Comparative Legal Methods of Dispute Settlement - Essay Example

Comparative Law Introduction Comparative law is a division of legal studies that deals with the comparison of different justice systems. This division of law came into existence before the nineteenth century when the Roman and Greek structures were the only existing legal organizations. Europe and America adopted the Greek and Roman laws when the world became civilized in the nineteenth century (Legrand, & Munday, 2003). The law of comparisons contributes to global productivity because states adopt the most efficient methods of justice from one another; this leads to global efficiency and high productivity. The traditional legal systems that originated from Greek and Rome developed into two main classifications that include civil and common traditional system. These systems were different from the others that were in use in Asia and Africa. These systems often disagree because of the differences in how they deliver justice with the western structures believing that they are superior to the chthonic systems (Glenn, 2014). A discussion of the traditional comparative systems and the conflicts between them may help in formulating efficient recommendations that unite these structures. The Foundations of Comparative Law The law of comparing various legal systems started developing in the medieval period when Greek and Rome were the only states with rules. Various states in Greek adopted the rules of other states in the same region when they were forming constitutions to govern their locations. The states adopted the laws of others to ensure they were related because the people believed that they were connected by blood. The governments of the localities, therefore, had to ensure that the rules that guided the people were also similar (Siems, 2014). Comparative law also came into being when the Roman Empire adopted rules from the Greek Empire. The Roman Empire adopted the thoughts that led to the formation of various Greek laws to form a law that was known as jus gentium (Saidov, & Butler, 2003). The jus gentium laws in the Roman Empire helped judges to preside over cases that involved non-roman individuals. The non-roman individuals were mostly traders who travelled along the Mediterranean to sell their products in the kingdom. Although comparative law was in existence in the medieval period when states acquired the laws of others, this division of law became recognized in the nineteenth century. Germany was the first country to recognize the law when it started teaching national laws in colleges in 1829 (Glenn, 2014); the teachers of the subject compared the country’s laws to those of other nations in England. France then recognized comparative law in 1834 when it emulated Germany’s style of teaching and then numerous other countries recognized the law because of globalization (Glendon, Wright-Carozza, & Picker, 2014). Currently, almost all states in the world are familiar with comparative law and they make use of it when forming national rules and when applying the rules to various cases. Comparative law is a component that helps in shaping global productivity. The law enables states from different regions of the world to conduct business together. This is because countries have to set the rules that govern how they conduct business with each other by taking into account the national laws of each state independently. This means that comparative law helps in increasing global productivity because it enables countries to exchange goods and services. For example, when two countries form a trade relationship with each other by formulating laws that guide them in business, each state starts to specialize in producing the goods that it has a comparative advantage in producing. The country then buys the other goods that it does not produce best from the other state (Mitchell, & Powell, 2011). This specialization of production then helps each country to produce the highest amount of output of a good. The global production of each good, therefore, increases because of the maximum attention and care that each product receives. Comparative law also helps to increase global productivity by enabling countries to acquire laws that boost production from other states. For example, when formulating employment laws, states study the laws of others to identify their strengths and adopt them. In the end, every country formulates the laws that motivate workers to work hard and increase the output they produce each day (Siems, 2014). The increase in output per worker per day then increases the amount of global output per person. Comparative Legal Traditions The key comparative legal traditions mainly include common law and civil law. These laws came into being in the ancient periods when the field of law was still undeveloped. These systems enabled the kingdoms that were ruling various states to determine the fairest ways of dealing with various cases. Common Law Common law is a legal tradition that depends on previous judgments to make decisions in present cases. This traditional system does not precise rules that help advocates in ruling various cases; lawyers rely on previous judgements that were made in the country or in other countries to make their decisions (In Monateri, 2014). The comparison and contrast of rulings of previous cases has benefits and limitations on global productivity practice. Advantages Comparative common law guarantees certainty because this legal system assumes that similar cases should be treated equally. For example, if an earlier judgement shows that a person should be imprisoned for stealing from others, judges who are faced with a similar case in the modern times rule the same way. The certainty of the judgements helps to boost global productivity because judges make similar decisions when they are faced with comparable cases (Larouche, 2013). Productivity increases because conflicts are reduced; hence ensuring that more time is spent on productive activities. Common law is also flexible meaning that judges are not necessarily bound to their previous decisions (Menski, 2009). This ensures that new developments are taken into account leading to progress. Disadvantages Comparative common law is complex and voluminous, and this makes it to cause backwardness (Larouche, 2013). Judges have to read volumes of books, journals, and articles to determine the similarity between cases that face them and others that were decided upon in the past. These individuals also have to read the elongated judgements of previous cases to make similar judgements in present cases. This wastes time and only few individuals would spend a lot of time reading through the numerous materials from different locations; this slows down development (Reimann, & Zimmermann, 2012). Common law judgements are repetitive and lack powerful foundations on which they make decisions (In Monateri, 2014). Modern lawyers have to stick to the decisions of their earlier counterparts even if they made the wrong decisions. This means that the error has to be repeated until the time any court takes time to correct the previous mistake. Judges also do not base their decisions on facts and consequences meaning that their decisions lack strong foundations. Civil Law Civil law that originated from the Roman traditional system has a structure of rules that state various offences and the punishments that couple them in different circumstances. Judges faced with cases that are in civil law study the materiality of the issues to determine the applicable code (Mitchell, & Powell, 2011). There is no need for studying voluminous cases of the past to determine the right decision for contemporary issues. Advantages This system makes logical decisions that may change depending on the changes made in the constitution. The decisions are logical because they are based on specific rules that are contained in a constitution, which is a book that contains all material facts that help in making specific judgements in various issues (Head, 2011). This system promotes global development because there is a foundation for every judgement that is made. Countries adopt rules from one another and this promotes development. Comparative civil law also promotes development because it is flexible. Flexibility means that juries change laws that lead to errors in judgement immediately they recognize the problem (Saidov, & Butler, 2003). This means that they do not have to rely on errors that their earlier counterparts made during their judgements. Disadvantages Civil law classifies offences into various groups meaning that they have to determine the criminal activity that fits into every category. This process is time consuming especially in cases that involve new offenses that are not included in the constitution. This traditional system also consumes time because judges have to question wrong doers to determine the facts of each case that lead to certain decisions (Glendon, Wright-Carozza, & Picker, 2014). The consumption of time slows down productivity. Civil law requires highly skilled personnel to intervene in a case to ensure the interpretation of facts is correct and to guarantee fair ruling (Kanada, 2007). This means that individuals have to be trained for them to undertake civil law actions because of the complexity of material facts that lead to various judgements. This requirement of this law indicates that common citizens of a state may not be certain about various judgements because they may not be able to understand the process of ruling. Chthonic Traditional System This is a traditional system that uses the word of mouth to solve issues and spread rules that are followed in solving various problems. Chthonic legal system also known as an oral legal structure safeguards the environment using oral rules; this ensures that the surrounding is safe from destruction (Kanada, 2007). Chthonic laws, therefore, deal with issues such as ownership of land, land disputes, and marriage disagreements. Colonial powers used chthonic legal system to pass their rules to the countries that they ruled. The colonised states then adopted colonial rules and made them national regulations after the end of the colonization period. Advantages of Chthonic System This legal structure helps to save time because it solves issues in an amicable manner whereby all parties involved take place in finding a solution (Reichel, 2013). The involvement of disputing parties helps to reduce conflicts in future because these individuals inform others about the usefulness of being in peace. Disadvantages This system is traditional in that it does not base its decisions on specific facts or earlier decisions that were made in similar cases. This lack of surety of the system makes it doubtful and it makes countries to prefer other legal structures that guarantee fairness (Head, 2011). Western and Non-western Legal Systems Western legal systems are the structures and procedures of law that are in use in the United States and in Europe. These regions use similar legal structures and strategies because they adopted the from the traditional Roman and Greek laws that were also similar. Western law is made up of common and civil rules that help in finding fair judgements for all offences that exist within these nations (Spielyogel, 2015). Non-western legal systems, on the other hand, include other systems such as Islamic law, African customary law, and Asian legal systems. The non-western systems differ from the western structures in various ways that often lead to conflicts between the two structures. Conflicts between Western and Non-western Legal Systems The western legal system relies on authorized creations to conduct legal activities; the lawful constructs include companies, contracts, and powers (Spielyogel, 2015). These constructs help in conducting all activities that involve justice to two or more parties, and they must be followed strictly in the western legal system. The non-western legal systems such as African customary law, Hindu law, and Islamic law, on the other hand, do not insist on using legal constructs to provide justice to parties involved in a case. These systems, for example, the African customary law relies on the natural environment to provide justice. The strategy of the African customary law is to find an amicable solution that satisfies all parties and enables them to continue relating well with each other (Mitchell, & Powell, 2011). This is not the case in western legal culture where legal constructs aim at deciding which party is right and which one is wrong. This difference in the two systems leads to conflicts in that the western system considers the non-western structures that do not use legal abstracts to be unjustifiable (Menski, 2009). Western legal systems follow strict procedures when finding justice for two parties; for example, a panel of judges has to listen to the case in the courtroom under the guidance of a chief magistrate (Reimann, & Zimmermann, 2012). All parties in the courtroom also have to respect the law by following the strict protocols that are standard in western systems. The non-western systems such as African and Chinese structures do not follow numerous procedures when delivering justice to involved parties. The African law lacks procedures because it relies on the word of mouth to conduct all its activities; the lack of a written system makes it hard to develop a formula of justice (Kanada, 2007). This difference leads to a major conflict where the western system accuses the non-western system of lack of consistency. The western system argues that lack of procedures in African customary and Sharia law makes it hard for parties seeking justice to know whether the judgement they get is fair. The westerners also argue that the lack of uniformity in the non-western justice systems make them baseless and unfair (Whitman, 2005). The third conflict between non-western and western systems of justice is that westerners rely on scientific beliefs to formulate a legal system that offers justice to their citizens (Whitman, 2005). For example, the structure requires lawyers to involve specialists such as engineers to measure the consequences of various acts scientifically. Non-western systems, on the other hand, do not use scientific systems to provide fairness to disputing parties. These structures offer friendly solutions without having to measure consequences of actions because they believe that doing this would split parties completely. Yet, the aim of these structures is to provide fairness that joins conflicting parties instead of separating them further. The non-western laws accuse the western system of using complex scientific knowledge in providing justice instead of using natural means to offer fairness (Larouche, 2013). The non-western such as African law believes that the use of science complicates issues because humans are sympathetic, thus they can solve issues amicably (Head, 2011). The western and non-western structures also disagree on whether to involve the government in delivering justice. The western systems involve the government in all activities while in non-western system such as Chinese, Hindu, and Sharia do not involve the state in their issues unless it is extremely critical (Whitman, 2005). The westerners believe that involving the government guarantees justice in every case; while non-western system postulate that involving the state in all issues wastes time leading to delay of justice. Non-western chthonic structures also argue that westerners waste a lot of time in formulating complex models of justice; yet they postulate that the delay of justice means that it is a denial of fairness in the same structures (Glenn, 2014). The above conflicts between the western and non-western systems cause westerners to ridicule the other structures arguing that they are informal. The western system has therefore spread across the whole world covering leading to its adoption in the non-western legal structures (Spielyogel, 2015). The western system, on the other hand, has failed to adopt the other systems, and this makes them to conclude that that their legal structures are superior to non-western strategies. However, research is needed to confirm this conclusion from western governments because they have not yet tested the strategies used by other legal structures. Conclusion The law of comparing structures of providing justice helps in understanding systems from various parts of the world. Common and civil law that make up the western system of justice originated from the traditional Greek and Roman laws that safeguarded these empires. Common law relies in previous judgements to provide contemporary justice; while civil law relies on pre-determines procedures to deliver fairness. The chthonic legal systems, on the other hand, do not follow specific procedures and they do not rely on previous judgements to provide fairness. Common and civil law that make up the western legal structure conflict with other systems that do not follow procedures, legal obstructs, and they do not involve the government in formulating justice. The western system, therefore, has failed to adopt strategies used by other systems because of their differences. Recommendations There is a need to combine the strategies used by western and non-western systems when providing justice. The combination of these structures may help countries in reaping the benefits of the two systems. States should insist on implementing the well-built parts and then eliminate the weak ones from each system to maximize benefits and minimize limitations. For example, a country in Africa may formulate procedures of delivering justice to ensure there is uniformity and certainty. The state may also continue using African customary law that relies on nature to solve disputes that involve marriage and land. The combination of the western and non-western systems forms a mixed system that is more efficient than any individual structure. References Glendon, M. A., Wright-Carozza, P., & Picker, C., 2014. Comparative legal traditions: Text, materials, and cases on western law. St. Paul: West Academic Publishing. Glenn, H. P., 2014. Legal traditions of the world: Sustainable diversity in law. Oxford: Oxford University Press. Head, J. W., 2011. Great legal traditions: Civil law, common law, and Chinese law in historical and operational perspective. Durham: Carolina Academic Press. In Monateri, P. G., 2014. Methods of comparative law. Cheltenham: Edward Elgar. Kanada., 2007. Indigenous legal traditions. Vancouver: UBC-Press. Larouche, P., 2013. National legal systems and globalization: New role, continuing relevance. The Hague: T.M.C. Asser Press. Legrand, P., & Munday, R. J. C., 2003. Comparative legal studies: Traditions and transitions. Cambridge: Cambridge University Press. Menski, W., 2009. Comparative law in a global context: The legal systems of Asia and Africa. Cambridge: Cambridge University Press. Mitchell, S. M. L., & Powell, E. J., 2011. Domestic law goes global: Legal traditions and international courts. Cambridge: Cambridge University Press. Reichel, P. L., 2013. Comparative criminal justice systems: A topical approach. Boston: Pearson. Reimann, M., & Zimmermann, R., 2012. The Oxford handbook of comparative law. Oxford: Oxford University Press. Saidov, A. K., & Butler, W. E., 2003. Comparative law. London: Wildy, Simmonds & Hill. Siems, M. M., 2014. Comparative law. Cambridge: Cambridge university press Spielvogel, J. J., 2015. Western civilization: Volume I. Boston: Cengage learning. Whitman, J. Q., 2005. Harsh justice: Criminal punishment and the widening divide between America and Europe. Oxford: Oxford University Press. Read More