Assessment on "Legal Traditions, and the Relevance to Business"

Assessment 10 pages (3124 words) Sources: 0

[EXCERPT] . . . .

Legal Traditions, and the Relevance to Business

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… READ MORE

How to Reference "Legal Traditions, and the Relevance to Business" Assessment in a Bibliography

Related Assessments:

Multivalent Nature of Legal Traditions 4a Comparison Assessment

Multivalent Nature of Legal Traditions

4A comparison of the bivalent logic and the multivalent logic

The need for multivalence for a legal tradition's stability

How to sustain diversity

In this… read more

Assessment 8 pages (2137 words) Sources: 15 Topic: Law / Legal / Jurisprudence

---

Business Law What Is the Relationship Research Paper

Business Law

What is the relationship between ethics and the law in business?

An association is present between law and ethics. In a number of cases, law and ethics overlap… read more

Research Paper 10 pages (3128 words) Sources: 5 Topic: Business / Corporations / E-commerce

---

Sociology History of Business Science Research Proposal

Delimitations

Today, modern business systems help an increasingly globalized world function in seamless ways. In fact, English is rapidly becoming the lingua franca of the business world and transnational borders… read more

Research Proposal 75 pages (20751 words) Sources: 20 Topic: Business / Corporations / E-commerce

---

International Court of Justice Thesis

Relevance and Effective of the International Court of Justice Today

In an increasingly globalized environment, there is a real need for an international judicial body that can provide the international… read more

Thesis 25 pages (6848 words) Sources: 1+ Topic: Law / Legal / Jurisprudence

---

Comparison Between Russian and US Culture Annotated Bibliography

Global Business Cultural Analysis - Russia

abn amro, (2007). Russia, a promising and exciting business environment. ABN AMRO.

The research and economics department of ABN AMRO has conducted an overall… read more

Annotated Bibliography 12 pages (3930 words) Sources: 24 Topic: Business / Corporations / E-commerce

---

View 100+ more related papers  >>