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.

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.

Group Norms, Globalization, and Regionalization

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).