Law and Culture

Law and Culture

 

Culture and Law

 

Lecture at the University of San Francisco, January 15, 2000

Keyvan Tabari

 

1- In American law schools students are not taught about the impact of culture on the law. Lawyering is perceived as a profession. Jurisprudence, or the philosophy of law, is not emphasized. A good lawyer is expected to be a pragmatist who aims at solving problems in accordance with a system of rules that, presumably, hardly change– because of adherence to precedent. It is assumed that the rules apply equally to all.

 

2- How could I then, as a practicing attorney, stand before you and talk about the interaction of law and culture? I try to do this based on 2 sources:

 

            One source is my personal observations during some 25 years representing and dealing with clients and parties from different nations. These observations are anecdotal and, therefore, by themselves are, academically, insufficient.

 

            What is further needed is a historical and theoretical perspective. Accordingly, I will first give you a brief report on the impact of culture on some major legal systems.

 

3- Conventionally, the world’s legal systems have been divided into the Western and the non-Western systems. The major non-Western systems include the Islamic, Jewish, and Indian legal systems. The Western systems consist of the (1) Common Law system of the English language nations, and the (2) Civil Law system of the continental Europe. [The Scandinavian legal system is separate, but is not usually considered in the basic comparative studies.]

 

4- Although the Common Law and the Civil Law are two distinct legal systems, they share much, especially when compared with the non-Western legal systems. They are both the products of what is called the Western culture. The Western culture is distinguished from the non-Western cultures by its 2 formative historic roots, Christianity and the Roman Law, and by its embracing and benefitting from human intellectual endeavors, beginning with the Renaissance, through the age of Enlightenment, the industrial revolution, and now the era of information and communication revolution.

 

5- Of course, there have been interactions between the Western legal systems and the non-Western ones, and in some areas the laws could be said to be uniform or universal. For example, there are great similarities in the laws of trade and commerce and the laws of business enterprises. These are laws that govern those relations among diverse peoples which are characterized by frequent contacts. On the other hand, where contacts have been rare, distinct local laws have survived. They cater to and reflect the local and distinct cultures.

 

6- Take the Islamic countries. Turkey, in an effort to join the modern world by secularizing under Ataturk, abandoned much of the Ottoman legal system for the Swiss version of the Civil Law. The current revival of Islamic sentiments in Turkey now poses a challenge as it demands greater attention to the remnants of the Islamic Law. Iran, following the Turkish model, to join the modern world adopted the Belgian version of the Civil Code in the 1930s. The Islamic revolution of 1979 has since forced changes, especially in family laws. [Most of the Westernized Civil Code, however, has been left intact.]

 

7- This process of adopting a whole segment of a foreign legal system, as Turkey and Iran have done, is not uncommon. This  shows that in certain areas of the law, cultural differences could be ignored. The Japanese did the same when they borrowed heavily from the German Civil Code. In fact, the Germans themselves, and the French had incorporated major portions of a foreign legal system into their Civil Law when, from the 12th century on they “received” the Roman Law. This “Reception” was at the expense of the local laws which were based on local customs.

 

8- Customs are the one component of any legal system that best reflects the impact of the culture. The other components, such as -codes,

-legislation,

-natural law, and

-canon law,

are also indicative of the prevailing mood and sentiments; but customs are more enduring and to a large extent determine the shape and influence of those other components.

 

9- Much of the differences among legal systems could be traced to local customs. The other components, on the other hand, have tended to bring uniformity and universality.

10- The greater the contact among divers peoples, or the perceived need for such contact, the more is the need for uniformity. The areas of the law that have resisted this need have been reduced to very few. They include family laws, covering marriage and pre-nuptial and post-nuptial agreements, and the laws of succession or inheritance.

 

11- When unification of the legal rules is needed, today in rare communities could cannon (or religious) law be an effective vehicle. In most instances, the unification is undertaken by means of legislation. But whenever possible this legislation takes the form of quasi-codification, i.e., extending the application of customs that already exist in some fields into other fields. The more radical changes in the community, of course, require laws which do not have customs as precedent. Entirely new laws must be made.

 

12- We now live at a time of such revolutionary changes. There exists a combination of extraordinary circumstances today, i.e.,

-the globalization of the market, capital and labor,

-the collapse of the Soviet Union,

-China’s adoption of capitalism, and

-the interconnectivity of the Web.

Together, these call for fundamental changes in the legal systems of the world.

 

13- Much of our commerce is now truly international. We are almost as likely to negotiate our business deals with a German, French, Japanese, Chinese, Israeli, or [an] Indian, [a foreigner],  as we are with an American. Yet, a typical American lawyer approaches negotiations with attitudes and expectations distinctly different from lawyers from other countries. And that is because those attitudes and expectations are rooted in different cultural values.

 

14- For instance, in negotiating a contract

-an American would ordinarily be more interested in limiting his exposure, while his foreign counterpart may focus on enlarging the scope of his authority;

-the American would aim at direct expression of his goals, while his counterpart may prefer circumspection;

-the American would seek pragmatic solutions to the problems, while his counterpart may insist on logical consistency; and

-the American would want clarity in the projected plans of action, while his counterpart may desire the flexibility of nuanced vagueness .

These objectives, which I have observed in dealing with different nationalities, may not be incompatible, but their synthesis requires understanding and finesse. Clearly, [then] lawyers need to be trained in new skills.

 

15- These skills are needed not just for negotiations at the [stage of] formation of the contract, but also for the two other major phases: the administration of the contract,  and the time of the resolution of disputes arising from the contract.

 

16- What is more, the influx of new immigrants in areas such as ours, in the S.F. Bay Area, means that the same new skills are needed for the domestic practice of the law. In S.F. as of 1997, 26.7% of the residents were foreign-born. [That is almost 3 times higher than the 9.6% national average.] Consider this figure: in nearly 60% of the simple two-party cases, a lawyer could potentially expect to have a foreign-born party. What does this mean?

 

17- Well, new immigrants come with different outlooks toward the law.

-Nowhere in the world is the role of the judicial system as important and pervasive as in the U.S.;

-nowhere are there so many active lawyers;

-nowhere is the adversarial system so pronounced; and

-nowhere are the laws so rigorously enforced.

The longer the new immigrant stays in this country, of course, the less significant would be the influence of the cultural heritage of their land of birth in their dealings with and expectations from the legal system. In the transitional period before their adequate socialization, however, the new immigrants are bound to leave a marked impact on the legal system because of their different cultural heritage.

 

18. The percentage of foreign-born persons in the U.S. population today (9.6%) is the highest since 1930. [This percentage was 14.7% at its peak in 1910.] I have not seen any study analyzing the impact of such a huge percentage of the population on the working of the American legal system in the early part of the 20th century. But I venture the guess that it was not as great as the significant impact of the foreign-born today. For one thing, a century ago,

-the immigrants were almost all European.

-Secondly, their mobility and mobilization were much more limited.

-Thirdly, the legal system was not as sensitive to their needs. On the last point consider this: in those days legal documents were mostly prepared in long-hand. The pace of life was slow; change did not take place fast. By the time the legal system got around responding to the special needs of the transitional Americans they were dead; their successors had become socialized, melted in the pot; they did not need the change.

 

            We live in a vastly different world; the legal system will have to adjust to contemporary cultural diversity.

 

 

The ‘article’ titled ‘Culture and Law  was a January 2000 lecture at The University of San Francisco Graduate School of Education.

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