By Ilias Siakaras,
Broadly speaking, when it comes to the law, it would be beneficial for the present approach to be incorporated in a historical horizon, so as to be aware of the context in which law is born. The very word “Western” is a vestige of colonialism and is used to refer to legal and social systems having their origin in Europe, particularly in its west side.
Western law derives its authority and values from cultural systems found in the Roman Catholic Church, which is seated in Vatican City and played a major role in developing rules of warfare and other legal standards during the Middle Ages. In the days before European colonialism, divergent legal traditions evolved in the US, Asia, and Africa. European colonial rule and influence brought the two major European legal traditions to most of the world, which are civil law and common law. In some areas, these traditions have wholly supplanted indigenous traditions, while in other areas mixed systems have evolved. However, the aforementioned European traditions never took root, such as India, China, etc. Specifically:
- Civil law is a law system that originated in Europe and is about conflict resolution, ensuring disputes between individuals do not escalate into a violent confrontation, hence it encourages cooperation between members of society, and deters exploitative behaviors.
- Common law is the body of law created by judges and similar quasi-judicial tribunals, by virtue of being stated in written opinions.
For instance, the Hindu law states: “The universe if God, people, and animals participate in the sulfur and they are a kind an aspect of what mentioned above”. We also observe that there is a hierarchy between the creations of nature and the people are identified according to class or caste in which they belong. In Hindu law, what matters is the way people behave, while their attitude and actions have been recorded in collections or “sciences’”. Overall, we have three kinds of Shastras. Each one of them is equivalent to three factors, and each one of them determines the way humans interact with each other.
Such interaction could involve ethical norms, which could encircle human behavior. Indigenous law was not incompatible with Spanish interests. It was preserved and, in 1680, it was recomposed, whilst during the colonial era these laws were applied by special “Indian courts”. Traditional law still survives as a dispute resolution mechanism in many rural communities, but it is also strikingly evident in its influence on the development of contemporary legal systems.
It would be an omission if Chinese law, as a notable non-western law system, were not be mentioned. To elaborate, China’s law was influenced by Confucianism and the current form of Legalism that influenced many Chinese governments like the Qin dynasty in 221 BC; legalism advocated that social life should be strictly governed by positive law-human made that oblige or specify an action.
Furthermore, it is a fact that Africa, as a non-west continent, is being characterized by the chthonic legal tradition that is the orality. The teachings of the past are maintained through speech and memory while recording efforts are due to colonialism policies and brought about changes.
For the sake of humankind in modern times, we try to bridge the gap between western and non-western law, and it is visible; to account for this trial, over a century ago, Japan imported a civil code based on the German model, and it is now governed by a constitution imposed by and largely drafted by Americans after World War II. For the first time in the history of humanity, all the people of the world have been brought into more or less continual relations with each other — even virtually. We speak without hesitation of a world economy, world technology, worldwide communications, world organizations, world science, world literature, world scholarship, and world travel sports. We speak almost as confidently of emerging world society, despite the forces of ethnic and territorial separation that threatens it.
References
- Western law, wikipedia.org, Available here
- Edward McWhinney, Western and Non-Western Legal Cultures and the International Court of Justice, vol. 65, published by Washington University Law, 1987, openscholarship.wustl.edu, Available here
- R. D. Kollewijn, Conflicts of Western and Non-Western Law, in The International Law Quarterly, Vol. 4, No. 3, 1951, pg. 307-325
- Aaron Schwabach, Non-Western Philosophies of Law, published by Encyclopedia of Life Support Systems, eolss.net, Available here
- Svetlana Murashova, Conflicts Western and Non-Western Law in Conditions of Legal Convergence, in Political sciences, law, finance, economics and tourism, 2014
