Abstract
Law can be studied at two interconnected levels. One level of study is that in which lawyers and other legal practitioners are mainly involved: the content of substantive law and the processes through which legal rules are created and enforced. At the other level, the study of law considers the nature of legal norms, the relationship between law and society, and fundamental concepts, such as ‘right’, ‘duty’, ‘justice’ and the ‘common good’. Straddling these two levels of study invites consideration of both the content and process of law in society. It is concerned with the effects of legal rules and institutions as well as their ability to fulfil the purposes and goals that may have been recognized at the more fundamental, jurisprudential level.
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Notes
- 1.
In the English-speaking world, the systematic analysis of legal concepts was begun by the 18th century philosopher Jeremy Bentham (author of The Principles of Morals andLegislation (1789) and The Limits of Jurisprudence Defined (1782)) and was developed further by his student John Austin in his works The Province of Jurisprudence Determined (1832) and Lectures on the Philosophy of Law (1863). Modern forms of analytical jurisprudence have been developed by H.L.A. Hart, by the German jurist Hans Kelsen, author of the General Theory of Law and State, and by jurists influenced by the philosophy of language. Analytical jurisprudence is associated with legal positivism—the theory that claims that there is no necessary connection between law and morality.
- 2.
Normative jurisprudence is primarily concerned with questions of ‘ought’, not just with questions of ‘is’. In philosophy, questions of ought are sometimes called ‘teleological’ (from the Greek word telos, which means end), deontological (from the Greek word deon: ought to be done), ethical, or are grouped under theories of justice or theories about the purpose of law.
- 3.
Merryman (1985), p. 2.
- 4.
See on this Krygier (1986), pp. 240–251.
- 5.
See Krygier, ibid at 241.
- 6.
Consider on this Krygier (1988), p. 20.
- 7.
For a comparative analysis of law and religion see Berman (1974).
- 8.
See Carr (1964), pp. 29-30.
- 9.
Krygier (1991), p. 68.
- 10.
See Berman (1983), p. 5.
- 11.
In England the answer to the question of where authority should be located dates back to the constitutional strife of the seventeenth century between the King and the Parliament. The supremacy of Parliament, under the formal authority of the monarch, was recognized by the end of the seventeenth century, and that constitutional arrangement was inherited in a number of countries around the world, such as Australia, New Zealand and Canada.
- 12.
For example, the Islamic tradition recognizes the doctrine of ikhtilaf, or diversity of doctrine (‘the tree of many branches’). In the common law the terms Anglo-American law, Anglo-Canadian law, Anglo-Indian law and such are used to bridge national variations, and to remind lawyers and scholars working in the relevant systems that they participate in a larger enterprise. In the Civil law the same purpose is served by the notion of the Romano-Germanic legal tradition. Similarly, the Asian legal tradition is underpinned by the philosophical doctrine of the interconnection and interdependence of all things—a doctrine fundamental to Buddhism and implicit in most Confucian thinking. See Glenn (2001), p. 142.
- 13.
According to J. H. Merryman, one can use the term ‘legal culture’ when referring to a specific legal system, and ‘legal tradition’ when referring to a historically related group of legal systems (e.g. the civil law tradition). “Comparative Law Scholarship”, (1998) 21 Hastings International and Comparative Law Review 771, 776. As previously noted, the term ‘legal tradition’ can also refer to a particular system of law (e.g. the Italian legal tradition).
- 14.
UNESCO Universal Declaration on Cultural Diversity 2002.
- 15.
Primitive Culture I (London 1871), 5–6.
- 16.
Geertz (1973), p. 5.
- 17.
As Geertz points out “The concept of culture I espouse … is essentially a semiotic one. Believing, with Max Weber, that man is an animal suspended in webs of significance he himself has spun, I take culture to be those webs, and the analysis of it to be therefore not an experimental science in search of law but an interpretive one in search of meaning.” Ibid. And see Geertz (1983).
- 18.
Steger (2003), p. 69.
- 19.
Malinowski (1945), p. 44.
- 20.
See Malinowski, ibid at 44–45.
- 21.
See Jaeger and Selznick (1964), p. 653.
- 22.
Bierbrauer (1994), p. 243.
- 23.
See van Hoecke and Warrington (1998), p. 498.
- 24.
- 25.
As J. H. Merryman observes, “Law is, among other things, a cultural expression; ideas about law are a deeply rooted, historically conditioned component of the culture. Such ideas powerfully limit and direct thinking about what law is and about the proper composition and operation of the legal system. Legal culture can be thought of as the inner logic of the legal system.” “Comparative Law Scholarship”, (1998) 21 Hastings International and Comparative Law Review 771, 776. See also Visegrády (2001), pp. 204–205; Ehrmann (1976), p. 6 ff.
- 26.
See Gibson and Caldeira (1996), p. 55 ff.
- 27.
Blankenburg and Bruinsma (1991), pp. 8–9.
- 28.
Bell (1995a), p. 70.
- 29.
- 30.
“The Concept of Legal Culture: A Reply”, in Nelken (ed.), Comparing Legal Cultures (Brookfield, Vt., 1997), 34.
- 31.
See Friedman (1977), p. 76.
- 32.
Friedman (1975), pp. 193–222.
- 33.
Atiyah and Summers (1987), p. 411.
- 34.
- 35.
Friedman (1975), pp. 196–197.
- 36.
Consider on this issue Chiba (1991), Beiheft 12, pp. 283–306.
- 37.
See on this matter Manai (1993), p. 3. According to this author, acculturation is a dynamic and global process, which has two complementary aspects: the heterogeneousness of the cultures that come into contact with one another, and the prevalence of one of them over the others. Consider also Alliot (1968), p. 1181.
- 38.
Consider, e.g., Cotterrell (1997), pp. 13–32. Cotterrell asserts that the notion of legal culture is useless in comparative legal sociology and therefore could be substituted by the notion of ‘legal ideology’.
- 39.
Friedman (1997), p. 35.
- 40.
See Dannemann (2019), p. 393.
- 41.
See Winterton (1975), p. 69.
- 42.
A classification drawing on a single criterion, such as political and economic ideology, may be meaningful but is not particularly useful as it places within the same group legal systems that are markedly different in many respects. Thus, a classification relying on political and economic ideology as the decisive criterion would place in the same broader family both the Continental European civil law and the common law systems, despite the structural and other differences between the two.
- 43.
Constantinesco (1971), pp. 262–265. Constantinesco suggests, moreover, that several legal families can together form a broader family (Rechtskreis). The latter constitutes an expression of one of the cultural civilizations (Kulturkreis) in which human societies may be divided. Consider “Die Kulturkreise als Grundlage der Rechtskreise”, (1981) Zeitschrift für Rechtsvergleichung, 161–178; “Über den Stil der ‘Stiltheorie’ in der Rechtsvergleichung”, (1979) 78 Zeitschrift für vergleichende Rechtswissenschaft, 154–172.
- 44.
In 1531 Saint German spoke of the difference between Roman and English laws noting that what was perceived as natural law (ius naturale) in the former, recurred as reason in the latter. See Christopher Saint German, Dialogus de fundamentis legum Anglie et de conscientia (The Dialogue in English between a Doctor of Divinity and a Student in the laws of England) (London1528). In 1602 William Fulbeck described a legal world built upon three types of law: Anglo-Saxon, European Continental and Canon. See Fulbeck (1601–1602).
- 45.
- 46.
According to Constantinesco, Glasson was probably the first scholar to seek the relationship between the European legal systems in their common historical origins and development instead of their racial relationships. Rechtsvergleichung III Die rechtsvergleichende Wissenschaft (Köln 1983), 96–97.
- 47.
Y. Noda, “Le développement du droit comparé depuis 1868 et la situation actuelle des études comparatives du droit au Japon”, in Livre du Centenaire de la Société de législation compare. Un siècle droit comparé en France (1869–1969), (1969), vol 2, 423.
- 48.
- 49.
- 50.
Georges Sauser-Hall, Fonction et méthode du droit comparé, Leçon inaugurale faite à l’Université de Neuchâtel le 23 octobre 1912, (Genève 1913), 113 ff. See also Pargendler (2012), p. 1052.
- 51.
- 52.
- 53.
Wigmore (1928).
- 54.
Martinez-Paz (1934), pp. 149–160.
- 55.
Arminjon et al. (1950), p. 42.
- 56.
Ibid., at 47 ff.
- 57.
Ibid., at 42–53. The authors point out, however, that their proposed classification pertains primarily to private law.
- 58.
See in general Malmström (1969), pp. 145–146.
- 59.
- 60.
David (1950), pp. 8 and 214–226.
- 61.
A similar approach to the classification of legal systems was adopted by Sola Cañizares, who identified the following legal families: (i) Western (Christian but not authoritative); (ii) Soviet (atheist and collectivist); (iii) religious (derived from religious principles and including canonical, Hindu and Muslim laws); and (iv) Chinese (grounded on a quasi-religious philosophy in which the law is ethically coloured). See de Sola Cañizares (1954), p. 330.
- 62.
David (1950), p. 223. However, the author expresses his dissatisfaction with what he describes as “the traditional opposition, affirmed by all authors, between the Roman law system and the common law system.” Id. 225.
- 63.
Northrop (1959), p. 184.
- 64.
Ibid., at pp. 184–185. As the author remarks on p. 186, “behind this intuitive, mediational type of law in Asia there is a Confucian, Buddhist and pre-Aryan Hindu epistemology which affirms that full, direct and exact empirical knowledge of any individual, relation or event in nature reveals it to be unique”.
- 65.
Ibid., at p. 186.
- 66.
Ibid., at pp. 188–189. And see Varga (2012), pp. 57–58.
- 67.
Schnitzer (1961), p. 133 ff.
- 68.
- 69.
As the author points out, “the difference between continental (or Romanist) law and common law is certainly rather formal, i.e., drawn by a criterion that distinguishes and approaches forms (structures, techniques and concepts), rather than substance.” Gorla (1963), p. 9.
- 70.
- 71.
David (1964), p. 16.
- 72.
As he notes in his earlier treatise, “the opposition between continental and common law cannot be scientifically placed at the same level as that between French and Chinese law; it permits no more than to establish a division, albeit fundamental, within a legal system whose unity is recognized and affirmed: the Western legal system. It is only by an error of perspective that Anglo-American law, and with even greater reason German law, was until now considered as constituting separate categories enjoying perfect autonomy in relation to French law.” Traité élémentaire de droit civil comparé (Paris 1950), 225.
- 73.
- 74.
Knapp (1991), p. 58.
- 75.
Bogdan (1994), 245 pp.
- 76.
van Hoecke and Warrington (1998), p. 495.
- 77.
See Varga (2012), pp. 66–67.
- 78.
- 79.
See Mattei (1997), p. 5.
- 80.
Ibid., at p. 40.
- 81.
Ibid., at p. 16.
- 82.
Varga (2012), pp. 67–68.
- 83.
As Malmström notes, “it is impossible to establish a uniform system of classification which is ideal from every point of view and implies a clear distinction between families or groups.” “The System of Legal Systems: Notes on a Problem of Classification in Comparative Law”, (1969) 13 Scandinavian Studies in Law, 127 at 138.
- 84.
- 85.
- 86.
- 87.
Zweigert and Kötz, ibid., at 119–121. And see Osakwe (1986), p. 29.
- 88.
Zweigert and Kötz, ibid., at 240–244. Consider also Zimmermann and Visser (1996), p. 1.
- 89.
Consider Reyntjens (1991), pp. 41–50.
- 90.
The term ‘Far Eastern’ is said to be problematic since it implies a Eurocentric perspective. A purely geographic notion, such as ‘East Asian’ would be more neutral and therefore preferable.
- 91.
Confucianism is a complex system of moral, social, political, philosophical, and quasi-religious thought that has had tremendous influence on the culture and history of East Asia. The basic teachings of Confucianism stress the importance of education for moral development of the individual so that the state can be governed by moral virtue rather than by coercive laws. Relationships are central to Confucianism, as particular duties arise from one’s situation in relation to others. Social harmony, the ultimate goal of Confucianism, results from every individual knowing his or her place in the social order and playing his or her part well.
- 92.
The characteristics of the Western legal tradition reflect its historical origins. More specifically, the Western idea of law developed from a synthesis of Greek, Roman and Judaeo-Christian thought. Roman law furnished the basis for the civil law systems of Continental Europe and other parts of the world, and for much of the canon law of the church. However, Roman law was inextricably intertwined with Greek and Christian influences, for it was studied within the context of a worldview that was derived from ancient Greek, especially Aristotelian, philosophy as reinterpreted by Christian theology. The Christian theology of revelation was married with the Roman and Greek ideas to form the intellectual foundations of Western law. On the characteristics of Western law see Berman (1983), Sawer (1975), p. 45 ff.
- 93.
The notion of right, as developed in this period, was barely perceived in Roman law and formed an element of little significance in that system. Furthermore, for the medieval mind, natural law (with which the idea of rights was in later times linked) was concerned mainly with good conduct, i.e. with duties and obligations, not rights. It is unsurprising that systems that recognized slavery and serfdom could have no place for what in later times came to be regarded as fundamental human rights. The Enlightenment brought with it a new understanding of human nature based on the notions of human autonomy, rationality and freedom. This period is marked by the emergence of new political philosophies and saw the collapse of feudalism and the rise of the nation states in Europe. It was with the rise of the modern concept of the nation state that discussion began as to the nature of the relationship between the citizen and the state, and concerning the question as to what rights an individual had, or should have, against the state, especially against a state that acted tyrannically towards its citizens (absolutism prompted men to claim rights precisely because it denied them). Two major sets of ideas furnished the intellectual foundations of this period of social and political change: social contract theories and utilitarianism. The essence of the social contract theories is the idea that legitimate government is the result of the voluntary agreement among free and rational individuals. An important point about the social contract theories is that they express the idea that the state rests for its legitimacy upon the consent of its subjects. Laws can legitimately be used to ensure compliance if they have been properly approved by citizens who are party to the social contract. This idea lies at the heart of contemporary Western political thought. Utilitarianism is primarily a normative, ethical theory that lays down an objective standard for the evaluation and guidance of human conduct. That standard is derived from the assumption that the overriding aim of morality and justice is the maximization of human welfare or happiness. From this point of view, the rightness or wrongness of decisions, actions, institutions and policies is assessed by reference to their tendency to promote the welfare and safeguard the rights of those individuals affected by them.
- 94.
“Grundlagen der Rechtskultur”, in Jörgensen et al. (eds), Tradition and Progress in Modern Legal Cultures (Stuttgart 1985), 176 at 182. According to Wieacker, Western legal culture is characterized by three elements: personalism, legalism and intellectualism (idem, at 185).
- 95.
See van Hoecke and Warrington (1998), pp. 503–505.
- 96.
According to Max Weber, modern law is rational, whereas primitive and traditional laws were irrational or less rational. A rational legal system is universalistic; an irrational is particularistic. Furthermore, a rational system places special emphasis on contract, not on status. Weber holds that Western law is unique in that it is also reliant on the logical analysis of meaning of abstract legal concepts and rules. He observes that the modern law of the West has become increasingly institutionalized through the bureaucratization of the state. He draws attention to the fact that the recognition of law as a rational science is based on certain fundamental postulates, such as that the law is a ‘gapless’ system of norms and principles and that every judicial decision involves the application of an abstract legal proposition to a particular factual situation. Consider: Weber (1954). And see: van den Berg and Meadwell (2004).
- 97.
It should be noted here that the view that law is autonomous is not universally accepted in Western thought. It is rejected by radical scholars who see the apparent autonomy and objectivity of law as concealing the real significance of law in enforcing and perpetuating oppression. For instance, the idea of autonomy is called into question by Marxist theorists who see law as reflecting the underlying economic relations in society, in which power resides in the ownership of the means of production. According to Karl Marx, every society, whatever its stage of development, rests on an economic foundation. He terms this ‘mode of production’ of commodities, which embodies two elements: (i) the physical or technological arrangement of economic activity, and (ii) the social relations of production or, in other words, the attachments that people form with one another when engaged in economic activity. For Marx, the principal determinant variable is the mode of production. This economic determinism is reflected in Marxist theory of law, which rests on three interconnected assumptions: (i) law is a product of economic forces; (ii) law is a tool used by a ruling class to secure and perpetuate its power over the lower classes; and (iii) in the communist society of the future, law as an instrument of social control with wither away and eventually disappear. The notion that law is a reflection of economic forces is connected with the doctrine of dialectical materialism, according to which the political, social and cultural order is determined by the prevailing system of production and forms a ‘superstructure’ on top of this economic basis. For Marx, law is part of this superstructure; it is nothing more than a function of the economy but without any independent existence. As Marx declares “Your jurisprudence is but the will of your class made into a law for all, a will whose essential character and direction are determined by the economic conditions of existence of your class.” Marx and Engels (1955, originally published in 1848), p. 47. For a closer look at Marxist legal theory see Collins (1996).
- 98.
- 99.
Roberto Unger draws a distinction between three types of law: (a) customary or interactional; (b) bureaucratic or regulatory; and (c) autonomous. Customary law is “simply any recurring mode of interaction among individuals and groups, together with the more or less explicit acknowledgment by these groups and individuals that such patterns of interaction produce reciprocal expectations of conduct that ought to be satisfied.” Bureaucratic or regulatory law “consists of explicit rules established and enforced by an identifiable government.” Such law is “limited to situations in which the division between state and society has been established and some standards of conduct have assumed the form of explicit prescriptions, prohibitions, or permissions, addressed to more or less general categories of persons and acts.” Unger calls the third type of law ‘the legal order’ or ‘legal system’, which he considers to be both autonomous and general, as well as public and positive. The three different forms of law represent different stages of legal evolution: regulatory law is preceded by customary law, and the autonomous legal order is preceded by regulatory law. The development of an autonomous legal order brings about an extension of the instrumental rules to everybody. He observed, however, that this situation requires a further legitimization of the norms and principles of law, and consensus must be generated by social contract and by agreement upon the requirements of substantive justice. See Unger (1976), p. 49 ff.
- 100.
Tikanga has been defined in more than one way. According to Judge Durie, it embraces the “values, standards, principles or norms to which the Maori community generally subscribed for the determination of appropriate conduct.” Durie (1996), p. 449. Chief Judge Williams describes tikanga as “the Maori way of doing things – from the very mundane to the most sacred or important fields of human endeavor.” J. Williams, “He Aha Te Tikanga Māori”, paper presented at Mai i te Ata Hapara Conference, Te Wananga o Raukawa, Otaki 11–13 August 2000, 2. The word tikanga originates from the words tika and nga. Tika can be defined as correct, right, just or fair. Nga is the plural for the English word ‘the’. Therefore, tikanga may be defined as ‘way(s) of doing and thinking held to be just and correct’. Tikanga was believed to have had its origins in the spiritual realms of the Atua (the gods) and was handed down from tupuna (ancestors) to the present. Tikanga was pragmatic, open-ended, flexible and adaptable to fit new circumstances or the needs of the community at a particular time or situation. The ability of tikanga to change over time and place explains its variations among different tribal groups (iwi). However, flexibility could not be so great as to allow a practice to be advanced as tikanga where it conflicted with core values handed down from the ancestors. This allowed for common tikanga not only within individual groupings but also at a broader regional level.
- 101.
As a commentator has remarked, “the Maori lived not under the law but with it.” Jackson (1988), pp. 97–98.
- 102.
As M. van Hoecke and M. Warrington observe, “In Islamic legal culture there is no division between law, morals and religion. All law is based on and deduced from the Koran, despite legal doctrine in practice being generally considered a source of law, and sometimes even against the literal wording of the Koran. In this legal culture moral principles have more weight than rational, systematic legal constructions.” “Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law”, (1998) 47 International and Comparative Law Quarterly 495, 507. For a closer look at the principles and development of Islamic law see Chap. 10 below.
- 103.
Generally, the phrase ‘rule of law’ refers to a legal-political regime under which the law restrains the government by promoting certain liberties and creating order and predictability regarding how a country functions. According to the English jurist Albert Venn Dicey, the rule of law requires total subjection of all classes to the law of the land. It requires, further, that no one should be punished except for a proven breach of law. In this respect, the rule of law is not consistent with arbitrary or even wide discretionary power on the part of the government. See Dicey (1915, first published in 1885). The American legal scholar Lon Fuller stresses that law is the enterprise of subjecting human behaviour to the governance of rules. He identifies eight requirements of the rule of law: (1) laws must be general, laying down specific rules prohibiting or permitting conduct of certain kinds; (2) laws must be promulgated or publicly accessible; (3) laws should be prospective, prescribing how individuals ought to behave in the future, rather than prohibiting conduct that occurred in the past; (4) laws should be written with reasonable clarity to avoid unfair enforcement; (5) laws must avoid contradictions—a law cannot prohibit what another law permits; (6) laws must not command the impossible; (7) laws must remain constant through time to allow the formalization of rules (however, law also must allow for timely revision when the underlying social circumstances have changed); and, (8) official action should be consistent with the enacted rules. Only when lawmakers abide by the eight requirements of generality, publicity, non-retroactivity, clarity, non-contradiction, non-impossibility, constancy and congruity, their activities can count as lawmaking. See Fuller (1969), p. 106. Although, standing alone, Fuller’s eight elements may seem clear and understandable, they are often difficult to implement in practice because governments are often compelled to prioritize one goal over another to resolve conflicts in a way that reflects society’s political choices. For example, making too many laws that are too detailed and specific may make the legal system too rigid. Furthermore, instead of only applying prospectively, some laws are meant to apply retroactively, because they were passed with the specific intent of correcting an existing situation. Fuller recognized these conflicts and suggested that societies should be prepared to balance the different rule of law objectives.
- 104.
In the words of H. Berman, “Law itself, in all societies, encourages the belief in its own sanctity. It puts forward its claim to obedience in ways that appeal not only to the material, impersonal, finite, rational interests of the people who are asked to observe it but also to their faith in a truth, a justice, that transcends social utility.” The Interaction of Law and Religion (London 1974), 29.
- 105.
It should be pointed out, however, that, in some ways, respect for law is a fragile quality. The experience of a number of Western countries in recent years shows that a strong adherence to the fundamental precepts of the Western legal tradition can co-exist with the breakdown of law and order in some parts of the community. This breakdown is often connected with adverse socio-economic conditions. However, on its own, this is an inadequate explanation. Many countries are poor, yet the levels of violent crime are much lower than in some Western countries. When people become alienated from a society and perceive themselves as destined to be destitute within a nation where levels of wealth are high, respect for the rule of law will often give way to destructive forces. This means that respect for law cannot be taken for granted. It is always dependent, in the final analysis, on the people’s sense of belonging to a society. Where law is viewed only as an instrument of repression, it ceases to be effective as law at all.
- 106.
According to A. Bozeman, “law has consistently been trusted in the West as the main carrier of shared values, the most effective agent of social control, and the only reliable principle capable of moderating and reducing the reign of passion, arbitrariness and caprice in human life.” The Future of Law in a Multicultural World (Princeton 1971), 38.
- 107.
According to M. van Hoecke and M. Warrington, “[the] Asian legal culture, when interpreted from an (overtly) Western point of view, can to a certain extent be represented as irrational, because of the important role of morals, or religion and of the Confucianist conception of the natural order of things. Oriental people likewise may well consider Western people too rational: so caught up in their own minds and in their rational concepts that they have lost all contact with the universe which surrounds them, lost the consciousness of their place in this universe.” “Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law”, (1998) 47 International and Comparative Law Quarterly, 495, 505–506.
- 108.
It is important to note here that the continued survival of the traditional Chinese attitude to law cannot be simply explained by saying that the Chinese people have not been exposed to any other system. Approximately 250 years after Confucius, China was in fact dominated by the so-called legalist school, with its preference for comprehensive regulation by laws and a detailed state control over their implementation. However, these ideas had official support for only a short period of time and faded away with the change of dynasty in the latter half of the third century BC. It should be observed, further, that the traditional system became insufficient when China commenced its modernization after the fall of the last Emperor in 1911. The new Kuomintang government introduced a number of major law codes based on the Continental (Romano-Germanic) European model, including a civil code. This development played an important role in stimulating commercial activities in the coastal cities, but did not reach the people as a whole, especially those living in the countryside. Moreover, officials were reluctant to enforce legal rules that in their eyes contradicted traditional principles. In recent times, especially since the death of Mao Zedong, there has been a growth of legislation in the People’s Republic of China. Although this legislation has provided a clearer framework against which citizens can measure their conduct and organize their affairs, many of the new laws are drafted in very broad terms and reflect the reluctance of the Chinese to determine the appropriate course of action by strict legal rules. In the everyday life of the population, mediation and conciliation continue to play a significant role as a means of dealing with private disputes. Furthermore, the state and party leadership of China appears not to have become quite accustomed to using legal instruments as the main means of control over society. It is still common that political directives are preferred in certain sensitive areas. In general, one might say that, although steps have been taken towards the development of a more sophisticated legal framework, the Chinese continue to have a unique way of perceiving law. For a closer look at Chinese law see K-K Wang and Mo (1999), Chen (2016).
- 109.
Giri is a Japanese value roughly corresponding to ‘duty’, ‘obligation’, or even ‘burden of obligation’ in English, but one with a far more pervasive influence on the Japanese world view and culture than its English equivalent. Today, social critics decry the diminishing influence of giri on shinjinrui, the new generations of Japan, who pursue an individualistic path in life that seems quite foreign to traditionalists.
- 110.
The Chinese civilization exercised a very strong influence on Japanese culture and Chinese ideas influenced the overall Japanese conception of law. In the 5th century AD Chinese writing was introduced to Japan and the sixth century saw the importation of Buddhism. But it was Chinese Confucianism as adapted to the Japanese psyche and way of life that had the single greatest impact on early Japanese culture. The ‘Seventeen Article Constitution’ of Prince Shotoku (c. 604 AD) proclaimed a social order embodying the ideals of Han Confucianism and ever since the relations between Japanese rulers, their officials and their subjects have borne the stamp of Confucian thought. It is thus unsurprising that the most generally favoured method of dispute settlement in Japan throughout its history revolved around those informal processes within the social group, often described as ‘conciliation’. In such cases determination takes place according to the circumstances of each individual case, seen in the light of the shifting norms of internal group custom and of the relative strengths of the parties in bringing social pressures to bear. The idea of rigid, external, universal rules independent of time, place, personalities and circumstances is incompatible with such processes.
- 111.
Perhaps the most interesting feature of the new Japanese legal system was its adoption of one of the most characteristic concepts of modern Western law, namely the concept of rights (as contrasted to that of obligations). Here we have a distinct and clear case of the exertion of a direct Western influence on Japanese culture, for the notion of right was foreign to the jurisprudence that Japan borrowed from China and on which the early Japanese law codes were based. Indeed, not only in its laws but also in its customs the social system of Japan was permeated by the idea of duties to the exclusion of that of rights. So foreign was the concept of the rights of the individual subject that in Japanese legal language there was no term that closely corresponded to the word ‘right’ as expressing something that is due to a person—nor indeed did everyday speech include such a word in its vocabulary. Thus, it was necessary to coin a new term, and this was the term ‘kenri’, made up of ‘ken’, meaning ‘power’ or ‘influence’, and ‘ri’, meaning ‘interest’. See Kawashima (1967), pp. 268. On the rise of the modern Japanese legal system see Oda (1999), p. 21 ff.
- 112.
Thus, very much in line with traditional Japanese philosophy, legal conflict is generally avoided and compromise and reconciliation are still considered more important than the vindication of legal rights in the resolution of interpersonal disputes. On the character of Japanese law see, e.g., Kawashima (1979), p. 127; Aoki (2001), p. 130. And see Kitamura (2003), p. 729.
- 113.
- 114.
As Lawrence Friedman remarks, the traditional classifications of legal systems may be useful in many ways, but without a knowledge and understanding of legal culture their structures and substance are merely ‘lifeless artefacts’. Law and Society (Englewood Cliffs, N.J., 1977), 76.
- 115.
Zweigert and Kötz (1987), p. 31.
- 116.
Consider, e.g. van Hoecke and Warrington (1998), p. 495.
- 117.
Kahn-Freund (1974), p. 27.
- 118.
Zweigert and Kötz (1987), pp. 68–69.
- 119.
- 120.
As V. Grosswald Curran remarks, such “cultural immersion requires immersion into the political, historical, economic and linguistic contexts that molded the legal system, and in which the legal system operates. It requires an explanation of various cultural mentalities.” “Cultural Immersion, Difference and Categories in U.S. Comparative Law”, (1998) 46 American Journal of Comparative Law 43, 51. See also Grosswald Curran (1998), pp. 659, 661.
- 121.
K. Zweigert and H. Kötz describe this need to eradicate all preconditions of one’s own legal system when carrying out a comparative study as the negative aspect of functionality. An Introduction to Comparative Law, 2nd ed., (Oxford 1987), 31–32.
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Mousourakis, G. (2019). Legal Traditions, Legal Cultures and Families of Law. In: Comparative Law and Legal Traditions. Springer, Cham. https://doi.org/10.1007/978-3-030-28281-3_6
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