The writer discusses some aspects of comparative law by first explaining how the law functions in the Western legal tradition and also discusses them in the context of China and India. He also makes a comparison between the Asian and Western legal systems.
Introduction
Comparative law is a fascinating subject that encompasses many areas, given the diverse jurisdictions of different countries. As the enactment of laws are a by-product of societies' mores, it is my respectful view that one must comprehend a particular society's culture, customs and milieu in order to have a better understanding of the differences in the laws of the various countries.
Comparative law is perhaps too esoteric to be summarily defined, but a start is nonetheless required. One might begin with Michael Bogdan's definition of comparative law (inter alia) as 'the comparing of different legal systems with the purpose of ascertaining the similarities and differences'.
One can understand why certain countries have particular laws if one examines their socio-economic history and one would therefore be in a better position to have an appreciation of their systems' ultimate criteria of legal validity and their rules of recognition. In order to have a better understanding of the legal mechanisms of various countries, one must consider their histories and traditions. Leon Friedman has suggested that the cultural elements which the corporatist should seek to discover in a fully legal system are 'the values and attitudes which bind the system together, and which determines the place of the legal system in the culture of the society as a whole'.
The Western Legal System
The Christian version was that a person, as God's delegate, had the power of reason and revelation, and thus could carry out God's work. Moreover, due to the Renaissance and the Enlightenment, philosophers such as Decartes and Locke developed the human law that was lacking in the Chthonic tradition. Christianity's philosophy with its ability to switch from the Old Testament to the New Testament allowed human law to flourish. It also facilitated the development of common law and civil law.
The Chinese Legal System
Peter De Cruz in Comparative Law in a Changing World, has stated that in the East, laws are perceived as having a minor role. Other factors are more important; take for example China's emphasis on the value of hard work. The government has a discretion to review any division of an estate to ensure that productivity will not be hampered by the distribution. What is of particular interest is that an heir may be given a larger share than what has been stipulated in the deceased's will if he is deemed to possess 'special' labour productivity. Moreover, in keeping with China's emphasis on family solidarity, the inheritance laws require all heirs, even their spouses, to fulfill their duty to the decedent as a condition of inheritance. To Chinese legal scholars, the failure or neglect of family members to support one another is more than illegal, it is immoral as well. Article 13 of the PRC's Constitution gives effect to the Chinese practice of providing for each other within the family, a laudable ideal which Western legal systems should emulate.
It may be seen that Confucian emphasis on close family ties has permeated right down to the law, and is even enshrined in Chinese Statutes. The desire to protect family life may perhaps go too far at times, though, as art 27 provides, inter alia, that the husband is 'not allowed to apply for a divorce when his wife is pregnant or within one year after the birth of a child'. There are even instances where old habits and traditions are so ingrained that they override laws, and this is to be criticised as it hampers China's development as a modern and progressive country. The Chinese legal system draws its strength from Confucianism and, to a lesser extent, from the Legalist and Buddhist traditions. The Confucian system views human habits as being susceptible to moral suasion and this has consequences in practical legal dealings in day-to-day life; for example, business relations are not reduced to written form and are seen to be the product of harmonious relationships. A Western lawyer would find such a concept difficult to fathom; after all, business is business. Patrick Glenn states that a kind of 'fireside equity' would eliminate any difficulties. To the Chinese mind, 'guanxi' or relations is what is almost indispensable in forming legal agreements.
The Indian Legal System
One can also note that ascending powers are likely to incorporate their own cultures into their laws. Hindu law's displacement by English law as a result of colonisation is resilient to an interregnum for a few decades before it reasserts itself. Moreover, it is highly resilient to foreign influences. The laws of Manu on family and succession prevailed (with some modifications) right till independence. As regards conciliation and alternative dispute resolution in India, the 'panchayat' (an ancient system used to adjudicate conflicts) still functions vibrantly even to the present day. The British influence on the Indian legal system on the whole has been positive. The State institutions gained prominence whereas many aspects of customary law were relegated to the background. But there are still areas to be improved upon. Although untouchability has been abolished, many sections of the Indian public still harbour old fashioned and crusty attitudes on 'caste'. Quite clearly, this law does not have much recognition and, hence, its value is somewhat limited.
How Values and Norms Permeate into the Law
One must bear in mind that laws are not value neutral. They are formed by the experiences of people. One can look to the German Constitution. After the traumatic episode of the Third Reich and its aftermath, art 20 of the German Constitution (1949), in an attempt to circumvent history from repeating itself, proclaimed that 'all Germans have the right to resist whatever attempts to destroy (the order that violates justice and human rights), if no other recourse is open'. Italy, remembering its past under Mussolini, speaks of 'inalienable duties of political, economic and social solidarity' of all its people in its Constitution, and art 3 in particular, mentions the 'equal social dignity' of all its citizens.
Of course, there are some who think that they are beyond the reach of the law. One only has to recall Richard Nixon's imperious declaration that 'if a president does it, then it cannot be illegal.' But instances such as this are, thankfully, exceptions. Chief Justice Coke, as early as the 17th century, stated that the English courts had an ancient jurisdiction to treat as void even Acts of Parliament which were against natural justice. Modern day jurists like Lon Fuller and John Finnis have both conceded that natural law is a legitimate concern. German jurists in particular, as a result of the aftermath of the Nazi regime, have come out in support of the version of the natural law theory. Gustav Radbruch argued that when laws deliberately defy the instinct for justice, then they are void. Helmut Coing has contended that in the face of a criminal government deliberately acting in a manner forbidden by natural law, resistance is, by natural law, both permissible and legitimate.
American and Japanese Law Compared - the Rights of the Accused
Different countries have developed their institutions, organisations and laws against a backdrop of different historical, social, political and economical forces. One only has to compare the different legal systems in the United States and Japan to understand this. Both are modern industrial democracies, with the Japanese having been inspired by the German and the American systems. Yet, there are manifest differences which one finds hard to gloss over if one is to understand the different cultures of both countries.
Japanese law does not grant the right of presence of counsel during interrogation. The fifth and sixth amendments of the American Constitution are seen to be unsuitable to the proper functioning of the Japanese legal system (notwithstanding the drastic changes it underwent by the Americans after the Second World War). The right to defence counsel by the accused is severely restricted as compared to that of the United States. Japanese prosecutors exercise a lot more discretion and control over the case than the law explicitly allows which clearly compromises defendants' chances of acquittal. The United States, with its dichotomised approach to criminal justice and its distrust of government and the supremacy of the rights of the individual, views 'law enforcement interests' and 'the individual interests' as diametrically opposed. (However, after 11 September 2001, with a view to protecting its citizenry from terrorists, this philosophy may recede, at least for a while.) Japan's criminal system, prima facie, operates on the other side of the rights spectrum entirely, bearing in mind that it has different 'reference points' than the United States. The Japanese investigative manner yields very high conviction rates. In short, it produces results. Apologists for the Japanese system state that it ultimately aims to 'correct' offenders and thus make them better citizens.
Who has it right? No other industrial democracy can boast of Japan's statistics on crime control; the United States does not even come close. In the final analysis, the yardstick for measuring the desirability for change must always remain with the society from which the rights emerged and to which they apply. But both sides can learn from each other as well. To the extent that the right to counsel exposed goals beyond mere crime control, both Japan and the United States can improve their legal systems by taking into account other objectives not met by their current systems. The Japanese can learn from the Americans a greater sense of fairness to the accused, whereas the Americans can learn from the Japanese the ability to get things done. But what is gained in one department will invariably entail a loss in another. The legal system must ask itself a hard question such as: what must be sacrificed in order to ensure the greater good of the community?
Conclusion
Peter De Cruz states, 'Newly emergent and poor nations have a greater need than ever to enjoy the benefit of not just Western aid and technology but also Western experience and advice, and sometimes, Western legal ideas which could galvanise their economies and industries and speed up their constitutional and political development as well as resolve their many domestic problems.' This view can be fully endorsed and augmented if one adopts the Popperian method (after Karl Popper) which seeks to analyze the strengths and weaknesses of the Western legal system and subjects it to a vigorous critical analysis. One can argue that the Western legal system, anchored and rooted in the Judaeo-Christian tradition, for whatever flaws and shortcomings that it may have, scores strongly on individual human rights. But this does not mean that Asian legal systems should be perceived as quaint, outmoded and, hence, to be discarded. There is something to be said about the preservation of families, communities and societies, and the Asian systems can impart some of their values and norms to Western legal systems; for example, Confucian societies have made positive impact on family law and place more emphasis on solidarity, unity and sacrificing individual prospects for the good of society which can yield positive results. The writer respectfully submits if both Asian and Western legal systems can learn from each other, there will be a constellation of ideas in which both civilisations can benefit, resulting in a win-win position for all concerned.
Jeeva Joethy
E-mail: jeeva.joethy@pacific.net.sg