on those aspects of that system that are derived from, or analogous to, features of European or Soviet civil law. The six elements are: (1) the Organic Law of the People's Courts; (2) the Organic Law of the People's Procuracy; (3) the Code of the Criminal Law; (4) the Code of Criminal Procedure; (5) the Constitution of 1982; and (6) the opinions of the Supreme People's Court. [The article also includes English translations of these six elements.]The article argues that the major legacy bequeathed to the Chinese by the European and Soviet legal traditions is a judiciary which is neither expected, nor able, to exert significant checks or restraints on the arbitrary exercise of state power by the executive and legislative branches of government. The article also asserts that the structure of the formal criminal justice system contains many distinctively Chinese features the thrust of which is to inject flexibility into the criminal justice system so as to allow for the exercise of administrative discretion founded in and guided by political ideology.
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This article asserts that judges in Ethiopia (as in other nations governed by a constitution which is the supreme law of the land) have a duty to enforce individual rights provisions of the constitution in the course of adjudicating... more
This article asserts that judges in Ethiopia (as in other nations governed by a constitution which is the supreme law of the land) have a duty to enforce individual rights provisions of the constitution in the course of adjudicating disputes, and that this duty falls especially heavily on judges sitting in criminal cases where the accused has no lawyer - as is the case in the majority of criminal cases in Ethiopia. The article proceeds from two premises. The first is that the human rights provisions of the Ethiopian Constitution of 1994 that apply to criminal defendants are intended to be enforced (and are not merely aspirational). The second is that, although in Ethiopia the formal power of constitutional interpretation may be lodged elsewhere, the Ethiopian judiciary has the power to enforce constitutional provisions relating to the human rights of persons caught up in the criminal justice system. The article concludes that, at critical stages in Ethiopian criminal procedure - especially in the absence of lawyers for the accused - heightened judicial vigilance and, when appropriate, judicial intervention to assert and protect the constitutional rights of the accused are necessary to protect and enforce the Ethiopian constitution and the rights of Ethiopian citizens under that constitution.
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This article examines the roles played by written law in developing nations. Depending on the political system of a particular country, the introduction of written law, even a constitution, can be viewed as establishing rituals which the... more
This article examines the roles played by written law in developing nations. Depending on the political system of a particular country, the introduction of written law, even a constitution, can be viewed as establishing rituals which the political classes are to observe, with greater or lesser sincerity. Cambodia provides an example of such an understanding of the rituals mandated by democracy.
In other nations, especially diverse nations such as Indonesia, the introduction of written law functions as a symbol of state unity and authority. For example, in a country with a de facto system of legal pluralism, a state-promulgated Law of Marriage and the Family announces the new state's intention to regulate the behaviour of its citizens even in their most intimate affairs.
In other nations, especially diverse nations such as Indonesia, the introduction of written law functions as a symbol of state unity and authority. For example, in a country with a de facto system of legal pluralism, a state-promulgated Law of Marriage and the Family announces the new state's intention to regulate the behaviour of its citizens even in their most intimate affairs.
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... She also wishes to thank the members of the USF law faculty for their participation in work-in-progress presentations, in particular, Jack Garvey, Josh Rosenberg, Steve Shatz, and Fred Tung. 693 Electronic copy available at:... more
... She also wishes to thank the members of the USF law faculty for their participation in work-in-progress presentations, in particular, Jack Garvey, Josh Rosenberg, Steve Shatz, and Fred Tung. 693 Electronic copy available at: http://ssrn.com/abstract=1263608 Page 2. ...
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Though in many ways rooted in indigenous Chinese custom and political tradition, the Chinese legal system nevertheless bears the imprint of Western influence. This article uses the Chinese criminal justice system as the medium for... more
Though in many ways rooted in indigenous Chinese custom and political tradition, the Chinese legal system nevertheless bears the imprint of Western influence. This article uses the Chinese criminal justice system as the medium for exploring the foreign legal traditions -- particularly the civil law tradition of continental Europe and the socialist law tradition of the Soviet Union -- that have influenced the modern Chinese system of law. This Article examines six elements of the structure of the formal criminal justice system, placing special emphasis on those aspects of that system that are derived from, or analogous to, features of European or Soviet civil law. The six elements are: (1) the Organic Law of the People's Courts; (2) the Organic Law of the People's Procuracy; (3) the Code of the Criminal Law; (4) the Code of Criminal Procedure; (5) the Constitution of 1982; and (6) the opinions of the Supreme People's Court. [The article also includes English translations of these six elements.]The article argues that the major legacy bequeathed to the Chinese by the European and Soviet legal traditions is a judiciary which is neither expected, nor able, to exert significant checks or restraints on the arbitrary exercise of state power by the executive and legislative branches of government. The article also asserts that the structure of the formal criminal justice system contains many distinctively Chinese features the thrust of which is to inject flexibility into the criminal justice system so as to allow for the exercise of administrative discretion founded in and guided by political ideology.
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This article examines the purposes served by written law in the developing nations of Cambodia and Indonesia. Its thesis is that in societies where ordering the behavior of people and governments is largely accomplished by mechanisms... more
This article examines the purposes served by written law in the developing nations of Cambodia and Indonesia. Its thesis is that in societies where ordering the behavior of people and governments is largely accomplished by mechanisms other than written law, written law necessarily has little to do with the regulation of conduct. As a result, the enactment of written law need not mean that the law is intended to be obeyed immediately. The article analyzes two different cases. The first is the Cambodian coup d'etat -- a single incidence of the use of state power to violate fundamental norms embodied in the most basic written law: a constitution. The second is the widespread disregard of certain laws (specifically the Indonesian land and marriage laws) by the people, and the tolerance of that disregard by their government.The article explores selected modern theories concerning the functions of written law as ritual and as symbol and analyses the applicability of these theories to ...
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This article presents an approach to the challenge of rebuilding the Cambodian legal system. It surveys Cambodia's legal history, its sparse collection of legislation, and its system for the administration of justice, including the... more
This article presents an approach to the challenge of rebuilding the Cambodian legal system. It surveys Cambodia's legal history, its sparse collection of legislation, and its system for the administration of justice, including the court system and the official state and unofficial conciliation processes. In concludes that rebuilding Cambodia's legal system will require: a set of laws capable of directing the country through its transition to liberal democracy; knowledgeable and honest judges, prosecutors, and private lawyers capable of creating and administering a functioning system of justice; and, perhaps most importantly, the development of a legal culture that views state legal institutions as legitimate and appropriate forums for dispute resolution. The article finds no clear answer to the question of whether these prerequisites can in fact be met.
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This article asserts that judges in Ethiopia (as in other nations governed by a constitution which is the supreme law of the land) have a duty to enforce individual rights provisions of the constitution in the course of adjudicating... more
This article asserts that judges in Ethiopia (as in other nations governed by a constitution which is the supreme law of the land) have a duty to enforce individual rights provisions of the constitution in the course of adjudicating disputes, and that this duty falls especially heavily on judges sitting in criminal cases where the accused has no lawyer - as is the case in the majority of criminal cases in Ethiopia. The article proceeds from two premises. The first is that the human rights provisions of the Ethiopian Constitution of 1994 that apply to criminal defendants are intended to be enforced (and are not merely aspirational). The second is that, although in Ethiopia the formal power of constitutional interpretation may be lodged elsewhere, the Ethiopian judiciary has the power to enforce constitutional provisions relating to the human rights of persons caught up in the criminal justice system. The article concludes that, at critical stages in Ethiopian criminal procedure - esp...
Research Interests:
Though in many ways rooted in indigenous Chinese custom and political tradition, the Chinese legal system nevertheless bears the imprint of Western influence. This article uses the Chinese criminal justice system as the medium for... more
Though in many ways rooted in indigenous Chinese custom and political tradition, the Chinese legal system nevertheless bears the imprint of Western influence. This article uses the Chinese criminal justice system as the medium for exploring the foreign legal traditions -- particularly the civil law tradition of continental Europe and the socialist law tradition of the Soviet Union -- that have influenced the modern Chinese system of law. This Article examines six elements of the structure of the formal criminal justice system, placing special emphasis on those aspects of that system that are derived from, or analogous to, features of European or Soviet civil law. The six elements are: (1) the Organic Law of the People's Courts; (2) the Organic Law of the People's Procuracy; (3) the Code of the Criminal Law; (4) the Code of Criminal Procedure; (5) the Constitution of 1982; and (6) the opinions of the Supreme People's Court. [The article also includes English translations ...
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interchangeable units. The law, by abstracting human beings out of their social reality, confers upon them a formal equality.' 62 But this formal equality is illusory and in fact leads to unjust consequences, for the "systematic... more
interchangeable units. The law, by abstracting human beings out of their social reality, confers upon them a formal equality.' 62 But this formal equality is illusory and in fact leads to unjust consequences, for the "systematic application of an equal scale to systemically unequal individuals necessarily tends to reinforce systemic inequalities."' 63 Thus, the Anglo-American premise of abstract equality serves to perpetuate inequality.'6" Applying this critical legal theory to the reasonable man standard, the use of the objective standard to test individual criminal responsibility confers on all persons formal equality under the law. However, notions of individuality, here notions of individual responsibility, that are based on a premise of abstract legal equality are illusory insofar as they are divorced from the "concrete, social bases" of individuality. 165 By emphasizing individual responsibility in the abstract form, the reasonable man stan...
This article uses The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations (1983) as a springboard for examining the fourth and first amendment implications of... more
This article uses The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations (1983) as a springboard for examining the fourth and first amendment implications of government surveillance of domestic political organizations by informers, for exploring the question of whether the surveillance of such groups by informers violates those persons' legitimate expectations of privacy, and for arguing that, since such surveillance not only implicates the fourth amendment but also may have a chilling effect upon the exercise of first amendment rights, the fourth amendment must be read more strictly than usual when domestic political surveillance is in issue.The article observes that existing constitutional law doctrine -- the Supreme Court's informer cases -- is inconsistent with modern fourth amendment analysis and that the Court has not yet considered the impact of first amendment values on its fourth amendment case...
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... She also wishes to thank the members of the USF law faculty for their participation in work-in-progress presentations, in particular, Jack Garvey, Josh Rosenberg, Steve Shatz, and Fred Tung. 693 Electronic copy available at:... more
... She also wishes to thank the members of the USF law faculty for their participation in work-in-progress presentations, in particular, Jack Garvey, Josh Rosenberg, Steve Shatz, and Fred Tung. 693 Electronic copy available at: http://ssrn.com/abstract=1263608 Page 2. ...
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... Confrontation and competition between a nation's formal legal system and its customary law systems is not ... co-existence and cooperation between the customary law systems and the statecriminal justice system, subject to the... more
... Confrontation and competition between a nation's formal legal system and its customary law systems is not ... co-existence and cooperation between the customary law systems and the statecriminal justice system, subject to the authority of the human rights provisions of ...