Faculty of Business Environment and Society - Essay Example

Number Faculty of Business Environment and Society Introduction The promotion and securing of peaceful dispute settlement is typically one of the most critical, although difficult, objectives of the international legal system. The fundamental principles as well as methods, which govern the settlement of such disputes today, especially interstate disputes, are considerably similar to the ones identified and preserved in the Charter of the UN in 1945. Nevertheless, there are several issues in various method of dispute settlement. This follows the changing modern practices usually under the increasing stress of globalization. Legal systems within the national levels and the lawyers as well as the judges administering such legal systems seem to be destined to interact with unfamiliar legal systems within national, regional, and super-national levels/nature in various ways that are typically multi-faceted. The associated trends and the resulting developments are therefore found to exert a significant effect on the legal environments in any region. There is thus the need for traditional doctrinal curriculum to create a balance through offerings, which would enhance young lawyers’ perspectives by instilling the practical appreciation of the prevailing comparative issues in them. This paper specifically identifies the various issues within the context of comparative methods of dispute settlement in a Global Development Context. Usually, any parties to a given dispute are under the duty of settling the dispute peacefully according to Article 2 of the UN Charter. The parties are expected to remain in principle for the dispute settlement. The parties are also free to make decisions on particular dispute settlement means that they prefer, especially in the absence of a specific treaty obligation according to Article 33 of the UN Charter. All settlements in this category depends inevitably on the parties’ agreement. In this regard, international dispute settlements are accompanied by inherent tensions between the legal duties to peaceful dispute settlements and the absence of real and compulsory mechanism for rendering such obligate effective. According to Menski, in Örücü and Nelken (2007:213), “Non-European informal methods of dispute settlement might resemble healing rituals rather than legal processes, but they are just as powerful as formal legal mechanisms.” This assertion is certainly true to a great extent since the settlement of disputes covers a wide range of settlement devices. Literature and Discussion Typically, there is a complex relationship between law and religion and that is why the assertion compares non-European methods of dispute settlement with healing rituals. African laws can be used to illustrate the same issue in this regard. The recognition of supernatural as well as cosmic forces particularly at different levels forms the basis of the healing rituals asserted. African indigenous religions are complex, but they have been modified to link the order of nature that people are required to abide by, and under which disputes could be resolved. The solution in this case would come about as the parties in dispute are naturally expected to obey the respective religious beliefs and teachings (Menski, 2006: 413). Essentially, such religions give much importance to religious practices, good behaviours, as well as ritual actions. All these aspects help the parties in a dispute respecting the mythical forces and beliefs within the specific religious thereby reaching a fair agreement or resolution. The aspect of the non-European informal dispute settlement within the African religions context is based on the religious people obey their religion by acting rightly and telling the truth. People can thus hardly monopolize religion after claiming the right truth. Typically, the performance of actions that are religiously ritualized is very key to dispute solution from a religious context. These aspects can be clearly seen in the Islamic law as well as the Hindus’ dharma system (Menski, 2006: 414). The Christian religion may differ significantly in this regard since it works based on personal will in regard to personal beliefs as far as the religion is concerned. While there exist significant differences between various dispute settlement methods from the international scope, all the dispute settlement devices are meant to achieve a common goal, although the method of handling the dispute is considerably different. Such differences makes it difficult to handle dispute from different scopes at the international level. Further, the issue of inherent tensions between the legal duty to formulate a peaceful settlement of dispute and the lack of real compulsory mechanism for ensuring effectiveness is likely to occur. This would mostly be triggered by lack of the expected legal processes especially in the case of non-European methods of dispute settlement, although they end results would be almost as effective as the legal processes. For instance, there has been a significant difference in fact-finding specifically between the International Court of Justice (ICJ) and arbitral tribunals that deal with disputes (Gray & Kingsbury, 1992: pg.118). In cases where the parties’ positions depend on basically different views of the prevailing applicable law, the tribunal scope could be highly limited as it has been seen in a number of African cases, which give a typical case of non-European informal methods (Gray & Kingsbury, 1992: pg.118). The issue of differences thus comes in in such cases. The issue is even more pronounced in the case of Sharia law with the United Kingdom itself. There is in fact the question of authority and authenticity within the Sharia Councils’ operative frameworks especially from the perspective of Islamic jurisprudential (Alf, 2013: 113). The Islamic religion instils good values and godly beliefs to its followers. The Islamic law is then established to ensure that good behaviour exists in the society. The Sharia Councils in this regard are formed to manifest Muslim diaspora’s needs for forums that adjudicate on Islamic law (Alf, 2013: 114). Under the Islamic Family Law, the councils are mainly set up to provide Muslim women with respective divorce certificates. These certificates are nevertheless issued to the Muslim women only on occasions whereby their husbands have declined to issue them with the required unilateral Muslim divorce (Alf, 2013: 116). The settlement of dispute by the Sharia Councils is typical example of non-European dispute settlements although it is within Europe. About 95 per cent of the dispute cases handled by the Sharia Councils are for women who wish to seek divorce, most of whose marriages are hardly recognized by English law hence they lack recourse to the English courts (Alf, 2013: 116). In this case, the English courts cannot settle any dispute case involving such marriages and thus religious rituals in regard to the Muslim religious laws is the only best way out. Mediation are also other methods of dispute settlement which may lack the European legal procedures in dispute settlements. It mainly constitutes an alternative to the settlement of disputes and involves settling disputes between parties, usually, with concrete effects. A third party may be present to help the two parties in dispute settle their disagreements whether in commercial, diplomatic, legal, workplace, community, or family matters. The third party in this regard assists the parties in dispute reach a meaningful agreement. The third party is usually expected to be neutral instead of directing the process. Usually, these mediations may have an element of ethical or religious considerations in which each of parties is encouraged to act fairly towards the other party. The question of education the way legal education plays a role in this case comes in (Bitas, 2012: 319). Essentially, a balance need to be created through offerings, which would enhance the dispute resolution through practical appreciation of the prevailing comparative dispute issue instead of emphasising on rules (Bitas, 2012: 319). The settling of disputes through religious rituals seems to focus on persuading the parties to do right rather than imposing restrictions or legal conditions. Earlier reception forms especially attributed to the time of the Greek law made it possible to propagate legal ideas typically outside people’s place of origin. In this regard, people often subjected to local and inevitably comparative evaluation (Glenn, 2001: 984). Essentially, information technology for the contemporary transnational practices expands this process significantly. This follows the accessibility of foreign laws that are increasingly becoming available online as compared to local and state laws that are presented in many countries, especially the developing countries (Glenn, 2001: 984). In this regard, transnational law practices highly depict that comparative legal thought could be possible at the individual dispute resolution level despite the multiplication of resources as well as the huge number of differences in terms of style and the manner of legal thought. Regarding the issue of working across boundaries when it comes to civil or common law, an English solicitor once remarked that “There is no difference between civil law and common law which matters” (Glenn, 2001: 984). On another incidence, it was observed by a French avocat that “The differences of common law and civil law no longer create communication problems which are detrimental to the effectiveness of our representation of clients” according to Glenn (2001: 984), while a United States attorney noted that “advising on foreign law is no different from advising on domestic law. If a lawyer learns an area of the law, whether it is domestic or foreign, the lawyer will advise on it. The division of the world by jurisdictions is artificial” (Glenn, 2001: 984). These cases shows the alien nature of the legal structure that European lawyers and and other law administrators in Europe face in foreign countries and regious. Nevertheless, it all follows that the end result of settling any dispute is relatively the same apart from the methods and techniques applied to reach a meaningful solution. Typically, studies shows that European legal studies statrted with the universalist aspirations mainly in search of natural law unity (PETERS & SCHWENKE, 2000: 803).Organic evolution of law contributed to jurists looking for fundamental structures of the prevailing law to generate a monopoly of the law to the state. The right law was to be found throng searching and constructing the correct evolutionary patterns. Nevertheless, from an international scope, people of common heritage have a way in which they receive legal institutions from others as well as the way they modify such institutions according to a common view (PETERS & SCHWENKE, 2000: 804). The same aspect applies in the contemporary society where the European legal way of settling disputes is swimmingly different from the methods applied by non-European legal systems, especially those which combine law and religious beliefs to settle disputes. Essentially, the utility of legal compative methods is typically beyond dispute. While differences in legal systems, especially in the cases of settling dispute, seem to raise a number of issues in the international legal system, comparative law could help reach a solution to most of such issues. Comparative law brings about an alternative solution for use within legal reforms (KozyrIs, 1995: 167). It also helps give a better understanding of the prevailing law locally and internationally it can therefore be regarded as a critical tool in within the legal environment. Besides, internalizing transactions as well as the ever increasing applicability of the foreign law has increasingly made comparative law indispensable in legal practices (KozyrIs, 1995: 167). This implies that all legal systems whether European legal systems or non-European legal systems has increasingly developed to gain similar attributes. The methods of dispute settlements may significantly differ but most legal systems even the religious based dispute settlement rituals are similarly effective. Some differences would however occurs in terms of the final dispute resolution from the context of various legal/religious systems around the world. The case of Nigeria and Pakistan can provide a great example in this regard. In resolving dispute cases involving adultery in Pakistan, the husband is given authority to kill his wife for such offence. In such cases, men are legally and religiously more powerful than women (Khoso, et al., n.d.). The same case applies to the Jirga, which is typically a council of elders who have the authority to solve a dispute by passing any judgement they find suitable. For instance, the Jirga can pass judgment instantly although some dispute cases requires them to delay such judgement due to the need for a wider consultations. In contrast, the Nigerian system does not give council of elders the authority to handle adultery cases. Contrary to this, customary courts are structured with a jurisdiction for handling such cases. Settling the dispute in this regard may have the judgment for adultery be at the customary judge discretion. The customary judge, who is often a trained lawyer, may solve the issue by sentencing the offender to a stipulated number of years or month imprisonment. Killing as a resolution for adultery cases is completely prohibited in Nigeria (Khoso, et al., n.d.). From these two cases, the religious and ethical differences are easily visible. Killing as a way of reaching a solution is largely considered inhuman by many national legal systems around the world. Nevertheless, Pakistan seems to evaluate the crime level in committing adultery as being greater than killing and that’s way such as resolution is considered meaningful. Such ruling is almost unique in all other national legal systems around the world. Nigeria considered the ill in killing and thus only solves the issue of adultery by imprisoning the offender for several years or months instead of killing them. This notion has been adopted from the religious perspective of Alaafin who was a Muslim traditional ruler (Lasisi, 1997: 38). This difference constitutes some of the harmful differences, which adversely create significant issues in international legal systems. In other places like India, family law is often used to settle disputes on matters of social conduct. The law also occupies space that is demarcated by religion as well as customer largely making up non-form feature of dual legal system within India. The Article 44 of Indian Constitution directs the state in enacting a rather uniform code among all Indian citizens and it is perennial and, at the same time, a source of great embarrassment since the time of its adoption. This case of the Indian law depicts the problems caused by the lack of uniformity in the international legal systems across regions and even nations. Some local people are even annoyed by this aspect since the article has remained cold and others are even embarrassed due to the current existence of the article (Dhagamwar, 2003: 1483). Regarding the non-formal legal system in India, the territory is divided specifically between customary law and state law, all which could be used to settle disputes. Formerly, religious bodies such as maths and the respective heads settled dispute cases. This aspect has significantly changes in which today the caste panchayatst have the role of the court when it comes to settlement of disputes. It solely comes out that religion as medium to the solution to problems involving disputes has been left by time while new social resolution have taken its place. Conclusion In general, the differences in legal systems around the world make it difficult to determine which method is fair enough or which is the most effective in settling legal disputes. Nevertheless, while European formal methods looks perfects from the perspective of their procedural approach to dispute settlement, all other methods are locally accepted by the local people living within the respective national legal systems. It comes out that the same goal achieved through the European formal methods of dispute settlement is also achieved through other non-European informal methods of dispute settlements. Even more importantly, healing rituals are just as powerful. However, people have varying opinions regarding some religious ways of settling disputes. Some appear so brutal and inhuman that they cannot and shall never be allowed in other countries. The case of settling marriage disputes between marriage couples, especially adultery, in Pakistan is ethically and religiously wrong. From own opinion, it is wrong for a husband to kill his wife just because she has committed adultery. Recommendations The best recommendation to eliminate most of the issues surrounding international legal systems is to promote uniformity across national legal systems. Some unethical practices, whether legal or religious need to be eliminated. This could be achieved by formulation an international article that governs the way legal systems work around the world. Inhuman legal practices would thus be eliminated. The basic essence of law especially in the settlement of dispute should be the protection and preservation of people’s life and wellbeing rather than destroying them. The law should work in a way that people respect and embrace it, but not fear it. This way, reaching a meaningful resolution in case of disputes would always be easy in which the two parties would be willing to act in the right way whether the dispute is being solved through formal or informal methods of dispute settlement. Bibliography Alf, S. S., 2013. Authority and authenticity: Sharia councils, Muslim womens rights, and the English courts. Child and Family Law Quarterly, 25(2), pp. 113-136. Allee, T., 2014. Why Do Some International Institutions Contain Strong Dispute Settlement Provisions? Evidence from Preferential Trade Agreements. 7th Annual Conference on the Political Economy of International Organizations, Princeton University, pp. 1-44. Bitas, B. C., 2012. "COMPARATIVE LAW" AND 21ST CENTURY: LEGAL PRACTICE An Evolving Nexus. Singapore Academy of Law Journal, Volume 24, pp. 319-338. Dhagamwar, V., 2003. Invasion of Criminal Law by Religion, Custom and Family Law. Economic and Political Weekly, 38(15), pp. 1483-1492. Glenn, H. P., 2001. Comparative Law and Legal Practice: On Removing the Borders. TULANE LA W REVIEW, Volume 25, pp. 977-1002. Gray, C. & Kingsbury, B., 1992. Developments in Dispute Settlement: Inter-State Arbitration Since 1945. The British Year Book of International Law, pp. 98-134. Khoso, F., Ojo, Y., Adeinbiari, W. & Ogundeji, S., n.d. Comparative Law in the Global Context (M13HRM) :Comparison of Customary & Civil Laws in Nigeria and Pakistan. Presentation . KozyrIs, P. J., 1995. COMPARATIVE LAW FOR THE TWENTY-FIRST CENTURY: NEW HORIZONS AND NEW TECHNOLOGIES. TULANE LAWREVIEW, Volume 69, pp. 165-181. Lasisi, R. O., 1997. Muslim traditional rulers in Nigeria: the Alaafin of Oyo during the last phase of British colonialism, 1945–1960. Journal of Muslim Minority Affairs, 17(1), pp. 31-41. Menski, W. F., 2006. African Laws: The Search for Law. In: Regional Comparisons in a Global Context: The Legal Systems of Asia and Africa. Cambridge : Cambridge University Press, pp. 413-421. PETERS, A. & SCHWENKE, H., 2000. COMPARATIVE LAW BEYOND POST- MODERNISM. Comparative Law beyond Post-modernism, Volume 49, pp. 800-834. Read More