Reading Activity 1.1. Traditions relate to the law and to how the law is interpreted. In Chapter 2 it is presented that legal traditions borrow from other traditions, and sometimes impose themselves on other traditions. The definition of tradition requires some understanding.
Four traditions in the legal genre are: civil law, common law, Islamic law and Asian law. Knowing how one law differs from another is key to getting a grasp on the commercial use of common law in the UK, on why commercial law in Germany is part of their civil law.
When Glenn talks about “tradition” in chapters 1-32 these are not narrow concepts but rather broad traditional practices. The material is not refereeing to traditions like they have in some European countries (putting up Christmas decorations on December 6 and taking them down January 5) but rather a generalized “Christmas tradition” per se.
To elaborate, people (societies) are part of tradition in their own unique ways. Traditions are created out of “pastness” (building up, developing over time), and importantly, there are oral traditions as well as legal traditions and oral traditions, while very different than legal traditions, weigh heavily in the carrying on of traditions. What’s the reason for traditions? Traditions are basically information that is carried through generations of people. Information gets exchanged between people and a certain social order evolves. They are not pure and clean as the driven snow, because they can be altered, twisted, and corrupted, simply because they are not stable, they are not written in law, and they are in flux as the years pass by. In other words, traditions are not immutable because they do change and adjust to social changes.
The way traditions are passed along is through “traditio” — which is the actual communication, the information about the tradition that is conveyed generation to generation. There are racial and ethnic traditions, and traditions that have to do with one’s nationality. The quality and style of the transmission of information about the tradition determines how persuasive the substance of the tradition appears to be. A tradition can be very powerful but one tradition in particular is not likely to dominate the world because there are many traditions that are thriving and growing with time. When individuals resist well-known traditions because “human reason” seems more appropriate at the time than the tradition, this becomes destructive.
Why study comparative law? The world is shrinking, globalization is linking people faster and more substantially with one another from China to Miami. Just because one’s legal system doesn’t allow the flexibility of another legal system is no reason to shut to door to understanding. The following takes a focused look at four legal traditions.
Civil Law: Federal Republic of Germany (will be discussed further).
Common Law: It is the “whole law” in England, the U.S. (Delaware in particular) and Australia. It should be noted that since England is a member of the European Union (EU) there are laws that pertain to all the nations in the EU that change England’s laws somewhat. But in historical context, Common law began to be practiced in England in 1189, and one pivotal feature is that the judiciary is independent of the political infrastructure.
Islamic Law: applies specifically to Saudi Arabia. Glenn asserts that Islamic law does not have any major impact on English institutions (will be discussed on following pages).
East Asian Law: The People’s Republic of China (will be discussed on following pages).
Civil law, common law and Islamic law are important to the concept of globalization because so many companies and social groups are moving from one state to another, laws that pertain to those groups and corporations in their home locations are not applicable to them in their new location. Laws that overlap are nonetheless laws that should be understood at any point on the planet. Regionalization is laws relates to the same issues as do globalization of laws, only on a regional basis rather a worldwide basis. When a cultural group — or political group — moves to another place, that movement is a diaspora, and it is part of why globalization and regionalization and the laws that apply within diverse global communities should be understood.
Reading Activity 1.2 (Civil Law and Common Law). Among the glossary terms of 1.2 is an important legal-themed one (“Reception”) which means laws from one society are sometimes put in place in another society. When England developed its many colonies (including the early American colony) it’s laws were put in place in those colonies by reception.
Meanwhile, Civil Law is the subject of Glenn 133-180; it was developed in the 11th century in Europe; today civil law in France doesn’t match up with the application of civil law in Germany, and therein is the dynamic that those studying law must grasp. Germany originally embraced Roman law (coded “Burgerliches Gesetzbudh” or BGB) and not much has changed with that code since the late 19th century. The code has five subdivisions: general code; law of obligations; family law; law of succession; and the law of property (or “things”).
The distinctive features of the civil law tradition include: separation of powers between judiciary and political infrastructure; civil law is constantly being interpreted, revised, challenged; civil law (a contract emerges out of an “abstract act of the will”) departs from common law (in common law a contract emerges out of a bargain). Civil law can best be understood by examining laws enacted by the European Union, in fact the laws that have been launched by the EU (in some cases) tend to supercede laws within individual European states albeit the sovereign states’ laws does allow for multiple identities in the EU. By joining the EU a state is not asked to give up all its codes and civil laws.
The tradition of common law has been incorporated into “host countries” in the developing world, however in places where it has been exported “institutional corruption has assumed massive proportions” (judges can become loose canons in countries that adopt western law). Distinctive features of common law include: it allows appeals of court decisions (through the court of appeals); the judiciary is independent (an important tenet of democratic institutions);
Reading Activity 1.3 Islamic Law. The Islamic law is called Shari’ah, and was originally laid out in the Koran, but besides the Koran there were other sources that established what the law should be in Islam. Still, there is a great deal of religion interwoven into Islamic law. The Mufti is the legal expert and his legal opinion is a fatwah. The entire structure of Islamic law is “fluid” and adjusts to local cultural dynamics. The identity of Islam while complex, is linked to Islamic law. Saudi Arabia, the largest of Arab countries, is an absolute monarchy. Are the legislators in Saudi Arabia able to create law? Apparently not, because “Basic Law” relates to the power expressed in the Koran. Courts in Saudi Arabia are Shari-ah courts — and the king through “Royal decree” appoints the judges within those courts.
Interestingly, because people of Islamic faith live outside of Muslim countries, they nonetheless can still adhere to “Islamic Law” in a religious and spiritual context although they are beholding to the political laws in the jurisdiction where they reside. The Koran becomes a personal law to be followed by believers. In the world of Islam, Jihad has a number of interpretations: essentially it means “struggle” or “striving in the way Allah” has commanded; it refers to (in the traditional sense) struggling to maintain faith, struggling to make the Muslim society improved; and it refers to the struggle in a holy war. Radical terrorists have used jihad to justify the launching of violent acts against Western societies.
Reading Activity 1.3 Asian Law. Unlike Islamic law, there are very few religious dogma tied into Asian law. From the 3rd Century B.C. Confucian li (that part of life that is not governed by strict public law is considered li) was the principle legal dynamic (Confucianism is more philosophical than religious). Fa is the public law that deals with crime and the public administration of society’s business. In China, the debate between Confucianism and legalism has lingered for centuries. Confucianism embraces “cosmic harmony” which doesn’t sound like any legal principle that a defense lawyer could invoke. But Confucianism remains a key part of Chinese legal theory and it: has distain for “positive law”; emphasizes education over punishment; focuses on the li (natural morality); asserts that family and relationships are vital to society. Opposite Confucianism in China — the “legalists.” They believe in heavy penalties when behavior is antisocial; they see a need to set standards of behavior because humans will act based on their own interests rather than doing the “moral” thing.
Chinese communism has its own narrowly defined law. The National People’s Congress (NPC) writes the legal particulars — and the policies guiding the political establishment — and the Standing Committee has some power to amend laws. The NPC, importantly, controls both legislative and judicial functions — true to the consolidation of power in communism. When discussing the Chinese judiciary, one must understand there are no juries, only judges; and hearsay is admissible as evidence, unlike the civil tradition. However, in keeping with civil tradition, evidence obtained from documents carries more weight than oral testimony. The judge in a Chinese court is not interested in defending laws, their interest is in defending the interests of the communist state and the socialist system.
Module 2 — Legal Research
Primary and secondary sources (2.11) and Keywords (2.1.2). Sources used in legal research are primary and secondary: primary research emerges directly from legal opinions, legislations, treaties or case law; secondary sources are commentaries about the decisions from journalists, lawyers, scholarly journals, and textbooks.
Things to look for in conducting research include the right keywords, without which search engines are not pointed in the right direction. Looking through legal materials can help locate those pivotal keywords like “family law” and “divorce.” Those are broad keywords, and they work better than narrow keywords that zero in too specifically.
Also regarding keywords and research, by using truncation (placing a symbol at the end of the keyword alerts the search engine that you wish variations of the word presented) one can enhance the harvest of the search. Using Boolean connectors (“and” / “or”) and proximity operators (incorporating a slash within the keyword phrase like “company w/4 director” rather than “director of the company” works well in retrieval in many databases). Being willing to try different approaches — like broader searches — is a good way to find what one wants to find.
Without discerning the reliability of the source, or the validity and accuracy of the source, the researcher is in the dark. Hence knowing the author (and researching his or her authenticity), knowing the date the material was published, and the point-of-view of the narrative and data is paramount to believing in the veracity of the research. Knowing how to best utilize databases in library Websites is another key to locating valid and valuable research documents. There are familiar databases that virtually all universities and colleges use — like EBSCOhost, Academic Search Premier, among others — and then there are regional databases, and databases such as DatAnalysis (providing company information not available on general databases).
Online legal databases are a very good source of information — the best available when it comes to legal issues. Accessing these databases requires very little skill, just following directions. Once into the database, the person searching for legal documents should understand the difference between browsing, searching with a phrase, or searching with a keyword. The use of legal encyclopedias (Halsbury’s Laws of Australia — found through LexisNexis AU — and the Laws of Australia — in Legal Online) are available and using keywords or subject areas (using +) is the operative strategy.
Lexis.com opens the door to the Martindale-Hubbell (R) Law Digest — and once in the database the particular region to be searched can be accessed. The richest reference material can often be found through scholarly journal articles, and thousands are available through the . Keywords are vitally important in the search for journals that are pertinent to the issue sought. Often abstracts or summaries of important academic journals are available, and can be perused prior to downloading the entire document, which may turn out to be 50 or more pages.
Information relative to all aspects of law (relative to Australia, New Zealand, and Pacific law) can be retrieved through the Attorney-General’s Information Service (AGIS). One can use keywords incorporating Boolean connectors in the AGIS database; the drop-down is self-explanatory. A good tip in one’s research is to print out all of the journal, even though two or three pages at the end may be bibliography; from the bibliography one finds available a number of academic sources that may link to or dovetail with the research underway. The HeinOnline database offers a wealth of legal data, articles, and documents; once in the database click on “Law Journal Library” link and pull down the “Field Search” link.
The ability to search within a search exists for individuals using the HeinOnline database; use the links “Search Within These Results” and “Refine Your Search” to proceed. Another worthy database is Lexis.com; this offers legal materials from Australia, Canada, the UK and the U.S. Once into Lexis.com the link to use is “Law Reviews & Journals” — this is found under the “Secondary Legal” heading. Again, Boolean connectors, truncation and proximity operators will work in Lexis.com.
What if the search turns up the abstract or an introduction but not the full text? There is generally a button indicating that the researcher wishes to download the “full text” — but if that doesn’t offer full text, searching through another database is required. Look not for the title of the article but first locate the journal and then search within that journal.
Locating academic materials relating to Commonwealth legislation — look in www.comlaw.gov.au and select “Compilations” under the Acts heading (“Acts” refers to legislation). When searching for legislation specific to Queensland it is accessed through www.legislation.qld.gov.au/OQPChome.htm.
What about foreign law? The Lexis.com site (at the lower right hand portion of the home page) offers a link called “Foreign Laws & Legal Sources” — and all or most of the countries that provide legal materials can be accessed there. Once into that country’s journal area, the keyword approach is vital; when a long list, seemingly endless list pops up, narrow down the keyword to a more specific phrase or word.
For Chinese law cases, the database to use is iSinoLaw; once in the database click on the primary resources tab. There the resources include: Constitutional & National Laws; National People’s Congress; Court Judgments; Civil & Commercial Cases; Judicial Interpretations. These are primary sources, very important for scholarly papers. The secondary sources tab brings the researcher to the following: Legal News; the Introduction to the China Law System; and Contract precedents.
The “specialized sections tab” on the iSinoLaw database offers access to: Company Law; Contract Law; and Family Law. Those are headings that when accessed opens up the door to a great volume of materials that are pertinent to the headings. If there seems to be a problem in accessing exactly the documents needed, use “within these results” to search only within that particular section.
Internet Law. Much of the information on the Internet — in fact the great majority of Web sites and information — is non-scholarly and suspect when it comes to needing valid data or reference work. But once in a bona fide database like www.Weblaw.edu.au, the materials available are assured to be valid and scholarly (with rare exceptions). When the URL ends with .gov (that is a government site) the information should be totally dependable as far as reliability and authenticity.
However, one should be cautious when the URL ends with .edu or .ac. The fact is that .edu and .ac are educational sites; however, because some of the information may be from a university class that has done its own research and under the professor’s guidance, it does not guarantee that the research material is empirically proven. Nor does it mean that it can be quoted as a valid scholarly source. It could be a person site of an instructional aide, for example, and hence, not an academic source that can be referenced with full confidence.
Professors won’t necessarily accept .edu research as valid if they require “scholarly, peer-reviewed research” only. Meanwhile, a URL ending with .org just means it is an organization, and offers nothing in the sense of scholarship or verifiable opinion. A URL ending with .org could be a neo-Nazi Website, or a pornography site, or just a car club for Corvettes.
When a URL ends with .net the quality and validity of the information varies wildly, and like .org it offers no assurance of being a site that a university student can use while engaged in deep research. The URL that ends in .com or .co means that the site is probably commercial in nature and there can be no assurance that its substance will provide worthy research information.
The .au (Australia), .cn (China), .de (Germany) and .uk (United Kingdom) are simply indicators of where the Website is located on the world map.
Other Websites of value in legal research. The www.worldlii.org Website offers a number of valuable tools relating to many countries. Once in the site, select “All Databases” in the left-hand menu and additional links for each country are conveniently available. The Boolean connectors are useful in worldlii.org, but proximity operators are more effective than Boolean connectors; between the two keywords that are being used in worldlii.org the researcher should type in “near” — this will help locate the words or phrases within 50 words of each other.
World Law Sites / Portals. The Harvard Law School offers foreign links: http://www.law.harvard.edu/library/research/guides/int_foreign/web-resources/metapages.html.
WashLaw (legal research with worldwide relevance): http://www.washlaw.edu/forint/
The Law Library of Congress — Nations of the World:
FindLaw resources (by jurisdiction):
New York University Law Library — Foreign Collections by Jurisdiction (some of these may require the user to pay a fee:
Lexadin (world law guide): http://www.lexadin.nl/wlg/legis/nofr/legis.php.
Megalaw International Law sites: http://www.megalaw..php.