Comparative Law in a Global Development Context - Global Legal Realism as a Commonsense - Essay Example

By: Number Global Legal Realism As commonsense Introduction Globalization and the changes in different countries to ensure that the different laws formulated meet the policies and laws of other countries have been among of the issues witnessed in the present society. There are changes in the technology, systems, health care, education and all the departments whereby countries are looking to come together and charter a path where different countries can formulate policies that help each other. This has been on the rise in the 21st century with different countries and states looking to develop different aspects of the Union between different countries with the European Union being a perfect example. Comparative law has however also been more acknowledged and used across different nations in the world. This is due to the formation of different agreements between countries that have come together to pursue a similar objective and are looking to change their laws and include some of the legal systems and platforms that are similar to other countries. This therefore raises the question of global legal realism and how feasible it is to the different nations and also to the future of law and its different aspects. Discussion Legal realism is defined as a concept that aims to straighten out the different errors that were made in the past and establish the truth about different legal objects and aspects in law. It is therefore a significant part of the different aspects of the law and how well the law can be adjudicated and transformed in a given country or a specific nation. It has therefore been seen as a construct that is used to correct past mistakes in law and in most cases it is said to control the use of law from the past through changing the main aspects of the field (Palmer, 2005). It has been adjudged to be only a philosophical movement that mainly offered critical analysis that was destructive and negative in nature to the different theories in law. The philosophers examined the different law theories in through critically analyzing the different aspects of the law that are applied in coming up with the different structures of the law. The lawyers on the other hand practice law and to some degree they can also be referred to as realists since they examine and practice the law through interpreting it regularly. These are two main realists and the groups that have been vital in the advancement of the law and also in ensuring that it has come up with the best models and principle that are applied and well analyzed to raise the best interpretation (Palmer, 2005). However, this has not always been the case since in the 19th century the law was seen as a distinct and more rigid function that could not be changed or be interpreted in a another manner. The lawyers and the philosophers then believed that the law was a predetermined aspect that already been satisfactorily assessed and interfering with the different aspects of the law would be denying others justice. There was a mutual sense that the different people that interpreted the different aspects of the law were functionally important and could deter the interpretation of the law by other people and as a result it was important to let the law take the interpretation that had already been established to ensure uniformity and credibility of the different aspects of the law and its interpretation (Palmer, 2005).. How then could the law develop and incorporate other cases that are changing with the changes in the environment and technology? How could the different lawyers and philosophers draft new laws to govern new parameters that are shifting with each invention and constant interpretation reconstruction and the different legal structures that are required? It has therefore come as no surprise to many lawmakers, law students and people that practice the law that legal realism is one of the most popular phenomena that has been in use in the current century. It is a common practice that is being used to transform the present culture and also to come up with better methods that are used to change the different aspects of the law (Gilmore, 1961). In the current world where there is a need a need for change that has been constituted by the development of globalization and the need for contemporary law to incorporate the different systems and legal structures that are common in different countries. The realists believe that the law is not static but dynamic and it is prone to changes with the different changes in the environment and also the different interpretations that are available to a given set of rules that can be applied. It is therefore important to constitute the different structures of the law and the different interpretations by the lawyers and interpretations by the philosophers in order to come up with the best methods and formulation of the different laws (Peters & Shwenke, 2000). There are different institutions and people that believe that the realists are important in transforming the different forms of the law and in ensuring that the law is also transformed as the other sectors and tools that are available to the people are transformed. Examination of comparative law and how it can be used by the country and also in coordinating with a different country can also be conducted on the basis of legal realism. It is an important part of coming up with the best structures and legal organs that can adopt and practice the different aspects of the law. The realists are at a good position to measure the different forms of the law and how they are applied globally or between countries and come up with a framework that is important in ensuring that it is practiced in the best light to enjoy the attributes of the law in its conceptualization (Peters & Shwenke, 2000). The analysis and interpretation of a law is important and considering that these laws are used by more than a single country inn a case where one country’s interpretation of the law may have a bearing in a similar case in another country it is therefore critical to ensure that the highest degree of care and informed practice is observed. The realists therefore have a duty to ensure that proper interpretation and assessment of the law is observed and constructively construed to come up with the best structures. Legal realists are therefore not seen as critics that have a negative effect and attitude towards the practice of law but as people that are essential in ensuring that the practice is conclusively and objectively observed (Peters & Shwenke, 2000). For example in the case of the Commonwealth countries they can borrow from other countries within the same and make decisions based on the different aspects as highlighted on the case. It is therefore important to ensure that the realists have come up with the best models and interpretation of the law its different judicial precedents that can be upheld by other practicing lawyers and another court in a different country. However, in most cases the courts that borrow the interpretation of other courts are from the developing countries. However between the Western countries comparative law is accepted and highly practiced by countries that deem the law and the interpretations by others as credible and can be borrowed from. Why is the comparative more mentioned in the Western States when coming up with the different laws and comparative adoption of the laws? Comparative law is defined as the study of the similarities and differences between the laws of different countries and their legal systems. It essentially means that contemporary law incorporates measuring the different aspects of a different law and how it applies or fails to apply to the laws of another country. Comparative law has been cited as a beneficial aspect that benefits different countries since the countries derive a form of advantage from the use and implementation of the different aspects of the law. It is therefore an important aspect of the law and ensures that different people can raise a high level of use and interpreted results from the method. It is also one of the ways to ensure that different countries can come up with ways to ensure that they incorporate different aspects of another country in law making and decision making in their laws (Nelken, 2010). The law is also said to be valid and common between different countries that share similar principles and goals and objectives and none more so than the European Union where the countries share different aspects and are controlled by a single front. The comparative law in this case is an important part of the law and looks to adjudicate through practicing the laws in the member countries. These are laws such as commercial law, policies, trade policies and other laws that can be practiced under an act that has been signed by all the member states. This does not however mean that a country needs to lose its meaning and proper interpretation of their own laws but rather it means that the parts that are common and are confined within a single framework are properly construed and adjusted towards the specific regulations (Nelken, 2010). Comparative law is mainly implemented in the Western states and countries in the world as they are more coordinated and can essentially ensure that the different policies and regulations that are set in the law are followed. The Western countries have bedrock that they draw their strength in law from as they ensure that they can reach out to the different laws and jurisdictions that govern the country are essentially followed (Nelken, 2010). The structures and legal systems are also similar in most cases and therefore adopting the laws of another country is similarly easier for the Western Countries. The Western countries also believe in the law institutions and therefore follow the different rules and charters that they sign in a given system (Palmer, 2005). This ensures that the different concepts that are formulated within the law are clearly identified and structured. Different law schools ensure that the different students study more than the local laws since they believe that the laws in the state are properly followed but they also teach laws from other countries to ensure that the students are well-versed with the different laws that are available for the practice. Comparative law is however facing criticisms from the post-modernism that views the laws as a project that draws the required results and raises confusion in the adoption of different laws and mandate in the different countries that practice the law. This is mainly because of the different cultures and also the different legal systems that are available in different countries (Palmer, 2005). Comparative law has therefore raised a lot of criticisms and challenges since the different structures and legal systems are not conformed towards a singular system. This means that the different systems cannot sustain similar laws since their structures and implementation procedures are not similar and therefore they cannot be formulated into one construct and adopted in the different countries (Kozyris, 1995). However, comparative law is more popular in the Western countries regardless of the challenges that are faced by the implementation of the laws (Momirov & Fourie, 2009). Comparative law is becoming more popular among the different countries mainly due to globalization as countries are looking to ensure that the different restrictions that have been set are significantly shifted and removed to enhance the coordination between different countries (Legrand, 1996). Countries that are becoming hubs for investments from different companies are looking to be more open to different laws from a set of different countries that is making it possible to reach out to more businesses and goals globally (Nelken, 2010). There are different cultures and systems in different countries that either act as a hindrance or in other cases ensure that they boost the coordination and adoption of the different laws. The legal culture is an important part of the measuring the different methods and attributes that need to be assessed before the laws can be adopted in different systems and structures in another country. The legal culture in this case refers to the legal systems and also practices that are conducted in different countries (Acar, 2006). The legal structures may involve the court process, the different sanctions and other different aspects of law that are applied in a specific country. The legal systems are said to be the main impediment in the adoption of the different laws that are in the different systems adopted in the two countries. It is therefore a major part of the overall process but acts as major construct that restricts the adoption of the different processes important in the laws. The paper has assessed the different assertions and critics that are leveled against legal realism in the society and the different functions that they have in ensuring that the laws implemented are within the construct important to the country (Momirov & Fourie, 2009). The assertion that the realists are critics that conduct a critical analysis of the laws is an assertion that is borne out of looking at matters from an angle that is not properly vested within the law since they are responsible with ensuring that hey examine the different laws and come up with the best interpretation and consequences for the adoption of the laws. A similar argument is also raised in arguing that the realists are made up of philosophers that are looking to analyze the laws and how they have been adopted from the school and not in the practice. This is the main reason for the aforementioned assertion since they are seen as people that do not look to improve the laws but are in analyzing the laws thereby being referred to as critics. However the lawyers and the philosophers make up the realist function and therefore although the philosophers do not practice they are accompanied by the lawyers who practice the law. It would be important to ensure that the adoption of the laws is analyzed by the realists since they form the best counsel due to the methods and techniques that they use. A recommendation where the realists are the main advisors of the realists is therefore sound and should essentially form part of the overall team that is tasked with measuring the adoption of laws by the state (Momirov & Fourie, 2009). Comparative law has been highlighted to be difficult to implement and ensure that it has been adopted by the different countries across the divide. This makes it a huge task to take up the cause and look to change the different laws of the land in order to incorporate other laws (Legrand, 1996). This can be changed however when looking at the business policies and the different frameworks that are important in ensuring that the country is a natural hub for different people from other parts of the world. Comparative law nay e deemed to be a failed venture due to the problems that it faces due to the different cultures that the different countries have. It is however important to note that different countries look to conduct business and interact with other countries and therefore comparative law becomes an essential part of the said framework (Kozyris, 1995). Comparative law may not be feasible if assessed from the point that it is deemed to change the legal structures and legal basis of the other country. There are different countries that all have their own constitution and legal framework and therefore incorporating the different laws into the functional part and concept of another country can be challenging for the two countries. The main recommendation in this case is that a country should keep an open relationship and look to pounce at any comparative laws that may enhance the coordination between different countries. This would help in taking advantage of globalization and also in raising the number of transactions that are open to them in having different methods that can be explored (Kozyris, 1995). The legal culture and basis is also important in comparative law since it is the main factor that relates to the different laws and structures that are implemented within a given country. These structures are the basis for coming up with the different laws and implementation structures that need to be added to ensure that the different laws conform to the laws of another country (Acar, 2006). Legal culture is therefore pertinent in the different decisions made by different people in the country and should be critically analyzed. The Western countries have different properties and structures that make it easier for them to adopt different laws from different countries. This makes it easier for countries within the European Union to adopt different laws that are within the structures that are within the construct of other countries. It is recommended therefore that countries should ensure that they measure their legal culture against other countries and ensure they are within similar spheres in order to come up with the best structures. Conclusion In conclusion, comparative law has become an important part of the present society as more countries are looking to change and streamline their laws and legal culture to meet those of other countries. However, this is more prevalent among the Western countries and the Western culture more than in the other countries where the systems in many cases are not closely congruent. The legal realists have an important role to play in interpreting the laws and giving the facts and situations on how the laws will change the legal structure on the conforming country. Although having laws that meet the demand of the people is important for the society in the specific country, this does not mean that these countries should take up the laws of other countries blindly but carefully and strategically to ensure that they meet the goals and objectives that the countries aim to see. Bibliography Acar, A, 2006. THE CONCEPT OF LEGAL CULTURE: With Particular Attention to the Turkish Case. AnKARA Law Review, 3(2), 143-153. Gilmore, G, 1961. LEGAL REALISM: ITS CAUSE AND CURE. The Yale Law Journal, 70(7). Kozyris, J, 1995. COMPARATIVE LAW FOR THE TWENTY-FIRST CENTURY: NEW HORIZONS AND NEW TECHNOLOGIES. Legrand, P, 1996. How to compare now. Legal Studies. Momirov, A., & Fourie, A, 2009. VERTICAL COMPARATIVE LAW METHODS: TOOLS FOR CONCEPTUALISING THE INTERNATIONAL RULE OF LAW.Erasmus Law Review, 2(3). Nelken, D, 2010. Using Legal Culture: Purposes and Problems. Journal Of Comparative Law. Palmer, V, 2004. From Lerotholi to Lando: Some Examples of Comparative Law Methodology. Global Jurist Frontiers, 4(2). Peters, A., & Shwenke, H, 2000. COMPARATIVE LAW BEYOND POST-MODERNISM. Read More