Kerry McGuire, MJIL Digital Media Editor
Recent headlines announced that Mexico’s Supreme Court paved the way for legalization by permitting the cultivation of marijuana for personal use. Much like other civil law countries, Mexico’s Supreme Court Decisions apply only to the actors within a particular case. If the Supreme Court makes the same decision a predetermined number of cases, the result may be precedential. What, then, does this decision mean?
I can confidently say, I cannot answer that question. (Sorry for the red herring . . . and the cheesy title). However, questions like these led me to spend this semester at the University of Montevideo in Uruguay. As a North American law student formed in the common law system, researching in other countries is nothing short of a challenge. While I remain unsure of how best to meet to ease the difficulty of research, I am able to offer a few points that aid research in a civil law context:
- Look for the work of prominent legal scholars: After constant reminders that precedent does not exist in Uruguay, I am beginning to think this is the land that Legal Jurists’ dreams. Their work takes the place of case law in pleadings and judge’s decisions (which I continue to read despite being advised otherwise). Effective lawyering here requires intimate knowledge of the work of respected theorists and their latest journal publications.
- The legislature plays a major role in shaping and interpreting law: The lack of precedent opens the door to the legislature to craft and change laws. In this sense, lobbying both plays a greater role in Uruguay and takes the place of impact litigation. Reliance on the legislature to change laws, rather than the judiciary, sometimes results in a faster-paced legal system in the sense that laws and interpretations of them are subject to change at any moment. In addition to familiarity with legal theorists, a researcher must also keep tabs on the activities of the legislature.
- Judges may be permitted to act independently of the law: The independence of judges is a pillar of the Uruguayan legal system. Hearing this made me long for case law in my first day of procedural law. However, it seems to be a necessary check in light of the narrow interpretations of the law permitted by the legislature. For this reason, reading cases is helpful in determining the actual impact of a law and which legal theorists are most influential.
- The context of the country may have a dramatic impact on the law: Uruguay is a country of 3 million inhabitants which covers a geographic area smaller than many U.S. states. A small population results in less jurisprudence, and it makes it easier to identify the most prominent legal scholars. On the other hand, some areas of law are seemingly stagnant to an outsider. For example, none of the three most prominent procedural law manuals have been updated in the last ten years (all of which are used in my procedural law class). An outsider who locates these manuals must be sure to “shepardize” the manual by reading journal articles.
- Find a friend and commiserate: The most general point has been the most illuminating in practice. I recently met with a Chilean law student who was in Uruguay for a conference. Over a beer, we complained about researching the other’s legal system. However, I said “commiserate,” not complain. We were able help one another identify the conceptual disconnects as well as practical difficulties in research and offer pointers and resources. This one conversation proved more helpful than hours of reading scholarly articles.