Comparative Legal Culture - Nigeria versus England and Wales - Essay Example

Comparative Law: Global Legal Realism as Common Sense Number Department Comparative legal culture: Nigeria versus England and Wales Legal culture has a tremendous impact on practice in virtually every society in world. In both the United Kingdom and Nigeria, religion and traditions play pivotal roles in providing moral, realist direction on various social issues including dispute resolution structures and concepts. Apart from the relatively diverse local cultural interests, both countries continue to witness foreign cultural influences on their respective legal systems as the world sidles towards a more integrated network of laws based on realism and positivism concepts. As such, foreign case studies are generally cited in the local legal discourses within the United Kingdom and Nigeria, despite the existence of home-grown moral realism foundations reflecting the richness of the history of each country. The import of international bodies of law and provisions in both countries is normally regulated by realist and positivist influences. This paper will examine comparative legal culture, the role of realism and positivism in Nigerian and English legal systems. Background of the issue Watt (2006) argued that if comparative researches on law were basically aimed at upholding their consistency in teaching the effect of global developments on the already available local cultures; how they interweave and merge; and their persistence, then the focus of interacting systems should be modified in order to guarantee a higher level of consistency. The researcher seeks to assess the manner in which international comparative law as a faculty is impacted by the influences of globalization, especially the problems which such alterations portend for the procedural interests in comparative legal research and its philosophical commitments in realist and positivism. According to Watt (2006), the English legal culture is more dynamic and thus positivist as compared to the Nigerian realism. As such, the English culture’s predilection of acquiescing to trans-national or international frameworks of uniform law within the EU and intercontinental Treaties is based on empirical proofs that being more liberal and having in place similar laws would deliver equally acceptable laws. While Nigerian system is more realist and largely driven by religion and traditionalism, the English system is backed by authoritative knowledge obtained from scholarship, impacts of globalization and to a small extent, indigenous legal cultures. Realist influences Religion Nigerian positivist legal cultural influences are largely similar to those of the United Kingdom, most probably because the latter colonized the former and made a substantial part of the first formal national legal structures to support it. In both countries traditionalism influences realist culture but as each the impacts of modernity become more perverse, Christian religion continues to blur extreme positivist values and beliefs about law (Hills, 2012). On the one hand, the Nigerian society has a diverse legal system based on realism and seeks to see to the interests of different minorities. The indigenous legal culture continues to resist different elements of positivism such as forensics and expert witnesses in legal practice. By virtue of Nigeria having more Muslim population than Christians, legal realism of Islamic Law features prominently when resolving the internal discourses, especially those regarding disputes involving the Muslim population. Mathiason (2013) suggested that taking up such disputes to an ordinary positivist judicial process would be tantamount to a breach of the cardinal rule of justice and fairness to the litigants, hence the existence of Islamic Courts and law to deal with the issue. Family disputes over how marriage or divorce should be conducted in Islam are too technical for handle in a realist court where empirical science reigns supreme. This way, Islamic religion has influenced the diversity of the Nigerian legal culture. Yet, the realist customary law in Nigeria has influenced the retention of the classical Customary Law and the institutions throughout history. For instance, unlike the British system, the Nigerian customary legal culture does not create equity in partnerships by granting women the same rights as man (Mathiason, 2013). In spite of this variation, the Nigerian positivist legal culture as evidence in the handling of criminal cases or modern disputes in business can be traced to British influences on the local legal culture during the 20th century colonial rule (Monateri, 2012). Nigerian statutory laws, for example, are forms of positivism which continue to determine consistent ways of handling legal disputes relative in the same way handles its issues. By contrast, Islamic Law and Customary Law are relatively unwritten in Nigeria. As such, resolving any disputes invoking them is based on commonly acceptable morals, social behaviour, and political concepts. Nwagbara et al (2013) noted that the Western power helped to improve the positivism of the Nigerian judicature in a way that has since made it easier to enforce the three relatively realist legal systems in a separate manner as dictated by the cultural changes and modern common law influences of equality and justice. Each legal system in Nigeria, as it is the case in England and Wales, generally embodies the legal realist aspirations of the community interests they were set to protect, with the end result being a widely-acceptable realist-positivist legal culture guided by mutual respect and obligations (Sullivan, 2014; Iwobi, 2008). Idehen (2012) noted that new knowledge is increasingly paving the way for piecemeal adoption of positivism. English Canon Law Influences Similarly, the Western culture has tremendously influenced the legal culture of the United Kingdom in what constitutes an important foundation of the English culture and which extends to various Commonwealth jurisdictions including Nigeria (Guichaoua, 2009). The British legal culture underscores the positivist concept of the primacy of the law as an important structure for social interactions and activities. The doctrine can be traced to the classical origins of both the Canon Law and Roman law, but with stronger, relatively uniform legal structures in place to regulate different behaviour and interactions. As an integral part of the Western culture, British legal influences can be traced to the classical Greco-Roman and Renaissance era which basically underscored religion in its abstract forms. The birth of the Roman Catholic and its influences on the Roman law immediately influenced the foundation upon which all contemporary English legal philosophies and structures were based. Religious practice formed an important part of the English legal culture of justice, fairness and forgiveness, which eventually spawned legal structures and doctrines establishing formal courts and similar empirical rules they follow in meeting the acceptable cultural expectations of the society (Sullivan, 2014; Idehen, 2012). The use of sworn testimonies in judicial processes, for example, is an acceptable result of merging realism (the holiness of Bible or Quran) and empiricism that the witness will give accurate details after taking an oath. The legal cultural practice applies wholly in the United Kingdom, but partially in Nigeria. Watt (2006) noted that the Christian culture of fairness and equal treatment are manifestations of realism which have substantially influenced the positivist rules of the British legal culture which today support civil rights, fairness in application of the law, equality between men and women, due process of the law, and democratic governance (Danner, & Winterton, 2012). The Nigerian legal culture applies most of the positivist rules, but the level of accountability is far lower to generate similar outcomes. Legal scholarship Apart from religious influence, scholarship has and continues to play a pivotal role in influencing the legal cultures of both Nigeria and the United Kingdom. Both systems have positivist curriculums regulating legal studies and which are comprehensive enough to encompass the relevant areas of law including; criminal law, equity and trusts and property law (Uche, 2012). However, whereas the Nigerian educational culture emphasizes on the primacy of the realist legal culture as influenced by customary law and Islamic Law based on morals, the British legal system is primarily based on a scientifically proven culture and practices shared by Western jurisdictions. Secular culture versus conservatism As a Nigerian, I benefit from English legal scholarship by understanding international positivist doctrines of law touching on different areas such as: the equality of men and women in the eye of family law; equal treatment of employees in employment law, and the supremacy of a democratically-elected government. The English legal culture supports secularism by virtue of same-sex unions; positivism as evidenced in the introduction of other science such as psychology to determine the a criminal’s state of mind; unscientific concepts such as admitting implicit evidence; and universalist concept of utilitarianism (Nwauche, 2010). As Oba (2013) noted, my basic foundation in customary law and Islamic law tampers these more positivist concepts with holistic values which hinge on traditionalism and conservatism. By comparison, Makinde and Ostien (2012) noted that the Nigerian traditionalist legal culture places men above women in a manner that is realist to them, but which the British equality culture and laws based on positivism cannot tolerate. In addition, whereas the British system is less concerned with specific Customary Law in the Universalist system and ideals, the Nigerian system tries to provide a wide framework to facilitate effective scholarship on different aspects of Customary Law (Oba, 2011). The discourse is arguably the result of indigenous influences in Nigeria and the international influences of the English culture which pushes the latter system to adopt a more positivist culture to accommodate secularism. Judicial supremacy Judicial supremacy is also an important factor in Nigerian and English legal culture. Both systems recognize the court’s role as the ultimate arbitrator in different conflicts depending on different jurisdictions. As such, where specific circumstances have come up in court processes, the application of law is normally left for courts to decide and issue a binding decision. The realist-cum-positivist customized culture is apparently influenced by cultural diversity and the uniqueness of cases brought before both judicial processes (Abdurrahman, 2012; Mulligan, 2009). The concept was arguably borrowed from English legal culture, which tolerates social diversity and the natural insufficiency of statutory laws to offer adequate solutions to every legal issue in either country. Regardless, Nigerian judicial processes are less positivist than the English opposite number, because of lack resources, even though both systems are seemingly wide enough in terms of their scope. The primary doctrine supporting the broader approach in both cases is based on the need to conserve only important traditional values of realism and uphold broad consciousness of positivism in legal practice and law-making (Kendhammer, 2013; Nwauche, 2010; Oba, 2013). This approach consequently stimulates cultural mindfulness among legal practitioners and scholars. Conversely, the attempts to streamline the local Nigerian cultural and legal system to be in line with the more mature and fool-proof British system has triggered the unintended impacts of a wide perception of partiality in the domestic legal culture (Oba, 2011; Sartori, & Shahar, 2012). Many Nigerian local scholars perceive the British cultural and legal influences as imposed on Nigerians and that the principles of equity and the evolutionary common law are more in favour of the Western society than they can solve local traditional-realist problems in the country. Common Practice As a consequence, the local cultural influences continue to mould the legal culture especially in rather internal processes where the players do not properly understand the complimentary role played by the British culture. But with common law influences on the conservativism, a commonly acceptable secularism culture is slowly taking foot in Nigeria by virtue of English legal influences. Regardless, Hills (2012) noted the Nigerian faculties still encounter the problem of developing inventive approaches to legal scholarship which can empower lawyers to respectfully handle cultural diversity and their positivist implications in practice. The trend is increasingly becoming common in the current environment of shared civilizations where legal interactions will only get more integrated (Kendhammer, 2013; Oba, 2013). The positivist culture of globalization brings about more complex challenges to the Nigerian system than it does to the English system due to the latter’s legal cultural preparedness to accommodate diverse, more secular cultures and behaviours. International legal culture and influences In respect of international positivist laws triggered by globalization in the form of multilateral Agreements regulating trade; protecting human rights; and those protecting environmental law and humanitarian intervention law, the British legal culture is tremendously more receptive than Nigerian (Uche, 2012). The superior system may be attributed to the massive cultural diversity that the United Kingdom has become, especially after many years of legal cultural evolution as influenced by science. UK’s performance is also influenced by the presence of different communities from around the world in the country and the positivist determination to capture the interests of all communities in law. As such, the country has legislated or adopted non-discrimination laws to protect the secularist sexual orientation issue, for example, which is lacking in Nigerian law. Still, as Thurston (2014) pointed out, Nigeria as a developing country in the Africa’s sub-Saharan region has had her legal culture substantially influenced by perceptions of alienation by internal partners in Europe such as the United Kingdom due to her socio-political insufficiencies in judicial governance. In addition, Nigeria argues that the UK by virtue of her developed status has not been doing enough to promote intellectual cooperation through student exchange programs, joint research or proper economic cooperation due to socio-economic and political problems facing the country (Dais, Jørgensen, & Erh-Soon, 1991). The response has been general passiveness by the Nigerian legal practitioners, scholars, law-makers. Passive international response The non-action approach continues to limit the country to legal realism in terms of developing an acceptable legal culture. However, a positivist approach would need strengthening of the current degree of international commitments and the country’s legal history in order to improve more participation in the international arena (Makinde, & Ostien, 2012). The country still needs to legislate and or pass positivist policies which are geared towards improving legal scholarship through externship for students in the United Kingdom. This can only happen if Nigeria adopted a more positivist legal culture which is aimed at uplifting the status of more of her institutions of higher learning in order to meet the international standards for reciprocal programs. The realist legal culture in Nigeria can also be attributed to overreliance on local talents, most of which have literally never thought about the positivist ideals that comes with greater level of international cooperation. Seeking international influencers of policy and law can be equally affected by economic constraints on the part of Nigeria (Lawan, 2014). In addition, the need to safeguard the realist local cultural identity and the limited social and economic opportunities for the locals in an increasingly muffled world of globalization which sidles in the direction of positivism handicaps Nigeria’s effective engagement of foreign law. The labour laws and policies have also been based on these protective cultures. Succession laws and family Positivism and realism determines succession laws of the United Kingdom and Nigeria. For instance, in respect of succession laws and family disputes, the English legal culture initially preferred proper institutions and documentations as pre-qualifications for claims of title in the event of a dispute. However, due to the increasingly limited opportunities available to maintain documentations and due to technology influences, the legal culture has evolved to recognize unwritten agreements as binding (Abdurrahman, 2012; Mulligan, 2009). As such, the common law of the UK recognizes informal family unions and verbal covenants in respect of property use as binding dealings (Thurston, 2014). Fortunately, parliament has responded by making follow-up legislations and incorporated the wider positivist and realist concepts of the globalization-led EU law such as equity and good faith obligations. By contrast, the Nigerian legal culture remains more conservative and less detached from the local customary legal culture. The Nigeria’s Yoruba community, for instance, have property ownership and succession laws that leave women with little if any legal protections when it comes to succession. The Customary Law, for instance, mandates the male head of the family to decide which way the property should be shared if there is lack of consensus about the same. Conclusion Generally, debates on the efficiency of different legal cultures with a view to borrowing the rules which are generally acceptable across cultures is an imperative realist and positivist culture that leads to the promotion and creation of consciousness of the law to universal interests. Dissimilarities among modern legal cultures are manifestations of the self-identity of different people and their societies. Promoting comparative analyses and legal influences, therefore, contribute significantly towards a culture of social acceptance in the increasingly globalized, professionalized world order. As a Nigerian law scholar feeling direct influence of the positivist Western legal culture characterised by state-oriented practices, secularism, positivism, ‘top-down’ approach, North-centrism, unempirical and universalist belief, I have a solemn duty to influence and promote a realist line of thought by developing long-term mechanisms and scaffolds for tackling unfavourable cultural restrictions in Nigeria which may threaten to keep the system aloof from the realist United Kingdom system. This can be achieved by citing important English common law doctrines, petitioning the legislature to enact more liberal laws and protecting the legitimate doctrines of customary law. References Abdurrahman, U., 2012. Religion and language in the transformation of education in northern Nigeria during British colonial rule, 1900-1960. Intellectual Discourse, 20(2), pp.165- 188. Dais, E.E., Jørgensen, S., & Erh-Soon T.A., 1991. Constitutionalism versus legalism? New York: Franz Steiner Verlag. 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