He, X. (1987). Obstacles to the concept of legal modernization and the cultural context [J]. Journal of the Northwest University of Political Science and Law, 1, 5-11. Rigid procedural rules and strict decency or etiquette in the courtroom, inscribed in Western legal cultures, pave the way for a more natural dispute resolution process. [4] In Morocco, much attention is paid to social origin, ties and identity when these concepts influence judicial questioning and the discretionary power of a Qadi (judge). [4] Traditional law in Africa is based on natural justice and lacks abstract concepts. This is characteristic of cultures that have a lack of written language necessary to bring concepts into theory. [3] The doctrines of traditional African law are based on social considerations, with parties to disputes seeking not the declaration of right or wrong, but the restoration of social relations. [3] Legal cultures can be examined by referring to fundamentally different legal systems. However, these cultures can also be distinguished between systems with a common history and basis, which today are otherwise influenced by factors that promote cultural change. Students learn legal culture in order to better understand how the law works in society. This can be considered as the study of law and society.
These studies are available at schools such as Drake University in Des Moines, Iowa. Liu, X. (1987). The concept, structure and research concept of legal culture [J]. Hebei Law Science, 3, 37-39. The legal culture may vary from country to country, although it corresponds to a similar, if not identical, legal system. Both the United States and England have common law legal systems, yet each country embodies a distinct legal culture. This is due to the fact that the institutions of the legal system and the characteristics of the profession (judges, lawyers and lawyers) were compared. [7] The traditional emphasis between the culture of the common law and the culture of civil law has been emphasized in court proceedings, the former favouring an adversarial environment and the latter favouring an inquisitorial environment. In fact, no system of judicial proceedings can ever be purely adversarial or purely inquisitorial. A top-down approach to the analysis of Chinese legal culture suggests that under Deng Xiaoping and Jiang Zemin, China is “a country that is under the law, not under the rule of law.” [9] The evidence comes from the post-Mao Period of China, when the law is considered necessary for the institutionalization and generalization of ad hoc policies of economic reform and the maintenance of the party leadership. [9] Jiang, X.
(1987). A preliminary study on the modernization of legal culture [A]. In East China University of Political Science and Law (ed.), Collected Legal Papers [C]. Shanghai: Shanghai Academy of Social Sciences Press. Legal cultures are described as temporary results of interactions and occur according to a paradigm of challenge and response. Analyses of fundamental legal paradigms shape the characteristics of individual and distinctive legal cultures. “Cultures of comparative law are examined by a scientific field situated at the frontier between comparative law and historical jurisprudence. [1] Other problems in Chinese legal culture include a piecemeal approach to legislation with an imbalance between law and policy; refusal of private law; neglect of human rights and individual freedoms; and poor law enforcement.
[9] According to Chen, the consensus in China among scholars is that lack of democracy and the rule of law are interdependent concepts, with “the rule of law being legitimate only if it is the product of democratic government.” [10] Here one could look at Taiwan (officially known as the Republic of China), which is a unified semi-presidential constitutional republic. [11] [Circular Reference] Taiwan is characterized as a representative democracy. Despite its democratic values, underpinned by a constitution based on German civil law, it does not receive wide recognition as a separate state from the People`s Republic of China. [12] [Circular Reference] The use of a common law jury as a trier of fact is unique compared to civil law systems. Jurors are facts in civil and criminal matters, which reflects a particular legal culture; namely, the direct integration of the company into the legal framework. In France, the role of a judge as a judge of law and deed is simply as an administrator, without creating binding legal principles. As a result, the culture of civil law is more rational, orderly, authoritarian and paternalistic. The cost of continuing a dispute affects the culture of any legal system in terms of what society perceives as the net benefit of the court and the profession. Similar litigation in England and the United States would cost about the same price; However, English courts are not as generous as their American counterparts in awarding damages, especially punitive damages. [7] As a result, the expected net benefit of litigation in the United States fosters a more contentious legal culture than that of England. Wu, S. (1994).
Traditional Chinese legal culture [M]. Peking University Press. What is clear from the experience of the People`s Republic of China is that the legal culture is likely to change in the pursuit of socio-economic and political forces. While such a change may benefit sections of society and international relations, traditional and established cultural methods are threatened with extinction. According to Posner,[7] in 1996 there were 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 in England is lower than in the United States. [7] The consequence of this is that the English common law system, unlike the American legal system, has a legal culture of greater prestige and elitism not only in the judicial system, but also among those who are candidates for justice. The Islamic legal system exemplifies law as part of a broader culture in which the concepts of knowledge, law and human nature play a central role.
A case study by Lawrence Rosen explains the anthropological, procedural and judicial aspects of the trial before the court in Sefrou, Morocco. [4] The case study highlights the foundations of Islamic society that shape Islamic legal culture and distinguish it from Western legal cultures. Gao, H. (2007). The semantics and context of legal culture and its Chinese themes [J]. China Legal Science, 4, 23-38. Direct transplants of Western legal systems or cultures may not provide an adequate rule of law in which the lives of ordinary Chinese can be marginalized in favor of the legal elite who use legal instruments for self-promotion. Moreover, the implementation of Western legal norms does not take into account local culture and relations; This can destroy important cultural ties and relationships in the rural community. Traditional rural Chinese legal culture, based on personal and informal relationships, risks being eroded if legal pluralism is not promoted. The common law has a culture of legal ingenuity and even flexibility. The proclamation of principles is not eternally of paramount importance, but in fact, a continuous flow of cases and laws contributes to the ebb and flow of the law, with “jurisprudence representing the realization of its own limits by modern man.” [6] Other differences occur when a civil lawyer speaks in relation to natural law while the ordinary lawyer speaks to reason. It follows that the culture of these legal systems has been shaped by the perception of justice and the means available to achieve it.
Roger, C. (2003). The concept of legal culture [A]. In Nelken (Ed.). Culture of Comparative Law [C] (pp. 48-49). Translated by Gao Hongjun & Shen Ming et al. Beijing: Tsinghua University Press. Guo, S., & Cao, Q. (2007).
Sketch of the History of Western Legal Culture [M] (pp. 1-3). Beijing: China Legal Publishing House. The legal culture of the People`s Republic of China and its social and economic culture have continued to undergo dramatic changes since the reforms of the People`s Republic of China in 1978. The transformation took place through a legal modernization in which a rule of law was proposed to replace the rule of man. The latter is a feature of traditional Chinese rural society, where unwritten rules, personal relationships and trust determine the legal relations of citizens; analogous to the community. In modern Chinese society, institutional, customary and legal reforms (a rule of law that embodies universal rules uniformly applied by a centralized and bureaucratic state) are needed to govern legal relations; analogous to society.