Modern Law and Transborder Implications

Introduction

The world in which we live is becoming smaller. The affects of globalization, with the further increase of telecommunication across continents, and the constant growing of implications due to contractual obligation involving trades between countries, has lead to greater difficulties construing differing law, and the issues which pertain to international agreements. This growing concern, which can be seen through the subjectivity of law itself, and the difficulty of transgression throughout borders, of both secular and non-secular law systems, has indeed caused differing interpretation of the law and it value to the people. As an institutionalized entity, law imperceptibly differs greatly, which produces challenges to lawyers using bicultural processes to form bonds across transcend state borders and geographical cultural distinctions. It is due to these distinctions, and varying binary objectivity against the law systems, that lawyers be trained to be multijural, and engage in conceptualising key ideologies behind such theories. Not only does knowledge beget power, it encourages understanding and acceptance. As a lawyer practicing in a globalised economy, it seems fitting to understand the varying law system, in both its productivity and convictions, to appreciate the shortcomings in ones’ own system and where it should be challenged. It is only through this acceptance of the inadequacies of a system of law that it can advance, and through this advancement, progress into a system acceptable and culturally sufficient. Tolerance, universalism and plurality of law must all be considered in legal training, which in turn, in respect to the book Legal Traditions of the World by Patrick Glenn, will not only help lawyers forge greater conceptuality of legal systems, but it will encourage bilingual lawyers to adopt compassion towards differing legal systems, rather than dissent, apprehension and disconcertion.

The Chthonic Legal System

The chthonic legal system, being the first legal system, depended solely on oral communication of law, and evolved over a prolonged period time with no direct starting point. Its main issues pertained to the environment, with chthonic legal beliefs throughout all aspects of the culture, such as an interrelationship of morality, religion and law. Nature was considered ‘divine’, and as such, was given the highest respect . The fundamental key issues of the chthonic legal system would no doubt cause great concern from all in the westernized world. The lack of materialism, deficit of individual rights and that of community rights, rather than an individual’s right to land, are in conflict with many legal systems. It seems implausible, if not derisory to endeavour towards a lingual system of law in many countries. As the law places a natural order of the divine on nature, it would appear nonsensical to apply such principles on countries which propagate the irradiation of nature for fabricated aesthetics.

Since in the chthonic legal system law was verbally transgressed through the generations, it was accessible, leaving it open to interpretation, and although it lacked institutionalism, the shaping of law through tradition did not hinder its influence. The dispute system, for instance, encouraged reconciliation rather than adjudication, which unlike westernized legal systems, developed ways to reconcile rather than punish. As with chthonic tradition, a lawyer trained to accept the differences, and respect the diversity of the tradition, would be able to encompass appreciation for environmental laws and indigenous rights, not only through the multiplicity of the tradition, but through its ability to step outside secular and non-secular legality and embrace nature as its underlying fundamental reason for preservation.

Talmudic Legal Traditions

Talmudic law is one of the oldest, living, legal traditions in the world . As the first to break away from the chthonic legal system, it is comprised of the Torah, Misnah and the Talmud, whereby the first two comprise law as Halakhah, and those which fall outside, as Aggadah. Central to the legal system, and perhaps its survival, has been the ongoing interpretation by learned rabbis, and the formal institutionalism, which enabled law to be issued . Similar to that of liberal law traditions, the secular underpinning of these systems allows divine intervention and assertion of authority. Unlike the liberal system, a lawyers place is not within the court room, but rather, to give support and understanding in regard to the situation.

Understanding Talmudic law, and the varying doctrines, poses difficulties, but is no doubt worthwhile, for a learning lawyer. Unlike law within Australia, the factors which contribute to appeal, and the individuality seen through it, are absent within Talmudic tradition . As a lawyer, it would be beneficial to understand Talmudic law, not only as a precursor to work within these systems, but to envisage greater comprehension to systems unlike one’s own, and the impact which it can have upon its society of origin.

Asian Legal Traditions

Asian legal systems consist of two concepts known as Li and Fa . Confucius, an influential social philosopher, who lived 551 BC to 479 BC, is credited as the initial teacher of Li, who devised an informal description of how one should act in given situations, and if followed correctly, negated the use of Fa, which itself, is a formalistic legal system which is employed to control society . Within this system of law there appears to be a belief in social normality and its direct implication to that of society. The court system is generally only used in the most severe cases, which unlike Australian courts, and typically means the termination of a relationship. As a lawyer, education into this legal system is invaluable. In a globalized world, trade is an inevitability, and although within the westernized world contractual agreements are ubiquitously universal, in many Asian legal traditions they are not. A lawyer trained to embrace Asian law, as well as their own, would likely increase the chances of a corporations’ foreign relationships, which is obviously beneficial to any international business.

Legal Training in Australia

Lawyers, in the context of Australian law, will no doubt come across varying legal systems and difficulties arising from globalization. It is important to train lawyers to engage and accept other legal systems, not as an impediment, but as a compliment to theirs. And, although there may be differences within traditions, there still is the example casuistry, and as such, intergenerational equity, which exists not to demolish bridges, but to harbour the opportune to toleration. As a lawyer practicing in a globalised economy, it seems fitting to understand the varying law systems, in both its productivity and convictions, to appreciate the shortcomings in ones’ own system and where it should be challenged. It is only through this acceptance of the inadequacies of a system of law that it can advance, and through this advancement, progress into a system acceptable and culturally sufficient. Tolerance, universalism and plurality of law must all be considered in legal training, which in turn, will not only help lawyers forge greater conceptuality of legal systems, but it will encourage bilingual lawyers to adopt compassion towards differing legal systems, rather than dissent, apprehension and disconcertion.

References

Glenn, P, Legal Traditions of the World, 3rd ed, Oxford University Press, New York, 2007.

Wener, Menski, Comparative Law in a Global Context (2006), pp 16-17