Legal Culture - Western Legal Culture V Non-Western Legal Culture

Western Legal Culture V Non-Western Legal Culture

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.

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. 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 group’s 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. 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.

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; suggests that Africans may well have formulated, in embryonic form at least, a theory of natural justice coming from human kindness itself.’

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 by Lawrence Rosen explains the anthropological, procedural and judicial discretion aspects of bringing a case to court in Sefrou, Morocco. 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. In Morocco, close attention is paid to social origins, connections and identity where these concepts influence a qadi’s (judge) judicial interrogation and discretion.

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. 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.