Return to Home Page 1997 A Cultural Perspective of Legal Systems THE VIEW OF LEGAL SYSTEMS BY THREE MAJOR CULTURES Three basic legal systems in the world exist: the common law system, the civil Law system, and the Islamic legal system. As the world becomes smaller due to communications, transportation and technological improvements, the world can be divided into three cultural groups, North America, Europe, and Pacific Asia. We will be viewing the cultural aspects of the legal systems in these three regions. North America, specifically the United States and Canada employ the Common law system which will be described in more detail below. Pacific Asia, Japan and Korea for example follow the civil law system. In Europe there are two forms of legal systems which are used, in England only, they follow the Common Law system, whereas in the remainder of Europe they employ the common law system. This paper will explore how these legal systems fit into these three cultures and what conflicts may arise in a cross cultural encounter. As trade increases in this region there will be a greater need for awareness of the cultural views of the legal system in these cultures in order to maintain good business relations and to avoid unnecessary cultural clashes. The Islamic legal system is based entirely on the Koran and is completely intertwined with the Islamic religion and culture, it will not be considered for purposes of this paper. Western Culture's view of Legal Systems. The common law system is one which comprises the body of those Principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgements and decrees of the courts recognizing, affirming and enforcing such usages and customs.(Blacks Law Dictionary p189). This legal system is derived from the unwritten laws of England which were in time incorporated formally into the legal system of England through the written decisions of the courts, affirming said customs. In general the courts of appeals and the United States Supreme Court publish their opinions setting forth legal precedents which must be followed by lower trial courts. Because England was a Colonizing nation, many of its former colonies retained the English Common law system, such as the United States of America, Canada, and Australia. Each of these countries has a different cultural interpretation of the place for the legal system in their culture, however for our purposes we will focus on the American culture to evidence the cultural aspects of the common law system in North America. The United States Government and its legal system are based on the foundation and the principals of the Constitution of the United States of America. When the constitution was written, the Unites states had Defeated the British and was having internal problems due to the fact that there was no central government with sufficient power to keep the states together and to lead them forward. The constitution was drafted to avoid many of the problems the people saw with the British rule over them, so they adopted several items to allow for the maximum protection of citizens. Criminal Legal System The Rights of the accused are addressed specifically in the United States Constitution. The idea that a person is innocent until proven guilty stemmed from the idea that the government should not have such great power to imprison its citizens without due process of law. The criminal system in the United States is based in on these principals as interpreted by judges in written decisions. In the United States the government has the burden of proof to establish the guilt of an individual accused of a crime. This burden is beyond a reasonable doubt, the highest burden required for any type of case. This stems from the fact that the constitution stands for the protection of freedoms and the right to life liberty and the pursuit of happiness. Before the government can interfere with your right to liberty, it must meet this ominous burden. In American culture the legal system is often viewed as ineffective at dealing out justice, because there are often persons who may seem obviously guilty, who are able to avoid punishment by use of technicalities and expensive lawyers. What the public at large does not realize is that the framers of the constitutional intended it to be difficult to find someone guilty of a crime because of the tyranny they had faced under British rule. (Const. Law book) The federalist papers describe the way the criminal system should work, stating that it is better for one hundred guilty men to go free than for one innocent man to be imprisoned. And as a result the American criminal system if often criticized for its protection of criminals (disregarding the notion of being innocent until proven guilty) and that it ignores the rights of the victims of crime. These criticisms seemed to take life two years ago when O.J. Simpson was tried for the Murders of his former wife Nicole Brown Simpson and Ronald Goldman. This trial was televised live so the American public could see all the evidence presented by both sides. The public was exposed to more evidence than the twelve jurors who decided the case. When the jury found O.J. Simpson not guilty, the American public seemed to have its suspicions of the criminal system confirmed. If you can higher a million dollar team of attorneys to defend you, you can beat the system. The public could not understand the legal principals and the fact that the jury was only allowed to see a portion of the evidence which was presented on television. Unfortunately the American public views the criminal system as one in which poor people who cannot afford their own attorney are doomed to face maximum punishments while the affluent can pay for attorneys to get them off. Furthermore, the image of attorneys in the United States is further tarnished by these views of the legal system. Civil Legal System The civil legal system in this sense refers to the judicial process by which private disputes are resolved. By private disputes we mean disputes between two or more individuals, or entities, or an individual or entity against the government. Not to be confused with the civil Legal system which is derived from civil codes which will be described in more detail later. The United States of America is the most litigious country in the world. It has the highest number of lawyers per capita than any other country. This reality has become reinforced that it has been ingrained in the American Culture. In the United States the it is not uncommon for someone to say "so sue me" when they make a mistake or are unable to fulfil a personal promise of little monetary consequence. The number of lawsuits filed grows each year as more and more people refer to the courts to solve their disputes. The types of cases tried as civil lawsuits range from divorces, to contract disputes, to personal injuries, to property to probate matters, in short anything that is not criminal is civil. Although there are many cases filed in the courts only ten percent of all cases are go to trial and an even fewer are appealed. The American court system is congested with lawsuits, both civil and criminal in nature, causing there to be a considerable amount of time from the filing of a lawsuit to the actual trial. Because of the rights of the accused, criminal cases take precedence for expedience, that is to say criminal cases must move fast, and civil cases can wait. As a result, the public again criticizes the legal system as being inefficient and that there are too many unfounded lawsuits. While it is true that there are many law suits filed, and that there are often delays in getting to final trial, there are mechanisms in the courts which punish bringing of frivolous law suits including sanctions to the party and/or the attorney. Unfortunately for lawyers the general public is either not aware of these safeguards or do not care to hear that they exist. In the United States to initiate a law suit one must file a petition or a complaint with the court of proper jurisdiction. The person initiating the suit is called the plaintiff. Then a notice or citation is serves or delivered to the individual being sued known as the defendant. The defendant has a limited period of time in which to respond to the petition, in the form of an answer which must be filed in the court within this time. Failure by the defendant to respond may result in a judgment against him by default. Once all the parties have filed their appropriate pleadings, a second process begins known as discovery. Discovery consists of exchanging evidence through the use of the following techniques which can be used independent of one another: Interrogatories or questions requesting specific information about the case; Requests for Production, which are requests fro documents, photos or other tangible things which can be used as evidence or which would lead to the discovery or evidence which can be used in court; Requests for Admissions which ask the opposing party to either admit or deny the statements propounded; and finally Depositions, in which testimony of a witness is perpetuated in the presence of a court reporter who takes down all that is said, and which has the same weight as if stated in the court room. Once discovery is concluded both sides know the strengths and weaknesses of their respective cases and they can determine if they should proceed to trial or to make an offer of settlement. Most cases settle between the discovery process and the beginning of trial. In America, more specifically in Texas, the trial process begins with the "selection of a jury." The idea of selecting a jury is a misnomer in that the jury panel is not selected by the attorneys, rather the attorneys select within their limitations, who will not serve on the jury, and the remaining persons are the jury. Once the jury is sworn in, the Plaintiff will begin its case by making an opening statement in which they will describe what they intend to prove in the case without any form of argument. The defense then has its opportunity to do the same. Once these statements are concluded, the presentation of evidence begins. The Plaintiff who has the burden of proof goes first and presents its witnesses and offers evidence and testimony. The Defendant will cross examine these witnesses and may offer objections to evidence at this time. When the Plaintiff has presented all of its witnesses, the defense may ask for the court to direct a verdict and/or proceed with its witnesses. A directed verdict is when the plaintiff has failed to prove each element of its case and as a matter of law, the Defendant is entitled to a judgement in its favor. When the Defendant presents its evidence and witnesses testimony, the Plaintiff likewise has an opportunity to cross examine and offer objections. Once all this evidence has been put forth, the court reads the charge to the jury which gives them instructions to follow and questions to answer regarding the case before them. Once the charge is read the plaintiff and defendant make closing arguments. At this time the parties argue the evidence that has been proposed to the jury and their theory of the case. After the jury hears these arguments they deliberate and return with a verdict. The court will read the verdict at this time and unless it goes against the evidence presented or there are serious misinterpretations of the law involved the court will enter the verdict as its judgement. After this the appeals process will begin, however for our purposes this the appeals process will not be discussed. The same basic frame work of events is used in the common law system with some minor modifications for each country. Further this is also the same framework for a criminal case as well. The American culture places little trust in friendship, honor, and a persons word because it relies on its low context to have what is said mean what is said and nothing more and nothing less. If there is a discrepancy, people are ready to have the court decide for them. Although in general Americans complain about the legal system, they never hesitate to initiate litigation when they have a problem. Alternative Dispute Resolution In the past ten years, as reaction to the high incidence of litigation in the United States, legislatures began enacting statutes authorizing the courts to order alternative forms of dispute resolution, such as mediation and arbitration which have been used to a greater extent in international transactions and litigation. In the past decade more and more attorneys have begun to see the advantages and potentials of alternative dispute resolution. The two basic forms are described as follows: Mediation, in which a neutral third party facilitates negotiations between the parties in order to reach a settlement, and Arbitration in which the parties present their cases to a neutral third party or a panel or third parties whose decision is usually binding on all parties. The process of mediation consists of all parties meeting together with the mediator and putting forth their side of the story and laying their cards on the table. Next, the parties caucus and the mediator goes from group to group discussing the weaknesses of each case and exchanging offers of settlement. One of the benefits this form of dispute resolution has to offer is that the parties retain control of the case and they determine what settlement is entered into, where as at trial, the parties put their case into the hands of twelve strangers. Mediations often allow the parties to reach a settlement or lay the ground work for further negotiations with in turn will lead to a settlement. Arbitration is a process by which the parties present their case to a third party or a panel of third parties. This process is similar to that of a trial, with less formality. The arbitrators are often attorneys or former judges. The parties can present evidence with and testimony with few objections and can even present testimony by providing deposition transcripts instead of presenting live witnesses in order to reduce the time it takes to conduct the entire trial. A decision often takes longer to make than a jury trial, however there is usually less time involved in getting to the arbitration and the mediation. Effect of Corruption in legal system The United States in general has a very low incidence of corruption in its legal system, although there are many events which can appear to be improper. In some states judges are elected as opposed to being appointed as they are in the federal system. When a judge is also a politician, there can be external pressures involved in deciding a case before the court. These pressures include reelection, campaign contributors interests, and the like. There are ways a judge can avoid the appearance of impropriety, by recusing oneself from the case. In general and overall in the United States, corruption seems to be regarded as rare or very secretive. Asian Culture's view of Legal systems The Asian Legal system, specifically Japan's as it is now is not a result of cultural, and legal evolution as in Europe and America. The Japanese people had always had the rule of law imposed on them, either by their rulers or by their occupying nations. In general the Rule of Law was imposed on the people by the elite. The Japanese system is based on a set of norm and sanctions for violating such norms. Much like European Countries, Japan subscribes to the Civil Law system. There was an integration of both eastern and western ideals which in the last century as both trade and war had increased Japan's exposure to the west. Many western ideals and legal principals were shared with Japans norms so the integration was successful. Japanese culture has strong tendencies towards conflict avoidance, loyalty, and self control. These cultural tendencies are a differentiating point between Japanese law and American law. American law is the primary if not the only source of social control, whereas in Japan, there is a cultural trend towards self control. There is a myth however that the Japanese reluctance to litigate is an attempt to gain a national identity of a modern nation with harmony amongst its citizens. This idea is likewise fostered in the United States in which litigation is the highest in the world, its citizens look for a low conflict nation. There are however several factors that account for the low incident of litigation in Japan other than aversion to formal adjudication. In Japan there is no jury system and the career judiciary with frequent transfers which has fostered a great uniformity of result in litigated matters. In Japan as in other civil law nations, there exists the belief that justice requires certainty with consistent and equal treatment of similarly placed litigants. Therefore judges with similar cases meet regularly and compare notes to insure they are applying the same standards and reaching similar outcomes. Due to this, potential litigants are better able to calculate the value of the claim and have a greater incentive to settle rather than to incur costs of litigation. This is in sharp contrast to the American courts that offer "casino justice." This is the view of the Japanese and of other civil law nations towards America. Thus the Japanese may have a degree of certainty of result which discourages litigation. In Japan as in other civil law countries, there is a registry system for real property and family relationships which preclude the need for litigation in a wide variety of cases. Adoptions, divorces, real property transfers and succession for the great majority of cases can be handled with the need for court proceedings, thereby reducing the number of cases in the court system. By contrast in the United States, all divorce is based on judicial decree, hence litigation. The same applies to adoptions, succession or probate, and to a certain extent real property transfers. Elimination of a large number of simple routine cases results in reduced litigation overall. Mediation in Japan is another important litigation avoiding technique which is employed. Mediation in Japan is handled similarly to that in the United States but with additional requirements. To be effective the mediator must be someone who is not only in a position of power or authority over the parties but also who is willing to exert their influence on both sides. In the United States this would be extremely difficult to find a mediator with those characteristics due to the highly diverse, highly mobile and egalitarian society of the United States. In Japan however with a more homogenous, hierarchal society, there are several mediators available. Mediation in Japan as a result is more like a parent settling a conflict among two siblings than merely an objective third party trying to communicate negotiations between the parties. One further explanation for the low incidence of litigation in Japan is their interdependency. There is less likelihood of having a need for litigation between persons who have ongoing relations such as family or business partners, than with strangers. The Japanese tend to do business with those who they have established relations with, and they rely of those relations more that they rely on contracts or courts. The fact that many business dealings have family ties precludes the resort to the courts in many more instances than in the United States. Japan has more avenues for resolving conflicts without resorting to litigation whereas the United States relies almost exclusively on litigation and direct intervention by the government to resolve disputes. European Culture's view of legal systems. Civil Law The Civil Law System is one which most European Countries as well as Pacific Asian Countries. This system of jurisprudence stems from that held and administered in the Roman empire comprising the institutes, Codes, Digests and Novels. This system relies almost entirely on statutes and codes which are established by the legislatures of the different governments. These codes are rigid and describe the elements of a cause of action, and the remedies available. The court then will see if the facts presented have the elements necessary to be a cause of action and if so, they will award the directed remedy to the prevailing party. The advantage of this system is that a person will know if he will be successful in a cause of action most of the time. However when the facts do not fit perfectly the party may be without recourse until the legislature enacts further laws and remedies which specifically address his problem. The basic framework of the civil law system is the same as in Japan, however the cultural ideals are different. Europe has a history of monarchies which were replaced by more democratic forms of government. These countries have likewise has wars among themselves and been conquered by each other at various points in time. These historical events have had the effect of instilling rivalries among the nations yet a familial unity among them as well. This is part of the groundwork for the development of the European Community. The unified Europe is intended to be much like the united states in which the several nations will have borders eased for trade purposes, with an intent to become unified by a common currency at some point in time. Although from an objective view point (such as the United States) it seems a logical progression, for the citizens of the individual nations a complete assimilation into "fortress Europe" is not favored. Although each nation is small relative to the United States, its citizens have strong patriotic feelings towards their country and would not favor the loss of that individuality. The European nations have the same framework as of legal system as Japan. They have their civil codes and rules which cover every incident, however the European culture is more like the United States which prefers to depend on the contracts, laws and the courts to enforce agreements or to determine disputes. Overall, however the European culture is less litigious than the United States. Comparison of these three cultural views There seems to be a spectrum of litigiousness among these three cultures which spans from the west which is highly litigious to the east which has a low incidence of litigation with Europe in the middle. The incidence of crime is similarly proportioned throughout these countries. These two components are as much a result of cultural development as they are legal and governmental evolution. It seems apparent that culture and legal systems influence each other both in development and implementation. Possible conflicts As the world grows smaller and there is greater trade among nations of the world there will be more frequent legal encounters among private citizens of differing nations. Some of the potential conflicts will legal interpretation, choice of Law, enforceability of contracts and judgements, and property rights. As explained above in common law countries the courts interpret the statutes and lower courts rely on those interpretations as precedents. Civil courts do not rely on judicial precedents as much as they rely on statutes. A common law nation is more likely to accept a civil law nations interpretation of a statute than vice-versa. This is because the common law includes statutes whereas the civil law does not have a similar mechanism to account for case law precedence. In international transactions and international litigation the interpretation of the applicable law is important to know before entering into the transaction. Some nations may have more favorable laws for the type of transaction being entered into that others, and therefore it may be wise to designate which laws will govern. Even if there is no distinct advantage to selecting a particular country's legal system as controlling, establishing the certainty of the rules of law that will apply is often advantage enough. With the increase in international trade, there is a heightened need to determine what counties law will apply in order to know what the rules of law actually are. Once the parties to the agreement or transaction have agreed to the controlling law they will know what their obligations are and what remedies will be available it there is a default. There may be some contracts or agreements which may be enforceable in one country, will be completely unenforceable in another if there are clauses in the contract which go against the laws of that nation or against its public policy. Furthermore if litigation is instigated in the agreed upon nation and the party is victorious, there may still be little recourse to the victor if the judgement cannot be enforced in the defeated party's country. There are treaties among nations which describe the guidelines for enforcing foreign judgments, or comity. These judgments are enforced as a matter of custom or courtesy and never as a requirement of law. One key aspect to enforceability of judgements is the idea of reciprocity to courts. In other words if all requirements of the treaty are met, but the court of that country has failed to reciprocate the enforcement of an order, the foreign court will refuse to enforce the judgment. Property rights are different from nation to nation, however for the most part the idea of private ownership of real property is universal. This issue is important when foreign nationals attempt to purchase real estate in the home country. Foreign ownership of real property may be restricted to some extent, but the purchaser must be aware of these restrictions. What is quickly becoming the key law in international business is intellectual property right protection. By intellectual property we refer to patents and copyrights. If a country does not have well established laws recognizing and/or protecting these property rights then it will not have great success in attracting foreign investment because these countries will fear the loss of their property rights and the pirating of their products. The list of items which may be covered can range from computer software to books to pharmaceutical products. Conclusion The three cultures described herein are quite varied however two there are only two different legal systems. It seems quite apparent that the cultural aspects of the nation affect its selection of legal system to a great extent as well as the evolution of the legal principals expounded. While the United States may have a high incidence of litigation and a high crime rate, the culture is so diverse that there is not much else that could be used to resolve disputes. On the opposite side of the spectrum, Japan has low litigation and crime rates, which is due much more to social and cultural aspects that to any miracle of a legal system. It is the cultural pressure and social practices which actually are responsible for this low crime rate and incident of litigation. Europe is in between these two with a similar legal system but with culture more similar to that of the United States than Japan. Upon careful analyses we can glean that each nation has developed its legal system complemented by its culture and therefore allowing for the most effective method of law. It is unlikely that the United States could have a reduced litigation rate due to the diversity of its citizens, just as it is unlikely that the Japanese would increase their litigation to the extent of the United states because of their close relationships and family ties. Each nation has its benefits which fit its needs even though they may not otherwise fit another nations needs. 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