Comparative Legal Traditions and English Law Flourished in Noble Isolation - Essay Example

1. Why could the proverbial phrase that ‘English Law flourished in noble isolation’ be called at least imprecise? - (13 pts) English Law is the legal system that operates in England and Wales and is based on Common Law which emerged during the medieval era (12th century). It was a system of justice delivered from the king’s court and all disputes were settled through ‘common’ (or simple) agreements and were based on prevailing customs. In its early development common law was largely a product of three English courts—King's Bench, Exchequer, and the Court of Common Pleas—which competed successfully against other courts for jurisdiction and developed a distinctive body of doctrine (Questia Media America 2008). This system of law was subsequently introduced in all the colonies of the British Empire except in India where a written constitutional law is followed. Other countries who have shared a British legacy follow the Common Law system, namely, United States (except Louisiana), Canada (except Quebec) (Questia Media America 2008), Australia and many others. English (Common Law) was different from other legal systems in the sense that it pertained to its own geographical area and was the ‘traditional law of the region’. It was also referred to as ‘case law’ (The Lectric Law Library’s Lexicon on Common Law n.d.). Thus the usage of the proverbial phrase English law flourished in noble isolation. In more recent times, ‘being in isolation’ has been rendered ineffectual as the United Kingdom joined the European Economic Community in the 20th century and became part of numerous global organizations. They were thereafter bound by the jurisdiction of this larger global community as well and could not solely depend upon their indigenous English Common law. Common Law is law by example. The judges often refer to previous decisions and hold them sacrosanct (even though they may have been impartial or imprecise). This rule of following a precedent ruling is known as stare decisis [Lat.,=stand by the decided matter] (Questia Media America 2008). In the absence of any previous common law decision, the juror had the authority to deliver his opinion on the existing dispute and this opinion would in future serve as an example. Common Law are decisions made on a case to case basis as per customs and are specific to a particular case; whereas statutes are laws laid down as part of a written document and are applicable to all cases that fall within its purview. Statutes are written acts and are passed on a unanimous decision and cannot be changed unless the correct amendment procedures are followed by the members of Parliament. Since a statute is a written law, it is precise and follows a standard established procedure – hence it is not random and loose. Any competent authority can interpret a statute and act according to its guidelines. Common law by nature is arbitrary and is accorded for specific cases and is steeped in customs and traditions as also on the partiality of the juror. Hence, in most cases is can be arbitrary and imprecise. There are no written or documented principles in common law; neither is it whetted or endorsed by a Constitution. Common law was initiated in the era of fiefdoms – in an age when all decisions were in favor of the master or lord. Following a dispute between the nobility and the workers, the jurors belonging to the former were partial towards them. The verdict given was based primarily on hearsay and whatever information was provided by the nobility. Thus, the decision was completely imprecise and vague. This system of common law was suitable in an era when all quarrels pertained to the fiefdom or a local area. It was thus possible to solve disputes through independent decisions that got termed as Common Law. The judgment was flexible and adaptable to any changes in the prevailing system. As politico-economic systems developed, society became more complex and there arose a need to establish written laws (statutes) that would govern an entire country. There were different groups who needed to be able to pass judgment on similar lines and therefore had to be directed and governed by a written law, i.e., statutes. Most legislation had to be very well defined and structured so as to be interpretable by all authorities concerned. Common law, though outdated and imprecise, is still followed in many countries and is often used in conjunction with statutes. For example, in Australia there are individual agreements based solely on common law as well as those of a hybrid nature (statute and common law agreements) (Murray, cited in Australian Financial Review 2007). Hybrid cases are largely where the statute may lay out the outlining principles and guidelines, but the decisions are made after referring to precedents and thus utilizing Common Law as well. With the onset of intricate political and social systems across the world, there has emerged the necessity to adhere to a ‘written law” that will not allow any loopholes. But at the same time, the need to refer to precedents (and thus use Common Law) also arises. It is a balance that has to be well maintained whereby Common law is used where beneficial and statute law where necessary. Common law cannot work in isolation. For example, in the Unites States, cases pertaining to contracts and property are resolved through Common Law; unless otherwise stated through statutes (The Lectric Law Library’s Lexicon on Common Law n.d.). Globalization is the key today – it is a system whereby no man is an island unto himself and each individual (and consequently each nation) has to live in harmony with other entities and thus conform to common laws. The World Trade Organization has in it member nations who need to solve their disputes within a specified set of written laws and not by local customs or precedents. The local customs vary from region to region and stupendous advancements in global collaborations necessitate the absence of Common Law. This is the complicated age of international cooperation which necessitates the prevalence of systems that have clarity and precision without any ambiguity. Thus, the practice of unwritten Common Law cannot work in isolation due to its imprecise nature and must be upgraded to a system of written law. Reference Murray, Andrew, 2007, ‘Workplace Relations’, Australian Financial Review, July 2007. Retrieved March 31, 2008, from http://www.democrats.org.au/articles/index.htm?article_id=141 Questia Media America, 2008, Common-law. Retrieved March 31, 2008, from http://www.questia.com/library/law/areas-of-law/common-law.jsp Common Law, n.d., The Lectric Law Library’s Lexicon on Common Law. Retrieved March 31, 2008, from http://www.lectlaw.com/def/c070.htm 2. Sketch two historic examples that show how it most often was been the business community that advocated the approximation of laws in different territories. Do you think such a development is likely to occur in Asia? - Give reasons! - (13 pts) The business community has traditionally been the anchor of every society. They have controlled the flow of goods, products and services, and have thus been an influential group. Due to the power wielded by them, these groups have managed to steer Common Law, rulings, statutes and legislation in their favor. Business has been integral to the development of any state. From time immemorial, a regions economy was based on barter which then developed into a larger trade and commerce. Each region traded in items that were abundant there and sought products or services that were scarce. The group of people who conducted this trading soon formed clusters and thus emerged ‘business communities’. Individual traders (businessmen) often grouped together to form cartels in order to coerce the weaker business partners into granting greater concessions. As businesses grew, it necessitated the employment of other people from weaker sections of society and the concept of ‘hiring labor’ began. This division of society witnessed the growth of the business class at the expense of the laborers. Such inequalities paved the way for corruption and strong-handed treatment by the business community. These developments often led to civil wars and uprisings and the formation of labor federations and unions. As politico-legal systems developed in most nations, one of the first ‘business issues’ to be tackled were rules and regulations pertaining to labor. In the United States, the labor movements witnessed a demand for higher wages, better work conditions, health benefits and lessening of the inequality meted out to the labors. These labor movements grew to be more organized and over time necessitated the formation of legislation protecting the workers. Samuel Gompers, President of the American Federation of Labor (1886-1924) stated, “There is not a right too long denied to which we do not aspire…there is not a wrong too long endured that we are not determined to abolish” (Gompers n.d). The labor law also sought to reduce (or remove) the inequality in discussions and negotiating power between the workers and their employers. Labor laws have been broadly classified into collective and individual. Collective labor laws pertain to rules that address different groups under the same legislation, i.e. the workers, the employers and the trade unions. Due to their weak bargaining power, workers often join a labor union so as to benefit from collective bargaining. Individual laws pertain to contracts between an individual employer and his employee. This law necessitates a written contract between the two parties that clearly states all terms and conditions for employment including salary, perks, and health benefits. The detailed labor laws defer from country to country depending on the indigenous business systems and structures. In this age of globalization, there has been an attempt by global organizations to standardize some labor laws across countries in order to establish a minimum base level of security to the working community. However, this is a daunting task at the moment as not only would it benefit the workers but may also prove advantageous to multinational corporations to pressurize the workers into lower wage levels etc. Another area of business that has led to the approximation of law has been in the realm of foreign trade. Initially trade was in the form of barter between individuals with a geographical region. Soon this barter trade assumed larger proportions with individuals visiting other regions and bartering their goods. Further enlargement of this business was in the form of cartels of traders who worked collectively and traded in goods in exchange for either goods or money (gold/ silver/ currency). Thus grew trade practices and oceans were crossed in order to trade in different commodities. This expansion of overseas trade involved various nations, each with its local rules and regulations. In the absence of any common legislation, there were often disagreements that even led to wars- for e.g., The Opium Wars (1839-1842) between Great Britain and China over the import of opium by the latter. Foreign trade had resulted in the opening up of ports by the weaker nations (China and Korea) and extending huge trading privileges to the stronger nations (Great Britain and Unites States) via the Unequal Treaties In the 20th century it became imperative that there was a need for ‘foreign trade regulations’ in order to establish a balance in trade practices between countries. Most countries have their own foreign trade laws that largely adhere to accepted international trade practices. There may be different foreign trade laws relating to trading in general commodities and a separate law for military arms and ammunitions. Foreign trade laws have undergone amendments from time to time depending on exigencies and changing political scenarios. The business community has played a vital role in the approximation of laws in Asia as well. In India, there has been widespread use of child labor in the ‘cottage industries’ (small business units). Usually children are employed in isolated areas like small shops or as domestic helpers where it is difficult to identify them as ‘workers’. In 2006, the Indian government laid down its child labor laws prohibiting the employment of children less than 14 years (Human Rights News 2006). It, however, ignored the children between 14 and 18 years who also face exploitative employment. In future, amendments to the law may include this age group as well. This system of child labor is prevalent across other South East Asian countries where education is not imparted to all children and they are utilized to augment the family income by doing small jobs (delivery boys, embroidery and craft workshops, etc). Such employment is seen as unfair in nature and many countries have now adopted child labor laws. In China, there is a legislation pending regarding a revision in labor laws (White Chris, 2007). This revision pertains to an increase in workers rights but large global corporations have been resisting this amendment. They have even managed to garner a lobby from the local business community and have stalled the passage of this amendment. But it is a matter of time when such benefits will be included towards the betterment of the workers as many international labor organizations are lobbying for this. In most Asian and Third World Countries, business and politics are mixed together. Politicians who play a role in passing laws and legislation are often leaders among the business community as well. Hence, creation of law happens on indications given by them and towards an end from which they will benefit. Till such time as a marriage between politics and business continues, the business community will advocate the approximation of laws in their territories. Reference: White Chris, 2007, ‘China’s new labor law: The challenge of regulating employment contracts’. Retrieved March 25, 2008, from http://evatt.org.au/publications/papers/193.html Human Rights News 2006, ‘India: Child labor law welcomed, but needs enforcing’. Retrieved March 25, 2008, from http://www.hrw.org/english/docs/2006/10/04/india14264.htm Gompers, Samuel, n.d, ‘The Samuel Gompers Papers’. Retrieved March 25, 2008, from http://www.history.umd.edu/Gompers/index.htm 3. Explain the concept and historic context of unequal treaties. Give reasons for their conclusion and sketch out the problems that they involved. - (13 pts) The Vienna Convention of 1969 defines “Treaty” as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’ (United Nations Treaty Guide 2000-2008). It is a mutually agreed upon pledge by all signatories and a breach of the same is punishable by international laws. In some countries, like the United States, treaties are upheld as statutes and have overriding powers and are deemed equal to legislation. There are different types of treaties – bilateral and multilateral – involving two nations in the case of bilateral and several nations in a multilateral treaty. In generic terms, a treaty must be documented (written), should be a binding instrument on all parties, and is governed by international law. Each treaty must be ratified by the signatories and only then is it regarded as rule. Most often, treaties are agreed and signed on an equal basis but in some cases the treaties are unequal, i.e. not of the same value. This happens in cases where one nation is stronger than the other in terms of geographical placement, military, polity or economy. The concept of unequal treaties began with the Asian countries that were weaker than their Western counterparts in military and economic terms. By virtue of superiority, the more powerful nations made the weaker states compromise on various issues and sign treaties that were largely in favor of the stronger nation. The East Asian nations like China, Japan & Korea have been victims of such uneven agreements. The first of these treaties was the Treaty of Nanjing in 1842 between China and Great Britain. This agreement marked the end of the First Opium War (that ensued after China banned the import of opium from British India) and was lopsided in favor of Great Britain. This particular treaty was superseded by several such agreements and all of them together came to be known as “Unequal Treaties” (The Opium War and the Opening of China, .n.d). The Treaty of Nanjing opened up several ports to British trade. The focus of this treaty was the widening scope of foreign trade whereby Britons were allowed to trade with whoever they wished and fixed tariffs were laid down. Further, Great Britain could depute their own consuls at these ports and had complete authority to deal with the local officials. All disputes regarding foreign residents were resolved by these consuls and not by the Chinese legal system. Apart from the trade concessions, the Chinese Qing government had to pay Great Britain millions of dollars as compensation for the lost opium and the cost of war along with penalties for non payment of delays in payment. The Qing government agreed to release all British prisoners as well as grant amnesty to all local residents (Chinese) that had helped the British. One of the greatest grants was the cessation of the island of Hong Kong to the Queen of England (The Opium War and the Opening of China, .n.d). This was given ‘in perpetuity’ and Hong Kong would serve as a base for British trade. The treaty of Nanjing was in favor of the British and the only concession that they made was withdrawal of troops from some areas. Complete withdrawal of troops happened only once the entire money was paid by the Qing government. The Treaty of Nanjing paved the way for numerous pacts on similar lines – each of which was detrimental to China as it handed over special and overriding privileges to Great Britain. All these treaties were collectively referred to as the “Unequal Treaties”. The protocol and rules as established by these treaties were binding on all parties and it was imperative that the covenant be adhered to. The effect of all these treaties was the further weakening of China from a military and trade perspective as well as an economic retardation. The opening of ports and the flourishing trade created a monetary crisis as well with the depletion of the Spanish silver dollar. The indigenous copper currency also faced exhaustion with a reduction in copper supply. The Chinese textile industry and hitherto flourished but now faced severe competition from the cheaper imported textiles. The demand for Chinese silk and tea saw the migration of farmers into this area and the cultivation of basic foodstuff reduced, thus increasing food prices. Also, all the local Chinese people connected with trade activities seized to have a livelihood and found themselves unemployed as the trade was controlled and managed by the foreigners (The Opium War and the Opening of China, .n.d). Though the results of the Opium War were disastrous for China, the country had to re-emerge from their position of weakness. They had to redevelop their politico – economic systems over the next few decades. Some of the positives that occurred were the appointment of a foreign ministry, the establishment of government controlled commercial enterprises and a better organization of their systems. Japan also signed similar unequal treaties with the Western powers - the Convention of Kanagawa (1854) between the United States and Japan that opened up Japanese ports to American trade. Alongside, Japan also had to grant rights of extraterritoriality and ‘most favored nation’ status (Kimura Ehito 1998). The Unequal Treaties were completely one-sided in nature and demonstrated the character of European Imperialism. They opened up new markets, ports and trade for Great Britain and the United States at the expense of the weaker East Asian nations. China got entrenched in wars and disputes which was detrimental to its growth and exchequer. It was a situation wherein the strong pounced upon the weak and extracted every pound of flesh. In return, these stronger nations gave few concessions and much humiliation. The nations who were at the receiving end were annihilated. Not only was there a political downfall, but loss of mankind and money. China had a successful economy with many products to offer, but these treaties destroyed business by giving preference to British and American traders. These Asian countries had no option but to succumb to the demands of the stronger nations and give greater concessions than what they received in return. Reference: Kimura Ehito, 1998, ‘The new unequal treaties’, Analysis / US-Asian Relations, Retrieved 25, 2008, from http://www.geocities.com/RainForest/7813/0206_imf.htm The Opium War and the Opening of China, .n.d. Retrieved March 25, 2008, from http://historyliterature.homestead.com/files/extended.html#The%20Opium%20War%20and%20Its%20Background United Nations Treaty Guide 2000-2008, ‘Treaty Reference Guide’. Retrieved March 25, 2008, from http://untreaty.un.org/English/guide.asp Read More