Global Legal Realism - Essay Example

Global Legal Realism as Commonsense al Affiliation Table of Contents Introduction 3 2.Literature Review 3 3.Discussion and Analysis 8 4.Conclusion 10 Reference List 11 1. Introduction Much of the current literature on comparative law appears to have realism, secular and positivist approaches in it. The western legal systems have had a very huge impact on what scholars write and research about and the effect has been passed down to the comparative law learning. One of the main features of the mainstream comparative law has been the fixation on the legal rules and the rules that are in the book in an attempt to understand what is legal. This is a formalist perceptive of law which is being strengthened by the binary division emerging between private and public law (Balakrishnan, 2003). Some scholars have furthered the realism and common sense approach to comparative law by arguing that laws can be effectively studied separately from the surrounding concerns and environment. Such formalized and deconceptualized approaches are evident from the fact that law comparists and comparative law scholars have hardly been engaging the other academic disciplines which in one way or the other influence the application and the understanding of law in different contexts (Balakrishnan, 2003). The aim of this treatise is to explore and examine how western approaches like realism and the common sense approach to various business values and ethics have influenced legal studies in comparative law. The paper will look into how attention has shifted in the preoccupation of comparative law and the written law codes to a social and culture based approach of understanding the legal matters. 2. Literature Review 2.1. Pluralism and Comparative Law Pluralism is a phenomena whose impact is clearly evident in the field and application of competitive law. Antoine (2000) defines legal pluralism to be a theory that is used by social scientists whose basic idea is that several legal systems can coexist and intermingle in a single legal entity. The historical origin of this influence can be traced back to the middle ages, which faced the problems of the conflicts between the church laws and the sate laws. Anleu (2005) notes that a second historical evidence can be found in the imposition of various western laws in the indigenous laws of the countries that were ruled and influenced by western powers. In the more recent context, the phenomena has been seen as a result of globalization leading to the emergence of the global legal pluralism. The effect of legal pluralism in cooperative law has been witnessed in the legal families and the definition of legal systems. Authors and scholars who subscribed to legal pluralism define law in a very broad context. Their definition encompasses not only the classic laws which are made by the governments to help govern and rule the citizens but also the other forms of normative commitment which may be existing in a society or a country. Coffee (2006) remarks that the implication of such a definition is that when it comes to international law, then there are several non-state laws as well as social norms that are included. This is what brings about the connection between the law and the various cultural movements in a particular society and country. The cultural norms and traditions are, therefore, part and parcel of the pluralistic definition of law. With the inclusion of the cultural norms in the definition of law, the comparative law scholars have also come up with new definition for the legal families. This definition focuses on the traditions rather than the legal theory and scope. Traditionally, comparative law used to consider only the laws which were made by the governments and the states for the citizens. This in itself ensured that the western legal systems were over represented at the expense of the indigenous systems. However, the application of pluralism has ensured that the indigenous systems which heavily relied in social norms are brought into the picture. Pluralism has therefore ensured that the indigenous systems get the equal footing as the predominantly researched and studied western systems. Prah (2002) says that pluralism has also had an impact on how comparative law takes and defines mixed legal systems. Traditionally, only those systems that had combined elements of both the common law and the civil laws were taken as mixed legal systems. Works such as Coffee (2006) and Chua (2007) clearly demonstrate the definition which was given to mixed legal systems. With pluralism being incorporated into comparative law by western oriented scholars, any kind of heterogeneous system that had element of the traditional civil or common laws and the indigenous system was considered to be a mixed system. This new definition renders the whole category of mixed legal systems to be moot. In some instance, the blind adoption of the principles of pluralism into comparative law does not make any sense at all and should therefore be avoided. However, the principles have had a huge role in getting out competitive law from its existential crisis. It has done this by bringing up new ways that can be used to examine and also incorporate new aspects of law which are as a result of the broadening of the legal horizon. The pluralistic perception and conception of international law, however, requires the encounter between comparative law and the developing systems of criminal justice. Employment of the approach to legal justice has made comparative law to go beyond the simple juxtaposition that was originally witnessed to come up with a new recomposed way of understanding diverse legal systems. 2.2. Universalism and Comparative Law Another area of concern which demonstrate the influence of western legal academic culture on comparative law is the increased universalism of legal systems and laws. Such approaches have resulted in the transformation of how lawyers and scholars approach foreign legal culture by either endorsing or denouncing them. A strong case can be realized from the fact that there is a significant number of scholars who believe that the claim that certain values are incompatible with democracy is a very feeble excuse. Attempts are therefore being made by the European counties through their scholars to adopt a more sanitized approach to legal systems with the cultural values being taken into account. Universalism, which has its origin in the western legal systems, is quickly finding its way into legal studies. Parker (2007) defines universalism as a theory that holds that; a common set of rules can be valid to all human beings notwithstanding the culture in question or the country being considered. Historically, the study of comparative law with respect to the universalism approach is an emerging field. However, there are several studies which have been done to outline this development in greater detail. The emergence of universalism approach is an indication that the field has become specialized in different sub fields. Scholars are, therefore, working towards a common intellectual goal of making formalism and realism the order of the day in legal practices. Over the last couple of years there has been an explosion of scholarship on comparative law with universalism taking center stage. In the 20th century, the most dominant paradigm had been particularism and a lot of skepticism was being put on the Universalist approach and its possible application in international laws. However, this has changed not only in terms of scholarship endorsement but also in the actual legal practice where various practitioners are interpreting laws as per the principles of universalism. Dam (2006) notes that the acceptance and widespread application of universalism principles in comparative judicial review began in Eastern Europe after the World War II and with the fall of the Soviet Union. This eventually led to legal mapping and definition based on the Universalist principles. Such principles influence even the current scholarship and study of laws with the leaders and scholars applying the idea that there are laws that are applicable to all people in various legal settings. 2.3. Legal Realism and Comparative Law Collier (2007) defines realism as a belief that holds that the laws in a country and a society emerged as a result of the interaction of human actions, and is as a result of the varied aims of different individuals and groups. The realists emphasize that human will and fallibility plays a very key role in the law making and law interpretation process. Despite this being the cases, it is evident that there is a lot of difficulty in the premise held by this group when it comes to comparative law. Chang (2007) for example has pointed out that legal realism is hard to define. However, one of the common features in it is the use of social science in the study and understanding of laws. Due to the realism belief, scholars have been trying to understand law by positioning themselves as the proponents of the study of comparative law as a form of social relationship and behavior rather than viewing it as an autonomous legal system created by professional lawyers. Even more recent, authors such as Chamber (2005) and Riddell (2007) have reiterated the claim that law exists as a result of the action of the people. This is actually repeating the claim which had been presented earlier by scholars. Other people and practitioners have reiterated that law should only be taken as something which is as common conviction of the local population or people rather than as something coming from scientific theories and creations. The common intellectual root of law and social science which brought about the realism belief in comparative law is found in the 19th century realistic movement commonly referred to as the Historical School of Jurisprudence. It is a movement that was founded by Savigny and it later ended up dominating the European Jurisprudence for a better part of the 19th century. 3. Discussion and Analysis Many models that are present in the study of nonwestern and early law today are basically attributed to the realisms, pluralism and universalism traditions. The ideologies which were initiated by early scholars have been passed on to the study of comparative law. Moreover, these beliefs are unconsciously being repeated not only in the study of comparative law but in the entire legal practice (Benn & Hall, 2006). A very good example is the idealization of untainted and original customs and cultures at the expense of rational reasoning when examining comparative and international law. The process is at times unconscious and thus it may be hard for one to realize and understand that they have abandoned the rational reasoning approach to law and resorted to untainted folk customs. The effects of this can only be seen through other practice matters and examples. Some of the two areas which this influence can be seen is in the dispute settlement and in the formation of contract. Understanding dispute settlements as a way of studying laws clearly shows how the study has been freed from the initial pre occupation with the government rules which were basically written laws to more flexible ones influenced by various societal and social factors like culture. This is a methodology which did not only spread at the same time as the realism approach but was also influenced by it. The outcome of this transformation was that it made the native people have laws that they easily understood. It was a shift from the early times where literature was focused exclusively on the rules and treaties among the western populations. The separation between the social norms and the effect of the customs has not been an easy one. It has linked up with the current legal study. The other example that shows this influence on legal practice and the study of comparative law is in the understanding and study of contract formation. The formalist jurisprudence which was common in Germany and Eastern Europe in the 19th century subscribed to the will theory when it comes to the formation of contracts. This group argued that contracts were formed as a result of the meeting of the minds of the people who are involved in the process. This was, however, a view that was heavily criticized by those who subscribed to the realism theory, and who argued that no such things as the meeting of the mind of the parties happen in the real world. This group argued that in most contracts, the parties are usually unaware of their rights and duties and can therefore not change the legal provisions as a result of their unequal standings. Authors of traditional literature in early laws were very much convinced that there were no contracts which existed in a primitive society since it as essentially static. According to Balakrishnan (2003), contact formation is a very good example that can be used to investigate how realism has impacted on comparative law study today. It, however, notes that it is too much to think that the realistic scholars were aware of the contact laws today since they operated with mail box rules. Despite this being the case, the transformation of the idea of contract law is a proof that the comparative law today heavily relies on realism, judging from the fact that even things like gifts exchange have be taken to be a form of contract. Such transformation is as a result of the elimination of the rigid understanding of contracts. Comparative law today has adopted classificatory models which are developed from both physical and biological sciences from both the 18th and the 19th century. This has made it to gradually expand to a variety of disciplines. Chua (2007) notes that the Darwinist ranking has for example become a very influential taxonomy whereby; just like in the natural world, the social forces that influence legal studies results from a survival for the fittest process. The mainstream comparison today remains very much Eurocentric with the discipline being heavily dominated by the western scholars who are focusing only on the Europe and the US legal systems. Riddell (2007) adds that comparative laws at least until a couple of years back was dominated entirely by country and western tradition that is focused on the comparing the municipal laws in the parent common laws and the civil laws. 4. Conclusion Realism, pluralism and universalism are some of the common influences which have shaped the study of comparative law. Legal scholars have put a lot of emphasis on the European and the western legal systems at the expense of the indigenous ones. The dominant tradition of carrying out comparative law study today still yields a binary contrast between the common and civil law cultures. If this is not the cares. It will yield a bourgeois and the socialist view and ideas which reduce the diversity of the world legal systems with the Euro- American law taking center-stage. Common sense approach has therefore become a common feature in the study and the understanding of legal systems and in comparative law. This influence can be summed up as comparative law in action and the law in books. This means that instead of the comparison focusing ion the legal codes as it was the case earlier, they have been carrying out investigations on the working of the laws in specific concrete classes within the society. Reference List Anleu, L 2005, Law and Social Change. Sage Publications, London. Antoine, R 2000, Commonwealth Caribbean Law and Legal Systems. Cavendish Publishing Ltd, London. Balakrishnan, R 2003, International Law from Below: Development, Social Movements and Third World Resistance. Sage Publications, London. Benn, D & Hall , K 2006, Production Integration in CARICOM: From Theory to Action. Ian Randle Publishers, Miami. Chamber, R 2005, Ideas For Development. Earthscan Publishers, New York. Chang, H 2007, Bad Samaritans. Random House Books, London. Chua, A 2007, Day of Empire: How Hyper Powers Rise to Global Domination and Why The Fall. Doubleday Publishers, New York. Coffee, J 2006, Gatekeepers: The Professions and Corporate Governance. Oxford University Press, Oxford. Collier, P 2007, The Bottom Billion. Oxford University Press, London. Dam, K 2006, The Law-Growth Nexus: The Rule of Law And Economic Development. Brookings Institution Press, Miami. Parker, R 2007, Comparative Law and CLS. Old Street Publishing, New York. Prah, K 2002, Africa’s Development Thinking Since Independence. Africa Institute of South Africa, Pretoria. Riddell, R 2007, Does Foreign Aid Really Work? Oxford University Press, London. Read More