Legal culture

Legal cultures are described as being temporary outcomes of interactions and occur pursuant to a challenge and response paradigm. Analyses of core legal paradigms shape the characteristics of individual and distinctive legal cultures. "Comparative legal cultures are examined by a field of scholarship, which is situated at the line bordering comparative law and historical jurisprudence."^[1]

Lawrence M. Friedman's definition of legal culture is that it is "the network of values and attitudes relating to law, which determines when and why and where people turn to law or government, or turn away."^[2]

Legal cultures can be examined by reference to fundamentally different legal systems. However, such cultures can also be differentiated between systems with a shared history and basis which are now otherwise influenced by factors that encourage cultural change. Students learn about legal culture in order to better understand how the law works in society. This can be seen as the study of Law and Society. These studies are available at schools such as Drake University in Des Moines, Iowa.

Western vs non-Western legal culture

Historical studies of European 'cultures of law' have focused on the problem of explaining the context in which law operates, and how to understand the expectations and perceptions of law, justice and authority among the members of different groups who made use of legal norms, tools and fora. [4]

Traditional law in Africa is based on natural justice and lacks abstract concepts. This is characteristic of cultures that have an absence of written language, which is necessary to elaborate concepts into theory.

The trier of fact and law adjudicates between closely related people from communities as opposed to strangers in commerce. Judgments stress the importance of living together in generous, loving kindness, mutual helpfulness and reciprocity. Evidence suggests that 'African law demonstrates that all men, because they live in society, have some theory of rules of justice which they believe arise from reason itself; [and Gluckman's evidence] suggests that Africans may well have formulated, in embryonic form at least, a theory of natural justice coming from human kindness itself.'[5]

The Islamic legal system exemplifies law as part of a larger culture where the concepts of knowledge, right and human nature play a central role. A case study by Lawrence Rosen explains the anthropological, procedural and judicial discretion aspects of bringing a case to court in Sefrou, Morocco.^[6] The case study makes explicit those fundamentals in Islamic society that shape Islamic legal culture and differentiate this from western legal cultures.

Rigid procedural rules and strict court room decorum or etiquette which is entrenched in western legal cultures clears the way for a more natural process of dispute resolution.^[6] In Morocco, close attention is paid to social origins, connections and identity where these concepts influence a qadi's (judge) judicial interrogation and discretion.^[6]

While the systems of law found in the western world consist of conceptualisation and implementation that mimic the extrajudicial world only slightly, in the Islamic courts of Morocco, the culture of law being propounded reflects the overall culture of its people.^[6] This is attributable to the goals of law in Islamic society, which is not to hold state or religious power as supreme or to develop an exacting body of legal doctrine, but to restore relationships and then facilitate the resolution of disputes independently of rigid precedent.^[6]

Western comparisons

The traditional focus between

In fact France, which subscribes to a civil legal system, historically gave the judge a passive role and left the parties to engage in an accusatorial manner.^[7] Nonetheless the common law culture predominately consists of oral arguments where legal representors steer the case in search of justice and reinforcement of rights.

The use of a

Common law has a culture of judicial inventiveness and even flexibility. Enunciation of principle is not forever paramount but indeed a continuing flow of cases and statutes add to the ebb and flow of the law, whereby 'case law represented the modern man's realisation of his own limitations.'^[8] Further differences include where a civilian lawyer speaks in terms of the law of nature while the common lawyer speaks to reason. It follows that the culture of these legal systems has been moulded by perceptions of justice and the means available to attain it.

Common law comparisons

Legal culture can differ between countries despite their conformity to a similar if not identical legal system. Both the

Barristers are engaged upon a solicitor's brief instead of direct engagement with the client. This insulation avoids lay persons being taken advantage of by unscrupulous lawyers which is evidently "a big problem in the United States, where incompetent lawyers, and known to be such both by judges and by other lawyers, often wow naïve clients."^[10]

The cost of pursuing

Direct transplants of western legal systems or culture may not provide an adequate rule of law where the life of ordinary Chinese may be marginalised in favour of legal elite who use legal instruments for self-promotion. Furthermore, implanting western legal norms disregards the local culture and relations; thus potentially destroying significant cultural bonds and relationships in the rural community. The traditional rural Chinese legal culture which is premised on personal and informal relations faces erosion unless legal pluralism is promoted.

A top down approach in analysing the legal culture of China suggests that both under

Further problems with the Chinese legal culture include a piecemeal approach to law making with an imbalance between law and policy; denials of private law; neglect towards human rights and individual liberties; and poor enforcement of laws.^[11] According to Chen, the consensus in China among scholars is that the lack of democracy and rule of law are interdependent concepts whereby "the rule of law is legitimate only if it is the product of democratic government."^[12] This is where one could look at Taiwan (known officially as the Republic of China) which is a unitary semi-presidential constitutional republic.^{[13][circular reference]} Taiwan is characterized as a representative democracy. Despite its democratic values underpinned by a constitution based on the German civil law it does not receive wide recognition as a state separate from the People's Republic of China.^{[14][circular reference]}

What is evident with the People's Republic of China experience is that legal culture is susceptible to change in pursuance to

• Culture of honor vs. culture of law
• Incarceration in the United States
• Legal anthropology
• Prison–industrial complex
• Sociology of law
• Western law
• Byzantine law

References