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What is CLT Study of law in (historical, social, political) context and how it shapes and is shaped by context Study CLT to be more sensitive to questions of influence and context in the creation and application of laws
Hodge-podge of international influences in Singapore’s legal system English common law system Public international law Confucian influence Syariah courts – Islamic law Reception of statutes from other jurisdictions
Menski (quick and dirty) Globalisation/ global perspective: Important to have a globally valid outlook Hybridisation due to locality: Locality-coloured and culture-specific Challenge to lego-centricity of the West: Extra-legal and non-legal ways of doing things Plurality within and outside of West due to porosity: Horizontal transfer of elements of legal systems Legal traditions as ‘fuzzy’: No clear box Law shapes and is shaped by society and culture o Reciprocal influence o Social norm of maintaining parents may have given rise to Maintenance of Parents Act; the law can also have normative influence on social and moral norms o Significant trope in Asia that Asians supposedly have different understanding of individual’s relationship to society than Western understandings (communitarian vs individualist) Law is ‘encultured’ and is a ‘lived tradition’ o Custom (adat law in Malaysia) o The law applied takes into account socio-cultural context False dichotomy between formal legal systems in developed countries and informal legal systems in undeveloped countries. Both countries have both formal and informal aspects. ADR/ settlement conferences/ plea bargaining: informal law. Cosmopolitan outlook – neither Eurocentric nor Europhobic, but balance the international and the legal in the legal map of Singapore Reverse colonization o Making Singapore norms desirable for others to take on Pluralist, globality-conscious legal education
The culture-specific nature of law and respect for difference Hybridisation of law As opposed to uniformising homogenization o Eurocentric or Western legal theories cannot legitimately claim universal validity o Need to recognize in theory and practice that Eastern or Southern values may have an equal claim to universal (“universal”?) recognition Accelerated by globalization Coloured by locality and culture
Main concern: How to transfer theoretical jurisprudential awareness that all laws are culture-specific into practical application? Treatment of different traditions Interlegality or legal porosity (??) Multivalent (multi-valued) thought which acknowledges that sub-traditions may each be right in multiple inconsistent ways Diversity in law is a basic fact which is constantly hidden and defined away (Glenn, 2004). The boundaries between legal traditions are in fact fuzzy.
Non-uniformity of law The label law is applied to a plurality of principles, knowledges and events, yet it claims a unity through the common usage of the term ‘law’ (Smart, 1989). This singular image operates as a claim to power because it creates the impression of a superior and unified field of knowledge. A dynamic postmodern approach to understanding law (rather than a rigidified and uniformising one) is required. Much depends on particular socio-political constellations. The question is not what is (and what is not) within the ‘law’, because this discussion pulls analysis toward unification and uniformity. It defines away the plurality of law. Must recognise plurality and have a plurality-conscious analysis of law. Universalised narrative of ‘progress’ because of the study of anthropology and the history of Western law. However it is emerging that the results of ‘progress’ are neither good nor necessary. Conventional tendency for lawyers to streamline and harmonise away differences must be overcome in comparative legal study. There is no necessary contradiction between respect for diversity and aiming for greater convergence (Cowan, 2001). Cowan: No single definitive theory exists because of irreducible difference across contexts.
Interplay with socio-cultural plurality Comparative law is necessarily concerned with the social (Cotterrell, 2002).
Legal positivism is not enough for legal analysis (Freeman, 2001). Widespread disillusionment with social engineering through law (Baxi, 1982). BUT must note that study of legal interaction with socio-cultural plurality is insufficient if it does not acknowledge legal plurality. Individual agency vs state centrism – former acknowledges right of the individual to determine which rules apply, gives rise to pluralism [pg 8]
Challenges of learning and teaching comparative law Absence of worldwide agreement about what is ‘the law’ – definitional and ideological struggles arise because different religious systems have competing truth claims. Objection of ‘essentialising’ – the practice of stereotyping complex entities by emphasizing one particular aspect of the whole – author disagrees that this is a problem as long as one is aware of the fluidity of boundaries. Must accept validity of other system in its own right and think in open basic categories. Understanding of socio-cultural dimensions of law as NOT extra-legal Legal positivism is formalistic, reductionist and is the enemy of understanding in the law. Must move toward “post-positivism”. Include in the picture the deeper structure of the law (legal culture, language of legal expression, revolutionary movements, etc) as well as the decorative and symbolic elements of it. Combining contested and competing definitions of law into a plurality-conscious analytical model.
Religion and society – their links to law Contested concepts: o God/ gods/ their human spokespersons – do they make law o Are ‘customs’ to be treated as law o Room for private law-making By social groups, and perhaps even individuals, not states Do groups of people in a state have the right to determine their own rule systems if there are formal laws that they should follow? Or is that lawlessness, treason? o What is law? Is it a universal phenomenon? Not all human societies have formalized law laid down by a state. So under a state-centred approach, law is not a global phenomenon. Hart’s famous model of law requires centralized legislative and adjudicative bodies to recognize ‘law’. However a more globally oriented approach would accept that ethnic minorities in Britain could develop their own laws in the shadow of official English law. But it is a polarizing issue, e.g. wearing of headscarves in public. Some societies may not have visible evidence of law and legal processes because the law is not written and no disputes arise because everyone follows the law to the satisfaction of others.
Must be sensitive to diversities of life, socio-cultural elements and their implications on people’s worldviews (rural/urban, rich/poor, white/black) Formal cosmopolitan law has become the dominant concept, often completely silencing lesser orders, little people and their legal concern
Changing global scenario: from colonial transplant to ethnic implant Conception of globalisation: Is it about forcing ‘little’ local people to comply with metropolitan standards? Colonial mindsets influence much modern thinking about law o Colonial experience created strong spirit of Western superiority and self-conscious claim of a civilizing mission
International law and its unifying pressures Does globalisation mean global uniformisation of laws, or glocalisation/ global pluralism? Creation of universal legal order motivates promotion of human rights law (rule of law, good governance) Students of PIL must be cautious to imbibe impression that there is a universal legal order. One school of thought criticizes plurality of rules as anarchy, vigorously argue for uniformisation of PIL. What is plurality of laws? Not just diversity of rules. o David and Brierley (1978) – Law is not just composed of the totality of rules. Each law in fact constitutes a system: it has a vocabulary used to express concepts, its rules are arranged into categories, it has techniques for expressing rules and interpreting them, it is linked to a view of the social order itself and determines the way in which the law is applied and shapes the very function of the law in that society. o Positivist law reform changes only the rules. But these are intimately linked to the civilization and ways of thinking. “The legislators can have no more effect on them than upon our language or our reasoning process.” o Menski: Law reform would ideally have to consider socio-cultural facts. Comparative lawyers pre-occupied with recognizing and removing difference rather than celebrating it: Cotterrell The tension in the human rights field is interesting. There is an appreciation of difference alongside a search for uniformity. Because human rights is based on fundamental values, there is an appreciation that these values are interpreted differently in various settings. Nonetheless, there is a strong drive for uniformity given that the university of the values to be represented in human rights law is powerfully championed. Cultural relativism – is relativism compatible with the existence of cross-cultural universals? Conflict lawyers should be highly attuned to plurality-consciousness. But unifying efforts have been built on assumptions about the innate superiority of one’s own legal system and the desirability of global legal uniformisation. To achieve ‘comity of nations’ perhaps what is required is not uniformity of laws but more respect for plurality.
Role of comparative law in creating ‘global law’ Useful in historical and philosophical legal research Important to better understand and improve one’s national law o Unifying focus on ‘comparative legislation’ in 19th century o True concordance of legislative development and not merely a generally similar tendency o But no uniformisation because reforms were introduced ‘with such modifications as may be found necessary due to local conditions’ legal instrumentalism as a tool for social engineering Promote understanding of foreign peoples – favourable for development of international relations o Taken for granted that progressive initiative should come from the West, although lip service was paid to social influence on law
Assumptions about uniformity: legal transplants and reception of laws in colonial and non-colonial contexts Why exchanges of legal, religious and cultural norms occur: Trade, war, colonialism Early legal transplant: Reception of Roman law all over Europe Colonial period: North-South transfer of legal information No uniformisation but instead a scenario that defies easy models of identifying legal families Simplistic positivist views of legal reception have given way to complex understandings because received laws have everywhere been adapted to suit local conditions, and transplants everywhere manifest themselves as new hybrids Montesquieu: Close relationship between law and society militated against the transfer of law from one society to another, unless the societies were themselves similar. o Foster (2002): Culturalists and transferists are the main opposing positions o Seidman and Seidman (1994): Law as a culturally determined construct cannot be fully transplanted to another culture o Watson (1974, 1993 – most famous) – most famous legal transplant theorist but he acknowledged that ‘a complete legal union is neither possible nor desirable’ In the Western world borrowing (with adaptation) has been the usual way of legal development It was assumed that his theory considered social factors unimportant but in his 1993 ‘Afterword’ he emphasizes the complex relationship between law and society o Mirror theory of law: Law should mirror social norms (but may often not do so)
Southern voices: from polite silence to post-colonial reassertion Increasingly self-confident post-colonial assertion of non-Western laws in the countries of the North [pg 35]
New globalisation: reverse colonization and ethnic implants
Acknowledgement of the growing legal presence of ethnic minorities and migrants, but relegation to the societal periphery as mere custom, no formal legal recognition. Colonisation: Europe and North American settlers in Asia and Africa (state-sponsored movement of personnel to colonies) Reverse colonization: Asian and African settlers in Europe and North America (private migrations) England as a colonial power skillfully ensured that the growth of expat communities did not result in the extraterritorial application of their local laws on British land Europe and North America are also now resisting the formal, official legal recognition of the migrants’ laws. The Eurocentric view is that as civilization progresses, traditional Asian and African laws will disappear and thus these laws have no current value. o View that ‘personal’ laws (mainly family law) should not become part of allegedly secular, uniform modern legal systems o Resultant claim that such personal laws should remain at the level of ‘custom’, ‘culture’ or ‘tradition’, outside the formal realm of law. Unofficial development of ethnic minority laws within Western jurisdictions are a form of voluntary transplants but remain unofficial nevertheless. o Increasing recognition that Shari’a Councils emerging as ADR fora for Muslims o Unofficial Muslim judges in many European countries have huge unchecked powers o Upholding of foreign legal orders (e.g. ECA upheld Italian adoption recently) o Many British Somalis undergo only a customary Muslim marriage in Britain today, and do not register their marriages. This would be officially dismissed as extra-legal, but such evidence is crucial for understanding and applying today’s Somali marriage law in Britain. It is wrong to assume that British Somalis and others, because they live in Britain, are now following English law. o It is crucial to be able to apply different readings of ‘law’. However in general judges and the public are desperate to prevent elements of Asian and African laws gaining a foothold in Europe. Panic about cultural alienation. Assimilation is championed in general and in the legal field. This approach fails to adopt plurality-conscious perspectives. Official recognition that English judges not equipped to handle cases on complex matters of ‘ethnic minority custom’ and socio-cultural issues. Not just conflict of law issues. Stubborn clinging to mono-legal regulation is not conducive to justice. Disregard for the legal claims of ethnic minorities cannot be justified under principles of good governance and human rights protection. How may official national laws in receiving state and unofficial norms of ethnic minority communities co-exist to produce a new culture-specific socio-legal amalgam? The fallacy is in the statist thinking that modern state law governs all aspects of life. ‘Law’ does not merely consist of state law. Common people have legal agency as well. Ethnic minority customs should be seen as ‘law’ as well. Champions Roger Ballard (1994)’s thinking that the challenge is to realize that migrants are committed to their ethnicity (religious, linguistic and cultural traditions) and thus build life in their own terms. Natives must learn to live with different and to respect the right of their fellow citizens to organize their lives on their own preferred terms.
One extremism often leads to another. When immigrants are demanded to enter the country and to live as a legal tabula rasa, it is no wonder that they vigorously protest against such assimilationist legal pressures by responding in similarly myopic fashion and asserting the supremacy of their religion and culture. Hegemonistic claims of official law are bound to fail in social reality. Immigrants often congregate. The receiving nation urgently needs to know what implications the newcomers’ cultures have for the legal developments in increasingly multi-ethnic states of the North. Are we witnessing the creation of states within states, or ethnic enclaves within our own legal systems? Laying foundations for future separatist disasters? Can migrants combine the perceived requirements of their religious and social framework of norms with particular forms of official state law in the host country? [pg 43]
Good practice in studying and teaching comparative law
Woodman (1998): Difficulty of distinguishing between what is legal and non-legal and in the field of social control. We must simply accept that all social control is part of the subject-matter of legal pluralism. Drawing one’s critiera of what is ‘law’ too narrowly (confined by statist ideologies rather than openended and empirical socio-legal methodologies) impoverishes legal research and understanding. Methodological flaw in identifying similarities and relationships between concepts of different legal systems Comparative lawyers have irresistible tendency to translate roughly equivalent concepts from two or more legal systems and then contrast them, rather than to analyse their respective socio-legal environments Sacco (leading Italian legal philosopher and comparative law scholar) says that the comparatist must learn not to translate Abstain from drawing parallels and equating concepts between different legal systems simplistically Must NOT understand other people’s laws in ways that completely sever the laws from historically developed contexts o E.g. By looking at socio-cultural context of English legal history, we realize that English common law is often determined by culture-specific epistemological [study of limits and validity of knowledge] assumptions, hidden behind judicial decisions or statutes
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