Exploring Law and Culture by Dorothy H. Bracey Provided in images chapter 3-4 pgs

1. Brief Summary for chapter 3: Typology

2 . Brief Summary for chapter 4: Western law

3. These two chapters basically summarize the main legal systems in the world, Also, please pay attention to the final of chapter 4, when the author acquires a Utopian slant and advocates for a reformation of the legal system. Not of the US legal system, mind you, but the whole Western civil and common systems. What do you think about it?

33 Chapter Three [a remote areas where the state does not penetrate, indigenous peo- ple handle most case of dispute or deviance by traditional means. Closer to urban centers. they remit serious cases, such as homicide, or cases involving foreigners to the government system, for fear of being prosecuted themselves for overstepping their bounds. Serious cases may also be yielded to the state when the community has given up on reintegrating the o'ender. Latin American traditional systems also reect the inuence of governmental Western law sys- tems in other ways. They are sensitive to accusations of human rights abuse, especially since indigenous people oiten phrase their own complaints against the government in human rights terms. They look to governmental legal systems when cononted with sit- uations with which their own system has no experience. They may sanction deviants by threatening to bring them to the state system. And they may strive for legitimacy by writing down their decisions and registering and codifying their normsperhaps depriving themselves of the very exibility that has been a hallmark of tradi- tional law (Van Catt 2003:6). The political status of indigenous systems varies from country to country and from time to time. The southern African nation of Botswana provides an interesting example of ongoing changes in the relationship between Western and indigenous law. In 1835 the British declared the territory that is today Botswana to be the Brit- ish Protectorate of Bechuanaland; this meant that Britain would protect the area against foreign invasion but would not involve itselfin internal administration and would not disturb the custom ary system of law and justice. The British did insist, however, that British subjects in Bechuansland he tried by British courts using British law. This meant that there was a dual legal system. Tradi- tional courts applied traditional law to the majority of the popula- tion, people who identied with the culture of the indigenous Tswana people. Other courts applied European law to \"Europeans" (including children of Europeans who were actually horn in Africa), other foreigners. and native people whose education or occupation made them unwilling to be governed by customary law. This radally separate system was in e'ect when Bechuanaland became the inde- pendent Republic of Botswana in 1966. Today's dual system reects culture rather than race. There is one set of courtsStatutory Courts41ml: applies what is some times called \"formal law," that is, the nation's legal codes, legislation Typology 39 passed by its Pdrliament, and the decisions of judges; they are pre- sided over by trained judges. Customary Courts, on the other hand, make use of Tswana traditional law, and chiefs and elders hand down judgments. But this picture of two totally separate court sys- tems is misleading. CustomaryCourla maynottrycertainkindsofcases, murder being the most prominent, and their decisions may be appealed to the higher Statutory Courts. Statutory Courts are encouraged to apply traditional law in cases where it n: \"properly applied,\" while Custom- ary Courts may apply formal law where they think appropriate. Although Botswana is short of formay educated legal personnel. there is nothing to stop lawyers from appearing in Customary Courts and these courts are supposed to keep written records. The stated goal isa merged legal systemthatwill applyhoth formallaw and custom- ary law. Meanwhile, Botswanans of any race may litigate in which- ever oourt seems most favorable to their particular circumstanwo. This short description of the court structure of Botswana shows that even the simple typology dacribed earlier cannot account for all of the world's legal systems. Some, such as Confucian China, do not t comfortably into any category while others. such contempo- rary Botswana, combine several categories. LEGAL PLURALISM AS THE NORM Colonialism is not the only source of legal pluralism. Immigrant groups may use their own legal system to regulate relationships between members (von Benda-Beckman and Strijbosch 1986). Nation-states have expanded, incorporating within their borders groups that were formerly autonomous and that have attempted to retain their legal systems. Institutions such as arbitration, negoti- ation, and facilitation keep many disputes out of courtrooms. \"Con- sequently, plurality of legal systems now appears to be a fundamental characteristic of all sodetiu, not only those With 0010- nial histories\" (Merry 1992:358). This expanded view of legal pluralism is also due to the growing role of international law and international treaties. Transnational corporations. the World Bank, the International Monetary Fund, the North American Free Trade Agreement, plus treaties regulating 40 Chapter Three copyrights and patents add new types of law at both national and local levels (Ghai, Luckham, and Snyder 1987:275). Mark Galanter (1986) gives the example of the 1984 disastrous leakage of poison gas into a squatter settlement in Bhopal, India. Because the factory Chapter Four involved was partially owned by an American corporation, it set off a furious debate as to where the subsequent lawsuit should be heard and which country's laws should decide it. The American corpora- tion denied any involvement and wanted the case to be heard in India. However, Indian tort law (laws about civil wrongs) was rela- Western Law tively undeveloped and most tort cases were tried as criminal cases, resulting in long delays and rules unfavorable to those claiming that they were victims. The case was ultimately settled out of court in India, but not before India's courts had made some decisions that involved adopting laws developed in England and America. The pervasiveness of legal pluralism shows that the typology HISTORY that begins this chapter is a place to start the study of law, not to end it. It is the relationship among different legal orders in the same space-whether that be a village, a nation, a courtroom, a The process and methods of law and justice in the Western commercial venture, or a multinational enterprise-that occupies world have continually evolved during the course of history. A thou- the attention of many contemporary scholars of law. sand years ago the accused would be bound and thrown into a river or pond. Why? Since both God and water prized purity and rejected sin, an innocent person would sink, while a guilty one would float to the surface. Or the accused might be burnt with hot metal and the wound bandaged; signs of healing within three days showed that God was protecting an innocent person from harm. Or perhaps accuser and accused would fight a duel, the audience being confi- dent that God would give victory to the truthful one. To make sure that all was carried out properly-and perhaps to call God's atten- tion to the test being conducted-a Roman Catholic priest would preside over the events. These were the common forms of determining truth in early Medieval Europe. Faith in God and in God's willingness to protect the innocent underlay faith in trial by ordeal or by battle. It came as a shock, therefore, when in AD 1215, the Roman Catholic Church forbade its priests to take part in any of these proceedings. No one is quite sure why the Fourth Lateran Council, called by Pope Innocent III, should suddenly abandon methods that had proven satisfactory for centuries. Since other measures of the coun- cil addressed the integrity of the priesthood, it may be that priests Chapter Four Western Law had been taking bribes to determine the outcome of ordeals. It is by human beings, actually has deep roots in both religion and cus- also possible that people were noticing cases in which the results of tom. Religion and custom have influenced Western law in the past battle or ordeal were discredited by later evidence or confessions. In and continue to do so today. Nevertheless, it is the human role in any case, both the continent of Europe and the island of England making law that distinguishes both branches of Western law from were forced to find new ways to settle disputes before the law-and the other types of law considered here. o find them quickly At this point the continent and the island went their separate ways. The diverse duchies and principalities of Europe turned to the SOURCES OF CIVIL LAW one institution that united them-the Catholic Church. The Church had its own body of law-canon law-and a well-developed set of procedures to carry it out. Because priests were literate, canon law The law of the European continent, or civil law, traces itself was systematically written down and its procedures tended to rely back to the law of ancient Rome. Roman judges relied on custom and on written records. When all available evidence had been reduced on the laws passed by the Roman Senate, but when faced with dif- to writing and placed in a dossier, it was placed before one or more ficult cases they turned to a group of men known as jurisconsults. priests who were well versed in law and who would render a deci- Jurisconsults were scholars of the law who often advised judges, sion based on it. Oral testimony in court, if heard at all, was merely thereby staying close to the actual problems presented in courts. supplementary to the dossier. This became the model for the law Their opinions were collected and the principles derived from them and the courts of the European continent. were compiled into treatises-books that were read by anyone who Deprived of ordeal and battle, England went in another direc- wished to become knowledgeable about law. Three aspects of civil tion. It embraced a secular institution that had always existed side- law were already apparent: the interest in abstract principles, the by-side with the Church-sanctioned alternatives: compurgation or role of scholars, and the importance of writing. wager of law. When there was doubt about the truthfulness of a per- The Roman Empire spread the influence of Roman law over son's statement, he would be asked to swear an oath. He would then much of the civilized world, an early example of law being spread bring friends, neighbors, and kinsmen to swear that they believed via imperialism. With the Empire's decline, however, much of that him. These oath-helpers were character references rather than wit- influence was diluted, with Roman and customary law being thor- nesses; they did not swear that they knew the facts of the matter oughly mixed and quite different from one area to the next. but rather that they did not think that the person in question would By the year 1000, trade and travel across the continent had sta- lie. If two people presented different versions of the facts, each bilized to the extent that Europeans felt the need of a predictable might be asked to round up oath-helpers. The person with the larg- and efficient institution for settling disputes. The Roman treatises est number of supporters was judged to be the most truthful. Cen- had been lost by then, but what was available was one of the great turies later, the oath-helpers would evolve into the English jury. law books of all times-the Corpus Juris Civilis, compiled by the The foregoing illustrates two points to keep in mind as we exam- Byzantine Emperor Justinian in the sixth century. It was from the ine Western law. The first is that what is referred to as Western law title of this collection of Roman laws that European law became consists of two branches that were originally quite different from known as civil law. Its content provided the basis for what would each other. The civil law branch is found today in the countries of become the law of Europe and much of the rest of the world. the European continent and in many of the nations that were for- With the fall of the Roman Empire in the years from AD 300 to merly their colonies. Common law is practiced in England and most 400, the Roman Catholic Church took on some of the functions of of her former colonies. In spite of these differences, it is the similar- government. It had always claimed jurisdiction over priests and ities that become more and more striking as time goes on. The sec- members of holy orders, but during the Middle Ages its tribunals ond point is that Western law, which is characterized as law made also acquired jurisdiction over matrimonial matters, inheritance,Chapter Three Typology Every country has its own legal system; indeed, one of the def- initions of nationhood is the acknowledged existence of a legal sys- tem within a defined border. But as we shall see, many countries are comprised of different groups that have their own legal system, so these countries have more than one legal system. In addition, legal systems change over time in ways both great and small. The stu- dent of law and culture rapidly realizes that even the most superfi- cial study of all or even most of these systems is impossible. One solution to this problem is to confine oneself to one culture and to study it in as much depth as time allows. These legal ethnographics are often based upon long periods of fieldwork and painstaking analyses of the relationships between specific aspects of the legal system and their cultural contexts. These ethnographics provide the data necessary for two other solutions to this problem, both of which involve the comparative approach. The first involves studying a group of closely related legal systems and trying to account for their differences. This is the approach often used in comparative law courses in law school. The second comparative solution calls for the study of a small number of legal systems, each one being somehow representative of many oth- ers. This is the approach used in this text, but it immediately pre- sents another problem: Representative in what way? Solving this problem demands that legal systems be divided into groups with group membership based on one or more shared characteristics. Such a set of groups is called a typology. It is then possible to com- pare a small number of systems from each of the groups. 29Chapter Three Typology The characteristics involved in building a typology often Although the defining characteristics of each category will be depend on the questions or interests of the person building it. In the described more thoroughly in the chapter devoted to it, the follow- case of legal systems, the person designing the typology might ing is a brief explanation of the groupings in this typology. choose geography as a variable for grouping and comparing legal systems-all the legal systems of a continent, perhaps. Or time- the legal system of England in different centuries-might be the A SIMPLE TYPOLOGY basis of the typography. As another example, it could be based on forms of government-democracy, chieftainship, theocracy, band, Western law begins with two major subgroups. One contains the republic, monarchy, and socialist. Another possibility would con- legal systems of the European continent. Although there are many cern the nature of the decision makers-are they full-time legal differences among European legal systems, they all are descended specialists, political officeholders, priests, or a gathering of elders? from the law of the Roman Empire and were influenced by the pro- Obviously, the variables on which legal systems could be grouped cedures of Medieval Roman Catholic canon law. This subgroup is are numerous. often referred to as the civil law tradition. The other subgroup is The variables given here as examples are not necessarily mutu- English common law. Because both England and many European ally exclusive. It is possible to place nineteenth-century African countries imposed their legal systems on their colonies, today we chieftainships in one group and nineteenth-century Arab Islamic find Western law as the dominant influence in Latin America, states in another, with nineteenth-century Asian monarchies com- North America, Africa, Australia, New Zealand, and some nations prising a third. Of course, it would also be possible to divide the in Asia. Although there are major differences among the legal sys- nineteenth-century African chieftainships into East and West Afri- tems of these nations, they have in common what they perceive as can chieftainships and the Asian monarchies into East and South the source of their laws. Asian monarchies. Western law is human law and it is state law. That means that This short discussion of typologies should make two things very the humans who make Western law are officials of the state. They clear. First, typologies are not found in nature; scholars create them may be hereditary monarchs or nobles, they may be elected repre- for their own purposes. Second, typologies can be very simple or sentatives, or they may be appointees of one of the former. In any very complex. Complex typologies contain many groups, each of case, it is their positions as government officials that give their legal which has few members with a great deal in common. Simple typol- pronouncements legitimacy. ogies have few groups, each of which has many members with per- These pronouncements take two forms. Officials may make law; haps only one relevant thing in common. This text, for example, they announce new rules or change old rules. This is often referred utilizes an extremely simple typology, one that looks at legal sys- to as legislation. But officials may also find law; that is, they inter- tems only in terms of the source of the law. pret exiting rules, policies, documents, or traditions to apply to More precisely, the typology used in this text is based on what present circumstances. The fact is, Western law is made by human its followers believe to be the source of the law. The source of the beings. Western law is secular and neither gods nor ancestors are law is important, for this is what gives any particular law as well consulted or insulted when it is altered. This means that Western as the entire legal system its legitimacy. Concentrating on law's law can change quickly when circumstances change. source-its origin-produces a typology that puts most of the For example, English landowners had for centuries "entailed" world's legal systems for the most part into one of three categories, their estates, meaning they bequeathed them to their male heirs albeit categories with very fuzzy boundaries: (1) Western law, (2) under the condition that the land could not be sold but would be religious law, and (3) traditional (or customary) law. Two other cat- transferred intact to the next generation. Landowners lived on the egories-socialist law and Eastern law-have historically influ- rents of their tenant farmers. In the 1860s, Cyrus Mccormick intro- enced nations as well and have their own distinctive features. duced the mechanical reaper, a machine that harvested the wheat 32 Chapter Three Typology 33 of America's Great Plains at half the cost of hand labor, thus halving applicable law. In Nigeria, several states with a majority Muslim the cost of producing and consequently the price of wheat. While population have adopted Islamic law, although in practice it is English city dwellers delighted in the vastly reduced price of bread, often mixed with local customary law. Israel's legal system is based English tenant farmers received vastly lower prices for their crops on Western law although courts for Jews, Muslims, Druze, and and were unable to pay their rents and as a result, English land- Christians apply relevant religious laws in matters of marriage owners found themselves with vastly reduced incomes. Desperate and divorce. Decisions of these courts are subject to Israeli law and for cash, landowners persuaded Parliament to pass the Settled appealable to the nation's supreme court. Political parties wishing Lands Acts of 1882 and 1884, permitting the owners of entailed to make greater use of Jewish law in other areas serve in the leg- estates to sell their land (Lacey 1998:40-41). Some tenant farmers islature where they vie with parties wishing for a more secular were able to buy the formerly rented land at low prices; others were legal system. evicted by new landlords. Traditional or customary law differs from the other categories of Admirers of Western law believe that it is rational, formulated law mainly in the fact that it relies heavily on rules and precedents as the result of careful consideration of the public good, and flexible that are unwritten. Although all the legal systems being considered to meet the needs of a rapidly changing world; its detractors sug- in this text have roots in custom and morality, traditional law relies gest that it can be easily formulated to meet the needs of the on these more heavily. It tends to be less technical than other types wealthy and powerful. The Settled Lands Acts illustrate both of law and to place more emphasis on the rights of the group than points of view. on the rights of the individual. Traditional legal systems rarely Hindus, Jews, and Muslims believe that the god or gods they have full-time legal specialists such as judges and lawyers. Where worship gave their law to them. There are a number of implications third parties are involved, they may be elders, chiefs, religious to this. The first is that mere humans cannot change divine law; this authorities, or people who have kinship ties with all parties to the gives religious law a stability that Western law lacks, but it also dispute. There may be more concern with restitution and reintegra- makes it difficult to adapt religious law to changing circumstances. tion than with punishment or some abstract notion of justice. Today A second implication is that those who are best able to understand no nations rely exclusively on customary law, but many nations and apply religious law are religious scholars and religious officials. incorporate it in some way. Principles of customary law may be cod- This means that where a state adopts religious law, state and reli- ified in legislation or they may provide precedents in case law. gion are the same organization or, at the very least, inextricably Indigenous groups may practice part or all of their traditional law, intertwined. A third implication is that breaking a religious law is although they are embedded in nations practicing some other type an offense against the divine as well as against the community or a of law. Most intriguing, many Western law nations are showing particular individual. This raises the question of how secular pun- interest in the techniques of restitution, reconciliation, mediation, ishments coordinate with divine punishments administered in this and reintegration of the offender, which are the hallmarks of cus- life or in the hereafter. tomary law. Among the few nations that use religious law as their primary Socialist law fits uneasily into this typology. Although many law are Iran and Saudi Arabia, both of which use shariah or legal scholars find it distinctive enough to warrant a separate cat- Islamic law exclusively. The constitutions of most countries on the egory (David and Brierley 1985), this text joins others (Quigley Persian Gulf identify shariah law as a source or the "main source" 1989) in grouping it with the civil-law tradition and thus an of their legislation. Other countries may use religious law for cer- instance of Western law. Most socialist law clearly shows its civil- tain aspects of their legal system; most Islamic countries, for exam- law underpinnings; what makes it important today are the changes ple, use shariah law as personal status law-rules about marriage, in law taking place especially as formerly socialist countries, such divorce, and inheritance. Article 1 of the Egyptian Civil Code as Poland and Hungary, partially or totally integrate free market directs judges to look to Muslim law in cases where the code has no principles into their economies. The People's Republic of China34 Chapter Three Typology 35 maintains a socialist legal system while it also attempts to incorpo Asia, including China and Japan. Its foundation is the teachings of rate free enterprise. A brief look at socialist law may help in under- the Chinese sage and political theorist Confucius (Kung Fu-tzu standing its relevance to other types of law. 551-479 BC). It is true that the contemporary law of these nations After the Russian Revolution of 1917, the victorious Communist is usually based on Western law-common, civil, or socialist-and Party wanted to do away with the legal system based on that of the reflects decades and in some cases centuries of independent devel- European continent and substitute one based on socialist philosophy. opment. But the legal processes and cultures of these countries What actually happened in Russia, as well as in other socialist states reflect their Confucian heritage sufficiently to make the study of such as those of Eastern Europe, the People's Republic of China, Confucian law worthwhile. In addition, the Confucian attitude Vietnam, and Cuba, was the addition of certain socialist principles to toward law and the legal system contrasts so directly with that of the existing civil law copied from or imposed by European nations. the West that it provides a valuable counterpoint. The most important of these principles is that law is an instru- Until the end of the nineteenth century, the term "rule of law" ment of governmental policy; the purpose of law is to support cer- had a negative connotation in China. According to Confucius, rulers tain political and economic goals. Primary among these is the should govern by behaving correctly themselves, by setting a good protection of the socialist state and its collectivized economy. example. Lower government officials would follow this example and Law in a capitalist economy tells its citizens to observe the rules village officials would follow the examples set by members of the of justice and morality and, as a result, the society will enjoy central government. Finally, the example would be passed down to economic order. Socialist law says it will help provide the desir- family heads, who would convey it to the members of their house- able order and the result will be justice and morality for all the holds. Of course, example alone was never considered a sufficient citizens. The complete reversal of attitudes toward law brings a means of inculcateng correct behavior. Studying Confucian princi- total transformation of fundamental ideas about law. (Reichel 1999:100-101) ples of virtue was also important and comprised a large percentage of the educational system from the earliest school years and The judiciary is not expected to be independent but is considered to throughout the lifetime. Immersed in the principles of correct be a vital partner to other arms of government in developing and behavior and surrounded by people who practiced them, the Chi- enforcing socialism. Finally, socialists emphasize the educational nese child would grow into an adult who had internalized virtue and value of law; public trials and punishments are not for the protec behaved in the proper fashion because that was the right thing to tion of the defendant, but to clarify for onlookers the content of the do. "Law," with its connotations of detailed rules and punishment law and the consequences of offending. for misbehavior, indicated that the rulers of the nation had ceased While socialist nations emphasize the difference between their to set a good example or that the educational system had failed. legal system and that of nonsocialist nations, students of compara- Chinese people, did, of course, have disputes and disagreements. tive law tend to see differences of degree. Socialists themselves con- Confucian ethics called for these to be settled privately, perhaps by demn the legal systems of capitalist countries as supporting involving a third party. If the disputants did bring their problem to capitalist economic policy and the social status quo; indeed, they court, the assumption was that that both of them were stubborn, accuse capitalist countries of hypocrisy, claiming that capitalism uncompromising people who were unable to sacrifice their personal only pretends to provide opportunity for economic advancement. interests for the peace of the community. Court proceedings were so Similarly, all legal systems recognize that they educate as well as unpleasant most people tried to avoid them at all costs. dispense justice and mediate disputes. Socialist legal systems are If a dispute were brought before a judge, however, he would not unique primarily because they articulate some principles about turn to law books for a solution. The term "rule of law," which makes which other systems are silent. Westerners think in terms of equality and impartiality, dismayed A final category of law to be considered here is Eastern law. This Confucians, who felt that no two instances were ever identical. To is the philosophy of law that has influenced most of the countries of apply the same law to cases that were different could only result in 36 Chapter Three Typology 37 injustice. The solution, according to Confucian theory, was to choose administered by former colonialists or by a Western-educated as judges learned men of wisdom and integrity and to give them native elite. Today, many former colonies in Africa, Australia, and great discretion in deciding cases. Confucians felt most comfortable the Americas find themselves with several distinct populations with a legal system directed by the "rule of men." with different legal needs. Citizens of European descent, urbanites, highly educated people, and those in business or the professions are content with a legal system of Western derivation. Not only do they MULTIPLE SYSTEMS OF LAW have easy access to police, lawyers, and courts, but they also find such a legal system to be in accord with their values of individual In many nations, several different legal systems coexist-some- rights, abstract justice, and explicit rules that apply equally to all times harmoniously, sometimes not. For Westerners, the first exam- in the community. Indigenous people, on the other hand, often live ples that may come to mind are countries with federal systems of in remote rural areas where representatives of the government's government. Canada, the United States, Australia, and Germany, legal system are seldom seen. That legal system is not designed for to mention a few, are nations in which laws may differ from state to their foraging or horticultural or public welfare economies. Further- state or province to province, and each may differ from the laws of more, Western law does not reflect their emphasis on the rights of the central government. In these instances it is the content of the the community, the need for conflict resolution and the restoration laws that may differ; in each case, the legal system is still that of of social harmony, reintegration of offenders, and a flexibility that Western law. is lost when laws and cases are written down and become constrain- A slightly more complex situation involves one legal system ing precedents. incorporating rules or institutions from another. In the Canadian Nevertheless, practicality and cultural congruity alone do not province of Quebec and in the Northwest Territories, for example, explain indigenous people's increasing demand for their own legal the Western legal system recognizes the Inuit traditional institu- systems. This demand for a separate-or customized-legal system tion of adoption in which a mother may "give" a child to a relative is also a way of asserting their identity and refusing to accept the or other community member to raise without benefit of bureaucracy control of the colonial powers and their Westernized successors. or paperwork. This option is open only to Inuit people, not to other This control is often called hegemony, the disproportionate influence Canadians (Yerbury and Griffiths 1999). of one nation over another. By maintaining their right to their own legal systems and by establishing such systems with or without gov- ernment approval, indigenous people attempt to carve out an area LEGAL PLURALISM of their lives that is free of foreign domination In Canada, the government has tried to accommodate First Nations citizens by hiring them as special constables or court work- Greater difficulties arise when a country attempts to maintain ers. This does nothing, however, to change the legal system and con- separate legal systems for various ethnic groups. This situation is tinues federal government control over native peoples. In response, often called legal pluralism-"the coexistence of different norma- a number of native communities have created their own commu- tive orders within one socio-political space" (von Benda-Beckman nity-based programs including police forces and alternatives to the 1997:1). Legal pluralism is sometimes the legacy of colonialism. The government justice system, alternatives that often utilize custom- colonizing power would impose its own system of law on the indige- ary law. Most of these initiatives receive no recognition by the fed- nous people or, at least, override decisions of traditional law if those eral government (Yerbury and Griffiths 1999: 26-44). decisions did not reflect the colonizers' values or meet their wishes. Donna Van Cott (2003) gives Latin American examples of sev- As the former colonies gained their independence, they usually eral ways in which indigenous legal systems coexist-sometimes retained the Western legal system of colonial times, a system often quite uneasily-with the Western-derived governmental systems.Chapter Four Western Law and some aspects of criminal law. Both the substance and proce- dures of these areas of canon law would find their way into the sec- SOURCES OF COMMON LAW ular law of Europe. Commercial law also provided material for the civil law. As Europe emerged from the localism of the Middle Ages, it developed The Roman legacy of abstract principles, writing, codification, prosperous trade routes over land and sea. Towns and markets and the importance of scholarship did not reach across the English grew into major commercial centers, sprouting important markets Channel. Contemporary common law finds its earliest roots in the and banks. Neither Roman nor canon law provided mechanisms for feudal system of the Middle Ages (c. 500-1500.) Feudalism was a the speedy settlement of business matters, so guilds and associa- socioeconomic pyramid. The king was the head of the pyramid, the- tions of merchants developed their own rules and their own tribu- oretically owning all the land of the country. He allotted some land nals to enforce them. These rules, based on the "custom and usage" to his nobles, who owed him loyalty in return. The nobles in turn of artisans and merchants, proved so effective that the "law mer- allocated their land among people of lesser status. At the bottom of chant" would be applied by government courts; it would transcend the pyramid were the peasants, who worked the land but had no international boundaries and was the one area of civil law to find rights to it. The inevitable disputes that arose in any community favor in England. might be decided by a higher-ranking noble or could be taken to a In the sixteenth century, many of the small duchies and princi- court of the shire (county). In some disputes the facts were immedia palities of Europe started coming together into bodies that we ately evident and the custom of the area clear to all; when these cir- would recognize as nation-states. Each nation began to develop its cumstances were not met, courts resorted to trial by battle, ordeal, own distinct culture. Vernacular languages replaced Latin in the or oath-helpers. Recall that oath-helpers were friends, relatives, universities and in literature. National, rather than European, and neighbors of the litigants-a group of peers. Like most litigants schools of art and music came into being. New varieties of Chris- of the time, they were uneducated and illiterate. tianity arose to challenge Roman Catholicism. Law was also sub- When William the Conqueror became ruler of England in 1066, jected to this new nationalism. Newly formed central governments he did not abolish the existing courts but added a system of royal encouraged legal scholars to pull together these various sources of courts. These were primarily designed to settle disputes among law and combine them with the traditions of their own regions. The nobles. These national courts not only permitted a more consistent result of this was codification, the attempt to produce a "rational, administration of justice but also gave more control to the king and systematized and comprehensive legal system" that would not only allowed him to pocket the fees and fines collected by the courts. How- bring order to the chaos of existing law but would also ensure the ever, the king soon found that he did not have a monopoly on justice centrality of the state in the law-making process (Glendon, Gordon, for the upper classes, as the Roman Catholic Church had its own and Carozza 1999:32). Although the lawmakers would respect the courts and insisted on trying offenses against religion, which old sources of law, they need not necessarily find them binding. included adultery and incest, as well as family issues such as mar- This meant that codes could be tools of change as well as tools riage and inheritance. Church personnel charged with crimes could of stability. The French Civil Code of 1804 (often referred to as the claim "benefit of clergy" and have their cases moved to Church courts. Code Napoleon) embodied the egalitarian values of the French rev- While justice for nobles was being made more efficient, local olution. In order to break down the great estates of the old nobility, courts continued to administer justice for commoners according to the code made it easier to buy and sell land, limited inheritances, local custom, custom that varied greatly from one place to another. introduced the institution of adoption, and permitted divorce by However, many commoners soon preferred to take their cases to the mutual consent. At the same time, it continued to protect private royal courts whenever they had a choice. They perceived procedure property and the power of the husband and father in the tradi- there as being more fair than in the local courts, and, perhaps even tional family. more important, these courts made use of neither battle nor ordeal. Chapter Four Western Law 47 Each case that went to a royal court deprived the local landowner of respect for writing, relies on a dossier, a written record of the evi- a fee and served to centralize the system of justice. By 1215-coin- dence compiled by neutral investigators under the direction of a neu- cidentally the year of the Fourth Lateran Council-king and nobles tral judge. Judges who have not been involved in the investigation signed the Magna Carta, which reduced the criminal jurisdiction of (the number of judges depends on the seriousness of the case) receive local courts. The Statute of Gloucester followed this in 1278, which the completed dossier and make their decision based on the evidence severely restrained their civil jurisdiction. The centralized royal presented in it. The judges may call witnesses for clarification, but courts had, for all practical purposes, replaced the local courts. not for any new information that is not recorded in the dossier. In The judges of this centralized court system decided cases by contrast, the common law, with its history of peers swearing publicly referring to custom, but they had to face the fact that courts in dif- to what they know of the facts and the character of the litigants, ferent parts of the country had been referring to different customs. relies far more on oral testimony given in the courtroom. Written The first major attempt to find common customs and turn them into material is entered into the record only under special circumstances. "common law" is attributed a thirteenth-century judge named This leads to what may be the most noticeable difference Henry de Bracton. Bracton searched the records of several courts, between the two families of Western law. The civil law utilizes the looking for cases that relied on the same custom. That custom and inquisitorial method while the common law utilizes the adversarial the cases that illustrated it were made available to other judges. method. The former depends upon objective investigators who Decisions were still based on custom, not cases, but cases were evi- assemble all available evidence, regardless of which party it favors. dence of the custom. By the sixteenth century, judges were regularly This evidence is then presented to judges especially trained to eval- citing prior cases in their decisions and in the seventeenth century uate such evidence and then apply appropriate law. The adversarial decisions from the court of the state chancellor were held to be bind- method depends on lawyers for the parties (defendant on the one ing on other courts. The nineteenth century saw a reorganization of hand, state or plaintiff on the other) to gather and present the evi- the courts with a single court of appeals, guaranteeing that the dence most favorable to their own side while looking for weaknesses same body of law would be applied nationally. At the same time, in the evidence presented by their opponents. This evidence is not elected legislators enacted large numbers of statutes, laws that presented to a specially trained bench of judges but to a jury of lay- might be based on custom, but might also depart from it radically. persons selected from the community. It is they who will decide the facts of the case, while the judge decides only questions of law. This division of labor between judge (finder of law) and jury DIFFERENCES WITHIN WESTERN LAW (finder of fact) reflects a further difference between the two sys- tems. The civil law system places great emphasis on the role of This history of the role of precedent is also the history of one of highly trained professionals. The career of judge is quite separate the main differences between civil and common law. Legislatures in from that of attorney. Would-be judges attend schools that are civil law countries enact legal codes (a systematic arrangement of entirely distinct from those attended by would-be attorneys, and laws designed to cover an entire legal area) and each judge refers they begin their careers as judges directly upon graduation. directly to the code when deciding a case. Common law legislatures The common law relies far more heavily on the layperson and pass statutes (law written to address a specific legal situation) and values experience at least as much as it values education. The clear- judges look at the law itself as well as at the ways in which other est evidence of this is the presence of the jury, a body meant to be judges have interpreted that law in previous cases. The decisions of representative of the community. Not only are jurors not required to the previous judges become binding, so that each judge applies the have legal training, in many jurisdictions too much legal knowledge law in the same way. may serve to disqualify a juror. Common-law judges have the same Another difference between the two traditions is found in the legal training as attorneys and usually begin their careers as attor- way in which they arrive at the facts of a case. The civil law, with its neys. Once elected or appointed as judges, they may be sent for brief48 Chapter Four Western Law initiation and training programs, but they will learn most of what into law, but they may also recognize social, cultural, or technological they need to know through experience. An even greater departure change. They may reflect the power of a new interest group or the from the civil law's emphasis on education and professionalism can decline of an old one. They may change quickly and easily or as the be found in the common law's reliance on lay magistrates or justices result of a long and contentious process. In all of these circum- of the peace. This institution traces its history to the Justices of the stances, followers of Western law agree that law is a creation of Peace Act 1361, which granted "knights, esquires or gentlemen" of human beings and therefore subject to change by human beings. the area authority to "pursue, arrest, take, and chastise" those breaching the peace (Glendon, Gordon, and Carozza 1999:160). Today England and Wales have approximately 29,000 lay justices DISSATISFACTION WITH WESTERN LAW whose cases involve "summary" or minor offenses; these comprise about 95% of all criminal cases. The United States, as well as Can- In their purist forms, both forms of Western law solve disputes ada and other nations of the British Commonwealth, also continue through processes that attempt to objectively weigh evidence and to make use of justices or lay magistrates who usually have no for- produce a verdict. The number of verdicts available is small-guilty mal legal training at all. or not guilty in a criminal case, for plaintiff or defendant in a civil case. In practice, most cases are settled before coming to trial and SIMILARITIES WITHIN WESTERN LAW the results do not necessarily reflect these all-or-nothing outcomes. Reducing the criminal charges or accepting a plea to a lesser charge may reflect some uncertainty on the part of the state, while out-of- The above list of differences within the Western law systems court settlements in civil cases usually involve some compromises should not obscure the similarities, similarities that continue to from both parties. Even when cases do come to trial, the defendant increase. Many common-law countries have codified parts of their may be found guilty on some charges but not on others. Likewise, law; in the United States, for example, the Uniform Commercial the finders of fact in civil cases may find some fault with both par- Code has supplanted case law in most business matters. On the ties by accepting a defense such as comparative negligence (finding other hand, civil-law countries recognize that judges seeking to that both parties were negligent, but not equally so) or by awarding apply a particular section of the legal code will often look to see how little in the way of compensation. There is more flexibility in West- other judges have handled similar cases. Civil-law countries have ern law than a casual study would indicate. found ways of incorporating laypeople into the justice system. Nevertheless, past decades have found an increasing dissatisfac Some, such as Spain, have introduced juries into their systems tion with Western law's constraints. Particularly in common laws, while others, such as Germany, make use of lay judges who hear victims in criminal cases are reduced to "complaining witnesses," cases together with professional judges and together they decide and neither their material losses nor their emotional damages both law and fact. Although admirers of the common law continue receive any attention. Although allowing the state to appropriate to praise the institution of the jury, the fact is that most cases the role of victim (i.e., the government, not the victim, accuses the settled outside of the courtroom with the final agreement approved defendant in a criminal trial) has a number of advantages (e.g., the by a judge (Hayden 1987:263). The frequency of settlement reflects government has more resources than do most crime victims), it also the expense and delay inherent in jury trials, as well as a reluctance means that the needs of the flesh-and-blood victim are often to submit to the uncertainty of a jury verdict. ignored. In civil cases, there is not a victim, per se, but one party Finally, the most important thing that the two systems have in may feel justified and the other aggrieved-feelings that are bound common is the belief that law is made by legislators and applied by to increase rather than decrease their hostility toward each other. judges. The laws may reflect religious values, but they are not the The search for remedies to disputes has often led to other legal result of religious revelation. They may sometimes transform custom systems. Two of the most widely used of the borrowed mechanisms 50 Chapter Four Western Law are mediation, originally modeled on techniques used in China, and "restorative justice" point out three failures of the Western criminal restorative justice, inspired by the traditional legal systems of justice system. The first is the failure to meet the needs of the victim. groups such as the Navajo Nation of the United States, Oji-Cree of Although European courts are able to combine civil and criminal Canada, and the Maori of New Zealand. While the institutions of all cases, thereby allowing the victim to sue for damages, this process does these cultures have been adapted to Western legal needs, all still not address the victim's nonmaterial needs. Common law does not do clearly reveal their original inspirations. even this, seemingly assuming that the satisfaction of seeing offenders In the People's Republic of China, mediators tend to be friends, convicted and punished will satisfy the victims. Second, the high rate neighbors, and relatives of the disputants. The mediators often of recidivism indicates that the Western system also fails in deterring identify the ideal outcome, and then work with the disputants to the offender from committing future crimes, and third, it does not suc- achieve it. They accept that the mediation process will take weeks, cessfully reintegrate the offender back into the community. months, perhaps years. Western mediators, on the other hand, are Attempts to remedy these failings took criminal justice reform- sometimes volunteers, but they may also be trained in mediation ers to societies practicing traditional law, societies whose aims and techniques and paid for their services. They must be strangers to processes seemed to bring about the results that have escaped the disputants and are instructed not to determine an outcome but Western criminal justice. One observer of the restorative justice to support the disputants as they work out their own solution to movement identifies its desired outcomes as follows: their problem. The mediation process is brief; if an agreement is not . Offenders repair the harm resulting from their criminal acts; reached within a number of hours, the meeting is brought to a close. While the Chinese and Western techniques are different, the aim is . Offenders experience and express repentance for their mis- deeds; the same-to arrive at a resolution of the dispute that is satisfact tory to both parties. Today, mediation in the United States is no Offenders are fully reintegrated into communities of law- longer an alternative to trial but is so much a part of the Western abiding citizens; and legal system that in many states courts will not hear certain cases . Victims are healed of the trauma resulting from their experi- unless the parties have tried mediation first. ence (Johnstone 2003:4). Not all observers are enthusiastic over the movement to substi The emphasis, therefore, is on repairing the harm caused by the tute mediation and negotiation for litigation. Laura Nader has been offenders rather than on punishing them. Equally important, restor- the most outspoken of a number of social scientists who believe that ative justice works to bring about a situation in which offenders are mediation and negotiation are a cut-rate form of justice that ignores prepared to take responsibility as law-abiding members of a commu- inequalities between the parties and forces disputants to sacrifice nity, a community that is prepared to accept them in that role. their legal rights to an artificial goal of harmony. Nader (2002:121- The Maori of New Zealand provide an example of restorative 123) outlines a theory of "harmony ideology" as pacification, a tool justice. A 17-year-old boy was accused of the attempted rape of a girl used by colonial powers to discourage forcible resistance from the of 16. The boy admitted his guilt and the chief of the village con- people they colonized. She sees echoes of this in the attempt to con- vened a gathering. The victim came in first, accompanied by her vince disputants that their differences can be resolved by better parents and other relatives. Then the offender entered, together communication rather than by a court of justice. She points out that with members of his extended family. They sat on opposite sides of where parties have a choice, the stronger party prefers mediation or the meetinghouse. As soon as the boy pleaded guilty, the old women arbitration, while the weaker party prefers a court of law (156-157). of the village began to berate him for breaking a sacred tapu in If the mediation of disputes addresses itself to the civil side of attacking a young woman, for bringing shame upon himself and his Western law, restorative justice challenges the criminal side. West- family. The boy and his relatives were reduced to tears. ern criminal law is based on "retributive justice," the belief that jus- At this point the penalty was announced. For the next 12 tice is best served by punishing the offender. Advocates of months, whenever there was a wedding or funeral service in the52 Chapter Four village, the boy's family would have to provide all the meat and veg- etables. In addition, the boy had to paint the meetinghouse. Exam- ination of the meetinghouse showed that the roofing iron had decayed, so the family had to replace it. After some time, because the meetinghouse belonged to everyone, the girl and her family helped prepare meals for the boy's family as they were working. Little by little, the unpleasant situation was reconciled, and together the two families repaired the dining room and surround- ing fences. From start to finish, the process took about two years. Although the boy had been shamed before the entire village, he did not have a criminal record that would follow him for the rest of his life. The injury done to the girl was recognized and community sup- port helped her to heal (Consedine 2003:153-154). The processes used to bring about restorative justice vary, and its advocates caution against defining it in terms of means rather than ends. Nevertheless, certain elements appear with great regu- larity. These include: . Victim-offender mediation, in which the victim explains the extent of the harm and victim and offender work out a means of restitution. This may include a form of community service in addition to direct reparation to the victim. . Participation of the community, which means, at its simplest, that the mediator is a member of the community. More popular models include friends and relatives of both parties, who help find solutions and provide support to both victim and offender. . An expression of regret and apology on the part of the offender. . A plan formed by all of the participants to support the offender in his or her determination to avoid future misbehavior. "Whether it is really possible to adapt practices that are based on a possibly idealized model of traditional law into the Western legal system is still open to doubt. Nevertheless, an emerging body of research is beginning to demonstrate that restorative justice can be effective, even by the criteria of the Western criminal justice system (Bazemore 2005:131-148)