The African and Chinese legal systems - Essay Example

ESSAY While all laws are culture-specific, this does not prevent a plurality conscious, globally focused jurisprudential analysis from demonstrating that, despite first impressions of a total contrast, Chinese law and African laws have many elements in common Introduction: This paper discusses the African and Chinese legal systems with focus in detail on at least two of their common elements. An Introduction to the African law and Chinese Laws In discussing African laws: The Search for Law, Menski, (2006, Chap. 6), mentions the fact that a plurality-conscious perspective on the laws of Africa cannot ignore the people of Africa and their many cultures and languages. It also says that ‘African law’ is merely a kind of ethnic label and the collective term ‘African laws’ comprises evidently many different types of legal systems. The author also admits the presence of African laws as a separate family of laws continues to be denied and defined away. The author then attributed this as consequence of historical marginalisation of the ‘dark continent’. The same author in discussing the Chinese legal system, mentions the scholarly representations of Chinese laws. The author mentions the work of Morris (1967: v) emphasising the meagreness of that ‘[t]he scholarly literature in Western languages on the traditional law of China. On the other hand, the author said voluminous materials were taken from the work of Van der Sprenkel pointing to problems for scholars in ascertaining what is properly ‘legal’. In studying the two systems the author also discussed the distinct characteristics of the two but common elements were also observed and they are the focus of the following discussion. The Common Elements Two of the common elements of the African and Chinese legal systems include the belief in self controlled order and the avoidance of the formal systems of law by resorting to various informal methods of dispute settlement within society. 1. Belief in Self controlled legal system In discussing self-controlled order Chinese Style: li Menski ( 7.2.2) says: “This interpretation, which closely matches the equally idealistic binding assumptions about dharma and shari’a (and various African concepts) within their own specific cultural contexts, is not specifically elaborated in the literature on Chinese law. It appears that the debate in China about the scope for individual responsibility for good or bad acts has manifested itself only within debates about the balance between li as the Confucian self-controlled order and fa as the legalist control mechanism that would exert pressure on the individual conscience, overlooking comparative contexts. … The careful and detailed analysis by May (1985: 119-55) supports this and shows that the concept of li underwent a long period of extension of meaning in ancient China, and then experienced an even longer period of consolidation.” Comment: The Chinese believes in the primacy of li as the Confucian self-controlled order over fa as the legalist control mechanism that would exert pressure on the individual conscience, overlooking comparative contexts. As compared to African legal system, Menski (2006, 6.1) , says: “Coupled with the undeniable presence of positivism in its many forms, globality-conscious legal analysis means that emphasising a central role for customary laws in African legal systems cannot by itself make the African experience unique. The present comparative analysis has earlier demonstrated the importance of customary laws and cultural norms for South Asian societies and laws (chapter 4) and for Islamic legal systems (chapter 5), but they were never ruling the entire legal field to the exclusion of other sources of law. Why should we expect anything different for African laws? Selective blindness in theory grounds inadequate scholarship, as Kuper and Kuper (1965: 5) stressed a long time ago: The social scientist must, however, attempt both to interpret single, historically unique societies and to relate and classify them in more general categories. To refuse to speak of law, politics or religion because nothing quite like them is to be found in other societies would be to refuse recognition of the study of ‘society’ as something common to all forms of human existence. The author further states: “The interlinkages of the legal and the religious, the overlap of crime and sin, ultimately the need to restore any imbalance through human action, which may or may not include explicitly ritual action, was evident in Hindu and to some extent also in Muslim law and appear in African laws, too. These highly sophisticated methods of socio-legal organisation are designed to produce harmony not just among the living, but for the larger world (Maathai, 1995). It appears that Africans have known this all along. While the journey through African law may be arduous, I believe with Woodman and Obilade (1995: xxvi) that the detailed study of African laws can make a valuable contribution to the development of a globally focused jurisprudence, even if at the end it only reinforces a commonsensical, pluralistic and culture-specific message that may have been forgotten in the frantic search for ‘modernity’.” In arguing the pointing the similarity of Chinese and African legal system, Menski (2006, 7.2.2) says: “A political arrangement based on the principle of self-controlled order or virtue is said to ‘win the hearts of men’ (Bodde and Morris, 1967: 20), while the use of fa principles would only result in outward submission to the legal rules, but not necessarily mental processes that underwrite virtue in its own right. This is a subtle argument which accounts for the crucial element of individual conscience, which the present comparative legal analysis has identified as central to every Asian and African legal system. This chain of arguments also emphasises that a government which itself relies on self-controlled order rather than the punitive elements of fa is driven by a very different legal philosophy than the positivist law-making approach. Here is a conceptual parallel with arguments inherent in traditional African societies that positivist law-making, on its own terms, would facilitate abuse of power and lead to imbalance (chapter 6).” 2. Avoidance of formal systems of law by resorting to various informal method of dispute resolution of dispute settlement within society. In discussing the avoidance of the formal systems, Menski (2006, 7.3.4), says: “Equally interesting for a comparative legal analysis, however, is the phenomenon of avoidance of the formal system of laws by recourse to various informal methods of dispute settlement within society. The phenomenon is certainly not unique to China and is a hallmark of all Asian and African legal systems. However, the particular culture-specific legitimations for the prominent use of so-called ‘extra-legal’ or alternative dispute resolution (ADR) procedures in traditional China certainly deserve specific attention.” As can be gleaned from both the African and Chinese legal systems these people have invented their own way of serving justice that is, they would rather choose not to go to litigation. If you would ask any present legal systems, resort to arbitration and alternative modes of dispute resolution is the preferred course of legal action. This can be justified on lower cost to the parties and a more favourable end to the contestants especially as fat as their relationships are concerned. In fact it is the policy of many court systems in the world. Who could have thought that the African and Chinese legal system could have conceptualized such idea and practiced the same long before they resort to legal positivism? Menski, (2006, 6.5.3 ) further says: “Quaison-Sackey (1963: 7) recounts from experience in Ghana that the effects of indirect rule under the British had been extremely beneficial for a small élite, virtually teaching them to abuse the system and their own people to fulfil their selfish agenda.” The same author (6.5.3 ) also mentions the work of Ayittey (1991: 17), which cited examples from the Ivory Coast and Liberia, showing how conceptually un-African many modern leaders became in emphasising their own position, boasting of their uncontrolled absolute power. The author thus observed that these were model pupils of Western notions of legal centralism and positivism. Menski then argued that the presence of such leaders in many countries and the widespread public disgust with their exploitative regimes explains further the massive withdrawal of Africans from the official legal system. Menski quoted Ebo (1995: 33-4) to have candidly reported for Nigeria saying: “[I]t remains an open secret that many cases involving violations of some aspects of local custom are still decided at the village level by clandestine or ad hoc tribunals, in spite of the existence of native courts and other modern British-oriented judicial institutions. On such occasions, in which the underlying spirit of indigenous justice bursts through the façade of the imported system to reveal its residual vigour as a living force in the mind of society, the law-enforcement agencies carried over from British rule invariably talk about people ‘taking the law into their own hands’.” The author further support his argument for avoidance in formal legal system in discussing the avoidance of law saying: “ The comparative analysis of Chinese legal concepts has so far demonstrated that legal writing on China developed its own conventions about the term ‘law’, thus to some extent impeding cross-cultural comparisons. In the Chinese context, avoidance of the law means first avoidance of any form of litigious activity as an indication of selfishness and as a threat to universal cosmic harmony. That more explicitly Confucian sense is not, however, the one which most legal writing employs. Avoiding the law is envisaged merely as avoidance of the imperial formal law and its complex structures and its potentially painful consequences. Chinese law is therefore not totally premised on avoidance of law altogether, but on achieving an idealised balance between competing rule-making forces for the universal good. In this sense, despite different rhetoric, Chinese law is not different in principle from African laws and from Hindu law in that it seeks to rely on internalised, self-controlled order in the first place and, only if that fails, tries to keep the violation of harmony and order at the lowest possible level, given that fomenting litigation is a negative act in itself (Shapiro, 1981: 157-8). Individual and local instincts of self-preservation together with imperial bureaucratic ideology strengthened a tendency to avoid formal dispute processing. The culture-specific characteristic of imperial Chinese law arises from the presence of the imperial legal regulations with their deterrent criminal law focus and the Confucian expectation that this particular legal field should be avoided. 3. The emperor worship The two legal systems exhibit commonality also in emperor worship. In African legal system , they have these African rulers while in China, they have their emperors. This is confirmed by Menski, (2006, 6.3.4), when the author said: “The ruler(s) often commanded an organised force, and cleavages of wealth, privilege and status among the people in such societies corresponded to the distribution of power and authority within a defined territory…. Constitutions of African states, according to Menski, “tended to balance power with responsibility, and saw the duties of rulers and subjects as complementary, implying a model of ‘rule by consent’.” Under Chinese legal system, Menski, quoted Van der Sprenkel (1977: 28) as explaining: “In an extension of this theory the Emperor, with the title ‘Son of Heaven’, was seen as poised between heaven and earth and as endowed by heaven with a mandate to rule the earth so long as he was capable of maintaining the harmony undisturbed.” This behaviour of African and Chinese could not be so unique only to them. Other jurisdictions may a similar behaviour although called in different names. CONCLUSION: Although, laws are culture specific and effectivity of laws still has to originate between man and the natural law. No amount of positive laws will prosper if the self controlled order is not put into consideration. Human beings as intelligent as ever could not be presumed to have no culture. As human beings, they have their own way of settling conflict amount themselves which are born out of human experience. In both Africa and Chinese laws they have their history to look back. Various events in their history shapes the present Leal legal system under which they operate. They have their historical cultures to look back that point’s evidence to their existence and them the manner they settle conflicts among themselves. The Western denial or branding on African and Chinese laws could not contradict the existence of internally developed wisdom of each culture. Each group of people in the world has its own way of doing things. For other culture not respect another’s culture would be me missing the very point of existence. Perhaps the law must have something to do as well with geographical locations because how these people behave socially or individually is also a function of geographical location, where they could be found on earth. Each has its own language, history, culture, and set of beliefs in a superior authority so that the uniqueness of each of the country’s culture like that of Africa and China could not over emphasize. The best evidence of the latter is the practice of emperor or ruler worship. References: 1. Bodde, Derek and Clarence Morris. 1967. Law in Imperial China. Cambridge, MA: Harvard University Press. 2. (Maathai, 1995) Maathai, Wangari. 1995. ‘Bottlenecks of development’. No. 169. Resurgence, pp. 4- 10 3. Shapiro, Martin. 1981. Courts. A comparative and political analysis. Chicago and London: University of Chicago Press. 4. Ayittey, G.B.N. 1991. Indigenous African institutions. New York: Transnational. 5. Ebo, Chukwuemeka. 1995. ‘Indigenous law and justice: Some major concepts and practices’. In: Woodman, Gordon and A.O. Obilade (eds.) African law and 6. Kuper, Hilda and Leo Kuper (eds.). 1965. African law: Adaptation and development. Berkeley and Los Angeles: University of California Press. 7. May (1985: 119-55), May, Reinhard, 1985. Law and society East and West. Dharma, li and nomos,their contribution to law and to life. Stuttgart: Franz Steiner. 8. McAleavy, Henry. 1968a. ‘Chinese law’. In: Derrett, J. D. M. (ed.) Introduction to legal systems. London: Sweet&Maxwell, pp. 105-30 9. Menski,W, 2006,The Comparative Law and Legal Pluralism, To be filled by customer., name of publisher, where published. 10. Quaison-Sackey, Alex. 1963. Africa unbound. Reflections of an African statesman. New York: Frederick A. Praeger. 11. Shivji, Issa G. 1989. The concept of human rights in Africa. London: Codesria Book Series. 12. Woodman, Gordon and A.O. Obilade (eds.) African law and legal theory. Aldershot: Dartmouth, pp. 33-42 13. Van der Sprenkel, Sybille. 1977. Legal institutions in Manchu China. A sociological analysis. Reprint London: The Athlone Press. Read More