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“Comparative legal cultures are examined by a field of scholarship, which is situated at the line bordering Comparative Law and historical Jurisprudence .” Csaba Varga (ed) (1992) Comparative Legal Cultures (Dartmouth: England) p. xix. Legal cultures can be examined by reference to fundamentally different legal systems. However, such cultures can also be differentiated between systems with a shared history and basis which are now otherwise influenced by factors that encourage cultural change. WESTERN LEGAL CULTURE V NON WESTERN LEGAL CULTURE Western legal culture is unified in the systematic reliance on legal constructs. Such constructs include and Symbols and any attempt to analyse non western legal systems in terms of categories of modern western law can result in distortion attributable to differences in language. J.C. Smith (1968) ‘The Unique Nature of the Concepts of Western Law’ The Canadian Bar Review (46: 2 pp. 191-225) in Csaba Varga (ed) (1992) Comparative Legal Cultures (Dartmouth: England). So while legal constructs are unique to classical Roman, modern civil and common law cultures, legal concepts or primitive and archaic law get their meaning from sensed experience based on facts as opposed to theory or abstract. Legal culture therefore in the former group is influenced by academics, learned members of the profession and historically, philosophers. The latter group’s culture is harnessed by beliefs, values and religion at a foundational level. Traditional law in Africa is based on natural justice and lacks abstract concepts. This is characteristic of cultures that have an absence of written language which is necessary to elaborate concepts into theory.Max Gluckman (1964) ‘Natural Justice in Africa’ Natural Law Forum vol: 9 (pp. 25-44) in Csaba Varga (ed) (1992) Comparative Legal Cultures (Dartmouth: England). The doctrines of traditional African Law are based on social considerations whereby parties to disputes seek not declarations of right or wrong but rather they seek restitution of social relationships.Max Gluckman (1964) ‘Natural Justice in Africa’ Natural Law Forum vol: 9 (pp. 25-44) in Csaba Varga (ed) (1992) Comparative Legal Cultures (Dartmouth: England). The trier of fact and law adjudicates between closely related people from communities as opposed to strangers in commerce. Judgments stress the importance of living together in generous, loving kindness, mutual helpfulness and reciprocity. Evidence suggests that ‘African law demonstrates that all men, because they live in society, have some theory of rules of justice which they believe arise from reason itself; Gluckman’s evidence suggests that Africans may well have formulated, in embryonic form at least, a theory of natural justice coming from human kindness itself.’ Max Gluckman (1964) ‘Natural Justice in Africa’ Natural Law Forum vol: 9 (pp. 25-44) in Csaba Varga (ed) (1992) Comparative Legal Cultures (Dartmouth: England). The .Lawrence Rosen (1989) The Anthropology of Justice: Law as Culture in Islamic Society (Cambridge University Press: Cambridge). WESTERN COMPARISONS: COMMON LAW CULTURE V CIVIL LAW CULTURE The traditional focus between and reinforcement of rights. The use of a Jury in the common law as a judge of fact is unique when compared to civil law systems. The Jury are triers of fact in both Civil and Criminal cases and this reflects a particular culture of law; namely the direct involvement of society in the Legal Framework . In France a judge’s role as trier of law and fact is merely as an Administrator without creating binding Legal Principle . Hence the civil law culture is more rational, orderly, authoritative and Paternalistic . Common law has a culture of judicial inventiveness and even flexibility. Enunciation of principle is not forever paramount but indeed a continuing flow of cases and statutes add to the ebb and flow of the law, whereby ‘case law represented the modern man’s realisation of his own limitations.’ A. G. Chloros (1978) ‘Common Law, Civil Law and Socialist Law: Three Leading Systems of the World, Three Kinds of Legal Thought’ The Cambridge Law Review (pp. 11-26) in Csaba Varga (ed) (1992) Comparative Legal Cultures (Dartmouth: England) at 84. Further differences include where a civilian Lawyer speaks in terms of the law of nature while the common lawyer speaks to reason. It follows that the culture of these legal systems has been moulded by perceptions of justice and the means avaliable to attain it. COMMON LAW COMPARISONS: AMERICAN LEGAL CULTURE V ENGLISH LEGAL CULTURE Legal Culture can differ between countries despite their conformity to a similar if not identical legal system. Both the United States and England possess common law systems of law and yet each country embodies a distinctive legal culture. This has been attributable by contrasting both the institutions within the legal system and characteristics of the profession ( Judges , Barristers and Solicitors ).Richard A. Posner (1996) Law and Legal Theory in England and America (Clarendon Press: Oxford). According to not only in the judiciary but also those who are candidates for the Judiciary . In England, and other Commonwealth jurisdictions, barristers are apt candidates for judicial nomination. The reasons for this stem from the common law systems which have a culture to encourage, harness and capture high quality intellect and experience within a concentrated portion of non judicial officers of the legal profession known as barristers (which includes and accounts for their subsequent appointments to higher ranking Queens Counsel and Senior Counsel ). Barristers are engaged upon a solicitor’s Brief instead of direct engagement with the client. This insulation avoids lay persons being taken advantage of by unscrupulous lawyers which is evidently ‘a big problem in the Unites States, where incompetent lawyers, and known to be such both by judges and by other lawyers, often wow naïve clients.’ Richard A. Posner (1996) Law and Legal Theory in England and America (Clarendon Press: Oxford) at 23. The cost of pursuing Litigation influences the culture of each legal system in terms of what society perceives as the net benefit gained from the court and the profession. To litigate similar cases in England and the United States would cost approximately the same; however English courts are not as generous as their American counterparts in awarding Damages , especially Punitive Damages .Richard A. Posner (1996) Law and Legal Theory in England and America (Clarendon Press: Oxford). Therefore the net expected benefit of litigation being greater in the United States encourages a legal culture that is more litigious in nature than England. National character is inherent in the legal institutions of the and History influence current legal culture. CHINESE LEGAL CULTURE The legal culture of China , as well as its social and economic culture, continues to undergo dramatic change since the People’s Republic Of China reforms of 1978. Transformation has occurred by legal modernisation whereby a rule of law has been suggested to replace the rule of man. The latter is a characteristic of the traditional rural Chinese society where unwritten rules, personal relationships and trust govern citizens’ ‘legal’ relationships; analogous to Gemeinschaft . In the modern society of China, institutional, customary and legal reform (a rule of law that embodies universal rules uniformly enforced by a centralised and bureaucratic state) is necessary to govern legal relations; analogous to Gesellschaft . Direct transplants of Western Legal Systems or culture may not provide an adequate rule of law where the life of ordinary Chinese may be marginalised in favour of legal elite who use legal instruments for self promotion. Furthermore, implanting western legal norms disregards the local culture and relations; thus potentially destroying significant cultural bonds and relationships in the rural community. The traditional Rural Chinese legal culture which is premised on personal and informal relations faces erosion unless Legal Pluralism is promoted. A top down approach in analysing the legal culture of China suggests that both under and Rule Of Law are interdependent concepts whereby ‘the rule of law is legitimate only if it is the product of democratic government.’ Jianfu Chen ‘To Have the Cake and Eat it too? China and the Rule of Law’ (pp. 250-272) in Guenther Doeker-Mach and Klaus A. Ziegert (Eds.) (2004) Law, Legal Culture and Politics in the Twenty First Century (Franz Steiner Verlag: Stuttgart) at 269. What is evident with the China experience is that legal culture is susceptible to change in pursuance to Socio-economic and Political forces. While such a change could be beneficial for portions of the Chinese Society and International Relations , traditional and established cultural methods face extinction. REFERENCES FURTHER REFERENCES Albert H. Y. Chen ‘Socio-legal Thought and Legal Modernization in Contemporary China: A Case Study of the Jurisprudence of Zhu Suli’ (pp. 227-249) in Guenther Doeker-Mach and Klaus A. Ziegert (Eds.) (2004) Law, Legal Culture and Politics in the Twenty First Century (Franz Steiner Verlag: Stuttgart). |
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