Western legal culture vs non-Western legal culture[edit]

Western legal culture is unified in the systematic reliance on legal constructs. Such constructs include corporations, contracts, estates,
rights and powers to name a few. These concepts are not only nonexistent in primitive or traditional legal systems but they can also be
predominately incapable of expression in those language systems which form the basis of such legal cultures.[2]
As a general proposition, the concept of legal culture depends on language and symbols and any attempt to analyze non-western legal
systems in terms of categories of modern western law can result in distortion attributable to differences in language.[2] So while legal
constructs are unique to classical Roman, modern civil and common law cultures, legal concepts or primitive and archaic law get their
meaning from sensed experience based on facts as opposed to theory or abstract. Legal culture therefore in the former group is
influenced by academics, learned members of the profession and historically, philosophers. The latter groups culture is harnessed by
beliefs, values and religion at a foundational level.
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.[3] The doctrines of traditional African law are based on social
considerations whereby parties to disputes seek not declarations of right or wrong but rather they seek restitution of social relationships.
[3]

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 Gluckmans evidence] suggests that Africans may well have formulated, in embryonic form at least, a theory of
natural justice coming from human kindness itself. [3]
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 byLawrence Rosen explains the anthropological, procedural and judicial discretion aspects of bringing a case
to court in Sefrou, Morocco.[4] 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.[4] In Morocco, close attention is paid to social origins, connections and identity where these
concepts influence a qadis (judge) judicial interrogation and discretion.[4]
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.[4] 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.[4]
Western comparisons[edit]
The traditional focus between common law culture and civil law culture has been highlighted by court room procedure, whereby the
former nurtures an adversarialenvironment and the latter an inquisitorial one. Indeed no system of court procedure can ever be purely
adversarial or purely inquisitorial.
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.[5]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 Jury in the common law as a judge of fact is unique when compared to civil law systems. The Jury are triers of fact in
both civil and criminal cases and this reflects a particular culture of law; namely the direct involvement of society in the legal framework.
In France a judges role as trier of law and fact is merely as an administrator without creating binding legal principle. Hence the civil law
culture is more rational, orderly, authoritative and paternalistic.
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 mans realisation
of his own limitations. [6] 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[edit]
Legal culture can differ between countries despite their conformity to a similar if not identical legal system. Both the United
States and England possess common law systems of law and yet each country embodies a distinctive legal culture. This has been
attributable by contrasting both the institutions within the legal system and characteristics of the profession
(judges, barristers and solicitors).[7]
According to Posner[7] during 1996 there was about 15 times more American judges than English judges but only about 10 times more
American lawyers than English lawyers. Posner suggests that English judges have more prestige than American judges and a related
point is that the ratio of judges to lawyers is lower in England than the United States.[7] The consequence of this is that the English
common law system, as opposed to the American legal system, displays a legal culture of greater prestige and elitism not only in the
judiciary but also those who are candidates for the judiciary.
In England, and other Commonwealth jurisdictions, barristers are apt candidates for judicial nomination. The reasons for this stem from
the common law systems which have a culture to encourage, harness and capture high quality intellect and experience within a
concentrated portion of non-judicial officers of the legal profession known as barristers (which includes and accounts for their
subsequent appointments to higher ranking queens counsel and senior counsel).
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 nave clients." [8]
The cost of pursuing litigation influences the culture of each legal system in terms of what society perceives as the net benefit gained
from the court and the profession. To litigate similar cases in England and the United States would cost approximately the same;
however English courts are not as generous as their American counterparts in awarding damages, especially punitive damages.
[7]
Therefore the net expected benefit of litigation being greater in the United States encourages a legal culture that is more litigious in
nature than England.
National character is inherent in the legal institutions of the courts and parliament, their formation and their output in terms
of legislation or judgments. For example it has been said that many factors have contributed to the litigiousness of the United States,
including: the rights afforded to the people, a written constitution, immigrant origins of its population, racial and ethnic heterogeneity and
the wealth and spoils of its population.[7] To this end national character and history influence current legal culture.