Legal culture
Encyclopedia
Legal cultures are described as being temporary outcomes of interactions and occur pursuant to a challenge and response paradigm
. Analyses of core legal paradigms shape the characteristics of individual and distinctive legal cultures.
“Comparative legal cultures are examined by a field of scholarship, which is situated at the line bordering comparative law
and historical jurisprudence
.”
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.
, rights and powers to name a few. These concepts are not only nonexistent in primitive or traditional legal systems but they can also be predominately incapable of expression in those language systems which form the basis of such legal cultures.
As a general proposition, the concept of legal culture depends on language
and symbols and any attempt to analyze non western legal systems in terms of categories of modern western law can result in distortion attributable to differences in language. 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. 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.
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; [and 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.’
The Islamic legal system exemplifies law as part of a larger culture where the concepts of knowledge, right and human nature play a central role. A case study by Lawrence Rosen
explains the anthropological, procedural and judicial discretion
aspects of bringing a case to court in Sefrou
, Morocco
. The case study makes explicit those fundamentals in Islamic society that shape Islamic legal culture and differentiate this from western legal cultures.
Rigid procedural rules and strict court room decorum or etiquette which is entrenched in western legal cultures clears the way for a more natural process of dispute resolution. In Morocco, close attention is paid to social origins, connections and identity where these concepts influence a qadi
’s (judge) judicial interrogation and discretion.
While the systems of law found in the western world consist of conceptualisation and implementation that mimic the extrajudicial world only slightly, in the Islamic courts of Morocco, the culture of law being propounded reflects the overall culture of its people. This is attributable to the goals of law in Islamic society, which is not to hold state or religious power as supreme or to develop an exacting body of legal doctrine, but to restore relationships and then facilitate the resolution of disputes independently of rigid precedent
.
culture and civil law
culture has been highlighted by court room procedure, whereby the former nurtures an adversarial environment and the latter an inquisitorial one. Indeed no system of court procedure can ever be purely adversarial or purely inquisitorial.
In fact France
, which subscribes to a civil legal system, historically gave the judge
a passive role and left the parties to engage in an accusatorial manner. Nonetheless the common law culture predominately consists of oral arguments where legal representors steer the case in search of justice
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.’ 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 available to attain it.
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 (judge
s, barristers and solicitors).
According to Posner during 1996 there was about 15 times as more American judges than English judges but only about 10 times more American lawyers than English lawyers. Posner suggests that English judges have more prestige than American judges and a related point is that the ratio of judges to lawyers is lower in England than the United States. The consequence of this is that the English common law system, as opposed to the American legal system, displays a legal culture of greater prestige and elitism
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 United States, where incompetent lawyers, and known to be such both by judges and by other lawyers, often wow naïve clients.’
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
. 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 courts and parliament
, their formation and their output in terms of legislation
or judgments. For example it has been said that many factors have contributed to the litigiousness of the United States, including: the rights afforded to the people, a written constitution
, immigrant origins of its population, racial and ethnic heterogeneity and the wealth and spoils of its population. To this end national character and history
influence current legal culture.
, 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 Deng Xiaoping
and Jiang Zemin
, China is ‘a country under rule by law, not rule of law.’ Evidence comes from post Mao-China, where law is seen as necessary for institutionalising and generalising ad hoc policies for economic reform and as maintaining party leadership.
Further problems with the Chinese legal culture include a piecemeal approach to law making with an imbalance between law and policy; denials of private law; neglect towards human rights
and individual liberties; and poor enforcement of laws. According to Chen, the consensus in China among scholars is that the lack of democracy
and rule of law
are interdependent concepts whereby ‘the rule of law is legitimate only if it is the product of democratic government.’
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.
Paradigm
The word paradigm has been used in science to describe distinct concepts. It comes from Greek "παράδειγμα" , "pattern, example, sample" from the verb "παραδείκνυμι" , "exhibit, represent, expose" and that from "παρά" , "beside, beyond" + "δείκνυμι" , "to show, to point out".The original Greek...
. Analyses of core legal paradigms shape the characteristics of individual and distinctive legal cultures.
“Comparative legal cultures are examined by a field of scholarship, which is situated at the line bordering comparative law
Comparative law
Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal systems in existence in the world, including the common law, the civil law, socialist law, Islamic law, Hindu law, and Chinese law...
and historical jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
.”
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 corporations, contracts, estatesEstate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...
, rights and powers to name a few. These concepts are not only nonexistent in primitive or traditional legal systems but they can also be predominately incapable of expression in those language systems which form the basis of such legal cultures.
As a general proposition, the concept of legal culture depends on language
Language
Language may refer either to the specifically human capacity for acquiring and using complex systems of communication, or to a specific instance of such a system of complex communication...
and symbols and any attempt to analyze non western legal systems in terms of categories of modern western law can result in distortion attributable to differences in language. 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. 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.
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; [and 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.’
The Islamic legal system exemplifies law as part of a larger culture where the concepts of knowledge, right and human nature play a central role. A case study by Lawrence Rosen
Lawrence Rosen (anthropologist)
Lawrence Rosen is an American anthropologist and scholar of law.Rosen earned his B.A. at Brandeis University in 1964, his Ph.D. in Anthropology form the University of Chicago in 1968, and his J.D. from the University of Chicago in 1974. In 1981 he became one of the first generation of MacArthur...
explains the anthropological, procedural and judicial discretion
Judicial discretion
Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence...
aspects of bringing a case to court in Sefrou
Sefrou
Sefrou, is a city in central Morocco, situated in the Fes-Boulman region. According to the 2004 census it had a population of 63,872...
, Morocco
Morocco
Morocco , officially the Kingdom of Morocco , is a country located in North Africa. It has a population of more than 32 million and an area of 710,850 km², and also primarily administers the disputed region of the Western Sahara...
. The case study makes explicit those fundamentals in Islamic society that shape Islamic legal culture and differentiate this from western legal cultures.
Rigid procedural rules and strict court room decorum or etiquette which is entrenched in western legal cultures clears the way for a more natural process of dispute resolution. In Morocco, close attention is paid to social origins, connections and identity where these concepts influence a qadi
Qadi
Qadi is a judge ruling in accordance with Islamic religious law appointed by the ruler of a Muslim country. Because Islam makes no distinction between religious and secular domains, qadis traditionally have jurisdiction over all legal matters involving Muslims...
’s (judge) judicial interrogation and discretion.
While the systems of law found in the western world consist of conceptualisation and implementation that mimic the extrajudicial world only slightly, in the Islamic courts of Morocco, the culture of law being propounded reflects the overall culture of its people. This is attributable to the goals of law in Islamic society, which is not to hold state or religious power as supreme or to develop an exacting body of legal doctrine, but to restore relationships and then facilitate the resolution of disputes independently of rigid precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
.
Western comparisons: common law v civil law
The traditional focus between common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
culture and civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
culture has been highlighted by court room procedure, whereby the former nurtures an adversarial environment and the latter an inquisitorial one. Indeed no system of court procedure can ever be purely adversarial or purely inquisitorial.
In fact France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, which subscribes to a civil legal system, historically gave the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
a passive role and left the parties to engage in an accusatorial manner. Nonetheless the common law culture predominately consists of oral arguments where legal representors steer the case in search of justice
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
and reinforcement of rights.
The use of a Jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
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
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
and criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
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.’ Further differences include where a civilian lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
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 available to attain it.
Common law comparisons: American v English
Legal Culture can differ between countries despite their conformity to a similar if not identical legal system. Both the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
and England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
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 (judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s, barristers and solicitors).
According to Posner during 1996 there was about 15 times as more American judges than English judges but only about 10 times more American lawyers than English lawyers. Posner suggests that English judges have more prestige than American judges and a related point is that the ratio of judges to lawyers is lower in England than the United States. The consequence of this is that the English common law system, as opposed to the American legal system, displays a legal culture of greater prestige and elitism
Elitism
Elitism is the belief or attitude that some individuals, who form an elite — a select group of people with intellect, wealth, specialized training or experience, or other distinctive attributes — are those whose views on a matter are to be taken the most seriously or carry the most...
not only in the judiciary but also those who are candidates for the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
.
In England, and other Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
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
Senior Counsel
The title of Senior Counsel or State Counsel is given to a senior barrister or advocate in some countries, typically equivalent to the title "Queen's Counsel" used in Commonwealth Realms...
).
Barristers are engaged upon a solicitor’s brief
Brief
Brief or briefs may refer to:* A firefox extension for RSS* A letter* A papal letter less formal than a bull, sealed with the pope's signet ring or stamped with the device borne on this ring...
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 United States, where incompetent lawyers, and known to be such both by judges and by other lawyers, often wow naïve clients.’
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
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
, especially punitive damages
Punitive damages
Punitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit...
. 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 courts and parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
, their formation and their output in terms of legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
or judgments. For example it has been said that many factors have contributed to the litigiousness of the United States, including: the rights afforded to the people, a written constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
, immigrant origins of its population, racial and ethnic heterogeneity and the wealth and spoils of its population. To this end national character and history
History
History is the discovery, collection, organization, and presentation of information about past events. History can also mean the period of time after writing was invented. Scholars who write about history are called historians...
influence current legal culture.
Chinese legal culture
The legal culture of ChinaChina
Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
, 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
Legal transplant
The term legal transplant was coined in the 1970s by the Scottish-American legal scholar W.A.J. 'Alan' Watson to indicate the moving of a rule or a system of law from one country to another...
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
Legal pluralism
Legal pluralism is the existence of multiple legal systems within one geographic area. Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial authority may exist alongside more traditional legal systems...
is promoted.
A top down approach in analysing the legal culture of China suggests that both under Deng Xiaoping
Deng Xiaoping
Deng Xiaoping was a Chinese politician, statesman, and diplomat. As leader of the Communist Party of China, Deng was a reformer who led China towards a market economy...
and Jiang Zemin
Jiang Zemin
Jiang Zemin is a former Chinese politician, who served as General Secretary of the Communist Party of China from 1989 to 2002, as President of the People's Republic of China from 1993 to 2003, and as Chairman of the Central Military Commission from 1989 to 2005...
, China is ‘a country under rule by law, not rule of law.’ Evidence comes from post Mao-China, where law is seen as necessary for institutionalising and generalising ad hoc policies for economic reform and as maintaining party leadership.
Further problems with the Chinese legal culture include a piecemeal approach to law making with an imbalance between law and policy; denials of private law; neglect towards human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
and individual liberties; and poor enforcement of laws. According to Chen, the consensus in China among scholars is that the lack of democracy
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
and rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
are interdependent concepts whereby ‘the rule of law is legitimate only if it is the product of democratic government.’
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
International relations
International relations is the study of relationships between countries, including the roles of states, inter-governmental organizations , international nongovernmental organizations , non-governmental organizations and multinational corporations...
, traditional and established cultural methods face extinction.
See also
- Western lawWestern lawWestern law refers to the legal traditions of Western culture. Western culture has an idea of the importance of law which has its roots in both Roman law and the Bible...
- Sociology of lawSociology of lawThe sociology of law is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies...
- Culture of honor vs. culture of law