Legal Realism Perspective of Western Legal Culture and Comparative Law in Global Context - Assignment Example

A Legal Realism Perspective of Western Legal Culture and Comparative Law in Global Context Introduction Most of the comparative literature and law focus on the legal systems of the Western countries, despite the global legal realism that has become more pronounced in the 21st century (Makarychev & Morozov 2013, pp. 328-350). Indeed, a controversy exists as to whether it is appropriate to classify the Western legal systems as encompassing comparative law and literature or to pursue legal realism in a global culture. Much has been said about various legal systems and their comparability although the topic of global legal realism remains elusive. In this regard, it is worth noting that the Western legal system largely emanated from the canon and Roman Laws, some of which are inconsistent with the global legal realism of the contemporary world. Besides, the Western academic legal culture addresses the theory of morals from a positivist, state-oriented, unempirical, secular, and Universalist approach. Evidently, Western legal education, culture, and systems are too liberal to form the core of comparative literature and law (Bermann, Glenn, Scheppele, Shalakany, Snyder, & Zoller 2011, pp. 935-968). This paper takes a critical view of comparative law and literature as it relates to the Western legal systems and the comparative impact of Western legal systems on legal realism from a global perspective. Comparative Law Literature Comparative law entails the study of the similarities and differences of legal systems belonging to different countries. In essence, comparative study deals with the laws of various countries as well as the legal systems that exist in the world, including regional and international legal systems. Some of the legal systems under comparative law include the Jewish Law, Hindu law, Common Law, Chinese law, Civil law, Islamic Law, and Socialist Law (Bermann, Glenn, Scheppele, Shalakany, Snyder, & Zoller 2011, pp. 935-968). On the other hand, comparative literature entails the study of the differences and similarities of global literatures, how such literatures relate to one another. It essentially means that comparative law and literature ought to derive equal sense from all the components that it studies. Since international law and literature is dynamic, political, and economic forces tend to determine which ones to be given more credence (Ingram 2014, pp. 237-267). Unlike the previous centuries when comparative law and literature involved the comparison of all legal systems and literatures of the world without favouring the dominance of one system or the other (Zumbansen 2011, pp. 427-433). However, times have changed and the Western world has imposed their legal system and literature as the primary reference points when comparing with others from various countries around the world. One can appreciate from a legal perspective that comparative law ought to relate all the legal systems to one another in terms of impact, similarities, and difference (Ingram 2014, pp. 237-267). At no point should one legal system and culture be the benchmark against which all the other legal systems are measured or weighed. Similarly, the world is awash with fascinating literature from all over the world, including Chinese literature, and no country or region should standardize its literature against world literatures (Coutu 2009, pp. 558-578). Bermann, Glenn, Scheppele, Shalakany, Snyder, and Zoller (2011, pp. 935-968) state that comparative law and literature have gained much significance particularly in the 21st century when most countries are embracing democratization and globalization. Since every country has its economic and political policies, comparative law plays a primary role in scrutinizing the similarities and differences of such laws, and the impacts of such laws from a global context. For example, China and the United States have distinct economic and legal political policies that perhaps have had a greater role in shaping their legal systems. Indeed, each of the two countries has a unique history that has also shaped their literature largely. With this in mind, it is worth noting that comparative law and literature plays a major role in the understanding of the literatures and legal systems of various countries from a global context (Coutu 2009, pp. 558-578). Western Legal Systems According to Merry (2006 pp. 975-995), Western academic legal culture has played a great role in possessing the comparative law and literature, although this notion is subject to debate. Nonetheless, the global legal realism seems to be gaining much momentum, especially with the internationalizations of some laws. Perhaps it is important to assess western legal system in order to understand its impact on comparative law in global and regional contexts. Fundamentally, Western legal system derived from the European cultures and traditions. In a world with diversity in terms of culture and traditions, Western legal system becomes irrelevant in some regions and some states (Zumbansen 2011, pp. 427-433). In this respect, it is important to scrutinize the relevance of Western law in global legal realism. It is so because a vast majority of the proponents of the Western law have projected Western legal system as the mainstream legal system in comparative law (Croce 2015, pp. 151-165). Menski (2006, pp. 594-598) reveals that Western law is notable in many countries that were colonized by the European countries and all countries under European jurisprudence. Additionally, the United States and some states that ape the U.S. economic and political policies also embrace the Western legal system (Zumbansen 2011, pp. 427-433). It implies that the regions and nations that had negligible interaction with the European countries need not necessarily adopt the western legal system. For instance, the Islamic legal system and the Chinese Legal system have a number of significant discrepancies from the western legal system. It means that western law cannot take precedence in comparative law and literature, particularly when the other legal systems are included. The global legal realism is both diverse and comparable. It only takes a common sense approach in order to harmonize all the legal systems that exist in the world (Ingram 2014, pp. 237-267). When it comes to comparative law literature, it is worth noting that Western legal literature has not dominated as much as it has done in law. All the cultures of the world have had their equal share of literary space (Coutu 2009, pp. 558-578). Perhaps the main reason for this trend is the numerous literatures that exist in the world, some having deeper meanings and histories when compared to the Western literature. However, the Western narrative has been told more times than any other narrative, perhaps because of political reasons. From a global context, the literary works of scholars from all over the world deserve equal recognition, at least in an effort towards creating international harmony in contemporary law and literature (Horen, & Pieters 2012, pp. 83-91). The Western legal culture and education is state oriented, top down, and secular in the sense that it uses corporations, world organizations, and other major institutions to define legal responsibilities and relationships. Instead of recognizing Greek Law, Roman law, and Sharia Law as valid legal systems, the Western legal culture places emphasis on statute law, city law, and civil law. In real sense, the American and European legal systems have dominated the universal laws in terms of justice, rights, and freedoms (Zumbansen 2011, pp. 427-433). Global Legal Realism International and comparative law involves the study of various legal systems as they relate to business, social change, history, technology, and government (Dagan 2014, pp. 442-457). However, most of the comparative law literatures, including those found in the Harvard Journal of Law, are Western centric, and takes a Universalist Approach to most issues affecting humankind. One can discern from a global legal realism perspective that different nations vary in their legal systems and application of their laws. For example, most of the Middle East countries are extremely conservative, perhaps because of the dominance of the Islamic faith in such regions. Additionally, the legal systems of such nations are founded on their faith, which is not universal, thus conflicting with Western legal culture (Fry & Loja 2014, pp. 727-754). Perhaps it is worth discussing the advantages and disadvantages of the application of Western pluralist models to Global business values, ethics, and culture in order to gain much insight into the Western legal system. Fundamentally, the Western countries adopt a pluralist model in all aspects, including politics and business (Croce 2015, pp. 151-165). It means that the legal culture of the Western countries tends to promote the existence of multiple centres of power, especially in politics. This kind of model contradicts jurisdictions that are ruled by monarchs where power has to be concentrated around one centre. For example, Saudi Arabia and Dubai no not embrace a pluralist approach in their legal system. In a pluralist democracy, such as the one advocated by the Western countries, promote freedom of association and equal rights for all. Since some jurisdictions in the world are run under dictatorship, the Western pluralist model cannot apply in their jurisdictions (Hoffmann 2014, pp. 191-209). A pluralist model, on which the Western countries derive their legal culture, has a number of advantages when compared with non-pluralist approaches. The advantages emerge when it comes to business, justice, ethics, politics, and values (Zumbansen 2011, pp. 427-433). The United States and Britain, which embrace the parliamentary system of governance, have more than one centre of power thus limiting the chances of dictatorship. In addition, a plural model ensures that various levels of government consult before any fundamental issue is undertaken. It means that pluralistic economies will embrace public participation unlike the others that have one centre of power. The common sense approach to any legal system is to allow equal participation while maintaining justice (Von Wangenheim 2011, pp. 737-765). In as much as pluralistic model of the Western legal system brings some benefits, it is worth noting that it also has demerits that tend to reduce its significance as a global benchmarking model. Comparative law literature cites all legal systems that exist in the world with all their successes and failure. Pluralistic model tends to water down morality because it encourages secularism through freedom of association. Lowenfeld (2003) adds that Chinese legal system has worked well despite many of the Western nations terming it as dictatorial. China has succeeded in many aspects both political and economically although it has its own legal culture that is different from that of the Western countries. Perhaps Western law is too liberal in terms of allowing some acts that would otherwise constitute criminal offence in some jurisdictions (Zumbansen 2011, pp. 427-433). According to Von Wangenheim (2011, pp. 737-765), Western nations have applied their pluralist models to global business values, culture, and ethics in various aspects. For example, a vast majority of the sections of International Labour Laws (ILS) are derived from the Western labour laws. Perhaps this is the reason why some countries like Saudi Arabia, China, and India do not practice such sections of International Labour Laws. Besides, most countries in Asia and the Middle East are not signatories to the International Labour Organization (ILO). In this regard, the comparative law literature has been heavily skewed towards the West. This trend is inconsistent with the common sense approach to law and global legal realism. In essence, global legal realism dictates that comparative legal law literature ought to be fair to all legal systems without leaning towards one system or the other (Ingram 2014, pp. 237-267). Recommendations In order to draw critically argued recommendations and conclusions, it is worth examining the pertinence between both West and non-Western legal realisms. It is so because for a long time, the West has ignored other legal systems because such legal systems do not epitomize the Western legal customs. Perhaps it is high time that the world abolished the Rule of Law Heritage because the West has evidently been abusing it for a long time. When it comes to the comparative law literature, the West mainly takes the Rule of Law approach and dismisses legal systems that were not founded on this basis, particularly legal systems that are inapplicable in the Western countries. Therefore, the West summarily dismisses any legal system that contravenes the Rule of Law Approach, particularly when it comes to comparative law (Von Wangenheim 2011, pp. 737-765). It is important to note that the Western legal system works for the benefit of the West alone. For instance, the Western countries, particularly Europe, colonized most of Asian countries in order to derive material benefit from such countries. However, the Asian countries have adopted a non-Western Legal culture because it works best for them. It is recommended for such Asian countries, including China, to promote their legal culture all over the world in order to harmonize the situation. According to Riddell (2007), China is already doing a great job in this regard and the notion that Asian legal system is inconsistent with the Rule of Law is unfounded. The non-Western legal systems work for the interest of the community and they do not serve personal interests at all as the Western countries have alleged in the past (Zumbansen 2011, pp. 427-433). The non-Western legal systems, such as the Asian legal system, do not regard the European legal systems as the patrons of human rights although the Western countries have acted as if they created human rights. Subsequently, the Asians have opted to pursue their own legal system that is inconsistent with the Western legal systems in many aspects (Glenn 2005, pp. 863-898). Anleu (2005) posits that when one examines the situation form a global legal realism perspective, the Asians are right in their approach to comparative law since every jurisdiction chooses a legal system that works for it best. Besides, global legal realism acts in favour of all legal systems, including the minority ones. Although the Western legal culture was founded on Christian background, secularism has come into play, making it unpalatable to certain nations in the world such as Asians and the Arabs (Glenn 2005, pp. 863-898). Although countries with the non-Western legal systems had partially adopted the Western legal culture because of business and political interests, they have since retracted in order to detach themselves from foreign rule (Chartrand 2013, pp. 49-87). Some Asian countries, such as China, do not follow the Western pluralist model in their political and business endeavours yet they are successful. It implies that pluralism is not synonymous with democracy and it cannot apply to all countries in the world (Özpek, BB 2014, pp. 585-599). Therefore, the countries with non-Western legal systems are within their rights to continue with their systems as long as they do not infringe on the fundamental human rights, as it occurs is some parts of Middle East. Moderation in comparative law literature is what is needed. Too much of Western legal culture is harmful to non-West legal practitioners. Conversely, too much extremism by the non-Wes legal practitioners is injurious to justice and fundamental human rights (Baaz 2013 pp. 292-294). Conclusion Comparative law literature has delved largely on the Western legal cultures, to the detriment of other legal systems in the world. Since every legal system has its flaws, it is important to moderate all the legal systems from a global context. In this regard, it is appropriate to note that the Western countries have imposed their legal systems on many jurisdictions (Glenn 2005, pp. 863-898). It has been so even in countries with completely different legal systems from those of the West. The West has used the Rule of Law Heritage against non-West legal systems in its approach to comparative law literature. Nonetheless, Florkowski (2006) comments that the Western academic legal culture has some relevance in the sense that most of the Western countries colonized the non-West legal cultures. It means that the Western legal culture has more impact on legal realism, at least from an international perspective (Dagan 2014, pp. 442-457). Since the Western pluralist models have some flaws much as they have a number of benefits, it is important to embrace legal realism in some instances, especially when it comes to global ethics, business values, and culture. Overall, moderation, rather than extremism suffices in both West and non-Western legal realisms in regards to comparative law literature (Bermann, Glenn, Scheppele, Shalakany, Snyder, & Zoller 2011, pp. 935-968). Reference List Anleu, S L 2005, Law and Social Change, Sage Publications, London. Baaz, M 2013, ‘Hegemony, Power, and Jurisprudence: The Never-Ending Story of Legal Imperialism and Extraterritoriality,’ International Studies Review, vol. 15, no. 2, pp. 292-294. Bermann, G, Glenn, P, Scheppele, K, Shalakany, A, Snyder, D, & Zoller, E 2011, ‘Comparative Law: Problems and Prospects,’ American University International Law Review, vol. 26, no. 4, pp. 935-968. Chartrand, L 2013, ‘Eagle Soaring on the Emergent Winds of Indigenous Legal Authority,’ Review of Constitutional Studies, vol. 18, no. 1, pp. 49-87. Coutu, M 2009, ‘Max Weber on the Labour Contract: Between Realism and Formal Legal Thought,’ Journal of Law & Society, 36, 4, pp. 558-578. Croce, M 2015, ‘Secularization, Legal Pluralism, and the Question of Relationship-Recognition Regimes,’ European Legacy, vol. 20, no. 2, pp. 151-165. Dagan, H 2014, ‘Normative jurisprudence and legal realism,’ University Of Toronto Law Journal, vol. 64, no. 3, pp. 442-457. Florkowski, G W 2006, Managing Global Legal Systems, Routledge, London. Fry, J, & Loja, M 2014, ‘The Roots of Historic Title: Non-Western Pre-Colonial Normative Systems and Legal Resolution of Territorial Disputes,’ Leiden Journal Of International Law, vol. 27, no. 3, pp. 727-754. Glenn, HP 2005, ‘Doin the Transsystemic: Legal Systems and Legal Traditions,’ Mcgill Law Journal, 50, 4, pp. 863-898. Hoffmann, T 2014, ‘Reflections on Opportunities for Comparative Private Law in Academia: Central and Eastern Europe, Review Of Central & East European Law, vol. 39, no. 2, pp. 191-209. Horen, F, & Pieters, R 2012, ‘When High-Similarity Copycats Lose and Moderate-Similarity Copycats Gain: The Impact of Comparative Evaluation,’ Journal Of Marketing Research (JMR), vol. 49, no. 1, pp. 83-91. Ingram, D 2014, ‘Reconciling positivism and realism: Kelsen and Habermas on democracy and human rights,’ Philosophy & Social Criticism, vol. 40, no. 3, pp. 237-267. Lowenfeld, A F 2003, International Economic Law, Oxford University Press, New York. Makarychev, A, & Morozov, V 2013, ‘Is Non-Western Theory Possible? The Idea of Multi-polarity and the Trap of Epistemological Relativism in Russian IR,’ International Studies Review, vol. 15, no. 3, pp. 328-350. Menski, W F 2006, Comparative Law in a Global Context: The Legal Systems of Asia and Africa, Cambridge University Press, Cambridge, UK. Merry, SE 2006, ‘New Legal Realism and the Ethnography of Transnational Law,’ Law & Social Inquiry, vol. 31, no. 4, pp. 975-995. Özpek, BB 2014, ‘The Role of Democracy in the Recognition of De Facto States: An Empirical Assessment,’ Global Governance, vol. 20, no. 4, pp. 585-599. Riddell, R 2007, Does Foreign Aid Really Work? Oxford University Press, London. Von Wangenheim, G 2011, ‘Evolutionary Theories in Law and Economics and Their Use for Comparative Legal Theory,’ Review Of Law & Economics, vol. 7, no. 3, pp. 737-765. Zumbansen, P 2011, ‘Debating Autonomy and Procedural Justice: The Lex Mercatoria in the Context of Global Governance Debates - A Reply to Thomas Schultz,’ Journal of International Dispute Settlement, vol. 2, no. 2, pp. 427-433. Read More