Contribution of Comparative Law from Asian / African Angle to Global Theory - Literature review Example

 Contribution of Comparative Law from Asian / African Angle to Global Theory Introduction Comparative law aims to identify, compare and contrast the differences between the laws that exist in one country to another1. Because of increasing globalization of world trade, changes in the existing national and international law arises so as to regulate the new economic relations. In line with this, comparative law analyzes the nature of contemporary Anglo-American jurisprudence and strategic ways on how to harmonize the existing laws among others2. The foundation of comparative law and its relationship to the functional practice of global production within the context of development and business law will examined. In relation to the interview with Jay Griffiths (2007) and the article ‘Beyond Europe’ by Werner Menski (in Orucu and Nelken, 2007), issues within the context of comparative law in global development will be identified and discussed. Furthermore, the different opinions of authors with regards to how comparative law from Asian and African angle contribute to the development of global theory will be tackled in details. In the process of going through the discussion, facts against theory will be compared and contrast before conducting a critical analysis for conclusion followed by stating some recommended strategies on how we can improve the process of global development and international law. Comparative Law and Its Relationship to the Functional Practice of Global Productivity within the Context of Development and Business Law Comparative law has a significant relationship with global productivity in the sense that the ‘international’ business law is very much similar to the comparative law. Similar to business law, comparative law also study the relationship between domestic law and international business3. Based on a business point-of-view, comparative law seek to identify and compare the legal and regulatory business environment of each target foreign country. Specifically in the article comparative law beyond Europe, Menski (2007) mentioned that the “Asian, African and other non-Western legal systems are inherently more attuned than Western legal systems of the intellectual and practical challenges of comparative law and legal pluralism”4. It means that there is a possibility for scholars to easily understand the Asian, African, and other non-Western legal systems since the differences in religious laws and other existing laws has a significant impact over the development of business laws in Asian, African, and other non-Western countries5. This is more difficult to apply in the Western legal systems. Although it is possible to integrate the legal systems of two different countries, Appadurai (1996) highlighted the importance of facing the “challenges of transnationalism and the politics of global capitalism or multiple overlapping and conflicting juridiscapes”6. Since the 20th century, developing a single rule in relation to the challenges associated with transnationalism and the politics of global capitalism has come a long way. For a more unified regulation on globalization, different transnational governance agencies like the North American Free Trade Agreement (NAFTA)7, Organization for Economic Co-Operation and Development (OECD)8, and the World Trade Organization (WTO)9 was formed. Likewise, significant players in the global business world such as lawyers and accountants are also continuously adapting to the significant changes in the business world10. Issues within the Comparative Law in the Context of Global Development The legal system includes a wide-range of laws related to globalization, family law, commercial law, private law, contract law, tort law, human rights law, and administrative law among others. These interrelated issues are simply too broad to the sense that years of study is not even enough to enable us to fully understand comparative law in the context of business globalization. Because of the presence of plurality in the legal system11, there have been quite a lot of studies that has tried to discuss whether or not comparative law is capable of taking into consideration the non-Western law into the legal system and vice versa12. Within the context of global development, the issue associated with the comparative law is very broad. Aside from the socio-cultural factors, scholars should also consider the historical, economic, and political factors in each country since these issues often interacts with the existing law and legal system13. General culture and legal culture within a national setting are two different concepts. When addressing the integration of a legal system, Friedman mentioned that lawyers should consider studying the ‘internal legal culture of a legal profession with the ‘external legal culture’ of a person or a group of individuals living within a society rather than the aspect of a general culture14. For example: The selling of ayahuasce – a hallucinogenic potion from Amazonian healers or Shamans may be legally accepted in some countries like Brazil as a medicine for depression, diarrhoea, and divorce but not in Canada and Spain15. This example clearly differentiates cultural practice from legal culture. Therefore, it will never be easy to harmonize the law even though we practice international trading. Since the legal socio-culture of a country may differ from socio-culture of another country, Menski (2007) explained that it is possible to solve the problem associated with the socio-cultural differences of two different countries by using the ‘intercultural conversation’ approach16. In line with this, implementing the concept of ‘intercultural conversation’ is possible since the Asian, African and other non-Western legal systems are attuned with one another17. It is more difficult and too costly to solve the problems associated with the socio-political issues. To effectively examine the role of political constitutions of two or more countries, scholars should be reminded that there is “a gulf between the formal constitution and the manner in which the government is actually conducted”18. Therefore, each scholar is advice to carefully analyze the written text and examine how each of the political constitution is being implemented. Menski (2007) explained that exerting an effort to harmonize the socio-political aspect of two different countries could lead to polarization19. Basically, the existence of a universal global business law could mean that the business community will be able to function well without the need to face the national law in each state, nation, or a country20. Unless both countries would agree to accept the necessary socio-political changes, trying to change the socio-political aspect of each country may lead to the disruption of the social structure. How Asian and African Comparative Law Contribute to the Development of Global Theory The Asian and African legal system is totally different from the Western legal systems. Even though globalization does not necessarily mean that the legal system around the world can be standardized, there are some evidences showing that comparative law from the Asian and African angle contributes to the development of the global theory. Unlike in the Western countries, Asian and African religion has a huge impact over the development of global theory. Based on tradition, Asian religion like Buddhism, Taoism, and Shintoism have a significant impact over the Asian legal system21. Back in the 3rd Century BC, Confucianism has affected the official doctrine of the Chinese empire in China22. Since then, the book of Confucians together with other religion such as Buddhism and Taoism has taken a role in the development of business and non-business laws in the country23. Although some parts of religion are being considered as a formal source of law, Buddhism as a religion is not only practiced in China but also in different countries like Japan, Korea, and Hong Kong among others. Depending on the culture, traditions, and beliefs of each nation, the application of religion particularly Buddhism is combined with other ideas like the shoguns in Japan to form official business and non-business related laws. Being one of the largest population and fastest developing countries in the world, China was able to capture the interest of the businessmen around the world. In case businessmen from different countries would decide to establish a business or conduct a business transaction in China, these people are obliged to strictly follow the legal system and business law in China. There are no centralized political and religious forces that bind the African laws. Similar with the case of the Asian countries, culture and religious beliefs like the law of Christianity, Muslim and Hinduism in Africa affects its legal system. Customary law is one of the African laws that are widely used in Africa to protect the interests of the less fortunate individuals. Therefore, the Africans adapted the customary laws even though the law deprives the rural African people of their right to practice their own unique culture24. Because of gender inequality that spreads throughout the Africa, the need to develop a “human-centred, participatory, bottom-up approach in African laws” arises25. Since culture and tradition of Africans is totally different from those in other countries, Menski (2006) emphasized the need to conduct trial and error method rather than purely copying how other countries have implemented the same strategy. Discussion In Europe, the presence of diversity in the legal cultures is a significant topic that triggers the question as to whether or not the process of legally integrating the existing laws is possible to form a common European law26. The same issue applies in comparative law in relation to harmonizing the global productivity within the context of development and business law. Legal pluralism in the context of globalization exist one way or the other. Although pluralism is widely used in the study of modernization, there are a lot of scholars who actually choose to ignore that the law is linked to social issues and values27. Since each country has different factors that will affect the development of a national legal system, Griffith (1986) stated that legal pluralism is “too vague and ill-defined”28. Griffith (2002) and Menski (2004) have opposite opinion with regards to legal pluralism. Rather than taking the presence of legal pluralism negatively, Menski (2004) stated that “legal pluralism is not a threat or an illness that needs to be combated; it is an asset for policy and law making”29. Analysing the complex interdisciplinary legal system is necessary in enabling us to have a better understanding of pluralistic global jurisprudence. Since the non-Western legal system is attuned with the Asian and African legal systems, ‘intercultural conversation’ can be use to address the problems related to the socio-cultural differences of each country but it will be difficult to use the same strategy in solving the socio-political issues30. Therefore, it should become a challenge for us to live with plurality by continuing the study of indology in African and Islamic studies31. Globalisation is heavily rooted on historical traditions. Harmonization and standardization of the legal system are two different concepts that are commonly mistaken as one. Although it is possible to harmonize the legal system in Western Europe, Menski (2007) totally rejects the idea that ‘globalization’ could end up standardizing the legal system regardless of whether or not the level of legal system is international, supranational, or national32. This is true since it is very difficult or close to impossible to implement because of the complexity of socio-cultural and socio-political practices in each foreign land33. Conclusion Although Menski discussed the possibility of developing a universal set of rules that can work globally, development of a single law that is sufficient in covering the business practices of all people seems to be very difficult to implement because of the complexity of socio-cultural and socio-political practices in each foreign land. The fact that the African laws are fragmented makes it even more difficult for scholars to form a strategy that could work for the implementation of a universal business law. Despite the difficulty to form a unified business law, comparative law on Asia and Africa contributes to the development of global theory in the sense that strengthening this study will enable the lawyers to easily develop a better understanding on how a business law in one country works as compared to another country. The legal system in Western countries is totally different from those in Asia and Africa. Since we are already in the era of globalization, learning more about the similarities and differences in the legal system empowers the lawyers to actively participate in the global business world. Recommended Strategy on How to Improve the Process of Global Development and International Law Except for business transactions that require the use of maritime transportation of goods, commercial law can be use as a technical instrument to easily facilitate global trading. Although Nicholas Foster mentioned that the development of commercial law is being influenced by the difference in the past and current business culture, lawyers can take advantage of using commercial law since this activity is not affected by the differences in cultural values34. *** End *** Bibliography Books Appadurai, A. Modernity at Large: Cultural Dimensions of Globalization. In Petersen H., Kjaer A.L., & Krunke H. (eds) "Paradoxes of European legal integration". Ashgate Publishing. (2008). David, R. in: K. Zweigert and U. Drobnig (eds.), International Encyclopedia of Comparative Law, Vol. 2, The Legal Systems of the World – Their Comparison and Unification. (1981). Foster. in Orucu, E. and Nelken D (ed) Comparative Law: A Handbook, Oxford: HArt Publishing. (2007). Friedman, L. The Legal System: A Social Science Perspective. NY: Russell Sage Foundation. (1975). Harding, & Leyland. in Orucu, E. and Nelken D (ed) Comparative Law: A Handbook, Oxford: Hart Publishing. (2007). 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