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(3) Law

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The Western legal tradition

 

The Western legal tradition has a number of distinctive features, in particular:

• A fairly clear demarcation between legal institutions (including adjudication, legislation, and the rules they spawn), on the one hand, and other types of institutions, on the other; legal authority in the former exerting supremacy over political institutions.

• The nature of legal doctrine which comprises the principal source of the law and the basis of legal training, knowledge, and institutional practice.

• The concept of law as a coherent, organic body of rules and principles with its own internal logic.

• The existence and specialized training of lawyers and other legal personnel.

While some of these characteristics may occur in other legal traditions, they differ in respect of both the importance they accord to, and their attitude towards, the precise role of law in society. Law, especially the rule of law, in Western Europe is a fundamental element in the formation and significance of society itself. This veneration of law and the legal process shapes also the exercise of government, domestically and internationally, by contemporary Western democracies.

The ideal of the rule of law is most closely associated with the English constitutional scholar Albert Venn Dicey, who in his celebrated work An Introduction to the Study of the Law of the Constitution, published in 1885, expounded the fundamental precepts of the (unwritten) British constitution, and especially the concept of the rule of law which, in his view, consisted of the following three principles:

• The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power.

• Equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts.

• The law of the constitution is a consequence of the rights of individuals as defi ned and enforced by the courts.

 

The antique charm of the common law

[W]hat the Continental lawyer sees as being a single problem and solves with a single institution is seen by the common lawyer as being a bundle of more specific problems which he solves with a plurality of legal institutions, most of them of ancient pedigree … One should be frank enough to say, however, that though the English system has a certain antiquarian charm about it, it is so extremely complex and difficult to understand that no one else would dream of adopting it.

K. Zweigert and H. Kötz, An Introduction to Comparative Law, 3rd edn (OUP, 1998), p. 37

 

Civil law and common law

 

The system of codified law that obtains in most of Europe, South America, and elsewhere is known as civil law, in contrast to the common law system that applies in England, former British colonies, the United States, and most of Canada.

Civil law is frequently divided into four groups. First, is French civil law, which obtains also in Belgium and Luxembourg, the Canadian province of Quebec, Italy, Spain, and their former colonies, including those in Africa and South America. Second, German civil law, which is, in large part, applied in Austria, Switzerland, Portugal, Greece, Turkey, Japan, South Korea, and Taiwan. Third, Scandinavian civil law exists in Sweden, Denmark, Norway, and Iceland. Finally, Chinese (or China) law combines elements of civil law and socialist law. This is by no means an airtight classification. For example, Italian, Portuguese, and Brazilian law have, over the last century, moved closer to German law as their civil codes increasingly adopted key elements of the German civil code. The Russian civil code is partly a translation of the Dutch code.

Though the two traditions – common law and civil law – have, over the last century, grown closer, there are at least five significant differences between the two systems. First, the common law is essentially unwritten, non-textual law that was fashioned by medieval lawyers and the judges of the royal courts before whom they submitted their arguments. Indeed, it may be that this entrenched oral tradition, supported by a strong monarchy, developed by experts before the revival in the study of Roman law, explains why that system was never ‘received’ in England.

Codification has been resisted by generations of common lawyers, though this hostility has been weaker in the United States, where since its establishment in 1923, the American Law Institute (a group of lawyers, judges, and legal scholars) has published a number of ‘restatements of the law’ (including those on contract, property, agency, torts, and trusts) to ‘address uncertainty in the law through a restatement of basic legal subjects that would tell judges and lawyers what the law was’. They seek to clarify rather than codify the law. Their standing as secondary authority is demonstrated by their widespread (though not always consistent) acceptance by American courts. More significant is the Uniform Commercial Code (UCC) which establishes consistent rules in respect of a number of key commercial transactions that apply across the country. With 50 states with different laws, uniformity in respect of commercial transactions is obviously vital. Imagine the confusion in the absence of such standardization: you live in New York and buy a car in New Jersey that is made in Michigan, warehoused in Maine, and delivered to your home.

Second, the common law is casuistic: the building blocks are cases rather than, as in the civil law system, texts. Ask any American, Australian, or Antiguan law student how most of his or her study-time is spent. The answer will almost certainly be ‘reading cases’. Question their counterparts from Argentina, Austria, or Algeria, and they will allude to the civil and penal codes they persistently peruse. The consequence of the common lawyer’s preoccupation with what the judges say – rather than what the codes declare – is a more pragmatic, less theoretical approach to legal problem-solving.

Third, in view of the centrality of court decisions, the common law elevates the doctrine of precedent to a supreme position in the legal system. This doctrine means both that previous decisions of courts that involve substantially similar facts ought to govern present cases and that the judgments of higher courts are binding on those lower in the judicial hierarchy. The justification for the idea is that it engenders constancy, predictability, and objectivity, while allowing for judges to ‘distinguish’ apparently binding precedents on the ground that the case before them differs from them in some material respect.

A fourth generalization is that while the common law proceeds from the premise ‘where there is a remedy, there is a right’, the civil law tradition generally adopts the opposite position: ‘where there is a right, there is a remedy’. If the common law is essentially remedial, rather than rights-based, in its outlook, this is plainly a result of the so-called writ system under which, from the 12th century in England, litigation could not commence without a writ issued on the authority of the king. Every claim had its own formal writ. So, for example, the writ of debt was a prerequisite to any action to recover money owing, and the writ of right existed to recover land. In the 17th century, the writ of habeas corpus (literally ‘you must produce the body’) was a vital check on arbitrary power, for it required the production of a person detained without trial to be brought before a court. In the absence of a legal justification for his imprisonment, the judge could order the individual to be liberated. It took a century for civil law jurisdictions to accept this fundamental attribute of a free society.

Finally, in the 13th century, the common law introduced trial by jury for both criminal and civil cases. The jury decides on the facts of the case; the judge determines the law. Trial by jury has remained a fundamental feature of the common law. This separation between facts and law was never adopted by civil law systems. It illustrates also the importance of the oral tradition of common law as against the essential role of written argument employed by the civil law.

 

 

The common law, chaos, and codification

[L]ife might be much simpler if the common law consisted of a code of rules, identifiable by reference to source rules, but the reality of the matter is that it is all much more chaotic than that, and the only way to make the common law conform to the ideal would be to codify the system, which would then cease to be common law at all. The myth, for that is what it is, owes its attractiveness to another ideal, that of the rule of law, not men. … It consequently distorts the nature of the system to conceive of the common law as a set of rules, an essentially precise notion, as if one could in principle both state the rules of the common law and count them like so many sheep, or engrave them on tablets of stone.

A. W. B. Simpson, ‘The Common Law and Legal Theory’, in William Twining (ed.), Legal Theory and Common Law (Blackwell, 1986), pp. 15–16

 

There are also certain jurisdictions, such as Scotland, that, though their legal systems are not codified, preserve varying degrees of Roman influence. On the other hand, some jurisdictions have avoided the impact of Roman law, but because of the prominence of legislation, these systems resemble the civil law tradition. They include Scandinavian countries, which inhabit an unusual place in the ‘Romano-Germanic’ family.

 

Other legal traditions

Religious law

 

No legal system can be properly understood without investigating its religious roots. These roots are often both deep and durable. Indeed, the Roman Catholic Church has the longest, continuously operating legal system in the Western world. The influence of religion is palpable in the case of Western legal systems:

[B]asic institutions, concepts, and values … have their sources in religious rituals, liturgies, and doctrines of the eleventh and twelfth centuries, reflecting new attitudes toward death, sin, punishment, forgiveness, and salvation, as well as new assumptions concerning the relationship of the divine to the human and of faith to reason.

In Europe in the 12th century, ecclesiastical law played an important role in a number of fields. Ecclesiastical courts claimed jurisdiction over a wide range of matters, including heresy, fornication, homosexuality, adultery, defamation, and perjury.

Canon law still governs several churches, especially the Roman Catholic Church, the Eastern Orthodox Church, and the Anglican Communion of Churches.

The rise of secularism has not completely extinguished the impact of religious law. The jurisdiction of Western legislatures and courts over exclusively religious matters is frequently curtailed, and many legal systems incorporate religious law or delegate to religious institutions matters of a domestic nature. Nevertheless, one of the hallmarks of Western legality is the separation between church and state.

While a number of prominent religious legal traditions co-exist with state systems of law, some have actually been adopted as state law. The most significant are Talmudic, Islamic, and Hindu law. All three derive their authority from a divine source: the exposition of religious doctrine as revealed in the Talmud, Koran, and Vedas respectively.

 

 

Talmudic law

 

[The Talmud] represents a brilliant intellectual concept, a book of law which contains endless differences of opinion from all ages and dealing with all that had gone on before, while seen as never definitely finished and thus leaving room for still more opinion, as each age engages with it. There is no equivalent to it in any legal tradition.

H. Patrick Glenn, On Common Laws (OUP, 2005), p. 131

 

 

Hindu law

 

Hindu law recognizes the possibility of change, both of law and the world, but … [i]t just tolerates it, without in any way encouraging it, as something that’s going to happen, but which shouldn’t disturb the basic harmony of the world. If it does, it’s bad karma, and this too will be dealt with. Thus, for a written tradition, Hindu tradition is incredibly roomy.

Toleration is not at the perimeter of it, but at the centre. And toleration turns out to have its own kind of discipline. H. Patrick Glenn, Legal Traditions of the World, 2nd edn (OUP, 2004), p. 287

 

 

All have influenced secular law in a variety of ways. For example, Talmudic law had a significant impact on Western commercial, civil, and criminal law. In addition to common and civil law systems, it is possible to identify four other significant legal traditions.

Islamic law (or the Sharia) is based largely on the teachings of the Koran. It extends to all aspects of life, not merely those that pertain to the state or society. It is observed by more than one-fifth of the population of the world, some 1.3 billion people.

At its core, Hinduism postulates the notion of Kharma: goodness and evil on earth determine the nature of one’s next existence.

Hindu law, especially in relation to family law and succession, applies to around 900 million individuals, mostly in living in India.

 

Islamic law

 

Islamic law … seeks constancy with common-sense assumptions about humanity, not through the refinement of categories of its own creation. [It] is a system of adjudication, of ethics and of logic that finds its touchstone not in the perfecting of doctrine, but in the standards of everyday life, and measured in this way it is enormously developed, integrated, logical and successful. Man’s duty is to conform to God’s moral limits, not to try to invent them. But within these limits established by God one can create relationships and traffic in the knowledge of their existence, intricacies and repercussions.

Lawrence Rosen, The Anthropology of Justice: Law as Culture in Islamic Society (CUP, 1989), p. 56; quoted in Malise Ruthven, Islam: A Very Short Introduction (OUP, 1997), p. 89

 

Customary law

 

To constitute custom, the practices involved require something beyond mere usage or habit. They need to have a degree of legality. This is not always easy to discern, though customary law continues to play an important role, especially in jurisdictions with mixed legal systems such as occur in several African countries. The tenacity of custom is evident also in India and China. Indeed, in respect of the latter, the Basic Law of the Special Administrative Region of Hong Kong provides that customary law, as part of the laws previously in force in Hong Kong (prior to 1 July 1997), shall be maintained.

 

Mixed legal systems

 

In some jurisdictions two or more systems interact. In South Africa, for example, the existence of Roman-Dutch law is a consequence of the influence of Dutch jurists who drew on Roman law in their writing. This tradition was exported to the CapeColony in the 17th and 18th centuries. The hybrid nature of South Africa’s legal system is especially vivid, since, following the arrival of English common law in the 19th century, the two systems co-existed in a remarkable exercise of legal harmony. And they continue to do so:

 

Like a jewel in a brooch, the Roman-Dutch law in South Africa today glitters in a setting that was made in England. Even if it were true (which it is not) that the whole of South African private law and criminal law had remained pure Roman-Dutch law, the South African legal system as a whole would still be a hybrid one, in which civil- and common-law elements jostle with each other.

 

The mixture is no longer nearly as effective in Sri Lanka or Guyana, to where Roman-Dutch law was exported in 1799 and 1803 respectively, but where the common law now predominates.

 

The future of the law in China

 

I would venture to suggest that as economic and social changes sweep through China as a result of the current economic reforms, the social context for the closed elements of traditional legal culture will, in the course of time, be replaced by a context more favourable to elements more consistent with liberalism, democracy, human rights, and the rule of law. They will thus find their place in a rejuvenated Chinese culture, which can and will continue to be informed and inspired by the open elements of the Chinese tradition, such as Confucian benevolence, moral self-cultivation, and the quiet but unending spiritual quest for harmony of ‘heaven, earth, humanity and the myriad things’.

Albert H. Y. Chen, ‘Confucian Legal Culture and its Modern Fate’, in Raymond Wacks (ed.), The New Legal Order in Hong Kong (Hong Kong University Press, 1999), pp. 532–3 Chinese law

 

Traditional Chinese society, in common with other Confucian civilizations, did not develop a system of law founded by the ideas that underlie Western legal systems. Confucianism adopted the concept of ‘li’: an intense opposition to any system of fixed rules that applied universally and equally. Though Chinese ‘legalists’ sought to undermine the political authority of this Confucian philosophy of persuasion by championing ‘rule by law’ (‘fa’) in place of the organic order of the Confucian ‘li’, the latter continues to dominate China.

The spectacular modernization of China has generated a need for laws that facilitate its economic and financial development. But this new legalism has not been accompanied by an ideological partiality for law along Western lines. The role of law in modern China remains decidedly instrumental and pragmatic. Its system is essentially civilian and hence largely codified, but this has not yet engendered either greater esteem for the law or a diminution in the control of the Communist Party.

 

The future of the law in China 

 

I would venture to suggest that as economic and social changes sweep through China as a result of the current economic reforms, the social context for the closed elements of traditional legal culture will, in the course of time, be replaced by a context more favourable to elements more consistent with liberalism, democracy, human rights, and the rule of law. They will thus find their place in a rejuvenated Chinese culture, which can and will continue to be informed and inspired by the open elements of the Chinese tradition, such as Confucian benevolence, moral self-cultivation, and the quiet but unending spiritual quest for harmony of ‘heaven, earth, humanity and the myriad things’.

 

Albert H. Y. Chen, ‘Confucian Legal Culture and its Modern Fate’, in Raymond Wacks (ed.), The New Legal Order in Hong Kong (Hong Kong University Press, 1999), pp. 532–3

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