(totally done)
INTRODUCTION
assumption that there would be less conflict if only all humans thought alike, followed uniform moral standards and respected universal human rights
Whose values, rules and norms should be chosen to dominate the world? To what extent is locally colored situation-specificity more conducive to justice than following universally fixed models? At the end of the day, what is justice?
so that globalization ends up as almost unlimited diversity
points towards growing diversity of legal situations
mutual accusations of terrorism by George Bush and Osama bin Laden as protagonists of two opposing visions of globalization that seem deficient in liberality.
‘conflict of civilizations’ theories
peaceful co-existence in a globally interconnected world will not be possible without allowing space for and recognition of different visions and thus respecting ... this or that vision ... which one then seeks to impose through various law-making processes ... much more than a body of rules that can simply be imposed on others by those who dominate the formal process of law-making.
lags seriously behind reality, which remains marked by immensely deep plurality.
as though globalization simply means uniformisation
greater tolerance for diversity
for over 200 years Western legal theory has been dominated by conceptions of law that tend to be monist (one internally coherent legal system), statist (the state has a monopoly of law within its territory), and positivist - Twining
to be able to meet global challenges
more interdependent, but this does not mean that we are moving inexorably towards a single world government nor does it mean the end of nation-states as the most important actors
is about human interconnections
it is very logical, in the way wwestern people have been trained to be logical (jj other logics?)
global localization - glocalization
Asia and Africa - scared - consider to be a new kind of imperialism - which subbordinates
global village
What about normative pluralism and the agency of the individual?
subaltern perspectives
The challenges of the international human rights discourse will only result in responses from which individuals and societies will benefit when local ... when they are told that there were no human rights in their traditional societies ... pretend knowledge of everything without having set foot into the areas in which they want to do missionary work.
nothing inherently good ... about legal pluralism ... equality versus equity (equal outcome goal, achieved through tailored gifts)
simple tolerance, as a Western concept, is not sufficient to cope with pluralism
uniformising visions constitute a form of fundamentalism
insufficiently complex ... by their nature ... non-universal and non-universalizing. They offer many grounds of accommodation with other complex traditions.
1. COMPARATIVE LAW AND LEGAL THEORY FROM A GLOBAL PERSPECTIVE
It seems that a prlurality-focused understanding of globalisation challenges legocentric Western laws and questions much of what Western culture and modernity claim to stand for. Eurocentric legal theories claim universal validity while representing only a shrinking part of global humanity. ... civilizing mission ... colonial ... mental barriers
interlegality
sub-traditions are not either right or wrong but may be right in different, multiple (inconsistent) ways ... multivalent thought
diversity in law is a basic fact which is constantly hidden and defined away
The tendency to assert the uniformity and superiority of law is often fuelled by those in positions of power, reinforcing
in which almost nothing seems forever certain
* itself is disintigrating because people begin to see that the results its implementation produces are neither good nor necessary
looking at the range of ‘legal’ possibilities we have actually realized in the course of our history
obviously a complete legal union is neither possible nor desireable
net
in response to a multitude of forces
technocratic
middle ground between ... pure doctrinal analysis and a highly theoretical approach ... discipline in transition
especially ... lacking a pre-disposition towards accepting difference. Because law is often treated as a segmented, separate entity
inherently individualistic orientation ... within cultural traditions that seem to give pre-eminence to the group ... individual agency, like pluralism, fundamentally challenges
arguing for individual discretion as a LEGAL element is perceived subversive ... non-legal, even anti-legal
central object ... agree to disagree ... culturally conditioned understanding
revolutionary moments
simple
no displutes may arise because everyone knows the basic rules and follows them to the satisfaction of others
simple technicians
immense local pride that exists in maintaining well established customs
strategic alliances
as increasingly self-confident post-colonial assertion
to what extent globalisation means harmonisation
not so arbitrarily changed because they are ultimately linked to our civilization and ways of thinking
international human rights law ... but ‘it remains uncertain who in law holds or may enforce the resulting substantive and procedural legal rights’
appreciation of difference alongside a search for uniformity
how people ought to relate to one another as people with different beliefs
in multiple and contradictory ways
no need to strive for uniformity
neither to seek similarity nor to appreciate difference, but only to recognize the appropriateness of leaving well alone
simplistic ... tend to take a priori negative approaches to Asian and African laws, especially their ‘traditional’ components
protecting non-Western people against their own cultures and traditions
contributes to the creation of a context favorable to the development of international relations
with very different intellectual processes (jj What does that mean?)
? the capacity to
V reversal of convergence and erosion of respect
V In the plethora of activities and examples one can always choose illustrations to support one's own position
because all rules have meanings
Kahn-Freund (1974: 27) cited by Legrand (1997: 124) to argue that law is always a culturally situated phenomenon
from polite silence to post-colonial reassertion
We have to part company with the precedents of the British-lndian period tying our non-statutory areas of faw to vintage English law, christening it ‘justice, equity and good conscience’. After all, conscience is the finer texture of norms woven from the ethos and life-style of a community and since British and Indian ways of life vary so much the validity of an Anglophilic bias in Bharat's justice, equity and good conscience is questionable today.The great values that bind law to life spell out the text ofjustice, equity and good conscience and Cardozo has crystallized the concept thus: ‘Life casts the mould of conduct which will some day become fixed aslaw’. Free India has to find its conscience in our rugged realities - and no more in alien legal thought. In a larger sense, the insignia of creativity in law, as in Hfe,is freedom from subtle alien bondage, not a silent spring nor a hothouse flower. - Rattan Lalv. Vardesh Chander (1976) 2 SCC 103,at pp. 114-15, perkishna lyer J, cited by Derrett (1977: xxi).
Western scholars appear complicit in the refusaal to debate kev issues of justice onenly
reflect awareness ... any claims ... valid will be dismissed anyway, so what is the point of talking? ... disregard
depriving Southern migrants and their descendents of any agency in this respect
the new minorities have become an integral part of the British social order, and they have done so on their own terms
({}) the School of Oriental and African Studies (SOAS), a new course called ‘Legal Systems in Asian and Afriaa’
2 --- LEGAL PLURALISM (p82)
that over 200 years Western legal theory has been dominated by conceptions of law that tend to be monist (one internally coherent legal system)
Bentham (1748-1832)
‘international jurisprudence’ as relations between sovereigns ... recognize a multiplicity of levels of law ... that local entities could have laws of their own
The historical school of law ... arose side by side with analytical positivism during the 19th c in reaction to the earlier dominance of natural law theories
[But for someone who above all perceives regularity of action in the law .,.human life does not occur before the courts. It is evident at first sight that every man is enmeshed in innumerable legal relationships and that, with very few exceptions, he does entirely voluntarily what he is obligated to do in such relationships; he fulfills his duty as a father and son, as husband or wife, he does not disturb his neighbours in the enjoyment of their property.]
formal legal state norms remain only one factor of social control. Local, family and group customs, morality, and the norms of specific associations, contribute much more
in every case social pressure
embedded in a social environment
inner order ... basic ... A formal legal rule not only arises much later ... above all the order of societies
Ethics, religion, custom, morality, tact, even good style ... Not a single legal order could exclusively exist simply through legal norms
direct observation of life, of trade and other activiites, of habits and customs, and of all organisations
and social and other norms that affect their operation
crises and the increasing complexity of a larger society ... uncertainty ... static ... inefficient
Disputes ... continue interminably ... no agency specially empowered ... waste of time ... and the smouldering vendetta
two minimum conditions ... behaviour ... ultimate criteria ... generally obeyed ... rules of recognition ... legal validity ... accepted as common
unofficial ... a simple form of social control ... the simple social process of discussing matters ... the secondary rules
lawyers having to work on matters not normally seen as ‘legal’
V naive sense of superiority which does not acknowledge an observable reality in the modern world
those social processes which operate outside the rules, or which cause people to use rules, or abandon them, reinterpret them, sidestep them, or replace them
Social transactions usually take place in the service of objectives to which legal rules are merely ancillary
Conformity to the rules is seldom in itself the central objective
remains necessarily incomplete. Since the consequences of legal regulation are never fully predictable ... partial ordering
what those three types of law mean to us is clearly a matter of individual choice, but if our usage diverges too far from ... thereby unintelligible or unacceptable to others, our communication fails
normative statement ... transmitted to him by the fellow-members ... recognized as official spokesmen or enunciators of the norms
normally regarded as universal ... from ... received and utilized by non-Western ... received
anthropological methods
Western concpetion ... has been bereft of its cultural speficity when comparatively analysed with the conceptions of law in other cultures ... advanced science of law ... cultural specificity ... in other cases it has conflicted with or been rejected by them ... convinced of its universality, will not pay due attention to the cultural problems
By not explicitly admitting the contribution of culture-specific elements ... therefore made claims to universality which are not maintainable
present the achievements ... to cause the proponents of Western jurisprudence to doubt their convictions ... disqualified ... ethonocentricity ... negative or passive attitude ... positively
It is not that ‘native scholars’ have nothing to say to Western scholars ... no point ... haughtily
The whole structure of law ... should include all regulations ... observe ... value ... identity ... harmoniously or conflictingly
competition and mutual accomodation
Reception of law ... limited to confirming ... adopted or permeated ... with only occasional recognition of its conflict with or rejection by indigenous
legitimate authority ... with established religions, religious law may be partially included in or accommodated by state law
state-sponsored legal rules form only one of the possible components of an official law ... religious law and people's customary norms
Unofficial law ... not officially sanctioned ... sanctioned in practice ... general consensus ... not all such unofficial practices supported by general consensus ... influence ... suppliment, oppose, modify, or undermine
postulates
created neither by the state nor by a social group. They simply exist in their own right as elements of a specific cultural context
connected ... which acts to found, justify and orient the latter ... natural law, justice, equity ... sacred truths and precepts ... cultural postulates ... basis for a society
• may tend to upset the status quo of its supported official or unofficial law in order to improve or even replace the latter
V formally or substantially
Western state law by non-Western countries
the reception process ... has not yet been completed ... formally and systematically ... voluntarily ... official ... imposed ... enforcement ... But in the actual process ... it is only the beginning of their struggles as assimilate the foreign systems of law
virtually impossible to find purely indigenous law
structure ... rights, duties
identity postulate of a legal culture which guides a people in choosing how to reformulate the whole structure of ...
3 --- COMPARATIVE JURISPRUDENCE: IMAGES AND REFLECTIONS OF LAW (p129)
(((((((((((insert stuff from other here))))))))))))))))))))
((here it is I'm pasting it:)))))
CH 3 (p 128)
culture-specific while making global claims
(jj Jewish. Did J. law impose anywhere, or did all accepted J laws express local traditions?)
speculative ... intellectual perception ... Greek ... frequent turmoil and no unified Greek state ... fluid and elusive ... Greek legal philosophy, disgusted with abuses of the law, focused on higher things than ...
Cosmos or ordered whole
Human laws and institutions thus came to be regarded as a realization, however imperfect and partial, of the law of Nature
pp 135 long:
There is no <legislature'. The king does not'make'laws,in the s-ense of rules which the people must obey. There is no apparent consciousness of custom 'as something normative. Instead, there is a tlrnrus: a word whose force is difficult to grasp, but which is applied to an area at the centre of which is perhaps the idea of a god-inspired decision or direaive or finding. This {findin8 is not arbitrary, but reflects a shared sense of what is proper. It is the word used to convey rulings of the gods as well as of kings,
concentrated on nature and justice
nature is not just substance, but a relation, an order of things
development of the Greek city states
Laws changing frequently ... visible ... nature
V a generation sceptical of itself
law was not founded on universal principles, such as justice, but was subject to multiple manipulations by rulers and subjects
Socrates, Plato ... the existence and mutable immuntable nature of basic moral principles, laying foundations for the later dominant uniforming strand of European natural law
Zeno, the founder of Stoicism, men should not live in different cities (jj idealism toward unity)
if men were purely rational ... By nature, and as reasonable creatures, all human beings were equal
difference ... is rejected, ... ({}) postulated in which men live as equals
according to reason he was living naturally ... reason had universal force ... individual worth, moral duty and universal brotherhood ... wise men alone ... for all men
distinctions ... later perceived as necessary by the Stoics because of the moral deterioration of mankind (Friedman 1967: 101)
Current visions of uniformising globalisation
({}) thus anticipates all the major theme sand conflicts of modern Western legal thought
analytical jurisprudence ... philosophy ... everything ... explained by reason ... justified by reason ... stoic
austerity and indifference ... right reason
half-legal, half-ethical rules which express the principles of human justice
Cicero was the first natural lawyer advocating the striking down of positive laws which contravened natural law (jj challenge of multi-cultural realm (compared with Britain, UN)) ... 'had to administer the law to hundreds of non-Roman peoples and tribes living under different customs' ... practical ... a practical science
ius civile ... ius gentium ... a body of general legal principles derived from foreign laws and customs which appeared capable of general application mainly through maritime trade ... contracts ... natural law ... now created the basis on which Roman and foreign people could live together under a common rule of law
commercial law and contract law are perceived as more global (?)
Later Roman law was much influenced by Christian thinking. Early Christians in the Roman period laid the foundations for arguments that nature, including mankind, had become corrupted and that, as the exponent of divine law, the Church could interfere with the state and override its laws
Catholic Church ... absolute Law of Nature ... 'men are free from the State, they own all things in common, and they are equal to one another.' ... relative ... imperfect ... allowed for human law-making
The State, and property, and even slavery, can all find their place in the scheme of this law ... the mere actuality of positive law (?)
V harmoniously and conflictingly
human laws derive their legal quality, their power to bind in conscience, from natural law ... first principles ... freedom of an architect ... conflict with ... 'unjust' obedience may still be proper
in harmony with this law. But the lawgiver has got the right to supplement the law of nature in many ways according to the needs of the particular society ... property ... invention ... justification
? (jj anything that was never legal anywhere)
by which the people thus united undertake to obey a government which they themselves have chosen (jj would they today?)
make a clean break with natural law doctine, they ceased to cite the old authorities
positivism ... commands ... law and morality ... historical and sociological enquiries ... closed logical system ... objectivity ... rational ... most fundamental philosophical assumption ... 'departing from the medieval idea of law as being fundamentally custom, and legislation being merely a form of declaring the existence of new customs. This engendered the idea of unfettered human legislative capacity, virtually unthinkable earlier under natural law. ... (?) the law of the state, is something ascertainable and valid without regard to subjective considerations
has been 'positied' or laid down
V tangible formal provisions
justice remains an important consideration, discussing justice is often seen as irrelevant and confusing. Others have argued that since positive law is base don the law of nature, its concents must be in harmony with this law (?or earlier influence)
positivist fallacy
No rules of law at all are the expression of the will of an authority existing prior to the law itself
did not like it ... abhorred it (Posit. not liked)
'Duty' was the lowest common denominator of all laws. (?) All other legal concepts, such as right, power and property, were to be translatable into their relationships to duties.
de jure ... de facto
an idealist search for absolute truth in the realm of values (jj ever a thing that was never legal?)
analytical positivism 'remains the dominant force in our academic culture' (jj be cool to be able to remove ANY academic predominance at will)
Grundnorm ... a hierarchy of norms is traceable to the most basic of norms (?)
taken jurists into new terrain, so that positivism is no longer as easy to pigeon-hole ... 'social thesis' ... 'separability thesis'
The problem appears to be that a positivist scholar who becomes involved in socio-cultural dimensions of law ends up dropping out of the safe box of positivist pigeon-holes into the more turbulent sphere of legal pluralism and risks being tainted
only offer limited contributions to the development of a globally valid jurisprudence ... lost its dominance
V fetishism (?) legal positivism and the closed system of codes which the fetishism of rules commands must be regarded as obsolete
V deep thinking
V A renewal of the social contract
confusing picture of growing multiplicity. Particular difficulties ... over the inclusion of non-Westeern legal systems and in relation to law and religion.
fear of what is unknown
constructing a general jurisprudence from a eurocentric basis
assertion of rational superiority ... new form of dictatorship of an intellectual elite
hidden agenda of uniformisation
the non-uniqueness of law, a vision that law is but one method of social control (slave) ... relativism
not to man's nature but to social convention
? a good law, he maintained, conformed to the spirit of society
to further and protect the interests of society ... individual or selfish interests ... reconcile (L Am) ... to encourage the social purposes which are inherent in every individual
formal rationality was unique to modern Western civ (?)
many traditional jurisprudential questions are empirical in nature
laywers as social engineers ... how law as a form of social control could be used effectively to solve old and new problems over justice and distribution
sociology of law has become ethonocentric undre American influence
Holmes
that legal rules are mere labels, resembling recommended procedures for achieving a particular purpose, hence potentially meaningless scraps of paper, because the rules might be ignored altogether
Olivecrona ... 'independent imperatives' not just statements of fact, but propositions in imperative form, used as bargaining chips in a dynamic imnteractive socio-legal environment. ... observable that not all laws were treated as binding
assertions ... to see legal norms as directives to judges rather than the public
V mutual colonisation (between lawyers and sociologists)
change, and as a reaction to Nazi atrocities
discussions about the nature of law almost inevitably turn into political debates, so that 'natural law theory, when taken seriously, becomes a force in political struggle -- usually in defence of existing legal ...
rebellion or revolution
explain why particular values should be 'good' ... idealising statements about 'law' need to be matched with evidence that in real life justice is being respected. ... globally valid definition of law ... morality ... against social realities ... appropriate at any given point of time
none ... even ... Unger ... overlook ... share ... reasons
when policial and legal authority are under challenge. In times of stability, positivist approaches seem good enough to explain 'law,' but when political authority faces challenges, moral considerations are brought in and 'questions as to what rules are valid as law become elements of ideological struggle ... regimes
mistake to declare
must either be law or not be law, be legal or not legal. So what is 'good' depends ultimately to a large extent on social construction and considerations of situation-specificity and it may not matter whether we agree on whether this is 'legal' or not.
giving up any attempt to construct objective norms and values
should manifest itself as 'the collaborative working out of a reasoned view of human affairs'
established patterns of social interaction that provide the stable structure of expectations within which people can co-operate, negotiate, plan and act.
the logic of the situation
Western liberal society, find it both necessary to struggle for the rule of law and impossible to achieve it
an order men can accept (Unger)
One can look for a general conception of the social bond
circumstatnces
overlapping consensus
* Each law in fact constitutes a system (David and Brierly 1978:18)
most disputes never formally go to 'the law'
restricted to rules about behavior
any subgroup of a society can have its law
because someone says
there are many possible agents for asserting what is law (WRITER)
V a collection of open-ended thoughts, not because we cannot handle the challenge, but due to the nature of the subject
V incorporate and interlink
Law is always something particular, not just a generalized phenomenon, and it is culture-specific because its manifestations depend on socio-cultural settings that differ (jj just as each instance is context spec.)
inarticulate major premises
a combination of elements that may or may not be coherent, a plurality
recognised (jj asserted accepted by perceived maj. recog by minority)
Does law have to be made in some form or can it just exist in its own right?
circumscribe
different words will set off various assumptions
law can be messy, incoherent and self-contradictory
rules that individuals may make for themselves also fall within the difinition of law?
Because not all religions and cultures may share such doctinal views, the discussion that a single global understanding of law cannot be achieved, and can be neither formulated nor taught. It depends on an individual's capacity and will to accept a variety of views. ... conductive ... argue and disagree ... Who are we to say whose views should prevail globally?
intractable
(? Can we have 4? A second religion? Socity? or natural setting? when looking at Figure 1 in the book on p 185)
neither ... absolutely ... equilibrium ... nature of an equilibrium to be unstable ... continuous ... renegotiation ... the dilemma of all law
? Law is indeed so plural that it can hardly be grasped in its theoretical totality
self-assessment ... assessed
INTRODUCTION (p 193)
end up in prescriptive normative tyranny
Statist positivism is not absent in Asian and African cultures but is not immediately perceived as central.
legal, social and religious authorities were not treated as distinct
culture-specific visions
surprise ... all traditional non-Western legal systems appear to give little or even no importance to state law
ontology
Muslims, most vociferous proponents today
Religion is simply not the same as law (?)
D and B make a distiction between a scenario where law is seen as 'a model of ideal behaviour, one not to be confused with the actual rules' while they note that in the far east esp. China 'the very value of law itself is put into question' ... Africa ... restoration of harmony (Is China more or less indiv. than West?)
globalisation visions that are directed towards uniformisation or convergence ... needs to be much future change in Asian and African legal systems
4 --- HINDU LAW (p 196)
led to worryingly low levels of knowledge
almost invisible use of Hindu concepts ... Constitution of 1950 ... outwardly secular
agenda ... denigrate traditional Indian ... law 'on the ground'
rewriting the past will never undo it ... good governance and good behavior ... dharma ... mischief and overstepping their limits ... a people's law, not a body of rules ... alive, but is not cultivated (Hindu fundamentalism)
so universal that they are unchallengeable. All others are happily invited to state their own positions within this universalising Hindu ambit ... Hindu method of postponing final judgement on Truth into limitless eternity ... But if non-Hindus want to ridicule Hinduism and its underlying values, insisting that they alone are right, then defence mechanisms can be triggered off and there may be violence
meaningful silences which the non-specialist legal observer will easily overlook in the cacophony of competing claims
suffering either from positivist amnesia or illusions of spiritual superiority, unable to find a realistic middle path that makes sense
macrocosmic universal Order ... microcosmic self-controlled order ... deterence-based stage of punishment ... formal dispute processing
key to understanding Hindu law as a holistic system lies in concepts of Hindu culture, such as dharma, which are so diffuse ... internalized
reflects the endless internal diversity of Hinduism, a term that means little in the singular
extremely complex constructs ... 'unity in diversity' While this diversity is held together by an underlying conceptual core, which is itself a complex plural system
layers
unlimited diversity and flexibility
confusing
rhetoric and practice of pluralityand of relative justice ... uniformity of legal rules ... manifestation of injustice
following a false blueprint
transplanted and partly indigenised Western legal models on their own are not suitable tools for creating a sustainable legal system
anything South Asian is intrinsically inferior
stance that human conduct can be totally regulated by external force or state-made laws ... anti-legal attitude inherent ... human self-controlled order within a higher, cosmic superstructure ... the most basic framework of legal protection ... ancient Hindu legal models are not available ... Self-controlled ordering is not only cheaper, it is a democratically sustainable system ... provided some safeguards exists to allow redressal of injustices if self-controlled ordering fails.
reflects not what actually happened ... ritual manuals, designed to bring about beneficial effects ... vision of cosmic interlinkedness
? rita, earliest core concept
non-human law
* concern for the common good, at least by the classical period ... appropriate balance ... permissible and the prohibited ... search for absoluted 'truth' (later)
respected the limits of
obligation to strengthen the universe through appropriate ritual action ... assumed early interlinkedness of man with the cosmic whole
claims of revealed Truth
'public interest' ... duties rather than rights
about whose nature there was endless speculation, but no agreement ... agreed to differ and left this issue open, with the result that a Hindu is not defined by allegiance to a particular God or gods, but to the conceptual system as a whole and, later, to a way of life relating to such concepts
continued political fragmentation of India, in contrast to China
Indian society ... patriarchal principles, but matriarchal elements ... locally
personalised in theistic fasion ... sectarian Hinduism
must relate
'caprice' of the powerful and strong male
marriage solemnisation
emerging classical Hindu worldview based on dharma, correct or 'good' ... plurifocal way
premised on the supremacy of self-controlled action ... halmark of the entire Hindu law system
role ... ascertain duty
Dharma, the originally elitist Vedic expectation of correct ritual action, now becomes enlarged and popularized to include all ... redefined as expectation of right ritual action for every Hindu ... changed its gods and its forms of sacrifice, but not the theoretical basis of the centrality of Order/order and the inescapable interrelatedness of ... central ... whole ... priveleges, duties, and obligations... standard of conduct as a member of the community
ideals in real life. The Hindu chaos theor of 'shark rule'
traditional ... ritual, the moral and the social consituted a continuum
both religious and secular
karma into retribution ... effect ... together established a complex system of moral demands
The resultant need to define ... in terms provided significant impulses to develop entirely new classes of Hindu literature ... Built on Vedic foundations ... with no clear agenda, but searching for equity and 'goodness' ... originally oral
remain premised on holistic visions and the importance of individual self-controlled action within the context of communities and show no direct concern for state law (jj like kings, could try another go)
variety of views, plurality of rules and relativity of justice
? now turns into the system's keyword as 'duty,' the obligation of every ... But what is appropriate? ... reluctantly, kills his relatives in battle to fulfil his dharma ... Hindu law refuses to lay down generally applicable rules
one-sided overemphasis on certain notions, like non-violence ... forcefully disprove such notions ... lion's dharma to kill in order to survive ... but senseless murder
dharma had to remain an essentially relative criterion ... situational ... litigation ... seventeeth c. ... commonly known need not be stated
social structure ... stages of life
could never be ... situation-specific expectations of dharma
individual discretion and divine Order
dharma, next smriti and the virtuous conduct of those who know ... example of good people, and finally the individual conscience
individual satisfaction about 'doing
It may well settle close to 100 per cent of all legal issues or situations of insecurity, so that Hindus who found the answer to a problem by examining their own conscience need not go further
Recourse to individual conscience does not envisage an autonomous Hindu individual. Individual discretion is seen within a community context ...
where individual believers must have the freedom to ask themselves whether they have strayed, or should stray, from the path
relies on the individual's self-controlled ability to discern appropriate action, almost by intuition
* The idealized self-controlled order of Hindu law was thus primarily achieved by two types of internal self-regulation, either through an invisible mental process (asking one's conscience) or thorugh consultation within the immediate social environment. Both might never strike us (and did not appear in Hart's concept of 'secondary rules') as a legal process so long as we remain fixed on formal legal methods.
ought to say, "This has merit. This ought to be done."
could never claim the authority to posit legislated norms to control his people's daily actions
no sentence should be passed merely according to the letter of the law. If a decision is arrived at without considering the circumstances of the case, violation of justice ... 'justice', but no precise equivalent for 'law' as state
many people lived at that time on the fringes of Hindu civilization
child marriage
main consideration ... fertile ... illicit sexual relations ... members of society have an obligation to ensure the survival and growth of the next generation ... sex becomes a matter of cosmic obligation for both partners ... female chastity ... eventually, it was considered more important
over continuing awwareness of real life
lip service to the Vedas is used to legitimise what is in reality much more recent authority
moved from macrocosmic rita to microcosmic, idealistic self-controlled ordering through dharma
its unlimited generality, which at the same time provides for equally unlimited specificity
greed and other inadequacies ... self-controlled oder should be assisted, since self-control cannot be relied on ... replaced ... by a methodology of supervision
more active involvement by forces outside the individual ... give way to an assumption that simple self-control is not effective enough
earlier shifted from heaven to earth
Yet where it breaks down, the ruler is to step in through deterrence in the form of harsh and often quite gruesome punishments ... religious ... penances
still not the state which determines the rules of human co-existence
does the Hindu ruler represent the state in this sense, or is it still his primary function to protect the cosmos?
subject of rajadharma becomes an important topic in its own right. Soon the rulers, and increasingly their judicial functionaries, are depicted in situations akin to litigation and dispute settlement.
he still makes no law. Rather, he administers what his people perceive to be their law
local customary notions of appropriateness ... The ruler has to respect such customs and must give them effect
more of a justice facilitator
experts ... legal advisers, assessors and even judges
It is the thorn of actual or potential injustice that needs to be removed through processes of ascertaining dharma
dispute settlement is focused on removing doubt about dharma and is designed as a search for truth
death penalty ... internally perceived as self-controlled cleansing
vexatious litigation and litigeousness
heinous offenses, abuse and assault, games, miscellaneous
(LIST of 18 titles of law (p 230):
the Naradasmriti treats them in considerable detail: (1) debt; (2) deposits; (3) partnership; (4) resumption of gifts; (5) breach of a contract of service; (6) non-payment of wages; (7)sales affected by another person than the rightful owner; (8) non-delivery of a sold chattel; (9) rescission of purchase; (10) transgression of a compact;(11) boundary disputes; (12) mutual duties of husband and wife; (13) law of inheritance; (14) heinous 9ffences; (15) and (16) abuse and assault; (17) games;(18) miscellaneous (lolly, 1977: vii-vui).
where both parties to a dispute act truthfully and the wrongdoer admits his misdeed, the outcome is achieved through dharma, thus still by self-controlled ordering
social relaity and textual authority remained just a subsidiary source of dharma
older nad now unacceptable ... eating beef ... married to five brothers ... Various devices to explain such unpalatable evidence away
did not aim to develop a separate science of law
new preferences ... their own taste, while not entirely disregarding the older textual models
personal opinion masquerading as authoratative rule
look more like rough drafts ... designed to be remembered
dealt with locally and customary laws remained
Delhi from 1100 onwards, leading to Muslim rule over huge Hindu populations ... emerging Moghul Empires
the central ruler ... remained a remote force
tax
p 239 --------------------- scan:
The British first came to India to trade, officially from 1600 onwards,but soon ended up (as elsewhere)as colonialadministrators andlocalrulers. This created a need for knowledge of Hindu law, since disregarding Hindu (and Muslim) law altogether was simply not a politically viable option. The British had enormous reservations about taking account of Hindu law, but since it was a legal system governing, even ’then,huge masses of people, political expediency dictated caution. How could the British administer a virtually unknown legal system, respeaing it in some form, while not totally giving up control over it?
unsuitable
under the sovereignty of the British Crown
a suitable method of judicial administration for local populations became stronger
tax laws and criminal law
tried to ascertain Hindu law from texts
draft Penal Code 1837
aim ... codification ... uniformity and certainty ... usefulness of 'native laws' was not accepted ... local ... removed ... suit ... India ... introduced
little Indian opposition ... doubtful whether it was as widely known ... Silent non-acceptance ... likely ... remedies ... punishments ... harass their enemies
After British sovereignty had been firmly secured ... codified many other areas of the law, leading to charges of 'over-legislation'
local conditions, native habits, and modes of thought
British also began to interfere in Hindu law ... cruel and inhuman ... cautiously, aware of hostile public opinion ... widows ... Caste ... escommunicated .... the 'general law' ... Child Marriage Restraint Act 1929 ... Western-educated Indian opinion-makers ... look down on ... civilizing social reforms through law
pushed Hindu law into an enclave
* process of administering Hindu law through a subtle combination of English and Hindu principles of adjudication, involving the use of precedents and the introduction and creative use of the important formula of justice
Hindus should be sought ... inside knowledge ... causing too much offence. ... 'assessor' guiding ... when it was believed that enough precedents had been accumulated
the British wanted to know about a general rule of law, the indigenous experts provided situation-specific assessments of the case in question
problematic construct
To restrict the freedom of indigenous experts to expound 'the law' as they pleased, the British hoped initially that codification of ... assumed ... authorative statements ... anticipated that these texts would eventually be followed by all court pandits ... misguided assumption ... 'failed to deflect pandits from their normal sources of information...'
on any one question ... many possible textual authorities which disagreed (jj king)
Thus, the British created what Derrit has called the bogusness of Anglo-Hindu law
switch to English
that the official Hindu law was now administered on the lines of a Western law ... there was much more to Hindu law than this new colonial construct
indigenous experts were relieved of their duties in 1864 ... freeing the process .... vagaries ... fickle representatives ... Justice, Equity and Good Conscience
extremely hybrid ... an official legal system known only to specialists, while the 'living law' of the Hindus remained quite different
harass one's adversaries ... flood of litigation ... litigiousness was attribted to Indians by many authors ... litigation with armies of lawyers now replaced traditional warfare among ruling clans
became an elite phenomemon, focused on the written word
Moottoo Ramalinga, holding that proof of custom would override the written tet of hindu law
'his' local people were following customs that diverged significantly from the emerging official law
common indians had only one way to show their disapproval, namely to avoid recourse to this new law altogether
certain ... uniform ... only take account of the official law
an uneasy compromise
It is the vision of a nation
since according to modernists the co-existence of general and personal laws perpetuates legal inequality
produce the desired ... legal order of ... had been promising ... Equality has not been achieved, poverty ... the state itself (in its various manifestations) continues to be the biggest violator of law
'traditional' laws and their socio-cultural norms are clawing back territory ... undermined and subverted modern state laws
more difficult to handle is the assertion that the main concern for global jurisprudence must remain justice itself ... In India, positivism has clearly lost credibility and has limited moral authority ... absurd
power, too, is relative and interlinked
* Silence about the input .. Hindu norms ... could not avoid being caricatured as a Hindu despot.
no longer blind belief in the modernist axioms
Earlier developments had seemed to put India on the road to following the West
cathartic
new developments focus on duties rather than rights, on accountability in terms of 'public interest'
found the Indian principles more solid and endurable (than Western equivalents when compared) ... even the finest thinkers about Asian values and forced to remain silent before a wider public
a country relying on ancient Indian cultural norms
({}) abolition of the fundamental right to property in 1978
showing that positivism as a specific type of law just cannot control and override (as it continues to claim) religious/ethical and socio-legal norms
'protective discrimination' ... especially as far as access to higher education and government employment ... a huge cost ... challenged and have bred much resentment
creating ... more equitable system of inequality
Public interest ... based on the ancient Hindu strategy of opening the door of the court to anyone who has a grievance ... the ruler should listen to complainants to protect 'little fish'
Cruel injustices have come to light ... and appropriate remedies are not always readily available
ordered spheres
There can be no reason why practice of violent extinguishment of life alone should be regarded violative ... The slow poisoning by the polluted atmosphere ...
life 'no longer means animal existence ... but includes the finer grades of human civilization'
Pakistan, where the right to life has also emerged as an important issue linked to environmental law ({}) People United for Better Living in Calcutta v. State of West Bengal 1993
foreign ... Western legal concepts and strategies, like emphasis on individualism, and priveleged treatment of contract law and private property, do not suit ... conditions
that formalistic equality cannot work in reality, because it would further disadvantage the disadvantaged
V questioning and abandoning blind belief
Its agenda are more focused on socio-economic aims
explicit reference to
Positivist phantasising misguided two generations of scholars
informed by ... deliberate silences
a Uniform Civil Code ... Islamic
quietly changed the definition of 'wife' (jj integrity) ... to include 'divorced wife' ... iddat period, no more than three menstrual cycles
ensuing riots pressed the government of the day
government is to hold those in charge of resources responsible for the socio-economic welfare of others. ... duty-focused rather than the loud rights-based approach
ISLAMIC LAW
more securely anchored around the world
reconcile the doctrinal ... manifestations ... polemics
tensions ... claims ... Turkey ... 1920s ... Pakistan
'closing the door of endeavour'
Despite a central religious ideology ... agreement among Muslims ... basic tenets
? tensions within ... require a basic spirit of human tolerance, evidently not always present. Islamisation ... make an existing Islamic system more faithfully Islamic
a complex family of laws rather
tend to emphasise the unity of the worldwide community of believers (ummah) and resent being divided, more so after 9/11
The central problematic ... tension between its doctrinal and religious claims to global validity and its practical application in diverse and complex socio-cultural contexts
how one treats 'others' particularly non-belivers
stated in the Quran itself, cannot insist that all people in ... necessity, a pluralist
become part of globalising processes, so that 'there are a number of globalizations going on. ... There is also, for example, globalization in the form of 'islamization'.
difficult to internalise its exclusive claims
For believers in other religious traditions, Muslims become enemies. If all thes people had their way in their respective subjective assessments, debates about law and religion would simply become a clash of civilizations.
Muslim individual must have the freedom to decide for himself or herself
virtual absence of the state
also members of communities, which exercise their own authority as a human and thus secondary source of guidance
But the state is not entirely absent
social embeddedness is taken for granted
new identity
holistic ... subjected ... new ethical assessment ... comprehensive ... leaves nothing uncovered ... make it applicable ... authority ... interpretation ... application ... central
guidance about God's will was required
no Islamic jurist could ever claim to have found 'the Truth' through his own effort ... unachievable ... learned individuals can view themselves only as faithful interpreters ... pluralism is structurally inherent
where plurality was a daily experience
accepted therefore by all major Muslim scholars ... Quran contains the essence of God's law, but not the law itself
the interpreter as one who discovers the law
Nobody ... can ever truly grasp God's message
opinion ... when jurists disagree on a particular rule (?What is this like?)
opinion is only binding where knowledge is lacking
have to continue to argue
think as religious natural lawyers and accord secondary importance to any human laws.
secular dimensions
'living law'
Submission ... first ... precludes questioning
Such speculations assume that we know what the results of our actions will be
mundane
All aspects of life ... practices, such as prayer, fasting, alms, and pilgrimage, permissible foods, styles of dress, social etiquite (self-imposing mindset habit jj)
duties, a code of obligations (to our organization - m addition to community)
religion suits society (export lands)
Law, for all its majesty, is a temporary expedient
if Islamic law ... would have been ... due authority ... tyranny (jj partic. level of claims / vagueness that holds together over time large swathes)
about using the world 'law'; it is left ot the reader to guage the appropriate nuances of meaning in the particular statement. From a religious perspective, for the Muslim believer. (where is law? in m world)
Quranic law goes much beyond the ambit of any positivist lawmaking and encompasses every aspect of life, including the hereafter, that field is much wider than conventional legal studies would with to reach. This is subtly expressed in the juxtaposition of 'all aspects of life' and 'every field of law'. Studying the whole of Muslim law, therefore, requires first of all analysis of its religious foundations.
too legocentric
purpose ... regulate not the relationsip of man with his fellows but his relationship with his Creator
created a new ethical system of evaluation (nice sentence V)
obligatory, recommended, permissible, disliked, and finally illegal, prohibited ... loyal ethics
women
appearanece of ad hoc solutions ... modify the existing customary law in certain particulars rather
inter-tribal customs and customs which regulated the relation of the individual to his own tribe
it would take time to evolve a living Muslim law
implied w new way of life ... makig ... it was not even relevant to consider what role the state could play in this context
Sumbitting to God's will may be simple, the real challenge for believers presented itself in ascertaining the right thing to do at any one moment of their life, a universal challenge
focused on the concerns of the individual ... obligation
he could not claim to make law without challening the revelation
The Prophet, with reference to explicit Quranic provisions aobut apportioning of shares ... old system
pro-woman slant ... applied with a less reformist effect than a reading of the Quran would suggest. At the time, however,nobody read the Quran as we do now ... influenced by the 'legal postualtes' of a clan-focused, honor-driven patriarchal Arab society (jj culture, home of law)
Arabs
when everything the Prophet declared to be correct practice also became known as sunna, and was thereby turned into the second ...
dilemma ... was continuity ... assumed by the Caliphs
guide themselves by the light of their reason
early formative period ... four so-called Rashidun (rightly-guided) Caliphs... could not totally fill the unique position of the Prophet and turned their attention to other legal matters, less focused on the Quran. Some form of what one could call 'secular' Islamic law-making began here.
more attention ... administration ... secondary rules
the newly conquered territories ... Arabs
stoning to death as punishment for unlawful intercourse
Man-made Islamic law began to grow ... internal conflict ... resisted and resented since there should in principle be no human law-making
Abu Bark, the first Caliph (632-4) ... faced a revolt against Islam ... attempted to base his rule ... but disagreements arose among the Companions on which he attempted to base his rule
Umar (634-44) tax and land law
Uthman (644-56)
conflict between old and new orders (jj a faster than normal social change)
Sunni/Shia
their history reflects the deepening doctrinal and legal differences
family ties as well as his alleged designation as successor by the Prophet himself, which Sunni doctrine does not accept
began ... that the provisions of the Quran would now need to be studied, since leading members of the community could no longer be trusted
origins of Muslim jurists as a class are found here, removed from and in opposition to political office and power
ultimate split could not be avoided, however, because both sides continued to insist on their respective claims
Shias regard the first three Caliphs as usurpers
Omayyads (661-750) based in Damascus were followed by the Abbasids (750-1258) who ruled from Baghdad
no longer elected onthe basis of criteria that linked them to the Prophet and understanding of the Quran. Now, political and military power counted foremost ... military conquest
abandoning Islam
borrowing of legal models from other legal systems in the region
market inspector muhtasib, an institution copied from Byzantine law
qadi
against the Umayyads boil down to criticism of a growing state legal system that asserted positivist lawmaking over Islamic religious foundations ... expressed not only in political rebellion and dissent
realisation that administrative efficiency was essential ... many quadis ... inevitably produced a growing diversity ... virtually unrestricted power of these judges ... no hierarchy of appeal courts, and no case law ... no unifying force
applied at all
outright conflicts of interpretation
a husband who had refused to treat his former wife with fairness might not be accepted as a proper Muslim witness of high moral probity. ... at this state also attempted to rely idealistically on the individual conscience (jj quick transition from community to society)
Muslim woman might give herself in marriage without a guardian ... Medinan .. Kufa ... Was this still God's law or was it now becomming men's law?
submerged
concerned about ... norm
among those pious persons whose interest in religion caused them to elaborate, by individual reasoning, an Islamic way of life (jj where people chose administrators / civil servants)
Their tendency ... put them in inevitable opposition to the latent positivist ambitions of Umayyad rulers
administrators offered ... the ruler of the day might attempt to influence the qudi rather ... legally superior
existing customary law. This existing law remained the accepted standard of conduct unless it was expressly superseded in some particular by the dictates of divine revelation.
inevitable element of practical Islamic law-making and remained a term that jurists have been using to criticise each other
wanton
calls for re-Islamisation
remedies ... renewed efforts in faithful preservation and painstaking study ... systematic collection of the Prophet's sunna
Muslim jurists now formed a liason with the political opposition (jj which would spark a oppisition jurist group)
Kharijites
absolutes and rigorously claimed ... either good or bad, permitted or forbidden
Pious scholars ... Grouped together for this purpose ... formed what may be called the early shcools of law
Abbasids, who 'loved to patronize learning
Initially it appeared the Abbasids would be serious ... and they won the respect and support ... Later, however, positivist ambitions again won the upper hand ... was but a polite formula to cover their own absolute despotism
too early in the history of Islamic jurisprudence to be considered acceptable
require individual effort on the part of every believer to ascertain God's will ... on the basis of classical learning and pious endeavor (collect main points to think about, arguments you must beat to counterprove the learned's thesis Lao Tzu)
Such scholars often established a madrasa, to spread and discuss
agreement into a more formal consensus
originally accepted freedom of speculation ... more disciplined
the task of the jurists to discover this sunna, through the hadith, rather than to indulge in speculative reasoning as to
diluting ... pollution
heresy ... to set up a competitior with Allah
first written text of this kind - Muwatta of Malik Ibn-Anas (d 796) Maliki school later named after him
check the growth of speculation in the existing school traditions
became the classical doctrine ... establishing a fixed, common methodology for all law schools ... four sources of law: the Quran, the example (Sunna) of the Prophet, consensus (ijma) of the community, and analogical reasoning or deduction (qiyas)
plurality-conscious compromise position that Shafi is famous for
elevate the hadith
his community would never agree on an error
that the formation or ascertainment of such an agreement had ceased to be practical once Islam had spread outside the boundaries of Medina
ijma is therefore essentially negative, designed to the end of rejecting the authority of a local or limited consensus and thus eliminating the diversity of law which resulted therefrom
later modified
If that is correct ...
unrealistic
whos acts had model character
without proper evidence, led to agreement about the importance of ... but also created evidence problems
p p 320
as in the Hindu commentary ... the same time, almost anything might be shown to be good or bad by reference to a particular chain of tradition
sift out and select
722 (he claimed he had found no evidence of legal traditions before, almost 100 years after the death of the Prophet)
apocryphal material ... projected back
820 ... living realities ... geographical ... negotiations ... dynamic legal pluralisms among Muslims ... lively ... basically uniform and common law for Islam was not to be realized
legal ideal and the social reality
Within all schools, all shades of opinions were represented
get around the theoretical superiority
‘conjecture’ (zann)
Where the Muslim jurists could not agree, the agreed to differ. It is a candidly pluralistic ... no individual can claim, as against other variants, a unique authority
uniformising redefinition
variant versions of Sharia law ... Difference of opinion within my community
differences ... divorce ... taxes ... inheritance
difference between ikhtilaf ('tolerated diversity of opinion') as ‘disagreement’ and niza as ‘dissention’
simple
declare any form of disagreement as dissent, which is then to be taken to endanger the community and can lead to a charge of heresy
imitation (taqlid)
political sovereign ... curtail the powers of his Sharia courts and recognize alternative organs of jurisdiction
? In distinction to Hindu law, Chinese law and also African laws, a bad Islamic ruler could not be deposed on religious grounds. It appears that his due punishment would arise only after death.
hiyal ... might be used to circumvent strict Sharia rules not acceptable in society
accepted the validity
the ruler's control over the judiciary might be achieved more effectively by having less qualified qadis. This leads to the institution of the mufti. Like a jurist, he was a qualified scholar ... whenever a qadi lacked qualifications of juristic expertise, he required the help of a mufti ... Questions put to the mufti were answered in the form of authoritative opinions on particular matter (fatwa) ... considered authoritative opinions ... collected ... a deviation ... but that does not explain why such departures were so frequent and significant and everybody knows of them.
media muftis
four sources of law ... other influences ... custom, public interest, juristic preference or equality ... inductive human input ... primary concern with human welfare, justice and equity
equitable preference to find a just solution
it if is allowed, it can open the door to the unrestricted use of fallible human opinions ... vary
‘presumption of continuity’ ... legal presumption ... a state of affairs known to have existed in the past continues to exist until the contrary is shown ... disappearance
debates ... custom
Should we then speak of unofficial customs, or un-Islamic customs?
contrary to
difference among Muslims
((((((( p 337 scan part with writing beside it )))))))):
The same goes for state-made laws, prominentlylegislation, since case law has not been a feature of traditional Muslim law, given that every case was judged in its own right, and the idea of precedent, while not absent, was per- ceived to endanger justice.i is T'ne officialview has always been that no ruler or government can change the shari'a,ur' 'out positivist law-making was never totally absent. Mostlikely,it was treated as an aspect of efficient administration,implying the production of secondary rulesin Hartian terms, but it is asserted by Hallaq (1997) that early Muslim law knew and used legislation. (jj part of their claim to legit govt. (Afghanistan) + simple)
precludes the emergence of Islamic absolutism
through juristic reasoning, which then deflected criticism to the jurists and their methodologies ... allowed Islamic rulers
why it could not have been done by the Prophet whithout drastically changing ... state ... Even later, despite many positivist ambitions ... could not be modified without changing the entire edifice
reflects the European experience ... historical school ... People's law was still a social matter for people, not so much for ‘legal’ scholars
After centuries of enormous conflicts and tensions, it appeared that a certain consolidation ... settlement ... sufficiently clarified and documented
innovation ... heresy
exclusive ... authority not only over those points which were the subject of a consensus, but also over the existing variant opinions ... independent effort, or itjihad, to ascertain Allah's law disappeared.
came to mean the unquestioning acceptance
But how far would the scholars ... actually go in this respect?
The earlier jurists had greater powers; the later ones could not cross the barrier and were classified as of lower and lower rank.
founded in fact
reforms ... no ... from Muslim jurists, since the doors of itjihad have been firmly shut forever and the only suitable remedy, a classic positivist prescription, is legislation
scholars today cannot reopen the closed doors of itjihad, even if it were possible
restricted themselves to medieval states of knowledge and development
not be part of a global future
global Islam has become a lively and much larger family of Islams
inevitably be in error ... anarchy ... edifice of Sharia would be demolished ... because itjihad is the only means by which the believers can pursue the true path ... new case
accepting the intellectual authority of someone (jj they did lots of work, can't do better. Downside: don't bother to work)
shifted away from Islamic scholar-jurists and towards human law-making by states. Scholars could now ... (jj state provides for multiple ‘Islams’ under its roof. could crit. not relig. but states
As the drive for reforms became a major theme
‘private law’ and ‘public law’
overarching higher
Both Anderson and Coulson wrote much about legal reforms to Muslim law, with rich evidence of political struggles and religious politics
a siege mentality in which calm discussion and necessary constructive interaction became difficult
'the wider and supreme duty of the sovereign was the protection of the public interest ... personal discretion
? the Islamic version of positivism ... a technique through which certain so called reforms were introduced in Sharia ... relied on individual ruler's conscience
Althouth the doctrine expressed to perfection the concept of a state founded upon the rule of God's law, it never seriously challenged the ruler's autocratic ... recognition ... total impotence ... obedience ... and that even the most impious and tyrannical regime was preferable to civil strife
extra-Sharia jurisdictions, which cannot therefore be regarded, in themselves, as deviations
almost parallel to how equity jurisdiction in English law had allowed legal growth
and false accusation of unchastity (jj if states expect people to be resp. based on self-responsibilty they can protect these people in laws)
given too much discretionary power and often neglected their religious obligations and obligations to their subjects
converts ... abandon and modify
Indonesian
ways of life
Instead of one large Muslim empire, there were eventually several sultanates
deficient ... trade ... economic development ... replace it with laws of Western inspirations ... felt a particular urgency to adapt itself to modern conditions (jj W. laws also a break from W. peoples cultures)
In these matters the Sharia courts were now wholly out of touch with the needs of the time (jj Afghan)
Turkey radically went outside the Islamic legal system
all other Islamic states ... piecemeal
V moulding
a process of Islamisation of foreign elements
Civil Code of Egypt ... provided that the courts should follow ‘customary law, the principles of Islamic law, or the principles of natural justice.’ Such provisions gave explicit authority and important incentives to judicial creativity
taqlid ... takhayyur
Three stages of takhayyur ... consider ... other ... adopt (consider the doctrines of any other Sunni school and to adopt one of its elements)
unhappy marriage without having to abandon Islam
individual jurists whose opinions had preceded or were in conflict with the dominant doctrine
give it authority
‘patching’
constructed by the combination
manipulated
pretence ... formal ... superficial adherence ... masked the reality of an attempt to fashion the terms of the law to meet the needs of society as objectively determined ... antithesis ... legitimate standards for society are set by the law, was inherent in the process of reform
neo-ijtihad ... Islam was to adapt itself successfully (jj not the other way around?) ... abolition of polygamy ... Tunisian ... decidedly pro-women Quranic verses (jj examples (" " adage) ... since it was
vitality and potential ... real change only in method, not in principle ... cannot be simply replaced ... regulate the affairs of their people ... To that extent, there is no real difference between Muslim tradition and Muslim modernity. However, at the level of visible legal reality, men's laws have become much more self assured
Turkey's accession to the European Union (jj what role does T's laws play?)
still Islamic laws if the people who live this law are Muslims (?)
negotiate
unique ... hierarchical ... visibly ... culture-specific Turkish vision
fereign opinion
became famous for introducing many state laws. The overall picture of an efficient, effective legal framework under the umbrella of God's law prevailed.
ambition ... trusted
Ottomans firmly believed ... superiority ... ‘saw no reason to learn anything about European culture’, remaining proud of the ‘Ottoman way’.
political reasons
dual
created new constructs designed to co-exist
reforms ... aiming to prevent disintigration ... Empire ... modest reforms ... constitutional ... extending to private law ... French ... would not and could not just erase existing legal arrangements overnight
rot ... sudden decline in Muslim fortunes
((((((( p 356 scan )))))))))):
The Ottomans also created a new secular court system,the Nizamiyya or Nizami courts, to apply the new law. None of this was as revolutionary as may seem at first sight to an external observer; the new laws were virtually optional codes, co-existing with the oldlegal order. There are no indications thatthe new system created a flurry oflitigation orwaswelcomed by 1 awider public.While the Ottoman Empire was now getting used to humanlaw-making, it was also evident that ‘the Shari’a had never in fact been exclusively or comprehensively applied, but that customarylaw, and the orders or caprice of the executive, had frequently prevailed' (Anderson and Coulson, 1967: 38).That did not seem to change as a result of partiallegal transplantation. (jj could other M. nations collow same process as T.?)
the ambit of classical Muslim law was gradually restricted by the new codes. Total ... agenda ... refused to abandon even such controversial provisions in the sacred law as the death penalty for apostasy ... becan to face opposition against more use of European laws ... safeguard the link between tradition and modernity
not suitable for codification ... A codified body of Islamic law, as men's law
Muslim family law ... because it depended on popular acceptance ... “a mental moral map” ... still an integral part of the Ottoman state
secular courts were given more ... sharia courts were increasingly restricted in their competance
Muslim laws of marriage, divorce, and inheritance had always been most meticulously applied and it was not considered a viable option to import foreign models into family law
terminate a marriage
Kemal Ataturk ... Following a defeat ... collapsed ... Treaty ... wholesale official acceptance of Western civilization and laws. elite, no longer interested in integrating (Islamic institutions and laws with Western concepts and structures, decided to abandon Islamic laws)
pushing through an entire system ... without concern for social acceptance .. reformers
settlers, often British citizens who follow hybrid norm systems on their own terms
Reconstruction (Allama Muhammad Iqbal's famous study) (1989)
conversions ... content ... allowed
an inconsistent and unstable legal system in a peripheral capitalist state
vacillated
could not have enforced ‘pure’ Sharia law
creation of Pakistan in 1947
under the British, but it suffered loss of status and massive interference
to clarify the law, not to fix it forever
Safi ... ignores custom ... However, in social reality
whole communities drew up petitions about wanting to be governed by Muslim law (Pearl (1979:37) noted ‘a desire by the religious Muslim community to reduce the role of custom’ ... alert
prevent Hanafi Muslim wives from abandoning Islam to bring about a divorce
poet Iqbal
conceptual
equality, solidarity and freedom
‘the reality of multiple choice’ ... unlimited multiplicity of subsystems ... ignorance
The state ... is only an effort to realize the spiritual in a human organization
Watching the Turkish ... could not secularise their legal system in the same way without being grossly miunderstood by their own people ... Indian model ... wanted ... particularly Pakistani way
Objectives ... such that collective and individual Muslim identity and existence would be strengthened ... global
a sacred trust ... subject to law and public morality
Judicial activism has become important in public interest litigation
petty, personal vendettas
awareness that abuses of men's laws in the name of religion are not effectively controlled in countries like Pakistan
preservation of values ... dignity ... purification ... expiation
questioned ... It has never been properly clarified
(exe) rape .. had to be rescued by the Federal Shariat Court from a prosecution for zina after the lower courts abysmally failed to do justice (Safia Bibi)
confusinos ... uneasy compromise
‘triple talaq’ ... instantly and irrevocably divorced ... might not even tell the wife
activist myth
aimed to establish a fiction ... three menstrual cycles (jj natural) ... ineffective ... fictive provisions
a vindictive zina ... mala fide ... facilitated by the newly Islamised law and set the woman and her husband free. This shows that the judges, rather than legislators (are the real guardians)
contradicted the Quran, which knew of no such notice requirements ((jj when judges assert against Islamists)
FSC refused
FSC protected virtually the entire MFLO from long-standing conservative onslaughts and clarified that the current Islamic law of Pakistan contains two co-existing and potentially conflicting Muslim law elements ... setting God's law against man-made Islamic law ... seem to combine a commitment to Islam ad strict punitive responses to violations of sexual morality with reformist, pro-women agenda in family law
Their Islamic credentials remain dubious ... lobbying for certain values
did not have a clearly defined programme and vision of the future of their country and its people ... Turkish ... implanting ... expecting a new ‘living law’ to emerge
dishonesty ... Allah Rakha ... evident that Pakistan is not a theocracy ... what it means to be or become an Islamic country is still not openly discussed
a sustainable ... method
preventing ... from easily admitting ... cannot avoid some kind of official recognition of Islamic claims and theories about the dominant concept of Islamic law as religious natural law
AFRICAN LAWS: THE SEARCH FOR LAW
Woodman and Obilade (1995) ... role in developing a global jurisprudence
African people are almost everywhere treated in a colour-blind, culture-neutral fashion that denies their value systems adequate
portray African laws as impediments to globalisation, ‘development’ and gender justice
The variations ... illuminate, the reasons for and the advantages of each system in its own environment
philosophy is denied Africa
ruled for centuries by their own ancestral customary laws. Obedience to custom ... live as one's ancestors had; the fear of supernatural powers and of group opinion
ultimately people-centered, not state
the acceptable norms that most people in the community comply with
law-like rules and norms ... variety of processes to apply ... Debate may not be necessary when everyone in society seems to know how to maintain harmony
? togetherness is what law is about
rejects the idea of progress
Land belongs to one's ancestors and to future generations
individual rights ... greater emphasis is placed upon the obligations of each person, given his social condition ... not clearly distinguished from those which may be classed as simply moral
African worldview
Yelpaala (1983) and Ebo (1995)
The law of the community, therefore, is conceived and accepted as the possession and heritage of an endless chain of generations
This faith that the spirit of the ancestors is incarnate in the law is a ... spiritualization of law and its sanctional sources, and indeed of life in general
The influence of chthonic thought on the environmental debate ... philosophical, economic, and legal ... intellectually coherent and with thousands of years of experience and application
The interlinked roles of medical and social healing are frequently ritualised in public performances whih serve multiple resonctructive purposes
ordeals (what role?)
western cutlure has ‘a big mouth and small ears’
lecally centered but ultimately global cosmic (?)
constructs developed and manipulated by humans all the time to link themselves to the wider order of Nature ... give more importance to religious practice, good behaviour and ritual action (?) ... not closed systems without fixed boundaries
certain redressive action is required in order to protect the threatened order of society and of the wider
a witch is seen as evil, selfish and secretive, working against the social welfare of the group
socially maginalized individuals
exploit this for power politics or financial gain
creator ... first ancestor ... mainly nature gods ... land, water and trees, mountains. Other objects with power
recently dead ... the family community ... territorial ... larger social groups ... ancestors ... mediators in one sense or another ... the most important members of the total community
Shamans and herbalists are seen as connected to the supernatural world (jj or a connnection to) (advice on what to do NOW)
But how far could they go in trying to control religious beliefs ... putting religious law above custom?
many questions with modern jursts ... become almost meaningless ... traditional African law, where law, religion and morality overlap
to separate ... a society in which there can be a serious lack of correspondence between ... official organs ... The law expressed the common moral code ... if the code changed, the law would automatically change as well ... no conflict ... religion ... and its legal institutions ... family structure was often organized around the cult of the ancestors ... family property system
avoidance of conflict remains a constant challenge
much ... law was completely secular ... integrated culture
matrix ... oaths ... crimes, family law and land law ... the limits of law
problems of modern African states ... that traditional laws might be more effective than modern state laws because their normative foundations were embedded in traditional society and not imported from outside ... concentricity ... concurrence ... mean reinforcement ... the legal message ... healthy balance ... competing elements
key ... balance, harmony and co-operation ... disrupted ... ultimately ruined by colonial interference ... civil law ... indirect rule ...unbalanced ... the idealistic, self-controlling system of traiditional ... legal centralism ... legitimate the new ruling elites ... studied metropolitcan law, empowering them to manipulate ... afraid or belief in the power of their ancestors
rules was in ... matter of trust from ... the living were using the earth and all its resources during their lifetime as a matter of trust ... collegiality ... reaching joint decisions ... a value in itself ... long debates about how to decide a particular matter are not a waste of time, but reflect a consensus-sensitive strategy to maintain balance and harmony ... individual ... subordinated to the collective ... cosmic ... individual ... to be active ... nobody is on a lone journey ... up to him or her to join another
acephalous ... The endless diversity ... is beyond description ... Any attempt to be comprehensive seems foolish and unrealistic
a chief is a chief by the people
in the process of a trial, discovering the applicable rule of law is not the aim ... focus of the proceedings is on the rectifying the breat of that preexisting order
Normative systems of this nature are never directly accesible to the outsider ... discovered ... questioning ... observation ... texts
not a nationally agreed body of rules ... community makes law, and changes it by its changing practice without help from the legislator ... not a static
the nuclear family is in many communities the primary unit
major influences on customary laws ... environment, social system, orality
uniformity of response to the challenge of a shared environment ... absense of writing and hence the absense of all written legislation
if a Wester-type legal system were to have no writing
would tend inexorably towards the local settlement of local problems
Orality meant that the law came closer to the people to whom it applies ... diversity ... although even the US has not managed to create a nationally uniform legal system. If the Americans can live with locally anchored legal plurality, why not Africans?
explain his system ... the law of long ago
unthinking adherence to immutible principle ... the principles are there ... moot ... a starting-point for the negotiation between the contending parties ... most suitable settlement of their quarrel, or a court may allow a deviation from the rule in the interests of a lasting harmony between the disputants
a shift from a civilizing mission to a law-and-order administration
cooperation
clan was the main source of an individual's identity, reputation, and pride. ... implied social control and basic law-making by the clan ... function of guiding the individual's conscience in the case of doubt
to the perceived needs of the three worlds
Collectivism ... cooperation permits some degree of independence and volition
a kind that impoverished not merely the wrong doer but also his group
injuring ... must in all cases emerge ... ‘not richer or more favoured, but poorer and less favoured than before'.
* land use, rather than land ownership ... African concepts of property law. Not even kings owned the land.
usufruct
worked well as long as there was enough land for everybody
ridicule and ostracism
the limits of individual action
Containing and controlling conflicts, preventing them from becomming larger battles, was seen as a matter of survival for traditional societies. ... ‘heavy emphasis was laid on restoring harmonious social relationships rather than the pursuit of abstract notions of justice.’ finding justice from case to case was considered more important than sticking to fixed rules (jj because law/ integrity not individual (as in West))
I am because we are ... individual's acquisition of full personhood
abandoned by some of his people
imposition of rigid boundaries ... dictatorship ... the prescription of limits by the community ... is not
• mutual, not unilateral ... reciprocity
In the communist countries, the individual owes primary allegiance to the state
the individual as an active participant and not just a mental space
individuals in total silence
hierarchical ... None excludes the others
several potentially conlicting sources of authority were always ideally harmonized into one system of interacting equals rather than allowing any one element superiority over the others
claiming superiority for religion over society and the state
The primary purpose of indigenous justice is to maintain equalibrium between interests and forces whose ... Justice makes a common demand on all, namely, that nothing be done to destroy equilibrium between groups ... belittlement, or denial of equilibrium conditions (?h. rights)
‘the end of justice is not served by the prescription of a set of penalties’ ... justice is not served by uniform standards. More important ... is recognition ... requires healing of the interpersonal relationship
To make amends for violating a rule of law by paying due compensation ... is not the end of the matter. There is a spiritual dimension to attend to before the matter is finally set to rest
If one bases a law ... on popular practice ... laws will also be popular ... laws tend to be knowable, expressed in a form capable of knowledge ... but these courts ... to incorporate the ordinary people or a representative sample of them ... as spectators allowed to venture opinions ... laws are processed through such channels, they naturally emerge in a form and with a content which ordinary people comprehend and accept.
imposing laws ... laws ‘might be out of the control of the ordinary people’ ... allowing lawyers to dominate law-finding processes might be bad for balance and justice?
proceedings ... educational
‘litigation tricksters'; it was almost a crime in ancient China to hold oneslef out as a lawyer (?everywhere? is there anywhere lawyers are respected?)
acquisition and tilling of land, the making of marriage, the infliction of simple harms, such as wounding
There were conflicts, misunderstandings, attempts to bypass or stretch the law ... If it was not known and generally accepted, then it would tend to become non-law, to lose its legal force
how people thought one ought to behave ... precedent was not really a source
Public debates about disputes, ritualisation of conflicts, publicity of proceedings and a high level of general public participation in law-finding made it a rather democratic mechanism for harmonious living.
precedent is a mojor source of law ... did not necesarily act as precedent in the sense of a binding model
but instead may proverbs about selfish individuals
where the strongest and most active males as a group were collective leaders
fiction of judicial ignorance
set right a wrong in such a way ... But the party at fault must be brought to see how his behavious has fallen short of the standard set for his particular role ... must come to accept that the decision of the court is a fair one. On his side he wants an assurance that once he has admitted his error and made recompense for it he will be re-integrated into the community
Only in this way will the judgement receive the endorsement of the community as a whole
law is unrealistic and inadequate, unless it ‘has the effect of removing the cause of the conflict and of reconciling the litigating parties.’ Formal rules of law only serve as a basis for discussion ... solving ... both parties formally agree
inevitably different ... Native justice is an institution for peace rather than a means for the strict enforcement of law; ... it is not rare, we are told ... acting in that generous spirit characteristic of African society, to forego the enforcement of his judgement
pitso (among the Tswana) a gen assem of all adult males (jj Viking Allthing)
partly an informal consensus ... bargaining ... offers and counter-offers ... until agreed terms were reached. ... a negotiating process ... persuasion, artifice, and strategem ... each disputant was represented (not Viking)
leader ... council ... might ignore it if he wished. But he would not deliberately do so and risk the withdrawal of their support.
Disputes between people ... Since a small personal quarrel could quickly lead to a wider dispute, engulfing many more people
elders ... primary duty the prevention of strife
swear an oath to be struck by lightning
settlement of disputes by deliberation and discussion, rather than by force ... correction of wrongdoing by compensation ... except in serious ... adjudication and assessment by elders who were considered to be impartial ... fairness ... use of courts, their constitution and the right to appeal
reconciling the disputing parties to promote social harmony rather (than) on the punishment or the settlement
any action intending to harm others was a threat to the whole society, and must be purged ... Right behavious was accordingly seen in terms of debt ... a positive liability
(a negative liability on the individual not to do what was wrong, but also a positive liability to do what was right)
flexibility was necessary ... public ... a fair trial could be ensured ... court decisions could be appealed
a conflict that belongs to the community itself and which has to be thrashed out and settled, not only in public, that is, by the community itself? ... all present partake, in the act of reconciliation
the rought edges of justice and disputes are smoothened ... everybody is encouraged to give and take a little for the wider common good.
tilt the balance of power dangerously towards those who could claim to control the official law ... increase in perceived injustice ... marginalisation
British model of ‘indirect rule’
early plas for codification of African customary laws by the Germans ... based on the historical school of jurisprudence, that codification of laws should rely on existing indiginous customs ... questionnaires sent out to Africa, the Germans initiated a codification ...
The French even had African members of Parliament
Belgians ...
Portuguese, like other Latin colonial powers, were fairly hostile to local custom
direct control of the mother country was the civil law principle, while English ... protectorate ... system of ‘indirect rule’ ... French expectatino of assimilation
motivated by different objectives ... procedures far removed
not left in isolation ... the parallelism between indigenous customary laws and received European ... dialogue ... competition ... conflict
As time has gone on, each law has penetrated more deeply into other ... modified ... displaced
unscrupulous, culture-blind ... with almost total disregard of religion and society
the transition to a new civilization and for which native customs were unable to provide any practically useful solutions
Custom was originally sufficient for the regulation of all aspects of social life in Africa and Malagasy ... new social order ... commercial law
had tried to ascertain the ‘native’ laws but eventually given up ... pragmatism as well as lack of effort
Christianity and Islam ... family structures moving from matrilineal to patrilineal patterns after conversion
Behind the facade which this legislation really is
The new law will only be fully applied when society as a whole sees true justice in it
The British were content to prohibit ‘repugnant’ customs that were considered opposed to justice
became familiar with customary law, they were entitled to take ‘judicial notice’ of it
the British also experimented in Africa with earlier strategies used in India
colonial institutions were initially more concerned with establishment of peace and order, consolidation of their own power ... Grave social abuses would be suppressed
would have to live with the litigants ... the litigants themselves would have to live together ... rather than on adversarial processes ... Africans were ‘naturally and typically litigious’ ... traditional patterns of African dispute settlement, which encouraged participation and discussion about appropriate solutions to problems
for future politicians and lawyers ... would eventually be the new rulers of Africa
colonial authorities sought responsible office holders with ‘power' in such societies. Finding no such power figures, the colonialists then ‘created’ them ... considered tyrannous
they clearly did not trust the new system to provide
deliberate abuse for selfish reasons
often more innocently than deliberately
Repugnancy ... justice, morality and good conscience
we have thus contributed to the breaking up of the ties of family and clan, and we have been incapable of replacing them with a sense of solidarity extending to African society as a whole.
they wanted custom to whither away ... abolished customary criminal ... no longer took account of it ... not happy with operating a customary system either
while custom has become law it has lost its soul ... De-colonization
Riddled with unacceptable injustices, traditional law is so deformed by modern state interference that it is no lnoger worth being called custom
has ceased to exercise its tratitional role as ‘peoples law’ ... form of official law
recognition of the fact ... agencies which used to create customary laws are no longer active, or no longer active in the same way
the ambivalence of the discourse is brought out well
Kosovo ... does not have a ready recipe for remedying blatant exploitation of pwer and struggles with maintaining balanced equilibrium models
Indira Gandi's key role as a Hindu queen with a secular crown
have no overall vision of a future for African laws
but if this is to happen, then more intensive legal study ... analysis in the light of comparative
ruling class, who copy Western models and habits without sparing a thought about the realities of life of their own people, whose votes they might need, but whose concerns do not really interest them
to what the people do and the factors that determine their life style
the argument that women anywhere in the world seem more sensitive to the task of balancing conflicting expectations and tensions
CHINESE LAW (p 493)
The core element ... imperial Chinese system of statutory laws ... 221 BC until 1911 ... postulates
the Codes or the philosophies of Confucian ethics, ... incomparably unique in its reliance on philosophy and state-made codes
Western codified ... through Japan, which made modern Chinese law a positivistic civil law ... after 1949 as a socialist legal system ... the modern laws of the People's Republic of China
the law-founding elements
culture-specific manifestation of how different types of legal rules interact ... competing law-making realms of religion, society and state needs ... balancing between the spheres
of major elements in the Chinese worldview (Speaker TV)
now under pressure to globalise
a great deal of material of different kinds ... yet it is difficult to see exactly what in China corresponded to the different branches of law as we know it
‘traditionally perceive law as playing a minor role ... simply another vehicle for maintaining peace and social order’ ... the ancient Chinese perceived law negatively and as a tool of social control
A single law, enforced by severe penalties, is worth more for the maintenance of order than all the words of all the sages, was one of their governing maxims
Compared to Hindu and Islamic law ... thus much closer to European patterns of thought
Religion ... revelation
priests did not rank high ... not influential as a class ... that oaths or ordeals played no role
a reciprocal interaction ... according to the way in which men behave, there will be order or disorder in the world
in relative isolation
A centralized hierachical bureaucracy, which identified itself with an ethical and political orthodoxy, was able to impose on the governed a picture of society in which the unity of the whole was exaggerated, its own role was overstressed
Asia and Africa ... aim in both systems ... protect society from disturbances and to prevent total disorder and breakdowns
suspect ... refused to acknowledge .. religion, speaking instead of morality and philosophy
strongly secular ... status of law in orther civilizations ... over hostility ... seemingly not only as a violation of human morality, but perhaps even of the total cosmic order
in ancient China was predominatnly a political phenomenon
absense of natural law ... ‘It became impossible to develop the view that nature and society are governed by universal laws of diving making’
When this law appeared, however, it was used neither to uphold traditional religious values nor to protect private property ... purpose was political: that of imposing tighter political controls upon a society which was thne losing its old cultural values and being drawn by inexorable new forces along (jj maybe Chinese dont realize they have order IN them and dont need govt)
efflux
emphasis on embracing nature itself
argues that its quietism led to its decline and made it unpopular
hundreds of philosophical schools in ancient China
Taoism ... disdain for worldly ... propounds the philosophy of doing nothing
the assumption that there was a Mandate of Heaven for the righteous ruler
This concept of harmony or one-ness (jj is disunity a great vulnerability in China?)
that any disturbance in the one will introduce a corresponding disturbance in the other
In order to avoid this kind of situation, therefore, it becomes the ruler's prime duty to cultivate himself morally
death sentences ... seasons of decay and death ... totally avoided during spring and summer, these being seasons of rebirth and growth
means of example and education ... modelled from within and not imposed from above ... man's endeavor to fit into the natural harmony of things; to give active support to it, appropriate conduct is sought
higher status ... higher penalties for disturbances of order ... a Brahmin thief
the exercise of reason and judgement ... an ordering of society such that each individual knows his rights and duties ... morality ... conscience ... ideal of social harmony ... individual's obligation to society ... and without external compulsion
Everybody had to have, and to do, his duty ... conforming ... or he was likely to bring about disorder in his relationships and personal misfortune
idealized expectation ... is that no support mechanisms should be needed to ensure that everyone does what should be done
what most readily distinguished the Confucian ideal gentleman ... from ordinary men was his mastery of the li (jj chivalry)
law has no moral validity
ad hoc
political
law obliterates the relationships by imposing a forced uniformity
men ... The moral training ... counts for more
self-controlling and self-healing faculties within ... society ... conscience ... weakened ... get used to following external standards automatically without subscribing to them in their hearts
conscience ... to ascertain for oneself ... directs attention to the social arena ... interact
the limits of law
Persons in authority ... example ... lives conforming to the order of nature ... Virtue and morality ... than any technical expertise
* conciliation and consensus ... All condemnations, sanctions, majority decisions must be avoided. ... dissolved rather ... must be freely accepted ... just ... Education and persuasion
hierarchical difference was emphasized ... sharply differing patterns ... according ... age and rank ... family ... society ... acting towards a superior, another toward an inferior ... behavior and priveledge
Those who are governed by others support them
classical learning, educating others, and assisting the ruler in governing the mass (jj useless classical exucation)
a good example ... by putting into practice the ethical teaching
respect, obedience and support to family superiors ... obligations: to value one's body as a gift ... to add lustre to the faimly name, to continue the line of descent ... means
• In case of conflict ... father and family are to take precedence over ruler and state ... supervening obligation ... permitted to conceal the crime of one of their members, without legal penalty and were not compelled to testify in court against him'
A son who b rings an accusation of parentalwrongdoing before the author-ities is thereby unfilial and hence subjea to heavy punishment Under the Ch'ing Code, for example, such an accusation, if false, was punished by strangulation, but even if true, it brought three years of penal servitude plus 100 blows of the heavy bamboo, The same punishments applied to a wife accusing either her husband or her parents-in-law, and lesser pun-ishments applied to less dose relatives. Probably China is the world's only country where the true reporting of a crime to the authorities could entail legal punishment for the reporter.
noblesse oblige
Rather than relying on the state or other external agents to maintain social control
were extremely wary of, and conceptually opposed to, the idea that human ordering processes should be imposed from above, by other people
deferring ... supporting parents ... yielding to others (* China)
first criticised ... if necessary punished by the heads ... which have prominently been described as ... indicates that these processes are very muc of ... social supervisory control ... a caution
Physical punishements ... fines ... his name might be marked ... tsu income ... near relatives ... omitted from the geneology ... expulsion from the tsu ... all priveleges ... take part in rituals, or enjoy material benefits ... after death his name would not be included
norms ... being disowed by one's own community ... ultimate sanction ... would represent failure in the most important things in life ... absense of the state and its formal legal institutions is significant
in view of ... customary normative orders must have been of pre-eminent importance ... However ... not adequately reflected in the legal ... tend and prefer ... concentrate on codes and official ... perceived as the province of anthropology
wonder why customs should be more important in traditional China than elsewhere in the world ... the term ‘extra-legal’ appears frequently ... This is misleading and entirely arbitrary, reflecting lack of reflection ...
government ... despite their official inspiration, functioned quite separately
the unity rather than the diversity of Chinese culture
custom actually overrides the written letter of the law
the effective rules of traditional Chinese ... one must exclude statue in favor of custom (?)
must be upheld and customary contracts must be honoured, if the life of the community was to go on
scholars who prefer to work with ‘real’ law
Confucian arguments ... self-controlled order is better than state-sponsored rule by law ... promulgation ... (?) seems to have no real parallel in any other civilization ... deter
ideally no state-made criminal law should be required ... If the ruler himself was following li, there should be no need for law ... ought to be total harmony
doubted whether Chinese peasants were interested in the theoretical justification of political rule ... practical interest ... order being maintained
maintenance of public works
The image of governance as cooking a small fish ({}) ?
set a good example and promot good behaviour among peope ... create conditions ... could live withotu disturbing the natural harmony ... disturbance ... sign of failure of government ... fix responsibility somewhere ... in order to prove that government was in capable hands
property rights, inheritange and marriage
defending the rights, especially the economic rights, of individuals or groups against other individuals or groups, and not at all concerned about defending such rights against the state
impropriety ... violence ... violations ... disruptions
existence of the norms or propriety was intended to deter
indicative of a serious moral decline
should be entirely superfluous
encourage the ruler to make sure that nobody else could take control of the state ... that the position of the ruler, rather than the ruler himself, is the central axis of control ... replaceable if they fail to fulfil their role
Their insistence on law ... was motivated by no concern for ‘human rights’ ... contorlling the growing population ... sincerely believed
applicable to everybody concerned without regard for any distinction whatsoever
exterminated the Miao
used as autonomously produced ... governance, but were to serve a higher purpose
fitting for the many ... Law is not something send down by Heaven, nor is it something engenedered by Earth. It springs from the midst of men themselves
selfish ... should destory factionalism and privelege ... fluidity and inherent flexibility of li is rejected as a basis for a stable government, which should in the legalist view be based on known and fixed rules which are the same for all
group ... responsible for the wrongdoings of other members ... self-controlled order was perhaps good enough for small-scale societies ... in favor of total uniformisation ... agree with the public standard as prescribed by law ... suggests a system of rewards for those individuals, especially officials, who fulfil the targets ... even a mediocre ruler ... when there is an efficient legal machinery
deter ... harsh laws ... reduction of government and to a society free from conflict and oppression
legocentric and thus endangering the triangular polarity of religion, society and the state in favor of one-sided state control of the entire field
lacked plurality ... situation-specific
tried to erase an unsatisfactory past by burning the books of li ... killing scholars ... attempted to replace government by men with government by laws
it had become increasingly apparent that law had come to stay
government by law should always be kept secondary to government by moral precept and example
the beaurocratic structure ... did not follow strict legalism as a state ideology
harmonious functioning of all components at their respective different levels should be encouraged to form an ordered whole. Thus, the formal legal system was redesigned to discourage its own use, since recourse to formal litigation was seen as negative in itself
Confucianization of law ... effectively closed the one-time breach between li and fa ... positive law achieved moral status as the embodiment of natural law
reminding ... while not necessarily assuming that the law would come into action ... motivation ... respective status ... assessment of the situation-specific nature of the occurrence ... flexibility
while blatant abuses of legal power were widespread, Confucian perceptions of balance and harmony would be able to intervene and might protect citizens from the worst excesses of abuse
political unification of the Chinese empire ... marked contrast to the Indian pattern of multiple fragmentations ... volatility and fragmentation of Muslim empires over time
nothing bearing the faintest resemblance to a civil code ... legalist focus on governance rather than on the regulation of socio-economic relations
7.4.2 The Emperor as Son of Heaven
In an extension of this theory of the Emperor, with the title ‘Son of Heaven.’ was seen as poised between heaven and earth and as endowed by heaven with a mandate to rule the earth so long as he was capable of maintaining the harmony undisturbed. This harmonious order it should be noted, was not man-made, but existed naturally throughout the universe and had merely to be preserved. If the emperor proved incapable of doing this, he would not be responsible to heaven for the disturbance of the natural harmony and the mandate would be transferred to another. This doctrine implied a right of revolution, and if the revolution succeeded in establishing an effective new government, it established at the same time its legitimacy.
Legal Institutions in Manchu China, by Van der Sprenkel (1977)
For an unworthy holder, or at least a series of unworthy holders, would inevitably cause the loss of the Mandate, whcih would pass through rebelion and chaos into the hands of someone better fitted to exercise such a function, and thus a new ruling house would come to power. While on the throne, the Emperor was surrounded by every mark of the most profound respect, yet his command deserved obedience only in so far as they were declaratory of the natural order. When, as might occur under a bad ruler, an imperial degree was issued in flagrant violation of the principle it was a subject's highest duty to remonstrate, not to obey.
the ruler's Mandate ... clearly under question whenever there were disasters and disturbances
The first duty of a ruler was to maintain harmony with the other elements of the universe.
virtue, industry and learning ... filial piety
the Emperor's duty of watching over his subjects might require punishments for those who failed to act in consonance with the assumed requirements ... delegated in ... officials ... given important duties in identifying and punishing wrong doers of all kinds. Chinese imperial rule is much more complex than a simple absolutist system of governance in which a strongman lays down the law for all. ... found in an imagined, more or less universal normative framework in which all human activity needed to be constantly adjusted ... one-man rule was an impossibility
the area of activity over which that authority was exercised ... lesser people owed responsibility to their immediate superiors -- through a chain of delegated authority which reached down to the herd of the household ... that those in authority could lay down precepts to be followed by those in their charge, and require obedience to standards of conduct covering all aspects of life, and take action, both positive and negative, to promote and restore the harmony (jj where are the limits? examples?)
top ... not above
promote wellbeing and preserve social harmony ... subordinated everything to building up the strength of the state (jj channels of Chinese thought) ... set his people an example of benevolence and encouraged them to observe the proprieties in personal relationships ... a state strong enough to subdue its neighbors
A ruler, according to the Realists, did not need to bother with setting a virtuous example ... fa ... shu ... to make the rules independent of flattery and corruption
servcies of capable men ... identified through a system of competitive examinations in the Confucian classics ... classical ethical education ... potential openness of the system
the prestige conferred by learning ... many peasants were ready to make considerable sacrifices to educate their sons in the classical system
Demanding bribes became a way to teach people to avoid the courts, treating them with cruelty in the course of a hearing taught everyone lessons for life about the value of self-controlled order
A new incumbent would come as a stranger ... ignorant of local custom and precedent ... re-employ those who had had experience under his predecessors and who wished to serve under him
indicative of the Chinese attitude toward law that this secretary did not himself belong to the formal administrative system. He was merely a personal employee of the magistrate
in making appropriate decisions and avoiding mistakes that might tarnish
legal profession ... penalized those who incited others to undertake litigation or made a profit out of managing a lawsuit ... barrier to the technical development of law in China
law was only the last of several corrective agencies ... gentlemen did not want to get involved in legal administration
The drudgery of becomming familiar with the letter of the law was relagated to a subordinate race of clerks. These men, who handed down their craft from father to son, hailed for the most part from the city of Shaoh-sing, about two hundred miles south from Shanghai ... The Shaohsing clerks formed a numerous but compact trade union. They were paid by the magistrates who employed them and often became indispensible to their masters, who carried them along in their own ascent on the ladder of promotion. Even so, there was a sharp distinction between these lawyers and the mandarinate proper.
being involved with them was in itself negative, all the more so if one helped a guilty person plead innocence ... giving of legal advice to the public was regarded as an encouragement to litigation
The court of law was, like the militia, part of the machinery for maintaining order and good behavior throughout ... It provided no check on the executive power ... When government was efficient, legal machinery functioned efficiently; when it was not, legal machinery offered no correction and was itself corrupt. In a trial of what would be a civil suit in English law, the magistrate would have little interest in doing justice as between the parties, except in so far as it was more likely that a just decision would lead to peace and harmony in the neighborhood.
In such an atmosphere, where each is ready to recognize his faults, it is easy to lead people into makin concessions and to accept the intervention of a mediator
I desire therefore that whose who have recourse tot he tribunals should be treated without any pity, and in such a manner that they shall be disgusted with law ... wrongful accusation
it might lead to financial ruin for both parties ... ‘had little confidence of obtaining justice in return for their money’
The best possible magistrate in the imperial system was clearly someone who had no disputes to report from his district ... reprimand or degradation ... dependent on his yamen staff ... local language ... had multiple interests in ingoring cases ... bribes
drew attention to his area as being one where all was not well
a legal case itself was treated as an indication of disturbance
expense, uncertainty, risk and harshness
Hence ... was in its nature harsh and to be be avoided by reasonable men
a solid substratum of beliefs upon which a superstructure of social institutions could be firmly erected
resolving of disputes by mediation and compromise. Positively, the idea of harmony or agreement ... conflict was feared because it was fraught with risks for all and undetermined group strength. ... preferred a blend of what was valuable in each
uncultured people who could not be controlled by li
considered infinitely more meritorious to give way and to avoid loss of face
better to yield ground (jang) and meet an opponent half-way than to stand on principle: then if ... rigidly ... public opinion would always side with the more acommodating party
dispute settlement ... task of village leaders and the local gentry ... when they were not easily settled or when the contestants required public satisfaction
who owed their position to seniority, prestige or competence
it seemed in nobody's interest
a number of sanctions at their disposal ... frequently imposed fine of paying the cost for a feast or a theatrical performance ... after the cathartic resolution of a dispute ... Africa ... elaborately expressed as social healing mechanisms ... enhance natural and cosmic order ... this kind of penalty ... allows the defeated litigant to regain dignity by playing the part of host
for it meant that most of these disputes were ‘self-regulating’ within the local communities ... dependent on status
insistence of Hindu law scholars that their ‘legal’ system contains codes (which are in reality cultural texts) ... to block or prevent access to formal dispute settlement processes operated by the state. ... protection of fiscal resources from wastage by a lot of ‘small’ legal business ... is prepared to support society as a law-making force against the positivist claims of the state
striking as it did at filial piety, that corner-stone of the social structure ... indignant
parental rights were matched by the rights of children, so that parental authority was not unlimited ... when basic parental duties had not been observed
a father could not just frustrate a son's expectation to inherit by disposing of the family property as he pleased ... senior member of the clan would often intervene ... the clan would assume many of the functions of local government
balancing and harmonisation were considered more important than determining who was right and who was wrong
official class ... moral example ... for certain offenses exposed them to heavier punishments than were prescribed for the ordingary man
an only son sentenced to death ... ‘might have his sentence commuted in various ways ... in order that he might remain at home to care for the parents’
‘sfter the assizes’ ... at which time they were often, though not invariably, reduced to a lower sentence. Amnesties, either general or for specified groups or individuals, also occurred fairly frequently
taken notice of social welfare considerations, rather than blindly punishing offenders, as is also evident from ancient and modern Indian laws
relative justice
China, too, must continue to search for its own, culture-specific path to legal modernity and will not be able to simply copy
gradually the Chinese began to realise that their system might not be as superior as they had thought
government recognised that western military techniques were worth imitating ... had anything to learn in the sphere of law and government ... not until ... 1912 ... national revolution swept away the imperial system
the West as barbarian
Unprepared to counter ... intellectual level ... subjected to intense foreign political ... Chinese developed much resentment, rather than studying and copying ... Turks responded by sending students to Europe, especially France
Europe, Japan, and America
no such comparable evidence of Chinese readiness to learn from ‘the other’ (?no renaissance)
the intrusion of the Western powers into China in the mid-19th c shattered the Sino-centric perception
from what has been said about the conditions of legal administration, it will be easily understood why Westerners should have been reluctant to entrust themselves to it and
In appearances, therefore, Chinese law has been Europeanized and can be ranked within the family of laws deriving from the Romanist tradition
The work of a few men wishing to westernize their country could not possibly have resulted in the sudden transformation of Chinese mentality
Romano-Germanic
accused of being enemies of the revolution. The main victim group ... members of the upper classes, landlords and gentry, treated as ‘local bullies’ and ‘counterrevolutionary elements.’ ... victimized, in the name of the revolution ... had a necessary element of cruelty
Soviet-style class justice ... hierarchy upside down, so that people from priveleged backgrounds were now treated without any leniency, while a common person could expect better treatment
‘mass line’ trial system
A major case reported from that period concerned the validity of marriage in the absence of consent by the girl's father. The marriage was held to be valid on the basis that free choice of partners was a good principle.
use of legal instruments primarily for enforcing state politicies rather than protecting individual rights and the special role given to extra-judicial organs
simplistically taken and protrayed as a unique experience
the men who today control the destinies of China
a vision of a strong new China
the argument that in a truly communist society no law should exist. ... its own split attitudes to law
Red Guard
violent rejection of anything linked to the past and its authoritative internal structures ... ‘struggle meetings’ ... treated without respect for dignity and human rights
Thus cruelty toward class enemies ... was glorified as ‘revolutionary action’ and praised as a moral virtue. Indeed, according to this twisted logic, the more inhuman and cruel the manner in which one behaved towards ‘class enemies’, the more one showed the firmness of one's ‘proletarian class standpoint’. Human rights and dignity were therefore deliberately trampled upon; the theory and practice of class struggle eroded the traditional values of benevolence, compassion, sympathy, and trust and grought into being a society filled with suspicion, hostility and the revolutionary ‘virtue’ of ‘class hatred’. The legitimacy of a sphere of private life for each individual was also denied; every single act done or word uttered could be examined and used to incriminate ...
(jj Asia when written law isn't present, violence without limits)
The legalist assumption that offenders are basically incorrigible adds to the ferocity of conviction that extermination is the only cure, for the overriding benefit
In short, law neither existed as an academic discipline nor as a rational mechanism of social control
1972 that the court system was gradually re-established ... Zheng(1988) writes, ‘one of the painful lessons ... Cultural Revolution is the importance of an authoratative legal framework to the overall ...’ This sounds simply like a plea for strong positivism. None of the legal authors who comments on this crucial period appears to bring the critical and centrally contested legal element of the pre-existing and continuing, resilient Confucian order ... lip service ... Chinese society
after Mao ... ‘democracy and rule of law’ ... purge of Mao's radical supporters in 1976 ... now explicitly acknoweldged that a stable law was essential for creating an orderly socialist future for ... what would be the most appropriate sources of law for reconstructing a feasible socialist legal system? ... Turkey ... but has chosen to be selective and extremely eclectic
positivist techniques of law-making received most attention
In order to safeguard people's democracy, the legal system must be strengthened ... so that such a system and such laws would not change merely because of a change of leadership
after the disaster of the cutural revolution, could not simply refer back tot he old Confucian order ... the political leadership cannot be entirely frank about its ideological agenda when it comes to law-making ... As the new ruler, Deng therefore publicly renounced any claim to personify the law ... to develop a system of rules operative above the political level ... merely by promulgating a new Constitution, China solved none of the problems that underlie its ongoing doubts about legality and ‘rule of law’
Deng ... economic development instead of class struggle should be at the center of everybody's concerns
weakness of legal system and ... the lack of acceptance of authority of law and the concept of fidelity to law, as been identified as a partial cause of, and a condition precedent for, the radicals' successful ... their large-scale ... Law and legal system must therefore be emphasised to prevent the recurrence of the errors and tragedies of that period
throw the nation out of balance
what does ‘a law above oneself’ mean in the Chinese cultural context? ... the state could not necessarily be trusted to create a law that would be above those who ruled
stability ... order ... protection of the basic rights of the citizen ... were believed to be what China deeply and urgently needed to have after the Cultural Revolution era
how far away China is from establishing a notion of the supremacy of law
the constant requirement of balancing differerent law-making sources into a sustainable equilibrium is a task
then maybe by the harsh hand of the executioner ... restore a disturbed balance
harmonious balancing of different and yet interlocking normative orders within the desired framework of the new socialist order
to define what socialsm actually means in China
The fact that whose who operate the state's law always tend to form a new ruling class that might not be controllable in the long run has been a major problem that China ... how do you grasp an ideal balance forever?
This means, however, that state-made law has to give up its claim to be able to dictate to society. Both need to learn to interact ...
government lawlessness and abuses
distrust of positivist law-making and internalised reliance on a system of duties
a grand and laborious project (pyramids of Egypt) ... uphill journey still lies ahead ... lack of experience and tradition ... the Party's unwillingness to subject tiself to the supremacy and autonomy of the law
law as an instrument for class rule ... a tool for the dictatorship of the proletariat and for suppression of the enemies of socialism
the identity and integrity of China as an economic superpower
not involve a total refusal of Confucian principles and values, but their redifinition and re-evaluation within the overarching framework of China's socialism
rural ... honour ... face
law soemtimes gives the appearance of being out of control
the principle ‘socialist’ characteristics ... party domination of the legal system, and the subordination of law to policy
imposing codes from above ... will always only remain one of several influences on the consciences of individual Chinese people
CONCLUSIONS: TOWARDS GLOBAL LEGAL REALISM (p 594)
aberrations ... strangled
prepared the ground
Simply asserting that certain values are globally valid and must be followed by all just ends up in various forms of fundamentalism, as Glenn (2000; 2004) ... to conduct a global legal debate.
seek to totally wipe out ‘the other’
questionable attempts to privilege one type of law-making, or of law, over all others.
hence myopic and unreaListic) fashion on the superiority of their own values,which evidently the whole world does not share. Here again, Western hubris and so -called rational superiority attempt to dictate to all ‘others’ how they their laws, with predictable reactions of opposition or sim-ple silence, which remains a powerful strategy to avoid plurality-conscious negotiation with a participant unwilling to take account of the basic facts worldwide. Mainstream legal theory, it appears, has yet to rather than to search for and then dictate ideal-istic visions,
The voices from Asia and Africa, which this book has sought to make more audible,
can think about virtually unlimited plurality-consciousness in lawin theoretical terms,
‘the oth-ers’ are allowed to live their lives as they see fit, in their specific circumstances,perceptions of whatis good and bad,influenced .,,by concerns for a larger common good or public interest. Who are we, ar the end of the day, to totally prescribe to others, either as individuals or as groups,how to leadtheirlives? But who are we, too,as individuals striving for freedom,to insist on total autonomy? At all levels, therefore, the deeper challenge of realistic, plurality-conscious jurisprudence would seem to 1ie in working out myriad subtle balances between private and public :interest.
69) points to an overlapping consensus at worldlevel about what constitutes intolerable situations in other countries (my emphasis).
polemically
axioms.
itselfis an internally pluralistic phenomenon. To fuss over boundaries
is hardly a constructive academic response to plu-ralist reality.
s does not prepare young people adequately forbecoming plurality-conscious skilledlegal navigators
The present study also found that, because of its multifarious nature,
remainlargely invisiblebecause theytake place in the human mind or in distant localities that the legal researcher does not reach.
on legal construction
s ridiculouslyinnocent
legalscience that could form the basis for a globally valid legal theory,
‘cultural defence’ ... entrenched positions have been created from which cohorts of footsoldiers in jurisprudence and many other academic subjects shoot at each other instead of negotiating a plurality-conscious settlement.
However, the present study found significantevidence that even the stalwarts of legal positivism were not as single-mindedly positivist as their later acolytes
• There is a kind of infec-tious phobia among Westernlawyers, and their followers allover the world, of the historically powerful claims of religion as a superior force in human exis-tence and globalmanagement.The historyoflslamic jurisprudence (chapter 5)account of religion does not smotherplurabty-conscious jurisprudential debates,
fenced off
encouraging us to think and behave as though religion can be confined to a remote corner plot, an invisible mental space,or the semi-visible sphere of the home,while law claims to dominate the whole field of the public realm and the visible arenas of human activity and regulation.Chiba (1986: v) rightlyhighlighted that Westernlegal claims to uni-versality and global validity unreasonably shut out non-Western perspectives.
y legocentrism in action, demand-ing recognition for law as the central element in the world
underpins demagogy,
Western scholarship has rushed ahead to declareitself universalwithoutchecking,let alone asking,whether that would be universally acceptable. ... have simply denied the rest of the world the right to have their own naturallaw theories and approaches.
Dropping ... r religious law, nameJy Christian law)
Reli-gious orientation was deleted and virtually banned from the range of acceptable
Legal scholarship has not managed so far to explain convincingly why the values of one particular cultural group in the world should dominate the entire globe. Why is it that so-called Western values and ethics are pushed forward as universalvalues,when it is manifest that they are not universalvalues?
in using the term ‘lawless’to describe situations on the ground where a state does not appear to control the law.
Such secularity-based approaches achieve two important objectives at once.First, they manage to deny alegitimate place to anynon-Western religion.This is not even perceived as discriminatory because we assume that in the West the majority Christian religion has been expelled from the realm oflaw by secular-ism,'
not permitting others any voice at allin legal theory.
of dou-ble exclusion from full participation in the arena of globallegal theory. As so-called'religious legal systems, Islamic and Hindu laws in particular are widely portrayed and dismissed as dangerous rogue elements that need to be reformed and prevented from having any impact on law-making. Manifestations of reli-gion cause remarkable upsets, most visible nowin the currentlslamic headscarf and their implications on other issues. Unsurprisinglylinked to symbolic ethnicity, symbolic religion has become a political tool (Gans, 1994)and affects the identity constructions ofwhole communities (Modood, 1993).In Europe,we remain nervous about religion as alegaland politicai force,while in Asia and Africa (and now really all over the world) Muslims and Hindus are learning to make sense of their religious andlegal traditions through plurality-sensitive postmodern reconstruction. That such processes do not occur without tensions and may occasionally break out into violence and terror does not jus-tify the closing of minds about the continuing relevance of religious traditions all over the world. These are alternative natural law traditions, and, if we do not learn to accept them, we still have to live with the fact that they exist and deeply influence the lives, and laws, of the majority of humanity.
Chinese religions, celebrating instead the ... did not properly survive into the twentieth century,
But why do certain men killin such situations?
voluble
the constant search
precludes an analytical description that makes sense for all situations.
richly
there is no society without law, while there may well be less or almost no state law in a particular given local and cultural context.
Rulesin the realm of society that have been influenced by the presence of a co-existing statelaw
state law that was not really made by the state but accepted by it.
tolerated diversity
privilegedno single human conclusion on what the ultimate answer might be.
HERE ENDS COMPARATIVE LAW BOOK by MENSKI
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