Legal traditions of the world: multiple choice questions and answers

¶ … Law and Business

When Glenn says that a legal tradition is information, he is referring to the way that the legal process helps form the basis of historical tradition, of the way societies decided to form a code of morality and ethics in order to retain a positive and cooperative (e.g. social) state of affairs. Since humanity is all part of some type of tradition, then it stands that legal traditions, through the ages, are able to provide us with information about ways in which past societies operated, and the lessons they can impart for present and future society. This is, in fact, broken up into two major areas: humans and groups and culture.

By the very nature of culture and humanity, humans tend to be group animals -- they thrive in groups, coalesce into groups, indeed, the very process of moving from hunter-gatherer to cities was part of a group behavior. Within this essay we will first look at group normative behavior, intergroup communication and leadership, and finally the way in which group behaviors influence individuation and specific responses to that group's culture. Group norms are defined as a set of internal rulings that are followed by the group members in order to increase the overall efficiency of the group's activity. These norms usually refer to the members' behavior towards themselves, their hierarchical superior and group outsiders, as well as to their approach and attitude towards the work they are expected to perform. Norms determine the way in which groups solve problems, make decisions and do their work. They influence interactions between members and between the group and the facilitator. Norms reflect the group's culture of shared values (Knight, n.d.). The norms differ from a group to another; however, there is a set of commonly used rules. These refer to: taboo subjects, open expression of feelings, interrupting or challenging the tutor, volunteering one's services, avoiding conflict, length and frequency of contributions.

Stereotyping has negative effects on both individual and group behavior, and is linked with diversity. Groups force conformity of behavior by their own members, even how members think and react. Non-conforming behavior will be punished within stereotyped group. For the members of these groups it is not enough that they conform in behavior; they are taught to think alike. Groups are taught to a faith of believing and not criticizing, almost resembling religious conversion. They believe that something in their blood, heritage, or race memory dictates their culture and defines what they will be and what type of job they will have. Groups trust and accept only members of their own groups. They must immerse themselves in their own culture and close their minds to others. Racial or ethnic lines determine the idea of their community.

Part 1.1.2 - One of the key changes of the late 20th century, certainly enhanced in the early 21st, is that of the economic, political, and cultural movements that broadly speaking, move the various countries of the world closer together. This idea, called globalism, refers to a number of theories that see the complexities of modern life such that events and actions are tied together, regardless of the geographic location of a specific country (political unit). The idea of globalism has become popular in economic and cultural terms with the advent of a number of macro-trade agreements combined with the ease of communication brought about with the Internet and cellular communication.

The concept of globalization in economic and cultural development is a reality for the 21st century. The Internet and advances in telecommunication has made it easy to do business with any country in the world, to increase cultural and social contact, and to extend more timely communication between individuals. Similarly, the end of the Cold War signaled a different type of realignment of nations -- rather than East West philosophically dividing the world, global cultures are now looking to trade and economic growth to change the pattern of their own structures. The developing world, able to see and hear news and entertainment from the developed world, wants to change. Europe has evolved into a union of concerned states; even the United States, Canada, and Mexico are cooperating on a trade agreement to benefit the Americas, the Middle East and Asia are forming partnerships that would have been unheard of a century ago. Because globalization involves different traditions, and because economic and political agreements are often based on legal traditions, civil, common and Islamic law all are part of the legal paradigm in which multinational agreements are concluded. As with any period of growth, there is also strife and disagreement. Rapid development has ecological consequences, and more and more scientists are becoming concerned about the carbon footprint of individual nations, as well as the vast amounts of pollutants being pumped into the air and waters of the world. Humans have come to understand that no one lives in isolation when it comes to ecology -- the world is tied together. Rampant pollution in Latin America does have an effect on other countries of the world, as does the high consumption rate of fossil fuel in the United States. Each specific region of the world has unique issues regarding the impact globalization has had, or will have. Many second and third world countries, for instance struggle with the issues of rapid modernization, a growing population with expectations, and pressure from already developed countries regarding the environment, etc. NAFTA and other "free trade" agreements within North America, as well as the influx of immigrants (legal and otherwise) from Mexico into the United States, similarly create a series of pressure nodes.

Part 1.1.3 - for Glenn, regionalization is a process in which certain countries of like mind in certain activities band together to for a sub-group. This may be permanent, or it may be fleeting, but it focuses on common interests. Regionalization enforces globalization of law due to the nature of global agreements; regional groups acting in congruence to form legally binding agreements with other countries naturally have a predisposition towards a type of law. In contemporary culture, regionalization, combined with globalization, is the manner in which groups' reform based not just on cultural traditions, but more on economic similarities and needs. Because of the vastness of global trade and commerce (think transportation and shipping), countries are rarely isolated. Instead, the flow of goods and services transcends the globe, it does not respect cultural (or legal) traditions, and instead tries to mediate culture by providing a window into the developing world in a way that transcends economics and allows for other traditions; political, social, and legal; to flourish.

Certainly one example is the manner in which the EU, based in common law tradition, enters into agreements for trade, education, and technical expertise (medical, etc.) with the Middle East. In this case, there is a merging of common and Islamic law in contracts that are binding to both sides. There is a mutual degree of compromise and a process of osmosis that occurs within this type of structure. In our example of the Middle East and EU, there is also a population and migrational issue that helps bring legal traditions to the forefront. People are organized by legal traditions -- their personal lives, their economic lives, and their entire way of dealing with other people. So when legal traditions overlap, there is understandably a need to alter and change some a bit to be more appropriate for the new paradigm or living situation. Glenn does not believe these regionalizations are a threat to individual cultures but, in fact, can enhance them depending on the strength and veracity of the particular social grouping (54).

Part 1.1.4 - Diasporas are large movements or migrations of a group of people, typically ethnic or national in nature away from a traditional or ancestral home in favor of a forced new place to live. Typically, the word has been used with a capital "D" to identify the Jewish exile into other parts of the world. Like any large migration, a diaspora uproots such a large group of people that already share a tradition that their legal culture is transferred with them. By a process of cultural osmosis, legal traditions (contracts, etc.) flow back and forth between groups so that society is able to prosper (commerce, etc.) and over time, the legal traditions of one group become part of the legal tradition of another group.

Diasporas have been a powerful force in changing the makeup of culture and legal traditions in a historic sense. They can be based on wide-spread famine, religious persecution, natural disasters, and even colonialization (the Ancient Greeks, Alexander bringing Western culture into Asia, the Mongols, etc.). Eventually, these diasporas cause migrants to assimilate into the settled areas so completely that it, in fact, becomes indistinguishable from their new homeland (for instance, the modern population of Hungary identify more with European culture than with the Asian/Siberian roots; the English no longer identify with NW Germany, etc.). One of the largest Diasporas of modern times was the African Diaspora, beginning in the 16th century. 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 as a continual positive feedback loop within the basic structural principals of International Law and Arbitration.

Part 1.2.4 - Common law is also known as case law, or law by precedent, is a type of legal tradition developed through decisions of legal bodies (courts, tribunals, etc.). Common law systems originated in Anglo-Saxon England as opposed to the Roman Empire, and believe that legal precedent, based on cultural tradition, should carry more weight that judicial mandates. Courts look at an incident and use what was found and decided as a way to base future decisions, thus guaranteeing a more solid legal tradition; but only binding in particular jurisdictions. In most Western European traditions, even some of their colonies, common law is widespread; however, civil law tradition usually takes precedence in many matters (in other words, legislative law tops local law).

In practice, common law systems are far more complex than simply a system of using case law developed through judges and decisions to implement policy. The decisions of courts are typically binding only in certain jurisdictions, and even within those jurisdictions, some courts have more power and authority than others. An example of this is the appellate court system -- which tend to be binding on lower courts within the same jurisdictions and on future decisions of the same appellate court. However, decisions of lower courts are only non-binding persuasive authority and interactions between common law, constitutional law, statutory law and regulatory law make this an extraordinarily complex system; and, some would say, quite inefficient for the broader legal tradition as a whole.

There are positives to common law, too. Common law evolves more rapidly to meet changing social and cultural needs because it uses precedent as a flexible legal tool. Common law courts are not absolutely bound by precedent and often reinterpret and revise legal tradition, with or without legislative implications. This often occurs when, over time, it becomes necessary to adapt to new trends in political, legal, and social philosophy. Also, common law traditionally evolves through a series of gradual steps (slowly over time), then also gradually over a decade or so works out the legal intricacies so that over a generation the law changes without too many disruptive effects. This is in contrast to legislative incrementalism -- legislative processes are notoriously difficult to start and even more resistant to change until the legal situation is intolerable. Therefore, by the time the legislature acts, changes are often overly dramatic and disruptive with numerous unintended consequences.

Part 1.2.5 - in a common law system, most of the decisions are made by Judges. While these Judges are officers of the Court, they are also human, and have different motivations for their decisions that may or may not be in the best interest of society at large. In many cases, Judges are part of a more aristocratic tradition, and have independence under common law to perpetuate the status quo. As long as they upload the law based on precedent, they are able to manipulate, at times, the system in a way that is counter-productive for society at large, and even for legal tradition. This, of course, is not always the case, but over centuries has happened enough to form a pattern of behavior.

Part 1.3.1 - the basis of Islam falls into several duties that humans must perform in order to establish and perfect their relationship with God. Islamic law, like the Old Testament, was penned at a time when few were literate, and therefore, the ideas became a way to stratify and organize society, culture, and all aspects of life. The basic source of Islamic Law consists of the "Five Pillars of Islam," which are five important tasks that unite all Muslims around the world. These duties are:

1. The Profession of One's Faith (Shahada)

2. Giving to the Poor (Zakat) charity.

3. Fasting to honor one's faith during high holy days (Sawm).

4. Ritual and regular prayer and contrition (Salah)

5. A holy pilgrimage to the city of Mecca during one's lifetime (Hajj)

The basic tenets of belief in Islam surround the words Allah revealed to the Prophet Muhammad within the holy text the Qur'an. Muslims do not believe that Muhammad was the originator of Islam, but that it was he who brought back the original monotheism of Abraham, Moses, Jesus of Nazareth, and other Prophets from the Christian and Judaic Old Testament. Islam holds that these Prophets were seminal instruments of God's word, but that both the Judaic and Christian traditions have misinterpreted the meaning of the word of God, altered the texts given to man by the Angels, introduced false interpretations of God and man's place within the framework of God, or a combination of all. Thus, the 5 Pillars are those duties that humans are required to perform to show their devotion and faith, as well as duties necessary to complete their cycle of belief. In addition, Islamic law has developed to touch almost every aspect of human life, and is called Sharia. There are the dietary laws, banking laws, welfare laws, criminal laws, and even warfare laws. While these laws have evolved over time, in much of the Muslim world, the conservative ideas of Sharia are maintained even today.

The ease or difficulty of the Pillars in modern society would clearly be dependent upon the area in which one lived, the chronological time, and the state of current international relations. If one is a Saudi, the Hajj is not traumatic, but if one is an American or Indonesian Muslim, cost and difficulties with political events could prevent that from becoming a reality. The other pillars would not be as difficult, with some moderation: it is hard for children to fast, especially in American schools, and; it is difficult for the specific prayer times to be managed if one is working in the corporate or an organizational environment that is structured. Fortunately, liberal Islam has made it easier to perform the works within a modern environment.

NOTE: Here is a graphic organizer that should help you with your studies on the various different types of legal traditions:

Common Law

Civil Law

Socialist Law

Islamic Law

Other names

Anglo-American, English Law

Continental, Romano-Germanic

Social

Religious law, Sharia Law

Source of Law

Case law and legislation

Statutes and legislation

Statues and Legislation

Religious documents, case law

Lawyers

Control courtroom

Judges dominate trials

Judges dominate trials

Secondary role

Judges' Qualifications

Experienced lawyers

Career judges

Career bureaucrats, Party Members

Religious as well as legal training

Degree of Judicial Independence

High

High; separate from the executive and the legislative branches of government

Very limited

Ranges from very limited to high

Juries

Provided at the trial level

May adjudicate in conjunction with judges in serious criminal matters

Often used at lowest level

Allowed in Maliki school, not allowed in other schools

Policy Making Roles

Courts share in balancing powers

Courts have equal but separate power

Courts are subordinate to the legislature

Courts and other government branches are theoretical subordinate to the Sharia. In practice, courts historically made the Sharia, while today, the religious courts are generally subordinate to the executive.

Examples

Australia, UK (except Scotland), Ireland, Hong Kong, USA, Canada (except Quebec), Pakistan, India, Malaysia

All EU states except UK and Ireland, Brazil, Japan, Mexico, Quebec, Switzerland, Turkey

Russia

Pakistan, Saudi Arabia, most of the Middle East and Arab World

Part 1.3.2 -- There is no clear separation of church and state under Islamic law. Under Islamic law (literal), the religion of Islam and the government are one. Islamic law is controlled, ruled, and regulated by the theocracy of religion. Islamic law purports to regulate all public and private behaviors including hygiene, diet, sexual conduct, and child rearing. Despite what often seems like relative inflexibility, Islamic law does give preference to arbitration in civil disputes. There are at least three different perspectives on Sharia law; Sunni, Salafi, and Shi'a: