Law and Business When Glenn Assessment

  • Length: 20 pages
  • Subject: Business - Law
  • Type: Assessment
  • Paper: #17345660

Excerpt from Assessment :

During this Diaspora, the African Slave Trade transferred 9-12 million people from one continent to another with major repercussions on cultural and political traditions in the New World. There have been a number of modern Diasporas based on the post-Cold War world in which huge populations of refugees migrated from conflict, especially from developing countries (Southeast Asia, China, Afghanistan, Iran, Latin America, South American, Rwanda, etc.).

Part 1.2.1 - Civil Law is a legal system inspired by Ancient Roman law. In Civil law, laws are written into a codified collection that is a group of ideas and systems that work in tandem to help organize societies without the need for judicial interpretation. Overall, civil law is in place to formulate general principles and to distinguish substantive rules from procedural rules, and is based on the tenet that legislation is the primary source of law.

Conceptually, civil law is a group of legal ideas and systems that were derived from the Code of Justinian, but, because of legal traditions and numerous migrations (Diasporas) in the Ancient World, the legal tradition has numerous other rubrics overlayed: Germanic, Church based, feudal, and even local practices from various areas. While there are differences say, between the Germanic model and the French model, the civil codes emphasize form, structure and explanation of both abstract and concrete principles of law. The legal reasoning begins with the general and then moves to the specific. The function of the jurists within the civil-law system is to analyze the basic codes and legislation for the formulation of general theories; then to allow the system to help take those general theories and move them into the practical (we might call it strategic vs. tactical) system of applications. Jurists apply deductive reasoning to suggest an appropriate judgment or result in specific cases -- again, based on the generalities of case law. Historically, this jurist work took the form of treatises and commentaries that became the doctrine used by judges their deliberations about specific cases, lawyers for advice to their clients, and legislators in the preparation of statues and regulations.

It is in fact one of the basic traditions of civil law that often, at least in Europe, becomes somewhat problematical in view of contemporary globalization issues. That is the age of the code, the timeframe and historical basis for when it was written, and under what societal circumstances that may, or may not, fit with the general needs of contemporary legal culture. The old codes are products of a different time; they do not speak to a great range of contemporary legal and social issues. In fact, two principal consequences flow from the failure to modernize the old codes: 1) the tendency to impede economic and social change, and 2) the imposition of a greater burden on judicial interpretation as a progressive element in the legal process. The greater the gap between what society needs and what the code says, the greater the tendency for the Court to develop new interpretations of old code provisions in order to meet the need. In fact, according to Glenn, judicial decisions become a source of law, if not in theory. This takes the burden of the legal tradition to a place never intended -- law being made by the supposed interpreters of legal tradition.

Part 1.2.2 -- Within the context of society, particularly culturally, social cohesion may be thought of as the "glue" that holds society together. It is a multi-faced notion and covers numerous kinds of social phenomena -- really part of the order that society uses to agree upon forms of tradition and communication that reduce friction and allow for mutual support, information, trust and shared resources within a given society. Social cohesion within a group is typically based on cultural tradition and, over time, can become part of a legal tradition. As more and more people come together to form a broader base of society, and as those people tend to specialize, traditions move from cultural to legal in order to organize that society in a better, more efficient manner. So, as legal tradition takes over more and more cultural tradition, the state (the legal doctrines) takes over the hierarchical responsibility and social cohesion declines. Marriage laws that make sense in a small village; contracts between farmers; agreements in banking; all can be simple cultural "social cohesion" traditions until society becomes too complex and must then codify them. The idea of social cohesion helping the evolution of legal tradition is also based on networking relationships within communities; social order and peace and security that rely on a legal system to form a stable and harmonious urban society.

Part 1.2.3 -- the demographic character of Europe has changed dramatically over the past millennium. In the Middle Ages, for instance, being European did not matter much because most travel was local, on foot, and most everyone else was European. That all changed with the way Roman law and society organized and changed -- allowing more and more different cultures into the Empire. Of course, after World War II, the idea of a single tradition or ethnic group Europe is certainly not the case today. European civil law allows multiple identities based upon the structure of the individual country, region, ethnic group, or other cultural modifier. Individuals may move from country to country, and within the last century or so, vertically as well as horizontally along the social and economic spectrum. This allows a more flexible approach to the way "rights" are granted and the ability for individuals to know, and count on, ways in which they can prosper within a larger identity. The individual European "state" may choose to grant certain types of legal traditions (civil law) that allow people to leave, return, join, etc.

The idea of the European Union, in and of itself, changes the way law is both administered and conceived. With the founding of European Union (EU) in 1993, the 27 member states and growing commission operates through a system of interdependency and supranationalism. The EU developed a single market and a standardized set of laws that guarantee the freedom of people, goods, services and capital, throughout member nations. One important part of the EU is the European Central Bank, established in 1998 and headquartered in Frankfurt, Germany. As a legal example, the conglomeration of the EU has resulted in more arbitration within law than new laws. As might be expected with the predominance of legislation designed to increase cooperation between States, to provide rules of law to mitigate situations from Civil disagreements to Insolvency, the idea of utilizing arbitration to settle International commercial disputes by the European Union and European Court of Justice has become a popular alternative method to traditional litigation for resolving numerous disputes. Within the EU, the majority of arbitrations occur without the desire or necessity to enter the Court system. Arbitration has the advantage of speed, economy, and simplicity -- judicial involvement kept to a minimum helps support these goals. Typically, arbitration statues limit the right of judicial review -- which is an efficient way of handling disputes with a minimum degree of bureaucracy, lengthy trials, and overburdening the legal system. Also, an important feature of arbitration, and one embraced within the legal sectors of the EU, is the res judicata, or the binding effect of arbitrarial decisions that lead to a partial, or even total, settlement of the dispute. It is readily apparent that the EC develops policy through regulations, directives, and decisions. The legal justification often occurs in specific case law, testing the boundaries of the system, but also framing it in the nature of the specific need. Prior to a legal challenge, no Court can anticipate every contingency, nor rule of case law that is but theoretical.

The European Union has become part of a nexus of legislative bodies, linking international agencies of the United Nations with regional, national and local bodies, to form one continuous, seam-free administrative machine. So embedded is it in the administrative fabric of this and other nations, that the national systems could not function with it. Far from this being unwelcome, it highly convenient to the ruling and administrative issues surrounding jurisprudence. The system itself acts as a useful conductor, diverting dissent into the maze of new global institutions, questions of law, and Court issues.

As the very nature of international claw grows even more complex, clearly the amount of data needed to manage such projects cannot be held by a staff member, especially one who has additional duties outside this project. Instead, the greater use of host computer software, designed and maintained to oversee the proper implementation of case law, along with patience and a continued realization that the evolution of the system, as a vital and continual emergence for the Rule of Law, is not only unprecedented in scale, but is able to do such a manifesto acts…

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