Check – totally done


In concentrating on current forms of human thought and activity,moreover, it appears antithetical to whatever normativity may be derived from the past.

can there be instant traditions?

Eliot again instructs us that 'Tradition cannot be inherited, and if you want it, you must obtain it by great labour.'

Written communication is also independent of memory. That which is written down can be simply looked up: there is no necessity of internalization. Writing is also the principal means of communication of science, and law which aspires to the scientific will find it equally essential.

someone else's tradition


Absent historical continuity, reaching down to present adherents, all traditions appear as strange ones and all adherents to them appear as different people.

at the people involved were no longer the same people

disappear forever if they are not translated into unicable information


Physical things translative of information may be rigidly controlled. The means of printing or copying may be monopolized. Speech may be qualified as heretical and the sanction of death invoked

The reporting of current cases is an example of this

V not appear to be convincing, when examined critically

Old teaching simply does not correspond to new circumstances

Opposition to a particular tradition will inevitably_be oposition to what the tradition has claimed, and therefore be defined by the tradition even while opposing it.

rationality, then it itself can be explained ,in terms of tradition. So, as Karl Popper maintained, rationality is only one of many traditions, characterized by a more explicit recognition of human rationality and by the greater explicit place accorded tOit.60

Each of us can argue internally, with ourselves, and most people leave plenty of room r internal argumenf, not taking definitive and life-time personalpositions on major issues.

.Tne amount ofargument which a tradition generates may depend on the extent to which it purports to constrain human conduct; the amount of conversation it generates may depend on its ambiguityin delineating optional forms of behaviour*. Verbalresistance may be valorized in some traditions, actively discouraged in others.

. The informationalexchange of tradition is in principle horizon-tal; deviations towards the vertical will be the product of particular traditions and the reasons which have prevailed in that tradition. 'I

The undefmed or incomplete nature of all traditiOns6S

Fundamentalism, and violence in pursuit of it, is thus not inherent in tradition, but represents a departure from its most important characteristic.

Once
y becomes less obvious and less defensible. '. Tradition becomes rathe

'Ihe return to the sources, the process of rolling back or re-volving;n may pro-vide grounds both for radical disruption of existing structures and hierarchies and a sense of perpetration of the true, original character of the tradition.

'different traditions which do not all share a constant vision of time, or of the past.

TRADITION AND CORRUPTION

aimed at the good or well-being of entire communities,

All of these great traditions generate opposition within themselves

competing traditions

other traditions, however, which do not seek to play a major role for an entire community! and do not seekits good or well-being.'

antithetical

pastness to be accumulated.

traditions of crime

the task will never be completed.

the crime of corruption, which may destroy larger traditions from within.'fhere are also other forms of corruption, institutional or intellectual corruption

a secretive form of inequality. It invariably does great damage to the credibility and effectiveness of traditions of good or right,

Institutions play

. Their role will be defined by tradition,

the 'logic of mission' is replaced by . , the 'logic of maintenance

, A tradition which encourages the construction of , institutions and dites will need to develop second-order means of control..It willneed to develop an ethic of institutional or elite life,

._Authority would replace justification,invocation of heresy or treason would replace exchange. Yet muc

fine judgment.

. Fundamentalism

n, relying on force or violence as the principal means of response to contrary views, even those from hin the tradition itself Here those accused of heresy may represent a truer version of the tradition than those who make the accusation..

BETWEEN TRADITIONS:
IDENTITY, PERSUASION AND SURVIVAL

to live out its own existence, untroubled, absent external reflection or challenge
by existential questions.

. Concern with identity arises from external contact; identity is then constructed by explicit or implicit opposition. The other becomes essentialin the process of self-understanding. At the same time the other is an ongoing menace to internal cohesion.

it has been said that even violent debate contains within it the possibility of toleration, since by implication the otheris worth arguing

,'Intercultural communication and the language

becomes non-exclusive
discrete,8
e diffusionary y (relying on externalinfluence),

. 'Ihe imprecise character of the tradition implies imprecision ofits nembers. The other may be (slightly) a part of ourselves. Separateness may be (partly)overcome

'The identities of traditions are therefore inter-related, in greater or less measure.

jln:bothcas:s t is nemory which is constitutive of identity. Persons who have lost their memory no longer know who they are. '.'The thesis goes back at least to Locke,9 and has been taken over by social theorists as well.lo 'lhus East Germans, on the fall of the Berlin Wall, lost their sense of identity, since they no longer existed in harmony with their own life history," 1

', J. Tully, Strange Multiplicity: Constitutionalism in an age of diversity (Cambridge

Jt is possible to see a present society, or minority within a society, as constituted by people of a given colour, or race, or state, or geographical place. This gives rise to the P.L.U. syndrome ('People Like Us').

. This information is traditional information-the information developed over time which says that some, particular, present char-acteristics are fundamental in defining social identity. Where does such traditional information exist? It exists in its strongest form in traditions which valorize contin-gent and historical time, change and rationality, to the point where the traditional character of this teaching is forgotten. In all cases, however, the value accorded present features of life is derived from tradition. It is tradition which trumps; it's been around longer.

see fit to call upon a concept of race

see fit to call upon硼
J in granting apodictic authority to an entire version of a tradition, such that challenge is heretical, and not only challenge to underlying elements, but to any questioning of any of the elements of the chosen version. 'Ihis we currently know F as fundamentalism, and the growth of violence in pursuit of fundamentalism (in

i. Why fundamentalisrn exists is a basic question going to the notion of tradition, its relation to other notions such as systems or states, and the exte
Fundamentalism mayinvolve the old problem oflosing one's identity through pro-tecting it too much.

. Creating an identity is an instrumental func-tion,

PERSUASIVE AUTHORITY: CREATING NEW (AND OLD) EPISTEMIC COMMUNITIES

If tradition is information, then the tradition which attracts the most adherence will be the one whose information is the most persuasive. '

evenifthey decide to do their own thing, since here they rely on massive amounts of information justifying this conduct. The information of traditions thus represents authority, but it is not necessarily authoritative. Absent instruments of authority, or of dominance or of repression, the authority of tradition is persuasive only.lt does not bind,in the sense of somehow automatically ensuring adherence.²9 The great and powerful traditions are those which offer great and powerful, even eternal and ultimately true, reasons for adherence.If there are a number of great traditions, choice amongst them may be very difficuk, and habit or inertia may corne to play a major part in adherence. 'I

i. Chthonic peoples³4 now present their tradition to the entire world, , with immediacy, andin a way which allows theimmediacy to be preserved for future distribution.

Modern means of communication are therefore powerful aids to distribution of persuasive authority, and and powerful aids to expansion or reinforcement of traditions.

. States now find that information is a largely uncontrollable c ccmmodity.

, state monopolies on many forms of communication succeeded in camouflaging this for some time.

been great resonance of this idea in the west, notably in western legal theory, we can set aside all of the encumbering, existing variations of western and other thought, and constructively, rationally, create a just society.4l

e inammensurability argument, however, the untranslatability argument exaggerates the difficulties in human communication.lt also exaggerates the import-ance of the text.

It appears to be very easy for a tradition to become a universalizing force. Again, however, it should be recalled that a tradition is information, and information itself (as distinct from how it is used) is not dominating. It may give advice, but we always have to decide what to do.

. A tradition which teaches self-effacement appears innocent enough, but then we have to ask whether it teaches that everyone has to be self-effacing. I

In dealing with societal domination, however,we are more frequently dealing with corruption which cannot be (relatively easily) categorized as crimin al, or even institutional.it is the much more elusive notion of intellectual corruption of a tradition. It is the process of closing down the dynamic ition, such that it speaks with onJy one voice and all others are stifled. Since there is only one voice to be heard, silence must be created for it and the zone of silence must be constantly enlarged.'I e quieter it isin a room the more you hear the noise outside, which can be very disturbing for clear understanding of a single voice. Traditions which are great and large have of course become great and large because they provide an overarching means of reconciling different views. So their dynamic

. There are subtler forms of fundamentalism, and some may be irresistible to even the majority of members of a tradition. Fundamentalism, and ensuing efforts of domination, emerge not as corruption of particular traditions-they faithfully reflect major elements of teaching of their particular tradition-but as corruption of what we understand as tradition, the gathering together of diverse elements into a larger, but stil! coherent, identity.

The toleration of the pluralist is therefore very demanding. On the one hand it means resisting the tendency to authority, always being willing to see one's advice turned down,

3 A tradition of toleration may be the most dif-ficult of all to understand, since it has to operate over other traditions, and in terms of their respective relations.

. While globalization has been going on above, islam has been expanding on the ground, though it is now also going electronic (the 'virtual Umma' or islamic community).s7 It is persuad-ing more people than it did in the past. There is- also a process of easternization, said in management circles to be replacing an exhausted process of westerniza-tion, as western techniques of management and organization are replaced by those Of Asia.58 There may stiIJ be further forms of world domination ahead, presently unperceived.

fragmentation)

if you are more vigorous than the others. The reactions are just particular ones. We may, however, be reaching the limits of expansion of traditions. They may all have to develop explicit teaching of their own as to the terms of co-existence with other tra-s. Some have already done so, though refinement may be, as always, required.

recent review of world history concluded that 'initiatives' towards global supremacy t will be of briefer and briefer duration, suggesting some form of international equi-librium.6o Thisinformation should be made known. 1t might do something to the arms trade.61

. Traditions do not ultimately triumph over one another; there are almost always adherents hanging on, , waiting for the moment of rejuvenation.

'ayersuasion is ultimately all that is worthwhile and persuasion involves the meeting, and mutual respect, of traditions. If the traditions are going to survive, there is no justification for efforts to destroy them, and particularly by force.

THE STATE AND THE NEW DIASPORAS

The resistance was that of people we now think of as having belonged to the same political community (the state extended backwards into time, the present
institutionalized recognition of the ascendancy of a particuJar tradition at a p

. Yet the word diaspora is now coming to have, not another mean-ing entirely, but another sense. It is dispersion from the other end of it-a looking back to the coherent point of departure, an effort to resist the entropy which has already occurred, an effort to deny the outward journey. Itis a vie

This too is part of the tradition. Gender or sexual preference thus become fundamental; their particular tradition must be sought; the pastislooked to for support and explanation. There are therefore reasons for the historical work now being done in these fields.72 It has to be done. Otherwise one may be locked into a pre-sent identity, or be only a passing preference. As usual, the past is a great ally here as well, even if its teaching had become faint, once youlearn how to read it.

A CHTHONIC LEGAL TRADITION: TO RECYCLE THE WORLD

A TALMUDIC LEGAL TRADITION: THE PERFECT AUTHOR

Others which did so, perhaps even earlier, have since lost their grip.z
separate itself, in a definitive and lasting way, from chthonic law.

, some 1800 years BCE. Hammurabi's code suffered the fate of Babylon itself,lost to Persians (tod
Is there a starting point

. It is composed of three rabbis, who may have particular competence for the type of dispute, exercising a strong moral authority and having as one of their major objectives the restoration of harmony between the parties . The procedure is expeditious, and judgment may be given in a matter of weeks after only two or three appearances of the parties. Representation by lawyers is not cluded, though has never been encouraged.² s The parties agree to abide by the deci-sion
. The law they apply covers the entire field of western private law,
decisors,
, to indicate a person having authority to decide though not occupying an ofl=cial position.²8
absence of courts of appeal
is to ask the court to correct it. ,
y,the notion of res judicata (has little or no place in the thinking, and the truthfulsolution is of greater value than decisional efficiency and stability.³0
res judicata, what place could there be for precedent or stare decisjs?3'

is open, as in the chthonic

. It is probably inaccurate, for reasons to be seen, to think of it as defining their rights.

copyright and corpora-tions e absent from the original texts.

diet, hygiene and ritual. Ir

. The particularity of talmudic Jaw is not so much in its substance, but in its methods.

1 children born out of wedlock
' Polygamyis authorized
now generally ObsOlete.³5
Divorce law is ') is granted by the husband; t
Property eventually comes to be privately owned, urban development overcoming

r, gifts, and gifts in contemplation

.It doesn't (for example) have the same role as western law,it doesn't read like western law, it isn't studied like west-ern law and ultimately it is not structured like western law.

THE TALMIJD AND REVELATION

r, the separation oflaw and morals as is known in the west;

since the same sourceinspires them both anditis unlikely theycan be seen as conflict-ing. We have already seen the idea of natural obligation in talmudic law=4s this may be seen as a recognition of the limits of formalinstitutions and formal sanctions,

v to cover almost all ofljfe,47 in a way that western law can prob-ably never reach.

athatlawis almost everywhere,b

ing is new; all is discovery. 'Of course every interpretation that ever will be was kno wn at Sinai,

no explicitinternal argument,

described as targumentative'

rather relaxed and ongoing

, but many texts and many authors, and they do not speak serially

hypertext.s' Moreover, the sages often speakin the present tense, as though they're still here. And nobody tells you what the rule really is. It's just in there somewhere (that's why you're allowed to ask for a responsum)

since you could then there is no reason why you can't now. .

ig the talmudic tradition,

learning
understood; i
a process

lways talking, someone always questioning, the texts coming alive as they get support, or

.. It follows that its language is not intimidating, that its categories and concepts are those of everyday life, that it appears deliberately to avoid abstraction in expression. If all of life is to be ruled bylaw, for alladherents to the tradition, the law must beimmediately accessible.

there are opinions in favour of each ofthese. So here we all deliberate.

discover very intricate forms of reasoning.

agility required
.Alltheopinionshavetobe dealt with;
interstitial
Unlike the chthonic tradition, however, the talmudic tradition leaves clear track ks
l gifts of recall and analysis.
rationality within
.s with personal accomplishment
particular style of rationality which emerges within the tradition. It is not a systematic type of rationality. '

. There is discipline of thought in all of this but it is multivalent, tolerating contradiction.

criticized for arrogance;
; his code is now viewed as one of a number, dependent on its predeces-sors and on the comments it hasitself attractecj.s

'Ihe chthonic tradition is one which resists individual powers or entitlements, in the form of rights, because of the higher form of obligation owed to the cosmos.

the age of obligation)

. In performing one's obligations, one shows one's love of God.

It does place the human person in a privileged position in the universe, so you can argue that the value of the person,

notion of rights does exist somewhere
the chthonic tradition doesn't really have a concept of change, since the changes the tradition tolerates don't really matter-
,compatible with the tradition.
. If historical time does exist, moreover, it exists within 'a special, timeless sphere of revelation, in which all generations were, as it were, gathered together'.

little interest in either scientific speculation or what we know as philosophy, and it has been said that this was so because of the 'correlation between the world and Torah

marry 300 times
'[Tlhese and these [both] are the words ofth

conciJiatory,
t reform jews nearly without the tradition, orthodox jews are criticized for monolithic and static views, repudiating the nature of talmudic dialogue.9

. Reform jews do not appear to represent so much a corruption of the tradition as,in some individual cases, its near abandonment, and we will see that the tradition (at least presently)provides no specific means to prevent this. The discussion of corruption of the trad-ition appears more acute with respect to certain ultra-orthodox,

f all traditions being affectedin their ongoing exist-ence by meta- or second-order traditions of tolerance or intolerance. I

of institutional cor-ruption,

living within salaries

gave primacy

morelegally depend-ent

a major defining element ofjewishidentity

, the text itself became a homeland.

if you agree to make the Talmud your law, you may become jewish, assuming jewish identity.'06 And you may also leave the jewish community, through no longer adher-ing to itslaw, though at this point the boundaries of personalidentity are not sharply defined.,o

ions of excommunication and shunning
notions

; they give example to those who would remain within u nity.'09

'compulsory communities'
Jewish people also came to live in 'compulsory communities', those formedin response to 'organized pressure' of states or other communities.in

from within

a riot of opinion

\3 Christianity proposed the end oflaw

for them it was the end of talmudic law.

, the written Torah,was preserved by christian-ity itselft

. Yet how could the Talmud be made to disappearifits foundation, the written Torah,was pr

f both commonality and diversity and mutual continuing existence,ll4

the rabbinate has been formally incorporated into state structures, though talmudic law is applied directly only in matters of personal status and familylawus 'Ihe state emerges, as elsewhere, as the guarantor of religious freedom and the ultimate arbiter of secular-religious relations, '

, talmudic law canincorporateinto itself norms which are not formally derived from its own sources. This has occurred, for example,in areas such as housing or rent control, copyright and corporations;

Talmudic law is aware of the concept of rights, as an element on the periphery of its base of information. 'Ihe traditionitself did not enunciate a doctrine ofindividual entitlement but rather a doctrine of individual obligation, or mitzvah. Yet, the argu-ment goes,if youlook at obligation from the perspective of the person to whom it is owed, you have rights and, moreover, the analysis of obligatio:n terms of rights is preferable, since it accords due place to individual interest, or power, and constitutes a unique instrument for ensuring both equality and progress

'singularly weak in providing for the material guarantees of life and dignity'.'zs 'Ihey can also be waived, which is not the case for obligations. Rights also are accompanied by a propensity to violence and are enforced by the state, a a 'monstrous and powerful

'. If there is a right to education, we still have to look for someone to provide it. If there is an obligation to educate, as there is in the nud, we needlook no further. So we have here an argument which does not accept the usual rhetoric of rights, nor their self-evident character,

f an obligation to preserve the world, we owe obligations to do justice and help the oppressed.

d incommensurabilit'

. Large dilfer-ences do not yield incommensurabilitY.

,but the state of Israelis not coterminous with jewish religion or
talnudic law.

33 \f the Talmud is to be used to justify aggression,


A CIVIL LAW TRADITION


If they were to have a particular legaltradition theycould not adhere to the talmudic one, nor ain chthonic. A tradition would have to be constructed. The process, and struggle, lasted more than two millennia, and isn't over yet. A CIVIL LAW TRADITION:

that no interest attaches to certain centuries except their position in time .

, there has been a major, and ongoing, discussion (maybe argument would here be more appropriate) as to whatlawin Europe should be. '

, its ability to convince people

, work, over cen-turies, and no prospect of overall consensus.

you could not simply create sources of law,

The law of the people had to grow rather out of institutions in which people somehow participated themselves, confer-ring legitimacy

S. They didn't create a (potentially disruptive) group of professionaljudges; they simplylet one oftheir nobles or patricians (the iudex) decide an individual case,in a kind of benevolently amateur way. By the late empire this led to many (ju y (justified) charges of corruption; an

the writ system,

. Just getting in front of a judge, directly and with no official screening, took a thousand years.

.. Lia'oility exists when the conditions of liability are met,

So roman law became an object of admiration, because the jurisconsults were able, so convincingly, to state conditions for governance of complex personal relationships,

alaw of citationswas passed (to create order): Papinian, Paul, Gaius, Ulpian and Modestinus were to be treated as authoritative; in case of con-flict the majority would prevail;

. There was inclusion, and also much exclusiOn.²3 When it was finished,it was very finished. Justinian prohibited all further comrnent on it;Z4 } lit was a very different book from the Talmud.

but it was the law of the conqueror and

Romans were eventually driven out they e

t didn't say much about contracts or obligations;its family and succession law kept large families together, since many members were necessary for many tasks; its property law looked mostly to communal use rather than any formal or individual concept of ownership.²

allowed elites to develop

, universities '
l professions
e Ara'os,

) Both traditions therefore had notions of what could be called substantive law; whether written or unwritten it addressed substantive obli-gations, and perhaps even rights. .

substantively

s a certain underlying harmony in continental Europe i e in the eleventh century.

fourth century
century it had been developing its own form of legality within the church (later known as canon law)³2

t had a peculiarly Roman look, requiring recasting for the

.'Ihey were m


CHTHONIC


identified themselves, in opposition to the Europeans


folk law


To describe a legal tradition as chthonic is thus to attempt to describe a tradition by criteria internal to itself, as opposed to imposed criteria. It is an attempt to see the tradition from within, in spite of all problems of … and perception, and to see it from a time prior to the emergence of colonial ...


A chthonic legal tradition simply emerged, as experience grew and orality and memory did their work.


chthonic people have recently been telling the world a great deal about their tradition, and it is now evident that it is a tradition which contains a great variety of information. Some might say the information is so varied that it is impossible to speak of a single tradition. We must reconcile lives as diverse as those of northern Inuit and southern Polynesians; practices as distinct as farming and hunting; beliefs as ….


orality ... speech ... memory ... detail ... manageable


The insistence on orality appears related not only to form but to substance. If no one is allowed to write down the law, no one can enjoy the privileged role of scribe,and no one can subsequently write large, ongoing commentaries and themselves become sources. The law is vested in a repository in which all, or most, share and a in which all, or most, may participate. It has thus been described as a repertoire, as opposed to a system.' Transmission of the tradition is through the dynamic process of oral education, in daily life, and the dialogical character of the tradition is a mat-ter of daily practice, for all ages of people. The orality and communal nature of the traditio (the tradition can never be read, alone) are powerful inducements to consensus, So ideally the important information is learned by all, with the help of many, and all become able to assist in the ongoing process.


some two to three thousand years ago, when the great written texts and teachings of the world began to appear; the tradition appears to have developed no specific means of combatting or avoiding this.


the flowering of opinion


a council of elders


to the extent that they generate consensus ... prevent


chiefs


does not preclude procedural sophistication. Among the Dinka of Africa the closest relative or best friend of a disputant assumes responsibility for presenting the position of the adversary. In general the system of dispute resolution is open and immediately accessible. There are no de facto barriers of cost and no de jure barriers of preliminary screening or permission, such as those | of both roman law and common law throughout most of their history. The law also is immediately applicable, by adjudicators and preferably by the parties themselves. This suggests what is known in the west as ’substantive law'. There is here, however, nothing immediately analogous to what is known in the west by this expression-no formal sources, no sharply delineated rules, only shared information on the way to live a life.


known as renaissances or enlightenments, of the twelfth, and again of the sixteenth and eighteenth, centuries. In some ways they may suggest future, and even present,ways of European life. Thus the chthonic law of obligations (contract and tort)


the distinction between fees and bribery was far from clear


not in a domain of institutional control, of church 'or state, and while publicity and reputation may in some manner be constitutive of status,appears more by way of communal life than by way of fundamental require-Inuit practice, adoption is accordingly effected by present declaration of the future parents; insistence on form is equivalent to infanticide in the Arctic.


Marriage and divorce are generally consensual


the North American Great Lakes, chthonic people were repelled by French practices, notably prohibition of divorce,corporal punishment of children and prudish attitudes the human. There are fewer grounds of social antagonism today. It is true, however, that western law does not allow concurrent polygamy, while there are indications of a resurgence of this in some chthonic societies, notably in Africa with the receding of European influence.


African conceptions of contract (including guarantee), Rouland, LegaI Anthropology


Okupa, African Customary Law (1998) at 55 ff. (sale,loan, bailment). Sale would thus have been known, but certain forms merce would not have been tolerated. See, e.g. the contemporary laws of Uukwaluudhi in Namibia:'Nobody shouId cut trees for the sake of selling'


Living close to the land and in harmony with it means limiting technology which could be destructive of natural harmony. So there is no incentive for the development of complex machines, and no way of accumulating wealth through their use. There is therefore little reason to accumulate personal or movable property. For the same reason there is no reason to accumulate land, or map it (other than to show trails); there is nothing to be done to it or with it, except enjoy its natural fruits.


The mov able or personal property of a person is that which the person uses in their daily life;no further aggregations are necessary; no law of successions is vital to prevent disputes concerning the partition of movable things on death. Land, of course,could be effectively occupied, and western notions of adverse possession or prescriptive acquisition re suggestive of some form of ownership developing over time,even in chthonic societies. This is now a very current question in the Americas and Australasia, and an interesting process is occurring whereby chthonic use of land is being recast into various western concepts of property, at the insistence of indigenous peoples. According to evidence of chthonic law which has convinced high courts, the chthonic use of land


Children would grow up in mother's home, take her name and not know their father. Nor would a father know his children. Patrilinear modes of kinship are compatible with more stabilized forms of cohabitation, though variations in emphasis of maternal or paternal lines are possible.


Bennett, Customory Law


For control in avoiding overuse and ‘tragedy'


There is no right of alienation


usufruct


? there is now talk of need for a ‘global Allmend’); and for general European antecedents in the form of collective forms of seisin


more recent types of inalienability derived from lease or marital status; the ‘public trust’ doctrine in the U.S.A.; and 'Iibera7 commons: i.e.:various forms of co-ownership such as condominium communities.


If the private law of obligations was largely unnecessary, it was and remains other-wise for the law of crime. Yet in a communal society lacking formal institutions there is little place for individual responsibility or institutional control. So crime becomes the responsibility of civil society,in the form of the groups, clans or families which make it up. Injury to a member is an injury to the group; injury caused by a member is the responsibility of the group. In the absence of formal courts (in most instances), reparation is by negotiation between groups, and by means either of payment or equivalent punishment. Absent negotiated agreement,there remained the blood feud,a powerful incentive to agreement.


If damage has been caused by an individual, the community gathers round, to deliberate sanction and rehabilitation.


Global Biopiracy


Mirow, Latin American Law


Badaiki, Customary Law (1997)at 15 (noting change in many contemporary Nigerian groups to individual ownership and alienation);


For the insignificance of theft even in Inuit society,where personal belongings are essential to survival,Wesel, Fruhformen des Rechts (1985), above at 122, 123; though cf. K. Bull,'The Legal History of Reindeer Herding in Finnmark Countf in Svensson, Customary Law and Saami Rights, above, 115 at 118 ('reindeer theR is not a new problem'); and for the severity of Aztec law (death for marketplace theft), Cruz Barney,Historia derecho en M9xico (1999), above,at 17.


Does everything in the tradition constitute law?


There are no formal enforcers of sanctions; if a sanction is not applied now there may be larger, more important sanctions in some other world. So the law that we know is in there,in the chthonic tradition,is all mixed up with other things-how to cook, how to catch rabbits and deer, how to behave to one's family (in a very large sense), how to be honourable. can't be too precise about this. It just doesn't matter.


if there is chthonic law, and there is, you cannot understand it without under-standing other things.'Ihere is no separation of law and morals,no separation of law and anything else.


restoration through gacaca proceedings; need for amnesty power


Law may be indistinguishable from all else in the chthonic world, but it is not co-terminous with all else.


Some notion of legislation was known, in some places at least, but legislation is almost imperceptible. So law has its place, and is kept in its place,not through formal obstacles or meta-rules, but simply by the ongoing presence, and vitality, of allelse in the chthonic world., Religion is important in this (and will be returned to) but it is not an institutionalized religion. are no courts or bailiffs; no restraining power.


There is no way it can be turned into an abstract, western-style notion of full ownership, a right to use and abuse.


They function in terms of tradition. So the nature of chthonic Iaw-its source in the bran-tub-is a huge obstacle to legal ambition. The tradition gives everything its place, including that of law. If you want to change this,you have to put something into the tub, and see if it develops over time, with the help of others. There's not much you can do, yourself, to make a difference.


Since law has its place, as defined by all else,there are important implications for present human rationality. Everyone knows the rationality is there. Everyone knows it can't somehow be gotten rid of, or suppressed. So it too will have to be given its place. There seems to be a number of ways of doing this.


Most importantly, since the present individual is submerged in the past and the wider community, there is no individual power-or potestas-to obtain the object of the individual will. There are no rights. Even if rights are looked at as simple interests protected by law (a modern variant),then the law does not protect purely individual interests.


For the process of transition to agriculture occurring in the 9th and 8th millennia BC, G. Barker, The !Agricultural Revolution in Prehistory (Oxford: Oxford Univ. Press, 2006), notably at 38, 59 (on shift in ‘cog- f nitive world’ from being part of world to controlling and appropriating it, forager's world related to and not ,owned),


Allott,'African Law' (1968) at 144; and for African law being ‘not less rational than |that of European nations, though directed towards different ends (of greater social acceptance, Iess manipulation), Alliot, ‘Repenser Ies droits africains’


What is the attitude of chthonic law to whatever it is which is called change?


Another notion of time would see it, however, not as a race, an arrow or a flowing conmodity, but as an envelope, an environment,which simply surrounds us as we live. Time would thus not be going anywhere; there would be no future identifiable as such;nor would there be a distinct past-of dead,irrelevant time-since time simply sur-rounds us. Ihe Inuit use the same word-uvatiarru-for both the distant past and the distant future; they are simply distant. Most agree that the chthonic notion of time has


Yet much of the teaching of the chthonic tradition is explicitly or implicitly sup-portive of a non-linear concept of What are the implications of this for change?


we are now benefiting from anintense debate between chthonic and non-chthonic people,


The whole attitude of using technology as a method of fighting the world will succeed only in destroying the world, as we are doing. We use absurd and uninformed and shortsighted methods of getting rid of insect pests,forcing our fruit and tomatoes to grow, stripping our hills of trees and so on, thinking that this is some kind of progress. Actually, it is turning everything into a junk heap.' A. Watts, The Philosophies of Asia (Boston: Charles E.'httle, 1995) at 57.


? development of the'informal'.sector (the unofficial market, controlled by practice and use,in urban peripheries).


chthonic people,in many instances,are the principal occupants of prisons. How much violence and crime must be perpetrated in western societies before someone decides to try something else?


The constitutional debate on the legal position of chthonic peo-ples is intense, since it is in the nature of western constitutionalism to formally define all relations of power and authority within the state. '


at I98 for ongoing government view that aboriginal title entirely dependent on Parliament and not the courts.


? Aotearoa New Zealand'in P. Brand et al. (eds.), Adventures of the Law Rights analysis would here not be protective and enabling but rather |a form of cultural and legal domination.


('Thelegaltextual andinterpretive context in which collective J rights would have to be advanced is sa foreign to Aboriginal people, so abstract and removed from their own social or political context, that simply making a claim requires accepting the dominant cultural and con-ceptual framework'); and for the ‘ultimate violence’ of colonialism as the creation of a culture 'in which the !ruled are constantly tempted to fight their rulers within the psychologicallimits set by the latter:


El derecho a sus derechos').


--------------


Continuing now ISLAMIC at P. 188 (where it is left off in ‘Glenn’ on Pluralism


'Ihe place of the qadiin the islamic tradition is not the same, however, as the place of the judge in the common law tradition,


ein which allcases may be seen as different and particular, and for each of which the precisely appropriate law must be carefully sought out.


:under an obligation of service to God to bring together the objectively determined circum-stances of the case and the appropriate principles of the shari'a. Since the parties are so obliged,they are not free to obstructin any way the judicialprocess, are rightly seen as partners of the qadi in the law-seeking process, The process is not adversarial,in common law language, but neither is it investigative in the formal manner of civil law procedure. There is even relatively little procedurallaw,7 so it has been said that 'legal decision-making ... has emphasized compromise and the concrete facts of the particular case over adherence to broad principle or application of universal abstract norms:38 Ihis sounds alot like earlier views of the common law process; there is also ... obligatory mediation. ... it is the parties themselves who are under an obligation to bring about an understanding of the case compatible with the knowledge of God, there is great emphasis on oral testimony, and written proof is in principle excluded, though may be admitted in exceptionalcases or to support oral testimony.


Once reached,the decision of the qadiis simply given, with no written reasons and often with no explicit reasons of any kind. By this point the parties, partners in the process,are expected to understand what is going on, and why.


appeal;


return to the deciding qadi


invitations by the qadi to argue or present proof,


mufti


Free of formal responsibility, yet possessed ofimmensely usefulknowledge and great analyticalability,the mufticomes to be the most effective means of bringing vast amounts oflaw to bear on highly par-ticular cases.


r furu.


. There is feedback


institutional sup-port,


the qadi occupies a formal, institutional position, but beyond this lawis simplysustained bytheislamic community, Thereis noislamiclegislator (though there are now state legislators in islamic jurisdictions),


the imam is a prayer leader, the muezzin the caller to prayers in each community.Tnose learned in islamiclaw are not author-ized orlicensedin any way; they simply becomelearned and become known as SUCh.4&Solegalauthority is in a very real sense vestedin the private, or religious,community and notin any political lruler.


there have been conceptual problems with the idea of an islamic state forever after. lslam is meant to provide a personal relationship with God. There are relatively few possibilities of institutional corruption.s' 'Ihis is part of the attraction of islam.


SUBSTANTIVE SHARI'A


The law of the family and the law of succession in islam are profoundly marked by the Arabic chthonic law which Muhammad encountered, and by his reaction to it.


bride sale. Muhammad changed this, providing that the wife alonewas to receive any payment


Polygamy has been abolished by legislation in Tunisia; elsewhere this has not been accepted as possible.


talaq,


improved things, creating a delay or waiting period (idda) prior to the divorce becoming fully effective, to pro-mote recOntiljation.


The extent of polygamyis difficult to establish. In south Asia during 19th c. it would have constituted no more than 2% of marriages.


Adoption

general obligation of care and support of children is a serious argu-ment in islamic law, which is profoundly supportive of people in need,

intestacy


spportive of the extended family


y receive only half ... s).Women ...f the male obligation of support.


Yet the use of land, and property generally, is placed in abroader socialcontextin islamiclawthan it isin western law. There are parallels with earlier western law,68 in that absolute ownership of property is seen as vested ultim-atelyin GOd,r'9 such that individual ownership, while respected,is subject to the larger obligation ‘that in allwealth all sections of society have a right to share,’


zakat,


admonition against waste and prodigality


as environmentally friendly


it is said that twe have failed to date in practising those general relevant guidelines:


f8 Khan, Islam and Human Rights,


need for equitable distribution of land, resistance to monopolies, large holdings,


values of wealth-sharing


dispensation


unilateral conveyances.'I


riba (interest, or on occasion usury, depending on the einterpretation).


without sharing of risk, is seen as a form of unjust enrichment or appropriation of another's property." For similar reasons, cor-porate personality, a means oflimitingindividualliability, has never been accepted


ofinsurance


(gharar)l8


not an entirely free market,in spite of the volume of trade.


f mutality preferred to any notion of autonomy of individualwill); Zysow,'Problem of Offer and Acceptance'


financing of sales,


general partnership,


bank and an entrepreneur)


if. Western thought began to tolerate interest as an exception to the generalprohibition of usury,


socialism (which eliminates markets) nor capitalism (which lib-erates them).Itis another way of thinking


pretty straightforward, even if you are skilled in deconstruction,


Islam and Moral Economy


the measure in an islamic society, ‘where all motives for crime have been abolished’.


to westerninflictionof death penalty for theft until 18th c. and (at SO) to Chinese practice of 'slow slicing:


The jurists of the classical period ofislam,9-' however, never had to address western arguments based on concepts of human rights,


to etiquette,food,hygiene and prayer.


third//ninth century


great debate between


law won out over philosophical d speculation'.'


Western scholarship


historicalprocess of establishing the hadith,


development of ijma;


theoretical relation between ijma on the one hand and the Koran and the Sunna on the ‘e other.’i


with pride, 'We are a people who follow, not invent."o6 So islamic law,like talmudic law, can hold its primary source subject to the interpretive power of a later source.


forms of human understanding,


\e ‘closing of the door of )f endeavour’,i


the remarkable fea-ture of the closing of the door appears to be its informal character. People, or atleast a large number of people, simply came to agree that given the nature of the tradition,further effort had becomeincompatible with it. This never happenedin talmudiclegal history,


THE INDIVIDUAL IN THE SHARIA


justify formal inequalities


western arguments in favour of formal equality are having some effect.


(jj What about a law protecting Islam from the State, chich could be seen as a collective project to provide)


the luman being


So change, as a concept and as a reality.is clearly possible in this context, now far removed from the chthonic one.


s. The world is a sacred one. ‘Facts are normative: it is no more possible for them to diverge from the good than for God to lie.ux’ Yet the human being must pursue knowledge, of all kinds, as a sacred mission.


the law of each schoolappIies as a result of personal adherence and not territorial supremacy.'


reconcilable le ? difference;u


‘Difference of opinion among my community is a sign of the bounty of God


are thinkingin this conflictual and contradictory manner


shi'ism


vibrant and affirmative


So there is an extremely dynamic tradition within islam, .as well as aless dynamic tradition.


has always admitted some form of secularlegal authority.


of public law..


e complaints jurisdiction


slavery,


became an moperative part ,


five classes:obligatory, recommended, neutral, disapproved and 1 forbidden.


e double sale).


Malikilaw,however, concerned with realintentions, repuiates tricks


thinking, tricks _or strategems are not even countenanced.


islam has been more concerned with the boundaries of, and protection of,its commu-nity than have other faiths and otherlaws.It is not entirely clear why this is so,and the


disloyalty,


Revelation bears a larger burden in islamic thought


christian


Talnud


it speaks with a declarative or imperative voice, and not argumentative ones.


though both judaism and christianity used heresy, and killed for it, they both now live without it (though they may kill for trea-son,its secular equivalent, and punish sedition).Islam has not reached this stage,


the killing for heresydeclined,


announced a policy of ‘mutual recognition’ ' of many schools


who was to be considered an unbeliever (kafir) gave way to a tolerant solution:


exponent ofijtihad


theoretician ofislamic economics


g human rights


facilitated by diversification within westernlaws,which have moved steadily away from centralized notions of sovereignty and law as command to notions of governance, collaboration interdependence.


state cessarily implies the existence of human rights,


n whether a formal con-cept of rights is the most effective instrument for doing so.


widespread and flagrant violationsin countries which accept the existence of rights,


and the need for 'social arrangements that are in the common minterests:


as group rights,


u, socialistlegaldoctrine,u and chthonic and environmentalist notions ofinter-generationalrjghts.l


yet being ’in charge' is not itself a legal code, so improve-ment in the status of women


more in informal debate in the so-called ‘developing countries’ than in western literature. Islamic ideas of socialjustice have here had profound impact. Amongst impoverished people,


economy' (global .for whom?), the idea of communal aid and assistanceis enormously powerful


‘Those who entered the city and the faith before them love those who fiee unto them for refuge, and find in their breasts no need for that which hath been given them,but prefer (the fugitives) above themselves though poverty become their lOt.’226 To some 15 million refugees in


partnership rather than 7 debt.;


('Islam does not contemplate any restriction on freedom of movement and residence, whether within a State or beyonds its borders');


no single circumstance dictates the importance of the shari'a in a given istate.


marked by exclusivity___of state sources of law, and hence deny in principle the existence of personal laws,


even in countries such as France,


constitutional protection of religious liberty may come to pro:tect in some measure islamic practices


chthonic land claims in Australia and Canada, and in some measure . with respect to chthonic family Iawj see above, Ch. 3, On ways of life. There is Sreater resistance, however,to recognition of religiouslaw.


shari'a adjudicators


Islam colonized much of the world with the same instruments the west waslater to use:religious zeal, commercialvigour and military fOrce.


crusades, holy wars,just wars, trade wars and even culture wars.I


So historically jews have been better off under muslim than under christian rllle,s\ a position which has varied onlyin recent centuries, and through changesin thoughtin the west


soul shallbear another's burden.'


? , an obligation to spread the word of the Prophet and an obliga-tion to defend the faith against outside e aggressiOn. (jj was it a reaction or a traditional politicizing?)


If jihad is now a defensive war, its appropriateness (and its measures) requires some appreciation of the external chal-lenge.


COMMON LAW


an inoculation with roman law, generat_ingimmunity to it t thereafter,'


through a loyal judiciary.'Ihis immediately marks off a commonlaw tradition from all others


able to brinS a newer, more .efficient and modern king's peace to the different parts of the realm.


prlests,


it,just to know what was going on.


? new teaching that human intelligence and law were compat-ible with one another


e islamic.'


This type of inn, born in Baghdad and the eastern Caliphate, ... including Jerusalem and cities throughout Spain and Sicily


the Crown


sheriff


e.'Where there is no remedythereisnowrong.


system of writs (there were about 50 of them bythe middleofthe thirteenth century; six centurieslateronly another 25 or so had been added)


therefore alaw of procedure; what-ever substantive law existed'was hidden by it, ‘secreted’ in its tinterstices: in the lan-guage of Maine.n 'Ihe procedure was, and is, unique in the world and today may be-the most distinctive feature of the common law.


s were expected to collaborate more than contest; in con-temporary civillawitis the judge whoinvestigates.


The judge's function was not to decide the case; that was left to the jury. Yet the judge had things to decide, notably whether the case which emerged fell within the chosen writ; otherwise the court was without jurisdiction (choice of writ was not only binding, it contained aJI the royal _authority which had been granted).


it. The judge had no responsibility of finding ‘objective’ fact; nor did thelawyers


('none of the trial participants was responsible for truth-seekiag).


of how far the common law has moved towards civilian thinking,in the sense of having to get the facts right in order to apply pre-existing law correctly.'Ihe cOillaw world bas long accepted the necessity of getting the facts right, and has never allowed party presention of them


thejudge plays a commanding, but distant, role,as befitting a source of law.


the judge could concentrate on the general contours of the writs, the general contours of the law.


better not to suggest that they had erred.zr' And the jury, of course, could not..


? that no one other than the jury knew what it was.


indigenous creations,


original,


ity.Its complexity, and par-ticular vernacular, provided a certain impermeability to exchange with other legal traditions, r


real and personalproperty, concepts unique to _the cOnmOn law


The common law was, in _its origins,largely a law of land. Excluded, however, from farming and land-holding,.jewish people had turned to commerce, and the resulting, talmudit, commerciallaw was highly developed.


of imposition of a conqueror'slaw.'Ihis came to be thought of as apossibilityin later times,whenlaw was only writing,but in the eleventh century you.just couldn>t thinkin terms of creating a new ‘system’oflaw, or effectinglegalchange in large batches.


? were formal,internallirnits on the growth and reach of the commonlaw,limits which its judges rightly felt incapable of overcoming. They had authority which was royal,beyond it they had nothing, and there was much which was evidently beyond !t-.


common,


to distinguish it from the local,particularlaws (Wales, Kent, all the others, and Ireland beyond)


Since the common law was necessarily and formallylimited,


this it had little in common with talmudic law or islamic law, nor for that matter with chthonic law. So the separation of law and morals is not simply a philosophicalconstruction in common law history;it was just the way things were and in large measure had to be. Nor could morality inform and flesh out the commonlaw onceit cameinto being,asit was arguably to do in the civillaw;


popes and kings


ry, formal ecclesiastical courts assumed jurisdiction over matters of family law,


amiable, a process facilitated by clerics sitting as common lawjudges.


emergence of still further courts, notably those of Admiralty and Equity


to the notion of changein a commonlaw traditiOn.


n language so historicali


It could not, and did not, subsequently modernize itself,jn terms of overall expression.


be wiser than the law, which is the perfection of reasOn.


be lions, but yet lions under the throne, being circumspect that they do not check or oppose any paints of sovereiSnty'.


grew through the accumulation of precedent,though no concept of stare decisis-


Neither set ofjudges elevated their work to the level of fu<ed rule; neither proceeded thereaRer by way of ineluctable deduc-tion from their own previous work; neither placed much premium on uniformity of result.


Nobody, beyond the parties, cared who won. _Nor did the judge's rationality impinge on local, chthonic law.


rights


unease with rights


seen as part of a hostile and distant autoc-racy in the way, say, the French judiciary was.5


stare decisis, a ‘product of the nineteenth-century mind’;


much of the old, chthonic 1aw had also been changed:


in the idea of a common law somehow autonomous,


800 years to bring about a unified court system.


_(the lender kept the land used as security, and the profit from it


e).The fictions maintained existinglaw (which must be a good thing), yetlet everyone avoid it, for reasons considered entirely acceptable byeveryone,including the judges.


alleging also that the circumstances of the _,particular case constituted a trespass, of sorts, so that trespass could extend


such that by the sixteenth century the common law had gotten around to contractual obligation,


Roman formulary procedure survived for about eight centuries; so did the writs and _forms of action.


Someone willstart complaininginintelligent fashionz not about particular cases, _but about general inadequacies.


rasIVemyBentham.,


the procedure. 'Ihis was the heart of the common law and if there were problems they were necessarily here.


incrementally, over a half century,


yet the effect on the common law was far greater than,the effect of the political revolutions of France and the U.S.A. on the laws of those countries


eliminate the requirement of a formalgrant of a writ


conceptually freed


became open for the first timg. as those of the continent had been ^for centuries and where it had become common practice to speak of a right of action.


old_pladingsl


what groundt


This was difficult, often impossible, and amendment a strange and mistrusted concept.


got open pleading, or fact pleading


the jury


the emergence of substantive common law.


And since judges were now deciding cases, the possibility ofjudicial error had become possible, on the merits, in the process of matching now distinct concepts of "fact and substantivelaw. So a court of appeal,like those of the continent,was required,


assumed the same three-level structure


Procedure remained adver-sarial, with the barrister enjoying great latitude in the conduct of litigation.


remained true that the judge assumed no immediate responsibility for the adducing of evidence, nor for the overall management of litigation.


role of the judge and counsel in litigation is now the object of profound debate, and further refOrm.


judicial appointments


. ajudge cannot be dismissed except by nearlyimpossible procedures


d.Withjudicialnomination coming closerto the end of a legal career than itsbeginnin9e there is no control of the career of ajudge (as on the continent) and no effective means of f dsmissal


y civil immunity in the exercise of their functions;


In 2005, however, U.K. judges became subject t.(limited) disciplinary proceedings,!


Why


i, in no other tradition, so it is very much the product of everythingin the his-tory of the common law, which singled out the judge and the judge's decision as of fundamental importance, and this since the arrivalof the Normans.


clearly part .of the overall constitutional struggle, and negotiations, of the seventeenth century,when the judges allied themselves with Parliament against royal executive author-ity.


was the time of the enlightenment,


.s creation of an institution incapable of direction


enlightened debate could yield consensus,


(largely political) process and need not enjoy any par-ticular status. (jj democracy)


would be still greater need for theirindependence, since in an enlightened,less contextual world, there would be still greater pressure for par-ticular decisions to be made, vital interests to be proteaed.


(they are not bound to do anything,includingthe decidin8 of cases) but because they commit themselves to an ethic of independently administering justice, within the cadre of the law. 'Ihey are freed to be law-seekers, and not law-appliers. They are self-disciplining loose cannons, dangerous for systems


the general idea of national, positive, constructed law now received a great deal of support,


continental versions of the same


judges actu-ally makinglaw (and bindinglaw at that)


thus not be a set_of.rules orlaws but a'prac- |tised framework of practical reasoning in which ‘no .,. formulation is conclusively ’authoritative


ion must today be highly flexible and accommodatiagif it is to continue to provide some measure of_commonality


British empire,


embeddmg of


marriage of the idea


i,since the tradition demands far less in terms of compliance than do other traditions,


The demands ofthe state may fit within a common law environment; t


At some an identifiable common law tradition had developed, though its relation with an Englishidentityis far from clear.


common law, though identifiable,is a weak identifier.It can float around the world,


In many respects U.S. law represents a deliberate rejection of common law principle, with preference being given to more aflirmative ideas clearly derived from civillaw. '


in.substantive law, most particularly in the reception of the idea of rights, but still _more evident in terms of structures and sources of law.I


State judges could therefore not be independent,in the English sense


w judges thus became seen both as formal participants in government


of civil procedure and criminallaw exist in many states;_California, the largest state, has a civil code. 92 Legislation, moreover, receives a broad,_liberal interpretation, in keeping with civilian doctrine, and this purposive form of interpretation has now returned to English law.93 Even adversarial procedure is now declining in importance.


‘case management’ jt'judge


The case-load is also the malady which has most affected the notion of stare decisis in the U.S.A. Given open courts, and millions of decisions,it turns out tobe very difficult to say that each represents a rule e oflaw.


n said that the notion is finally self-destructing,


Decisions must be batched, to ascertain their drift, to see if there is a jurisprudence constante.


Stare decisis appears now, with hindsight, as a quick fix,


'Ihe actualcases, the decisions, now fade, necessarily,in importance.


federal courts,


Bill of Rights, as federally interpreted).


the arrogation of unlimited power by the judges'.9'


Rights have changed


From indi-vidual powers or potestas of private law they are now generalized, as simple ‘inter-ests’ or political claims protected bylaw,


no need to reflect local patterns of lifei


Local patterns of life were to be created, and law


The frontier was not only physical; it was also legal-uncharted legalland.


Citation patterns indicate a high level of inter-jurisdictional use of precedent, of persuasive authority;i


Law in Canada' (1995)
i,'Persuasive Authority' (1987);


the common 1aw may float, statutory law does not,and access to it is strictly controlled. Human rights here do not prevail over their national, positive and territorial articulation.


harmonious and floating


e sixteenth century.


aggressive mode, t ... defamation and bankruptcy from the ecclesiastical courts ... Admiralty ... commercial ... nineteenth century,. ... t. Ail the courts are ‘e fused; ... disappear ... Pothier ... ’Ihere'slots of civillawinfwmation contained within commonlawinformation,if you look carefully, ... e now writing on thelaw of ‘obligations’.


Yet when the positive, systemic construction of English commonlaw began, from the sixteenth century, the English practice differed from the continentalonlyinits means and not in its end result.


systematizing


nineteenth and twentieth centuries


underlying commonalities becoming of prime importance.


civil and common laws now often workin tandem at the European level,r3o but also beyond the regionallevel, such that U.S.law,which took so much from Europe, can now re-pay the compliment.


the'dark ages' were happy times for everybody else;


isolation of the common law is beginning to disappear');


western lawyers and western people in general see westerrL thought and western law as essentially liberating and beneficial, capable of bringing <about'development: and well- being while overcoming oppression,discrimination and 'prejudice.lt is not imposed but is simply there, as were the common laws of Europe,available by free choice as a means ofliberation and relief.u4Tnis should not been seen as expansion, still less as imperialism, but rather as consensus on universally valid :objectives. These may be good arguments, and there may never be a winner. But there may be more to be said on both sides.

militar:y .-means have supplemented them in case of need,but often there has been surprisingly little use of military force.


presence


private, non-governmental


English technique generallyinvolved a more hands-off approach,leaving existinglaw for existing people,newlaw for new people (and there were exceptions even to this).The French saw a more universal role for a more universalFrenchlaw, solocalpeople could opt for the new I.aw.


often tied to fmancingbywest-ern or international financial institutions,


Americas, so chthonic populations and chthonic law were essentially ignored, for purposes of creating a territoriallaw,


the earth was to be '. subdued.


Locke


beyond chthonic concepts of sharin8.


the principalmeans oflasting expansion were private,'40 Soimperialism is not necessarily governmental in character and method; governments may sponsor and aid, and hold underlying title, but lasting impact is a matter of private enterprise.


fwestern'globalization


corporate activities,technologicalsupport


mercatoria


a major challenge to state-centred notions of law, as ancient commercialtradition is revived and rejuvenated. It is part of stilllarger process of (re-)development of a transnational concept of law,in whichlawis not laid down but rather taken up, from past authority, best practices and the workings of ‘epis- ’temic cOmmunitjes."


)f'thestate.


Zlobalized localism':


diverse nations, with their own n traditions, (jj not fighting over territory marked by borders, as Europe)


(jj state req. leaders)


western concepts of social organization represent the third technique of western expansion.


? Rights are instruments ofliberty,


movement towards a western way of life is seen as an immense andlargely irreversible rocess,


law 'used to justify, administer, and sanction Western conquest and plunder,


IatiOAmerica succeeded'only up to a point')


(Lenin.quietly nodding)


rights and human liberty become


both within states and between them,


Are tuman rights universal?


They are clearly not,though this should in no way stop the argument. Human rights are inextricably bound up with western legal traditions and exist as such only within them.


It may be that rights can be useful elsewhere.It may be, as well, that they are .useless and even prejudicial elsewhere, notably if there is no legal structure and no (uncorrupted) judiciary capable of giving effect to them.


s to provide results superior


superficial grafting of rights doctrine might yield.


Insisting on the necessarily universalcharacter of rights,I


seen as a modern form of imperialism,


simply another form of universalizing the truths of a particular tradition.


Nazi abuse of Minority Protection ... black-white race relatims in U.S,&


not much to be corrupt about in the chthonic world; t


of a large, wooden house in a warm, humid climate. It may be beautiful, and well designed, but be subject to many forms of internal rot. To survive, it requires protection beyond the structure itself and if this is neglected, or impossible, the structure will not last.


judiciary has undertaken heroic andlife-threatening work against combined traditions of governmental corruption and organized crime (as in Italy)}68 Solaw can do much to prevent corruption in non-legalinstitutions,iflegalinstitutions themselves remain free of corruption.


regionalpreference for capitai punishment) (what social assets exist at line btw?)


notion of incompatibility


iflawisabusiness,.


hostjurisdictions,


'There is above all no positive phenomenon of obedience to positive law,


t may now slowly be dissolving in the ' west). (jj re-write as a soc. contract)


whatever ethical claims they may make may well conflict with others, such asloyalty to family or tribe


and lawyers who dare to attempt ... the state itself willprovide no protection to them


HINDU


and nobody really knows whatit means, except foritslaw.u


Gods appear reluctant to lay down the law. Detail never sounds divine, and they say that's where the devil is.


here dealing with perhaps the oldest


\sLike other revelations, they do not contain much which is recognizable aslaw,though there are many songs, prayers, hymns and sayings,allconsidered essential to a hindu way of life.


i. Hindu law is not ofJiciallaw, in its classic sources;nor did it tend to large institutions,or potentiallycorruptinstitutions. This seems to be shared (in greater orless measure) byallexplicitlyreligiouslegal traditions, regard-less of their breadth of application. If they are to get the message through,it has to be done by the word.


As early as Manu the oft-repeated eighteen tities of hindu law were listed: recovery of debt, deposit, sale without ownership (nemo dat is ever with us), partnership,of gift, non-payment of wages, non-performance of agreements, rescis-sion of sale and purchase, disputes between master and servant, boundary disputes,assault, defamation, theft, robbery and violence, adultery, mutual duties of husband and wife, partition and inheritance, and gambling and betting.4' Here is revery branch of jurisprudence:4' though the centre of gravity appears to have been in the complex of family, propertyand successionlaw, which has also had the greatest ultimate power of survival


? Henry Maine drew the learning for his Ancient Law (and the famous evolutionary ', thesis of the person moving from status to contract)


both there was concern with thelarge and enduring family, and property was used as a means ofits support and survival.


(persons,things and actions),


56% of girls married before 15 in Rajasthan in late 20th c.),


karmas willnotably preclude


you are hindu, you have to know about it, but it can be learned from someone other than the lawyers.


There is therefore a lot of hindu teaching outside the 1aw books about how to live a life. There are other sutras and sastras, notably those of politics (arthasutras,


prayed in aid distinctions made within hindu lawitself, such as those between duties \enforceable by secular authority and procedures (vyavahara) and those enforceable by conscience.s8 lf thereis a'civillaw'identifiable as such within hindulaw,however
, \


without the tradition, that speaking of a separation of law and morals would be to I


Dharma is impossible to define, but comes from the root dhr, signifying that which sustains and upholdslife.


and in a sense that which we can make out aslawis a part,and part only, of dharma,


? principleis that theking s dharmais toenforce the dharma of others.


nOtionOf'allrighteOuSness:t


king's pos-ition as enforcer is thereby strengthened, since the king has the power Of danda,66 the secular instrument of enforcement (where the king uses it, things look very legal) yet is weakened at the same time, since the kingis necessarily,and forever,subordinate to


? particular dharmas attach: the Brahmans (who teach), the Kshatriya (who protect,and are warriors and benefactors),the Vaishyas (who trade) and the Sudras (who are 'servants). I


as ‘twice born’ since on maturity they accede to a world of sacred responsibility.


? of all members of all classes. Now, if all of these ongoing souls are taken into account,


? Discrimination on the basis of caste has today been prohibited,inlndia,by theIndian Constitution. How the constitution of a modern nation-state can do this is a larger question,


? Rationality in hindu legal tradition is also in function of dharma. The dharma of the Brahmans is to teach the law flowing froru the vedas. Where they got it from is an interesting question, and some answers are available, but there are no indications that ‘ they simply madeit up,as rationalconstruction.The Vedasandthesastras alreadytellus something about the rationalityof hindu thought,by their metric form. Thisis not how deduction expresses itself, and Manu’s eighteen titles of law demonstrate no impulse to systematize. So the place of reason is 'a circumscribed and limited one:so


so important in the (slow) development of roman law and the common law. In this,hindu law parallels talmudic and islamic law in moving directly from chthonic to revealed substantive law, with courts and judges meant to give effect to it,


? dic law admitted the possibilityof change in thevwld,then smothered it with ,went explicitly encouragingknowledge,then


it I,.Sharma, Hinduism and Human Rights (New Delhi: Oxford Unw. Press, 2003) at 14, 19, 32, though acknowledging, at 34, that 'llinduism tends to accord greater recognition to the rights thatothers have in rela-tron to us as compared to the rights we have in relation to them


.It just tolerates it,without in any way encouraging it, as something that's going to happen, but which :shouldn't disturb the basic harmonyofthe world.Ifit does,it's bad karma,and this t00 I will be dealt with. Thus, for a written tradition, hindu tradition is incredibly roomy.Toleration is not at the perimeter of it, but at the centre. And toleration turns out to7 have its own kind of discipline.


(jj ? a good thing with bad effect is bad karma?)


s3 \n the chthonic worldit was not the year which ended but the world, which had to be revived and reborn, in an endless process of )recycling which engaged the necessary collaboration of all.In the perpetuation of souls, hindu tradition individualizes this process, and it is a very realistic position.Nbodyis ever going to go anywhere; we are allhere, for the duration, and we can only hope to do better the next time around. Butit's stillthe same soul, still the same place and still the same temptations. Things can be done differently, but the idea of change is a necessarily muted one in a permanent, recycling world.


? to,and hindus do subscribe to many gods and goddesses,notably Vishnu and 7 Shiva. Brahman, however, is beyond particular gods, however god-like they may be. *


dances


dances everyone and everything so you just cannot think in terms of opposites or , dichotomies or boundaries.


q| Dinn,Modern Hindu Law (1998) at ?. ('Whenever a saint or religious reformer attempted the task of ! reforming Hindu religion and fought theirrationalor corruptpradices which crepLintoit,asect was born');


? distinguishes hinduism from other traditions, religious and other,is that informal '{tradition is recognized generally as having priority even over the sacred texts.


ginally only acknowledged the teaching of the virtuous locals, they should continue to do so; if the teaching changes, the law should also change.


There is therefore no obstacle to a people changingitslaw,97 though of course there is no way of accomplishing this byindividual willor formalact.


('no impediment to a gradual modification').


(larger) school divides into sub-schools, each with its texts, and people take their school of law with them if they move (as in islam). Yet, as in islam, they can change their law as well, by moving to a new place and adopting the law of that place.io' To solve a problem, you're therefore never very interested in hindu law in the abstract.You have to know the people,the place, the school and the localcircumstances. It's all united, but it gets very specific.


? is a story of a buddhist (a religion derived from hinduism)


as written law by another written law greatly reduces the prospect for its continuing vitality, as a way of life. That which is written may be more fragile than


described as ‘palpably foreign’ to its inhabitants,


The main difference is in the population to which the law applies.It is not a western population andit remains aprofoundly y ruralpopulation.


There is no widespread, positive phenomenon of obedience to law which is simply enacted or judicially stated.


caste autonomy, accepted forms of deviance, evasion or ignorance of the law


7he state as middle ground;


Hindu law could be exported, and universalized,in one or more of its many variants,yet this would somehow seem contrary to the point of it.


CONFUCIAN


Li
--
fa


Major efforts of harmonization


Day by day makeit new
cut underbrush,
pile the Iogs
keep it growing


11 concerned, not with the new, but with revivifying the old, with keeping the massive, old tradition alive and well,by constant,contemporary labOur.


'Aaia: land of the sunrise.


? since informallegal tradition continues to dominate modern, formallaw,4 and many strong arguments are made that this is the only way in which reallylarge populations can be held together.


Confucianism is the greatest traditional source of normativity in


its reluctance to root normativity in formal structures and sanctions.You are left with pure tradition-not present positivism and not revealed truth-and tradition which seeks primarily to persuade and not oblige.It is a tradition of great and friendly persuasion,just based on allof us.This is what has to be made NEw.It has no transcendent existence, and cannotbe simplylaid down.


was as though,in Europe, a great, secular philosopher resurrected allthat was harmonious and goodin medievaltimes,in away that permanently stalled (perhaps) the enlightenment, rights, and the development of positive law.


means denial of the lasting and effective norma-tivity of formallaw and formal sanctions.


are supposed to understand its general teaching (which we will get to) and once you understand that you will no longer be concerned with the detail of formal law.


feudalism and war


'Juristen, bosen Christen'


formal books of punishment


Law was seen here not as a means of regulation of private, economic activity, nor as a means of upholding religious values, but rather as an instrument of politics and public Order.


'light offenses should be punished heavily'


confucianism needed help, and from the lawyers


safer, smart politics


tradition of criminal/administrative codes thus continued


documents, often treated as near-sacred


process known as confucianization, by which the relational principles of confucian society became integrated into legalist statements of positive law


Despots


The magistrates were clearlynotindependent officials


questions of interpretation were to be referred to the e government


appeals


'Win a lawsuit and lose a friend'


'Litigation ultimately ends in disaster'


caught in legal machinery.


the magistrate did everything


but the confucian teaching of li has been variously received.


p 326


buddhism


too was a tradition which reinforced legal Ireticence,


hasits own ways of dealing


East Asian religions, moreover, have also greatly contributed to limiting the role of the lawyers. Everywhere in the east Asian region there has been denial of the primary role of secular law-ruakers


there is denial everywhere of a primary role for what is usually known aslaw.


though informed by great learning.


a pluralist


h differ-ent forms of normativity co-exist and even constantly rub against one another, each being recognized by the other as necessary yet each busily pushing at the boundary 'which separates them.8


'Ihe domain of li is thus greater than the domain of law, at least as it is understoocL in the west.


li is difficuk to define,


making of society that requires theinvestment of oneself and one's own sense of importance.'


omnipresent obligation of thanks or loyalty:


rationaJity has pointed in a direction other t


Underlying the confucian position is a fundamentally positive view of human nature,


Liis profoundly relational, and the fulfilment of personallife is seen as fulfilment of role,


flex-ibly interpreted, in a consensual manner, such that harmony in society is preserved through mutual reinforcement of norms rather than dispute over their content.


creating a society, in which all must share


it allows personal variation,


is an instrument Of aspiratiOn.49 Business relations are therefore best not reduced to written form and should be seen as ongoing, har-monious relationships of mutual al advantage.


shuld be driven by the long term; the exemplary person seeks harmony rather than agreement on immediate detail, the small person does the opposite.


laws, in contrast, induce no higher form of behaviour,leading only to manipulation of texts, litigation and over-regulation.s3 Laws cannot stand alone, say the confucians; absent the appropriate human support, they simplydisappear.


Buddha objected to a great deal of hinduism-


-its formalism (as he saw it), its revelation, its structure of castes-and proposed a different vision of the world which has come to be seen, by many, as religious in character.


63'the confucians made much of the ‘emptiness’ of buddhism,64 in contrast to the solid, this-worldliness of confucian..ism,


confucianism and buddhism unite in refusing to take positive law very seriously.


in both these forms of normatwitythe notion of abstract rules and abstract, individual persons is absent.


to individuals in the relationship in


Liis thus expressedin concepts which people knowand ,recognize-'walnuts and mulberryleaves' rather than things and property'n_


f casuistry. There is not a single crime of homicide,but 20 of them, differentiated according to status


fmily; privileged, non-privileged people) and the manner of perpetration.n Li also requires many exceptions, so


consideration


Models


s; teaching


symbols


mistrustful of universals.


for a single objective, the harmonious survival of social relations,


historical exemplars. particularity is here conscious of its particularity,fejecting the idea of getting beyond it, concerned with extracting the maximum of instruction from it, concerned with making it NEW.


Formallaw, with its formal boundaries and conflicts, has an unfortunate tendency to mask the underlying harmony.


ty, a de-emphasis on punishment and sanction


Yet confucianism doesn't somehow just flow from these given notions of li and harruony; they themselves have to be constructed and defeated


Confucianismis the response which has been made to them over thou >usands <


no way of creating social harmony which does not to a considerable degree already exist:l


the accumulation of wealth generates social inequities and ill will


rests on a notion of underlying human good


It is self-cultivation which is the key to governance,


to change.


initia-tives.'


notions of time


circular


Yet, as in hinduism, the spirit of enquiry is here a functional one,.Imited to what is compatible with confucian teaching and not free and boundless in scope. Learning is a moral and practical undertaking, with integration its primary ,objective. (jj selfish benefit?)


You don't presume to change the world and its relations very much;


loyalty


difficult to distinguish


multidirectional


e informal, boundary-dissolving, groupings.


two religions,


Persuasion resists boundaries, and tends to jump over them.


heresy or apostasy or even of dissent


Most people don't, of course, engage in it. They have been brought on board, most notably by the idea of not forcing people to do things.


Treason, however, was another matter, long viewed in China as one of the ten (criminal) 'Abominations: along with killing a close relative or scolding a parent.


Japan


nesting of the entire concept of formal, civillaw in the larger con-text of informal Japanese normativity.


Soviet :Union.


s; private commerciallaw and bankruptcy become essentiallyirrelevant;


subject to party control and revision.


tendency


1 bureaucracies,


believe in its formal, state institutions; they were the object of the ultimate weapon, dark humour.


s; it has already been said that China's governmentis no longer a communist one but only a confuaal One.


guomintang infuence


looks in many instances just like western legislation.136 It doesn't,however, do the same work


w Confessions: and re-education


forthcoming,


without citing the accused, without announcing the trialand without communication of the act of accusatiOn.


o extended,.beyond treason, to counter-revolutionary acts and violation of the socialist economic order.


corruption.r.


bureacracyi


nultiplying the potential effect of gratifying relationships}SZ


imperialism, nor even of universalizing




CONCLUSIONS


RECONCILING LEGAL TRADITIONS: SUSTAINABLE DIVERSITY IN LAW

e the current shi'ite efforts to create a doctrine of the islamic state, or a contemporary legal cadre for islamic banking.

Casuistr
1 track its exercise.
f constructive rationality in law, of ijtihad,

.Much (though certainly not all) feministlegal

r ambiguity and multiple voices,

r universalizing.

tolerance

s normativity

Western theory of tradition teaches that alltraditionis normative,that is,that it pro-vides a model, drawn from the past, as to how one should act.

Legal traditions, of all traditions,should not depart from this generalphenomenon,sincelawis perhaps the most normative of human endeavours.'

. Hindu law allows a lot of choice,both individually and in terms of multipleinformal traditions, yet no one who is hindu would escape some form oflaw recognized as hindu. East Asian traditions reject much formallaw, but do soin favour of another type of normativity, one profoundly anchored, infor-mally,in the past

yinsisting

the indecision of reJativism?

reach the stage of complexity

, and of being major traditions, because of their ability to deal with diversity, contradiction and demands for whatis usually known as change. . 'Ihey are epistemologically complex.

. The civillaw has always known multiple, and contradictory,versions of itself-f

, a complex tradition is well suited to meeting demands both fot continuity and change in society'

ikhtilaf,

gjuries

\ Hindulaw gives pride of place to locaIJaw,

stration of the fundamental unity of the world.²

e effort ofintellectualintegration-ofindividuals and groups, of relations and autonomy,of self-worth and common elt'ort3

s.Itis a wayofthinking which has been described as multivalent,z4 as opposed to bivalent, because sub-traditions are not either right or wrong but may be right in different, multiple (inconsistent) ways.

eis no middle ground

y,hence moregenerally power,

t thus implies clear boundaries between distinct and separate concepts, and prevents mixing and confusion over the boundaries, once they are created.Itis verylogical,in the way western people have been trained to be logical, for a verylong time. Plato is probably the original source, since he taught that the path to understanding involved divisio, the constant division of any concept into two constituent par tS.²8 Plato is the father of the dichotomy, a form oflogic which has acquired the force of tradition?9 Much east and south Asian thinking, however, has never been veryimpressed with the idea of a world divided into distinct and separate, often inconsistent, elements. This thinking would challenge, not the idea of inconsistency, so much, as the process of drawing bundaries or separating distinct units of whatever is being discussed. It would say separation is artificial ('undercomplex') and ignores the complexity of the real world, where everythingis really a matter of degree rather than of sharp boundaries.

' \t turns out to be a very western idea (not articu-lated as such elsewhere), and it has been said, for example, that <it is very misleading to transfer a concept that is indigenous to eighteenth-century Europe to India and say that Indians believed in tOleratiOn'.40

So toleration doesn't seem to be the right word, or right concept, in describing the complexity of major legal traditions. They are complex, not because they are tolerant, but because they build real bridges. '

categorically

construct a middle ground

).The better notion seems to be one ofinterdependence, or of non-separation, a

I (toleration not neutral response since permits 'continued private morai hostility').

'B \t turns out to be a very western idea (not articu-lated as such elsewhere), and it has been said, for example, that 'it is very misleading to transfer a concept that is indigenous to eighteenth-century Europe to India and say that Indians believed in toleration'm
So toleration doesn't seem to be the right word, or right concept,in describing the complexity of majorlegal traditions.'Ihey are complex, not because they are tolerant, but because they build real bridges. . They don't just tolerate,

categorically

(toleration not neutral response since permits 'coutinued private moral hostility')

construct a middle ground

.The better notion seems to be one of interdependence,4l or of non-separation, and t

. If there is interdependence, and hence sharing, there is commensurability. Incommensurability has no place,if it has a place anywhere, within complex traditions. They are complex traditions because of their ability to overcome arguments of incommensurability, and to hold the larger tradition together. And if there is no incommensurability within a tradition, if all of its elements are constantly engaged with one another-in conversation, dialogue or argument-then there is no place for the indecision of relativism. Complex tra-ditions do not allow you to say, 'I cannot choose between these two irreconcilable, inommensurable positions'. The complex tradition tells you they are notirreconcil-able; that they both have a claim to your loyalty; and that there are a large number of reasons (which you must consider as an adherent to the complex tradition) for deciding in a way which may favour one or the other of them, in the circumstances of your case. Complex traditions thus do not acknowledge relativism because they cannot.

A tradition which is internally complex nevertheless maintains some form of exter-nal coherence.

'fhey have identities, if not precise boundaries,

There is, however, alarger and more important wayin which the nature of a complex tradition affects the relations between complex traditions. The theoretical teaching of tradition in the west has already stated that any contact between traditions involves exchange of information.If something is known to be out there,it is already in here.43 The simple existence ofinformation derived from another complex tradition thus blurs the distinction between the two traditions. Moreover, if the information is in here, it beaomes subject to the multivalent, bridging, complexity of the receiving tradition. It nust be dealt with. It may be the object of rejection (requiring reasons),limitation, accommodation or even adoption. The complexity and multivalence of the receiving tradition prevent the information from being somehow, simply, walled off or cabined.
What this means is that complexity and interdependence is not a phenomenon which is purely internal to complex traditions. Complexity and interdependence ssarily characterize the relations between complex traditions as well. How can a complex tradition, composed of multiple, competing sub-traditions,informed by lat-eral traditions shared with other traditions, and existing as a complex tradition only because of its ability to bridge multiple, simple traditions, somehow renounce its com-plexity in favour of a single, universal truth? This is what fundamentalists seek to do (in alltraditions). They elevate one truth, or one tradition, to exclusive status, and seek to impose it.44 Fundamentalists may thus act in an imperial or aggressive or violent rranner.In so doing,they do not reflect the entirety of their own tradition. Nor do they represent a truth which has the potential of becoming a major tradition in the world. It is, as interpreted,insufficiently complex to attract support across the wide range of tuman opinion.Complex traditions are therefore by their nature,andin theirleadin9 versions, non-universal and non-universalizingJhey offer many grounds of accom-modation with other complex traditions. The larger and more complex the tradition, the less dangerous it is for others. Fundamentalism is always, and necessarily, a lim-ited phenomenon and a limitedthreat,<s

voluntary

('the terrible simpli-cities of fundamentalists of various persuasions'); and for fundamentalisrn as a failure of irony, in its trad-itionalsense of placing statements'in relation to some kind of "other" truth:whichis what traditions require (a nd which does not entail relativisrn), S. Prickett, N

. Chthonic 1aw is used to criticize civil and c*mmon law dealing with the environment.Islamic law criticizes civil and common law jurisdictions for their treatment of the poor and the persecuted; western lawyers criticize islamic criminal sanctions and its limits on human expression and speech. Tdnudic law knows that the law of the state is law, and may even incorporate some of it, while itself being cited as a different (and perhaps better) model oflaw than state law. Civil and common law jurisdictions 'borrow' from one another, or create 'mixed'jurisdictions

Where is the core of any of these major traditions which could supplant all the law of the rest of them? 'Ihe answer uld appear to be that thereis no such universalizable core.'Ihis is good news for the sustainability of the major, complex,legal traditions of the world.

('Militants ...
are their own worst enemy'
{terrorist networks 'symptoms, not significant historic agents'); and for'deterioration' of Islamic legal tradition under 'puritan orientations', historical ejection of extremist groups from mainstream lslam, eventually being treated as 'heretical aberration:

Yet nultivalence provides an ongoing stability for major traditions which is lacking in the case of simple or minor ones, or in the case of various legal'movements'. Multivalence allows for movement within the traditionitself, such that disaffectionin one ofits branches does not imply exit on the part of those disaffected, or an overallloss in adherence to the major trad-ition.It is the advantage of the big tent.

? These doubts-which multivalence welcomes-are rein-forced in the case of relations between major legal traditions by the strength of the arguments which each of them raises. 'Ihey all represent truths-ecological ones, religious ones, ethical ones, rational ones-and each represents enormous effort over a verylong period of time to give effect in human lives to these truths, So each major, complexlegaltradition provides something to the world which the others do not> and probably cannot, and each eventually comes to recognize this. T

They each remind us of something important; they each nust qualify andlimit their own teaching (the cost of complexity); theyeach provide social ordering in the world which the other traditions may be unable to provide;they each contribute to necessary diversity.49 So legal diversity looks like it will be with us for along time. It is sustainable, and perhaps there should even be efforts to sustain it.

. 'Ihen it is likely that a great deal of damage would be done,in order to ensure the eventualdominance of a single tradition in the world. There is, moreover, considerablelearning (survival of the fittest, competition theory) which suggests that we are all constantly in the process of attack or self-defence and

S. Strictly speaking, tradition is not replicated, since it is never transmitted exactly as it was received.

Traditions are agents or factors of change and innovation.

t the loss of any of them would be aloss to all the others, which would then lose a major source of support, or atleast of self-interrogation.It means seeing all traditions as one's own,in some measure, since each is dependent on the others.

ualistic traditions may borrow, and use, informal notions of normativity to complement themselves. Collectivist tradi-tions may borrow, and use,instruments of self-empowerment, again to complement themselves.

more loyalties claiming your attention.

the other is less obviously and clearly the other.

e. Multivalent thinking tells you, however, that these oppos-ing principles really only serve to define the field of play. 'Ihey tell you where to find the middle ground, and there is always a middle ground. To find the middle ground you need more information. You need the detailed information which disintegrates boundaries (it's just like quantum physics).

. In other legal traditions there are no facts, just sacred or vital ways of life, which have their own, internal normativity. If you know enough of what went on, goes the argument, a solution will eventually suggestitself The solution willbe for this case, which willhave inspired its own form of resolution. So the more you know about your dispute, the more you will be able to map where it is in the mid-dle ground and the closer you will be to having the parties recognize the middle ground. 'Ihey will be better informed. Increasing the information means reducing the conflict.

allowed a zone of latitude in the measures they take in protecting, or threatening,

European st tate'

, but it is recognized that the margin of appreciation may be 'wide' or 'narrow' depending on the particular right invoked,and presumptive conclusions may follow from the breadth ofthe margin rec-ognized.

Rights are not absolute; they are fuzzy or indeterminate and require specification in individual cases.s"

(content of human rights 'poorly determined').

Yet rights in western thought are not absolute, are often denied (as in English

t there are alternatives to rights in other tradi-tions, which are advanced with as much persuasion and as much intensity, as means of advancing human dignity.

*, ?arties to the Convention willexchange furtherinformation by way of persuasive authority on how they have resolved particular disputes in the middle ground. 'Ihe Rome Convention has naturally beeninfluentialelsewhereinlaw reform.Itis a Convention which accepts (not just tolerates) opposing views and defines the information needed to function in the middle ground.Itis an instrument which deals, not with the conflict oflaws (they are disintegrated), but with the conciliation oflaws, conciliation being a primary fea-ture of multivalence.

there are many places in the middle ground,

. Recognition of manylegaltraditions is facilitated, moreover, by their non legislative character; they do not purport to occupy the legislative fieild of state law.


... here ends GLENN

----------------------