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The White Man’s Burden written by Rudyard Kipling and published for the first time in 1899, speaks volumes about the kind of mentality prevalent in a colonial power such as England. Kipling was the quintessential colonist. He remembered fondly the years he spent in the Indian subcontinent, but there was more fascination than respect towards the various facets of Indian social life. The attitude, The White Man according to Edward Said’s book Orientalism has transcended into nearly all major aspects of the Western perspective about the East.
The legal profession is no exception. Over a century of colonialism in countries part of both Africa and Asia has left the state institutions in these countries in shambles. Very few of these countries can boast of a judiciary that is just, a military that is subservient and well-equipped at the same time, a parliament that is sovereign, an executive that is strong and accountable, and finally, a society that is truly democratic and fair in most ways. The reason for that lies in the weak structure of the state. But is the state truly democratic? Is it in every sense by the people and for the people?
The answer to that question is not easy because countries such as Pakistan, India, Bangladesh, Sri Lanka, Ghana and Nigeria have periodic elections and a parliament structured not too different from the one seen at Westminster in London, so why is British democracy touted as a success while countries like Pakistan and Bangladesh have routinely experienced periods of military rule? Why are the democratic norms seen in the United Kingdom and its neighbors so conspicuously absent in the countries mentioned above? The reasons for that are many, and some of them are rightly identified as a clear lack of administrative capability and a low level of education in the general populace, but a more accurate reason may lie in the way the laws of these countries are structured. But various media commentators point out that their laws are strikingly similar to those witnessed in the West, and perhaps, The White Man that is where the problem lies! Democracy can only flourish in a country if the laws and legal structure is designed in a way that benefits the general populace, in a way that is imbedded in the psyche and mentality of the locals, in a way which is not a replica of foreign law books and theories.
This paper aims to consider how most of the legal education around the world is based on experiences and theories of the West. This is in no way a criticism of Western laws and values, for we have seen that these very laws have made most Western nations an epitome of democratic values and social justice. As a student of law, I have been influenced by the values imparted by the West, The White Man and it would be dishonest to say that my worldview is not influenced by what the West says regarding various laws and regulations. This paper will henceforth explain what exactly ‘legal culture’ refers to, and the various attributes of Western legal culture in the question that was posed in the beginning. This will be followed by an analysis of the extent to which our education today is a reflection of Western values and perspectives on laws. The conclusion will talk about how the prevalent method has influenced my own legal realism and approach to business ethics in my culture.
Surprisingly, there is no single definition of the legal culture. It is used in different ways and contexts by politicians, sociologists and lawyers. It is a term that is generic and oddly specific at the same time. David Nelken describes legal culture as “Legal culture, in its most general sense, is one way of describing relatively stable patterns of legally oriented social behaviour and attitudes.” (Nelken p.1) This is an interesting definition because it refers to the role of social perceptions when defining a legal culture. The laws in two countries may be exactly the same, but the legal culture may be markedly different because of the different society. Legal culture therefore is dependent on a variety of factors, not just on written laws and constitutions.
That is not to say that the society is the only, or even the biggest determinant of how a specific legal culture is shaped and created. It merely stresses on the importance of how a societal structure can shape the legal culture of a country. Sally Merry of the NYU School of Anthropology says “legal culture is a very productive concept, as well as a very incoherent one.
It means many different things to different scholars. Perhaps this is why it is so useful.” Once again, The White Man the stress is on how the term encompasses broad ideas and definitions. Nelken raises some intriguing questions in his paper. He asks “Why do the United Kingdom and Denmark complain most about the imposition of European Union (‘EU’) law but then turn out to be the countries which have the best records of obedience? Conversely, why does Italy, whose public opinion is most in favour of Europe, have such a high rate of non-compliance?.”Perhaps the most important of all his questions is “What can be learned, and what is likely to be obscured, by defining ‘law’ in terms of litigation rates?” (Nelken p.2) Like all good writers, Nelken also attempts to answer the questions he raises in his essay. He says that we need to define legal culture with units. It should be explored on both a macro as well as a micro level.
He says that legal culture should not be attempted to be defined by a homogenous definition. Homogeneity as an aim will not assist in arriving at a conclusion. Something that was highlighted in this essay in the opening paragraph is also pointed out by Nelken when he says that “Non-European countries frequently have mixed or pluralistic legal systems which testify to waves of colonial invasions or imitations of other systems. Deliberate attempts at the socio-legal engineering of so called ‘legal transplants’ can range from single laws and legal institutions to entire codes or borrowed systems of law”. (Nelken p.4) The White Man This shows how important the role of colonial influences and foreign ideals has been in creating the current legal culture in developing, non-West countries. What we need to establish is that defining legal culture is a process heavily linked with interpretation, it is not concerned with how a society and its constitution are linked. The definition will change perpetually, and if it does not change, then the scholars of the legal profession as a group are failing to come up with a comprehensive explanation.
One problem with Western legal culture is the obsession to create a system based on universality. There is considerable emphasis to make sure that the laws identified in the Western legal culture as vital and important are also the ones considered indispensable for Eastern countries. In his essay for the Oxford University Press, Ralf Michaels makes a very telling statement by saying “Furthermore, European legal culture can be based on common European values.” (Michaels p.5) This shows that legal culture has to, by definition, be different everywhere. Legal culture in India will need to be different from that of Europe because the European society is vastly different from the Indian society.
Legal realism is another concept that needs to be explained and explored. It was first coined in the United States where scholars defined it as a cold-headed approach to viewing rules and decisions made by American courts. Legal realism says that decisions by judges are made strictly in accordance with what they feel is right. The word of the court is final and unquestionable. The White Man On the downside though, this view gives unprecedented rights to the judges to decide the fate of convicts. Western legal realism criticizes the way in which courts in non-West countries decide cases. Edward McWhinney wrote a comprehensive paper on legal realism and legal culture titled “WESTERN AND NON-WESTERN LEGAL CULTURES AND THE INTERNATIONAL COURT OF JUSTICE.” The ideas he espoused will be used later in this paper because they form the cornerstone of the varying perspectives on legal cultures around the globe. Some of the questions posed by Filmer Northup are also worth pondering. He wondered whether the success of scientists such as Einstein and Newton were down to the greater liberties and freedoms allotted to them as individuals by law in Western societies, and whether Easter scientists could ever achieve that level of greatness given the current circumstances in their countries. Despite sounding at best derogatory and at worst racist, Northup’s comments deserve attention.
They should not be looked at as insulting comments, rather viewed more positively as a means to understand the differences between the two cultures. After the Second World War, The White Man the American idea of legal relativism and legal realism was attempted to be imposed on the world in general. Legal minds from across America gathered in San Franciso in 1945 to forward their agenda of creating a single World Public Order. This was the first serious attempt to make sure that the legal realism found in America was adopted by countries and societies around the world. The procedures and definitions seen in the American constitution, particularly when it came to cases of human rights abuses and religious freedom, were to be adopted by lawmakers and judges in other countries too. As a result of these aspirations, the International Court of Justice till date remains a primarily Western European institution. To be fair to Western countries, one of the reasons the viewpoint of the non-Western countries was not expressed in these initial documents of the ICJ was their preoccupation with self-determination and self-rule struggles in the aftermath of the Second World War. Their concerns were not whether the ICJ will be an effective and fair body in the future, and this led to an under-representation of developing countries in the legal provisions of the ICJ. Therefore, The White Man the establishment of the ICJ, and the unanimous approval of the UN Charter shows a strong bend towards US legal realism. The global effect of the Western legal culture was therefore profound and very expected given these post-war circumstances.
Countries can today be taken to the ICJ on account of human rights abuses by individuals as well as pressure groups and NGO’s. The universalistic nature of the ICJ and the subsequent laws that were enacted after the Second World War came to bite back the United States in 1986 when it was ruled by the ICJ that America’s covert war in Nicaragua was in violation of international laws. In the aftermath of this judgment, the US now only accepts the jurisdiction of the ICJ in specific cases, and has pulled out of compulsory jurisdiction of the ICJ authority on all matters(Posner). Countries who are signatories to the UN charter such as Iran and Pakistan are not comfortable with the secular nature of the ICJ and its judgments in matters concerning international law. However, as mentioned before, the ICJ and other such international bodies have their laws rooted in European culture and have failed to allay the concerns of some countries when it comes to making decisions.
There are several advantages to this application of Western pluralistic models around the world. It ensures that human rights violations, particularly by governments and states are accounted for and duly criticized. One recent example is the government of Robert Mugabe which faced sanctions and punitive measures in the face of his government’s racist policies that defied all norms of human liberty and rights. Zimbabwe soon faced economic meltdown as the currency crashed and millions of people migrated to neighboring countries in the face of financial insecurity and risk of life.
Another such example is South Africa which was shunned by the world for following racist policies and prolonging apartheid rule until the early 1990’s. When faced with sanctions and a global disapproval of its actions, the South Africans were finally forced to hold open general elections for the first time in their history.
It resulted in an elected black president, and a reintegration of the country into the global community. Established Western concepts of financial dealings have also been incorporated into commercial law many countries. For instance, the Sale of Goods Act (SGA) is now a document used widely around the world. The rights of the buyers and sellers, of tenants and landlords, are clearly defined and are almost universal. This has assisted businessmen in conducting dealings around the world without having to run into legal barriers along the way.
Perhaps the greatest disadvantage of the Western legal rationale and legal realism is that it is Western! When the entire Western world stood up to Mugabe and demanded a trial of Sudanese President Omar Bashir for mass killings in his country, it was seen as remarkable unity against a despotic regime for strong principles. However, because these laws are created and maintained primarily by Western jurists, they have been unable to criticize and take to court friends of the West for their human rights abuses. Women are still not allowed to drive in Saudi Arabia, but the ICJ has not passed any rulings against it.
The European Union does not have any country that still uses the death penalty and wants the world to follow its example. Recently, Pakistan was granted access to European markets only on the condition that it puts a hold to the death penalty to improve its human rights record, but the EU failed to take notice of how several states in the United States were carrying out the death penalty without any fear of economic restrictions (Haider). This is the greatest criticism that institutions such…
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