Legal Traditions: Civil, Common, and Islamic Law Compared

Introduction: Legal Tradition as Cultural Information

When Glenn argues that a legal tradition is information, he is referring to the way the legal process helps form the basis of historical tradition—the way societies decided to establish a code of morality and ethics in order to maintain a positive and cooperative social state of affairs. Since humanity is in some sense always part of a tradition, legal traditions throughout the ages are able to provide information about how past societies operated and the lessons they can impart for present and future societies. This subject is broadly organized into two major areas: humans as group beings, and the cultures they produce.

By the very nature of culture and humanity, humans tend to be group animals. They thrive in groups, coalesce into groups, and the very process of moving from hunter-gatherer communities to cities was itself a product of group behavior. This paper first examines group normative behavior, intergroup communication and leadership, and then considers the way in which group behaviors influence individuation and specific responses to a group's culture.

Group norms are defined as a set of internal rules followed by group members in order to increase the overall efficiency of the group's activity. These norms usually govern members' behavior toward one another, toward hierarchical superiors, and toward group outsiders, as well as members' approach and attitude toward the work they are expected to perform. Norms determine the way in which groups solve problems, make decisions, and carry out their work. They influence interactions between members and between the group and its facilitator, and reflect the group's culture of shared values (Knight, n.d.). While norms differ from group to group, a common set of rules typically includes: taboo subjects, open expression of feelings, interrupting or challenging authority, volunteering one's services, avoiding conflict, and the length and frequency of contributions.

Group Norms, Globalization, and Regionalization

Stereotyping has negative effects on both individual and group behavior and is closely linked to issues of diversity. Groups enforce conformity not only in behavior but in thought and reaction. Non-conforming behavior is punished within stereotyped groups, and members are taught not just to act alike but to think alike—almost resembling religious conversion in its insistence on belief without criticism. Groups trust and accept only their own members, expecting immersion in their own culture and a closing of the mind to others. Racial or ethnic lines frequently define the boundaries of community.

One of the defining changes of the late twentieth century, significantly accelerated in the early twenty-first, is the economic, political, and cultural movement broadly referred to as globalism. This concept refers to a number of theories that understand the complexities of modern life as interconnected, such that events and actions in one part of the world are tied to outcomes elsewhere, regardless of geographic location. Globalism has gained traction in economic and cultural terms through the advent of major trade agreements and the ease of communication enabled by the Internet and cellular technology.

The concept of globalization in economic and cultural development is a defining reality of the twenty-first century. Advances in telecommunications have made it possible to conduct business with virtually any country, increase cultural and social contact, and communicate more efficiently across borders. The end of the Cold War also signaled a different kind of global realignment: rather than an East-West philosophical divide, global cultures began looking to trade and economic growth to reshape their own structures. The developing world, increasingly exposed to news and entertainment from developed nations, began pressing for change. Europe evolved into a union of cooperating states; the United States, Canada, and Mexico entered into a regional trade agreement; and the Middle East and Asia began forming partnerships that would have been unimaginable a century ago.

Because globalization involves different traditions, and because economic and political agreements are frequently grounded in legal frameworks, civil law, common law, and Islamic law all form part of the legal paradigm within which multinational agreements are concluded. As with any period of rapid growth, there is also friction and disagreement. Rapid development carries ecological consequences, and scientists have grown increasingly concerned about the carbon footprints of individual nations and the pollutants being discharged into the world's air and waterways. Humans have come to understand that no nation lives in ecological isolation. Rampant pollution in Latin America affects other regions, just as the high rate of fossil fuel consumption in the United States has global consequences. Many second- and third-world countries struggle simultaneously with rapid modernization, growing populations with rising expectations, and pressure from already-developed nations regarding environmental standards. Agreements such as NAFTA and the influx of immigrants into the United States similarly create pressure points that require legal resolution.

For Glenn, regionalization is a process in which countries of like mind band together to form a sub-group around common interests. This may be permanent or temporary, but it reinforces the globalization of law because regional groups acting in concert to form legally binding agreements with other countries naturally carry a predisposition toward particular legal traditions. In contemporary culture, regionalization combined with globalization is the mechanism by which groups reform themselves based not just on cultural traditions but increasingly on economic similarities and needs. Because of the scale of global trade and commerce, countries are rarely isolated; the flow of goods and services transcends national borders and does not respect cultural or legal traditions, instead working to mediate culture by providing access to the developing world in ways that allow political, social, and legal traditions to intermingle and evolve.

One clear example is the manner in which the European Union, rooted in civil law tradition, enters into agreements for trade, education, and technical expertise with the Middle East—a context in which common law and Islamic law must find common contractual ground. This requires mutual compromise and a process of legal osmosis. The overlap of legal traditions also brings migration and population issues to the fore: people are organized by legal traditions in every aspect of their lives, so when those traditions overlap, some degree of adaptation is required. Glenn does not regard regionalization as a threat to individual cultures; on the contrary, he argues it can enhance them, depending on the strength and vitality of the particular social grouping (54).

Diaspora and the Transmission of Legal Culture

Diasporas are large movements or migrations of a group of people—typically ethnic or national—away from a traditional or ancestral homeland to a new place of settlement, often under compulsion. The term has historically been used with a capital "D" to identify the Jewish exile from ancient Israel. Like any large-scale migration, a diaspora uproots a population that already shares a tradition, and that legal culture is transferred along with the people. Through a process of cultural osmosis, legal traditions—including contracts and social norms—flow back and forth between groups, allowing commerce to function and, over time, causing the legal traditions of one group to merge with those of another.

Diasporas have been a powerful force in reshaping culture and legal tradition throughout history. They have been triggered by widespread famine, religious persecution, natural disasters, and colonization—from the ancient Greeks and Alexander the Great's diffusion of Western culture into Asia, to the Mongol conquests. Over time, migrants assimilate so completely into settled areas that their origins may become nearly indistinguishable from their new homeland; modern Hungarians, for instance, identify far more with European culture than with their Asian or Siberian roots, and the English no longer identify with their origins in northwestern Germany.

One of the largest diasporas of modern times was the African Diaspora, beginning in the sixteenth century. During this period, the transatlantic slave trade forcibly transferred between 9 and 12 million people from one continent to another, with major repercussions on cultural and political traditions in the New World. More recent diasporas emerged from the post-Cold War world, as large refugee populations fled conflict, especially from developing countries including Southeast Asia, China, Afghanistan, Iran, Latin America, and Rwanda.

Civil Law: Origins, Codification, and Social Cohesion

Civil law is a legal system inspired by ancient Roman law. In civil law systems, laws are written into a codified collection—a body of ideas and systems that work together to organize societies without requiring judicial interpretation for every case. Overall, civil law formulates general principles, distinguishes substantive rules from procedural rules, and is grounded in the tenet that legislation is the primary source of law.

Conceptually, civil law derives from the Code of Justinian, though because of legal migrations and diasporas in the ancient world, the tradition has numerous other layers overlaid upon it: Germanic, ecclesiastical, feudal, and local practices from various regions. While differences exist between, say, the Germanic and French models, civil codes emphasize form, structure, and the articulation of both abstract and concrete legal principles. Legal reasoning begins with the general and moves toward the specific. Jurists within civil law systems analyze basic codes and legislation to formulate general theories, then allow those theories to translate into practical application. Jurists apply deductive reasoning to suggest appropriate judgments in specific cases based on the generalities of existing law. Historically, this work took the form of treatises and commentaries that became the doctrine used by judges in deliberations, by lawyers advising clients, and by legislators drafting statutes and regulations.

One of the basic tensions in civil law tradition—at least in Europe—is the age of the codes themselves. Written under historical circumstances that may bear little resemblance to contemporary society, old codes do not speak to a wide range of modern legal and social issues. Two principal consequences flow from the failure to modernize them: first, a tendency to impede economic and social change; and second, a greater burden placed on judicial interpretation as a progressive element in the legal process. As the gap between what society needs and what the code says widens, courts develop new interpretations of old code provisions to meet contemporary needs. According to Glenn, judicial decisions effectively become a source of law even when they are not intended to be—placing the burden of legal tradition in a place that was never intended.

Social cohesion may be thought of as the "glue" that holds society together. It is a multifaceted concept covering numerous social phenomena—the order by which societies agree upon forms of tradition and communication that reduce friction and allow for mutual support, trust, and shared resources. Social cohesion within a group is typically grounded in cultural tradition and, over time, can become part of a legal tradition. As more people come together to form a broader society and begin to specialize, traditions migrate from cultural to legal in order to organize that society more efficiently. Marriage laws, contracts between farmers, banking agreements—all can begin as simple cultural traditions until society becomes too complex and must codify them. Social cohesion also draws on networking relationships within communities and the need for social order, peace, and security, all of which depend on a legal system to form a stable and harmonious urban society.

The demographic character of Europe has changed dramatically over the past millennium. In the Middle Ages, being "European" carried little meaning in daily life because most people traveled locally. That changed with the organizational legacy of Roman law, which absorbed more and more different cultures into its framework. After World War II, the idea of a single ethnic or cultural Europe became clearly untenable. European civil law now accommodates multiple identities based on individual country, region, ethnic group, or other cultural modifier. Individuals may move between countries and, within the last century, vertically as well as horizontally across the social and economic spectrum.

The founding of the European Union in 1993 changed the way law is both administered and conceived. The EU's 27 member states operate through a system of interdependency and supranationalism. The EU developed a single market and a standardized body of laws guaranteeing the freedom of movement of people, goods, services, and capital across member nations. One important institution is the European Central Bank, established in 1998 and headquartered in Frankfurt, Germany. The EU has produced more arbitration than new legislation, with arbitration serving as the preferred method for resolving international commercial disputes—offering speed, economy, and simplicity while keeping judicial involvement to a minimum. An important feature of arbitration within EU legal practice is the principle of res judicata—the binding effect of arbitral decisions that lead to partial or total settlement of disputes. 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, forming one interconnected administrative structure. So embedded is it in the administrative fabric of member nations that their national systems could not function without it.