Western legal culture vs non-Western legal culture Western legal culture is unified in the systematic reliance on legal constructs. Such constructs include corporations, contracts, estates, rights and powers. 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.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). 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.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. 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. ’ 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. 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.J. A. Jolowicz ‘ Civil Procedure and the Common and Civil Law ’ (pp. 55-78) in Guenther Doeker-Mach and Klaus A. Ziegert (Eds.) (2004) Law, Legal Culture and Politics in the Twenty First Century (Franz Steiner Verlag: Stuttgart). 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. ’ 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 available to attain it. Chinese legal culture The legal culture of People ’ s Republic of China, as well as its social and economic culture, continues to undergo dramatic change since the People ’ s Republic of China's 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. 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). Banakar, Reza, “The Politics of Legal Cultures” in Retfærd: The Nordic Journal of Law and Justice (2008). An e-copy is available at: URL Banakar, Reza, “Power, Culture and Method in Comparative Law” in International Journal of Law in Context, 2009 . An e-copy is available at: URL Cotterrell, Roger (2006) Law, Culture and Society: Legal Ideas in the Mirror of Social Theory. Aldershot: Ashgate. Cotterrell, Roger (2008) 'Comparative Law and Legal Culture' in Mathias Reimann and Reinhard Zimmermann (eds.) Oxford Handbook of Comparative Law. Oxford: Oxford University Press. Legrand, Pierre (1996) ‘ European Legal Systems Are Not Converging ’ in International and Comparative Law 45:52. Legrand, Pierre (1997) ‘ Against a European Civil Code ’ in Modern Law Review 60: 44. Legrand, Pierre and Munday, Roderick (2003) (eds.) Comparative Legal Studies: Traditions and Transitions. Cambridge: Cambridge University Press. Legrand, Pierre (2003) ‘ The Same and the Different ’ in Legrand, Pierre and Munday, Roderick (eds.) Comparative Legal Studies: Traditions and Transitions. Cambridge: Cambridge University Press, pp. 240–311. Menski, Werner (2006) Comparative Law in a Global Context. Cambridge: Cambridge University Press, 1st edition 2000. Monateri, Pier Giuseppe (2000) ‘ Black Gaius. A Quest for the Multicultural Origins of the Western Legal Tradition' in Hastings Law Journal 51: 479 -555. Nelken, David (2000) (ed.) Contrasting Criminal Justice: Getting from here to there. Aldershot: Ashgate/Dartmouth. Nelken, David (2004) ‘ Using the Concept of Legal Culture ’ in Australian Journal of Legal Philosophy 29: 1–28. Nelken, David (2007) ‘ Culture, Legal ’ in Clark, David S. (ed.) Encyclopedia of Law and Society: American and Global Perspectives. London: Sage, 369–374.
Western vs non-Western legal culture Western legal culture is unified in the systematic reliance on legal constructs. Such constructs include corporations, contracts, estates, rights and powers. 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.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). 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.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. 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. ' 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. 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.J. A. Jolowicz ' Civil Procedure and the Common and Civil Law ' (pp. 55-78) in Guenther Doeker-Mach and Klaus A. Ziegert (Eds.) (2004) Law, Legal Culture and Politics in the Twenty First Century (Franz Steiner Verlag: Stuttgart). 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. ' 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 available to attain it. Chinese legal culture The legal culture of People ' s Republic of China, as well as its social and economic culture, continues to undergo dramatic change since the People ' s Republic of China's 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. 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). Banakar, Reza, “The Politics of Legal Cultures” in Retfærd: The Nordic Journal of Law and Justice (2008). An e-copy is available at: URL Banakar, Reza, “Power, Culture and Method in Comparative Law” in International Journal of Law in Context, 2009 . An e-copy is available at: URL Cotterrell, Roger (2006) Law, Culture and Society: Legal Ideas in the Mirror of Social Theory. Aldershot: Ashgate. Cotterrell, Roger (2008) 'Comparative Law and Legal Culture' in Mathias Reimann and Reinhard Zimmermann (eds.) Oxford Handbook of Comparative Law. Oxford: Oxford University Press. Legrand, Pierre (1996) ' European Legal Systems Are Not Converging ' in International and Comparative Law 45:52. Legrand, Pierre (1997) ' Against a European Civil Code ' in Modern Law Review 60: 44. Legrand, Pierre and Munday, Roderick (2003) (eds.) Comparative Legal Studies: Traditions and Transitions. Cambridge: Cambridge University Press. Legrand, Pierre (2003) ' The Same and the Different ' in Legrand, Pierre and Munday, Roderick (eds.) Comparative Legal Studies: Traditions and Transitions. Cambridge: Cambridge University Press, pp. 240–311. Menski, Werner (2006) Comparative Law in a Global Context. Cambridge: Cambridge University Press, 1st edition 2000. Monateri, Pier Giuseppe (2000) ' Black Gaius. A Quest for the Multicultural Origins of the Western Legal Tradition' in Hastings Law Journal 51: 479 -555. Nelken, David (2000) (ed.) Contrasting Criminal Justice: Getting from here to there. Aldershot: Ashgate/Dartmouth. Nelken, David (2004) ' Using the Concept of Legal Culture ' in Australian Journal of Legal Philosophy 29: 1–28. Nelken, David (2007) ' Culture, Legal ' in Clark, David S. (ed.) Encyclopedia of Law and Society: American and Global Perspectives. London: Sage, 369–374.
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