COMPARATIVE & ASIAN LAW
Prof. Veronica Taylor
Coverage of issues follows about what are the differing
approaches to comparative law (old and new), the traditional take on what
it means to be a civil law versus common law country, current views of legal
development generally, what exactly does it mean to talk about the rule of
law, and issues about what may be special about Asian legal development.
SELECT BIBLIOGRAPHY
Asian Law
Australian Journal of Asian
Law
Asian Law Abstracts (www.SSRN.com)
Benedict Anderson, Imagined
Communities (Verso 2nd ed, 1991)
Drysdale,
Peter and Amyx, Jennifer (eds) (2003) Japanese
Governance: Beyond Japan Inc. New York and London: Routledge.
Timothy Lindsey (ed) Indonesia:
Law and Society (2nd edition) (Federation Press forthcoming,
2004)
Randall Peerenboom (ed) Asian
Discourses on Rule of Law (Routledge, forthcoming, 2003)
Arthur Rosett,
Lucie Cheng and Margaret Y.K.Woo (eds) East Asian Law – Universal Norms
and Local Cultures (RoutledgeCurzon, 2003)
Veronica Taylor (1996), ‘Beyond
Legal Orientalism’ in Veronica Taylor (ed) Asian Laws Through Australian
Eyes (LBC, 1996)
Asian Law and Development
Christoph Antons (ed) Law
and Development in East and Southeast Asia (RoutledgeCurzon, 2003)
C-LIR Handbook (1999) Commercial Legal and Institutional Reform (C-LIR)
Assessments for Europe and Eurasia, Diagnostic Methodology Handbook, USAID
Omnibus II-C: Policy/Legal/Training Contract No EPE-I-95-00071. Task Order
No EPE-I-09-95-00071-00, 15 November.
Dezalay, Yves and Garth, Bryant
G (2002) Global Prescriptions: The Production,
Exportation and Importation of a New Legal Orthodoxy. Ann Arbor: University
of Michigan Press.
Djankov, Simeon; La Porta, Rafael;
Lopez-de-Silanes, Florencio and Shleifer, Andrei (2001) ‘Legal Structure and
Judicial Efficiency: the Lex Mundi Project’ (unpublished revised draft October,
on file with author) subsequently published as (2003) ‘The Practice of Justice’ Quarterly Journal of Economics
Garnaut, Ross (1998) East Asia in Crisis: From Being a Miracle to Needing One? New York
and London: Routledge.
Ginsburg, Tom (2000) ‘Review Essay: Does Law Matter for
Economic Development? Evidence from East Asia’ 34(3) Law and Society Review 829
Thomas B Ginsburg, Judicial
Review in New Democracies: Constitutional Courts in East Asia (Cambridge
University Press, 2003)
Jayasuriya,
Kanishka (1999a) ‘The Rule of Law and Governance in the East Asian State’,
1 Asian Law 107.
Jayasuriya,
Kanishka (ed) (1999b) Law, Capitalism
and Power in Asia: The Rule of Law and Legal Institutions. New York: Routledge.
Kaufmann,
Daniel, Kraay Aart and Zoido-Lobatón Pablo (1999) ‘Governance Matters’, Policy
Research Working Paper 2196 The World Bank Development Research Group, Macroeconomic
Growth and the World Bank: Institution Governance, Regulation and Finance
October 1999: (www.worldbank.org).
North,
Douglass (1990) Institutions, Institutional
Change and Economic Performance. Cambridge: Cambridge University Press.
Pistor,
Katarina and Wellons, Philip A (1999) The
Role of Law and Legal Institutions in Asian Economic Development 1960-1995.
Oxford: Oxford University Press
Naoyuki Sakamoto, Masayuki
Kobayashi and Shinya Imaizumi (ed) Law, Development and Socio-Economic
Changes in Asia (Institute of Developing Economies: JETRO, 2003)
Teubner, Gunther (1987) ‘Juridification: Concepts,
Aspects, Limits, Solutions’, in Gunther Teubner (ed), Juridification of Social Spheres: A Comparative
Analysis in the Areas of Labor Corporate, Antitrust, and Social Welfare Law.
Berlin, New York: De Gruyter
Shahid Yusuf et al, Innovative
East Asia (World Bank and Oxford University Press, 2003)
Comparative Law and its Critics
René David
and John EC Brierly, Major Legal Systems
in the World Today, 3rd ed (1985)
Fitzpatrick, Peter (1992) The Mythology of Modern Law (Sociology of Law and Crime). New York and London: Routledge.
Richard Hyland, ‘Comparative Law’ in Denis Patterson (ed)
A Companion to Philosophy of Law and Legal Theory (Blackwell, 1996)
184-198
Pierre Legrand and Roderick
Munday (eds) Comparative Legal Studies: Traditions and Transitions
(Cambridge University Press, 2003)
Annelise Riles (ed), Rethinking
the Masters of Comparative Law (Hart Publishing, 2001)
Frank K. Upham, ‘The Place
of Japanese Legal Studies in American Comparative Law’ Utah Law Review
(1997)
Konrad Zweigert and Hein Kötz,
An Introduction to Comparative Law,
3d ed trans by Tony Weir (OUP, 1998)
Comparative Law and Globalization
Michael Likosky (ed) Transnational
Legal Processes: Globalisation and Power Disparities (Butterworths LexisNexis
2002)
William
Twining, ‘Mapping Law’ in William Twining, Globalisation and Legal Theory
(Northwestern University Press, 2000) 136-173
William
Twining, ‘Globalization and Comparative Law’ in William Twining, Globalisation
and Legal Theory (Northwestern University Press, 2000) 174-193
Sociology of the Professions
Stanley Fish, Professional
Correctness: Literary Studies and Political Change (Harvard University
Press, 1995)
SUBSTANCE OF COMPARATIVE VERSUS ASIAN LAW
Classifying legal systems:
the 19th century approach
“In 1900, more than half the world’s people lived under colonial rule and
no country gave all its citizens the right to vote. Today three-quarters
of the world lives under democratic regimes” (Financial
Times, Dec 2002, citing UN Human Development Report 2000, World Bank,
World Development Indicators)
Comparative law is a creature
of the late 19th century and the Enlightenment belief that the
world would be better if the major legal systems of the world – at that time
understood as common law and civil law, later with the addition of socialist
law - could be understood and harmonized.
Private law
The ‘project’ of comparative
law was essentially focused on private law, with sub-fields such as comparative
constitutional and administrative law (e.g. Ginsburg, 2003) emerging relatively
recently. Graziadi (in Legrand and Munday 2003:100) argues that this focus
can be explained by a very concrete need in Europe to solve conflicts of law
issues.
Functionalism
Comparative
law was distinguished early by a broad adherence to the ‘functionalist method’
– the idea that law responds to society’s needs; that societies are faced
with similar social problems that require the application of law; and that,
rather than expect identical legal rules to emerge, we should search for similar
problem at which the legal solution is aimed; we can then compare the operation
and ‘function’ of the legal rules or devices in different systems.
The paradigm of functionalism
is well-represented by the classic comparative text, An Introduction to Comparative Law (Zweigert
and Kötz, 1998), which is largely concerned with theoretical problems of contracts
and tort and how to define problems. As Graziadi points out, ‘mistrust of municipal legal categories
is a central feature of this method …National legal concepts are the screen
behind which comparativists locate what is relevant for their research [and]
each national solution “must be freed from the context of its own system”’
(in Legrand and Munday 2003:106)
Legal ‘Families’ and Clustering of Systems
Another key feature of what
we might call ‘classical’ comparative law is its focus on taxonomy – the sorting
of legal systems by type or characteristics. This kind of approach seems to
have been particularly influential in the pre-WW2 period, and draws some inspiration
from turn of the century ideas about extending the classificatory systems
of science to the ‘science’ of law.
The great advantage of taxonomies
is that they simplify and systematize data collection and make intra- and
inter-group comparisons easier. The great danger of taxonomy is that the temptation
to see relationships and similarities obscures the unique characteristics
of the item in question.
For a comparativist pursuing
functionalism, however, systematically assigning ‘characteristics’ to clusters
of legal systems and their legal institutions seemed to make sense. The taxonomy
that emerged was focused on formal, institutional characteristics of law in
clustered ‘families’ of law – i.e. legal systems that were assumed to be similar
because of the similarity of their institutional design features and or history.
Different scholars adopted
different taxonomies; Rene David (1985) and (Zweigert and Kötz, 1998) are
representative. Typical groupings include the common law systems (England
and its former colonies); the civil law systems (France and its former colonies;
Germany and its former colonies; Spain and Portugal and their (Iberian) colonies;
Socialist legal systems (meaning the then USSR and its satellites) and then,
in no particular order, Scandinavia, Africa, the Far East, Islam.
You may see immediately that
these clusters or ‘families’ are themselves not all alike. This is a Euro-centric
project in the sense that the England-France-Germany comparisons are pivotal,
and the focus drops away quite sharply as we move further from Western Europe.
William Twining (2003) has dubbed this the ‘country and Western’ approach
to comparative law.
Note too, that the very distinctive
intra-group differences are collapsed by this kind of labeling. After WW2,
the economic dominance of the United States and the centrality of law and
the legal profession within its economy prompted a wave of studies of the
distinctiveness of the American legal system in comparison with other ‘common
law’ countries. In parallel to this is a significant body of work on how legal
systems that belong to the British Commonwealth borrow from one another but
have evolved in quite distinct ways, even in areas such as contract and tort
that are central to comparative legal studies.
Classical comparative law
also marginalized Socialist law as a field of study in the west. Socialist
law following the creation of the USSR was/is essentially civil law-based
but a long and heated debate centered on whether socialist law was indeed
law, given its subordination to the dictates of the Party. One side effect
of this was the minimal attention paid to the study of Russian law and the
legal systems of countries within the Soviet Union or its influence prior
to 1990.
Asia (or the ‘Far East’ in
this taxonomy) is quite marginal and mixes together very disparate legal systems
indiscriminately (Taylor, 1996a) Marfording shows, for example, how very unlike
the legal systems of China and Japan are today, whatever their historical
connections were, and how unhelpful the classical taxonomy is for the purposes
of studying law in Asia (in Taylor, 1996b)
Nevertheless, the taxonomy
of comparative law was, and is, very influential in shaping our views of how
different legal systems work and why. Tabulated below is an example of some
of the characteristics assigned to key legal institutions in the ‘common law’,
the ‘civil law’ and the socialist law’ worlds of the 20th century.
|
Comparative Classifications
based on Institutional differences |
Common Law (England,
later the US) |
Civil Law (French
or German influenced) |
Socialist law (USSR and its satellites) |
|
‘Tradition’ or core philosophical tenets |
Natural
law – law should embody ‘justice’ Equity
derives from religious law Roman
law influence on private law Rule
of law ideals – e.g. separation of powers – a ‘rule of law’ concept
developed in ignorance of and in opposition to, French administrative
law |
In
France, revolutionary law becomes the Code Napoleon – a set of ideals
that require mere application by judges; In
Germany, a ‘scientific’ Code that seeks to anticipate all contingencies The
Rechtstaat – i.e. the state’s
capacity to make law and the legality of the law is the key issue |
Law
is an instrument of the Party and a tool for social planning and control.
As
a tool, law can be changed regularly The
Party – not the legislature or the courts - remains its final arbiter. |
|
Form of Legislature (currently) |
In England: a unitary legal
system; until recently a partially unelected legislature; an unwritten
Constitution, now overlaid with EU law In
the US: a federated system and a written Constitution with progressively
articulated rights |
Varies
with the country, but the state and its bureaucracy is given considerable
deference |
(In
Russia): Presidential system and highly centralized Parliament with
powers of regional representation a contested issue |
Legislative form |
Statutes made by Parliament
and regulation-making power delegated to bureaucracy. Statues
tend to be drafted in detail |
Codified law; drafting is brief and generally not
as prescriptive as common law statute drafting. Leaves plenty of room
for interpretation. With the effect that case law increases in importance
over time. Paradoxically texts become quasi-sacred – so difficulty
in revising a Code. Often what is not permitted is prohibited. Codes
supplemented with special statutes as necessary. |
Codified
law, with changes as necessary that may or may not be announced. Instrumentalist view of modern law leads to much redrafting
and reissuing to meet political needs. What
is not permitted is forbidden. |
|
Bureaucratic tradition and administrative law |
In
England: an independent, professionalized bureaucracy, with a legacy
of considerable power and discretion, now subject to judicial review In
the US: a politically appointed Executive and bureaucracy at senior
levels; strong emphasis on judicial review as a result |
Tradition
of strong bureaucracy and relatively little accountability; administrative
challenges to the state separated out from regular actions in the courts
(sometimes into administrative courts – influencing common law systems’
adoption of administrative tribunals) |
Bureaucratic
fiat is the real locus of authority; legal rules are adapted to local
conditions but not open to appeal. Review
of administrative action is a new and contested concept |
|
Judicial institution |
In
England: judges appointed from the ranks of senior advocates (often
with extensive commercial experience); not explicitly political appointments In
the US: both political appointees and elected judges – often from the
ranks of experienced lawyers Judges
are expected to both interpret statutes and to make law and develop
the common law (or case law) |
Career
judges, apprenticed directly after graduation. In
formal terms, judges are expected to interpret the Codes; in practice
they make law in a similar way to their common law counterparts |
Judges
are agents of the state (not checks against it) and are thought to be
subordinated to the will of the Party. May
or may not have formal legal training Increasing
convergence to civil law model |
|
Legal Profession |
In
England: split into specialist advocates (barristers) and transactional
lawyers (solicitors). Self-regulating
apprenticeship system for entry. In
the US: a unified bar, regulated
through an open exam in each state jurisdiction. Largest
profession worldwide with great variation in quality and specialization.
Invented the transnational law firm. In
both: High degree of mobility between branches of the profession |
Traditionally,
localized legal practice. Minimal
mobility between branches of the profession. |
Were
largely irrelevant for transactional purposes; typically functioned
as a criminal defense Bar |
This kind of
comparative table gives us some stylized ‘facts’ but these do not really resemble
the contours of any legal system actually in operation today.
Because this kind of comparative
table is deceptively simple (and requires no first-hand knowledge of the legal
system being studied, it has been reproduced in narrative form in many comparative
legal textbooks during the 20th century.
The nexus with economics
Most recently we see the classical
comparative taxonomy taken up and applied by economists, with (what to comparative
lawyers are) startling results. This is not really surprising – presenting
legal systems as clusters of rules and institutions which can be distilled
into a finite set of attributes for classification is helpful for macro economists
who are concerned modeling systems and aggregating large amounts of data.
We return to the nexus between Asian law and economics further below. Consider
first, however, the application of the classical taxonomy to the stylized
economic problem posed immediately below.
Applying the
classical taxonomy: the Lex Mundi Project
A
recent World Bank project, undertaken as part of the World Bank’s World
Development Report 2002 is ‘Legal Structure and Judicial Efficiency: the
Lex Mundi Project’ (Djankov, La Porta et al, 2001). Rather than being an assessment
of completed law reform, it is intended to be a diagnostic tool that flags
the need for reform in judicial systems that, in the authors’ view, over-optimally
regulate dispute resolution. The study is interesting in that it spans 105
countries and attempts to compare the ‘judicial efficiency’, of each based
on fresh survey data from cooperating law firms.
The
study presents two hypothetical problems – eviction of a tenant for non-payment
of rent and collecting on a bounced check. The authors ask one lawyer per
country within the Lex Mundi and Lex Africa association of law firms to describe
in detail the steps required in pursuing each of these problems within the
court system. By looking at seven categories of regulation[1]
the authors then construct an index of regulation of dispute resolution.[2]
In this study regulation is defined narrowly, as formal legal rules, while
dispute resolution is used as a synonym for court-based adjudication.
The
hypothetical benchmark of efficiency used by the authors is Shapiro’s triad
in which a neighbor resolves a dispute between two other people. The authors
compare the ideal with pursuit of a small claim in a court of first instance,
as a way of gauging ‘access to justice’ within the legal system for the ordinary
individual. The study finds that dispute resolution is ‘more heavily regulated
in civil than in common law countries’ and that ‘regulation of adjudication
is heavier in less developed that in rich countries’ (2001:6). Since the majority
of legal systems in the world today are, at base, civil law systems and are
located in developing countries (something that the authors fail to note),
this means that most countries in the world ‘over-regulate’ dispute resolution
as defined in this study.
This
a commonsense proposition for comparative lawyers, some of whom would also
observe that the division of the world into common law and civil law countries
is factually inaccurate – almost every legal system today is a hybrid and
this is particularly evident in civil procedure and administrative review.
Nevertheless, we can also see the overt supervision of proceedings by the
judge in civilian settings as manifesting a legal mentalité and philosophical
stance on the nature and role of the state, the legal system and civil litigation
that is culturally and historically distinct from the party-driven proceedings
of the common law worlds.
Specifically,
however, in comparing legal systems, the authors find that, in eviction, ‘common
law and Scandinavian legal origin countries [have] …shortest duration and
socialist and formerly socialist countries [are] at the bottom’ (2001:34)
In other respects, ‘using measures of the efficiency of the legal system from
other sources, German and Scandinavian legal origin countries score the highest,
with common law countries next, and French civil law countries the lowest’
(2001:34). So, from this study we might deduce that developing countries unlucky
enough to have inherited French or French-influenced Dutch law through colonization
(e.g. Indonesia) and post-socialist transition economies (e.g. Eastern Europe,
Eurasia) will tend to be handicapped with relatively more time-consuming and
more heavily regulated civil procedure. This, the authors argue, is likely
to result in ‘extreme costs and delays, unwillingness to use the court system,
and ultimately injustice. At least some of the burdens of such heavy regulation
of adjudication may be therefore unnecessary and could be relieved through
reform’ (2001:40).
Many
countries could alter their civil procedure rules to make evicting
a tenant or recovering a debt quicker and subject to less intervention by
judges. However, studies such as this
one beg the question ‘Why don’t they?’ The traditional comparative law scholarship
cited offers only a rather weak analysis of the historical origins of procedural
forms without considering their social and political significance today. For
socio-legal scholars the differences are explicable because access to the
formal venues of law are often restricted for political purposes, or because
there is a cultural belief that formal legal proceedings are socially corrosive,
or because the professional monopolies of lawyers and notaries perform a powerful
gate keeping role. Judicial intervention may be a technique used to informally
regulate the market by sending normative messages to prospective litigants,
or to forestall social dislocation, or to promote settlement rather than fully
litigated outcomes. Here the studies by Haley and Upham on Japan are relevant
and should be read against Kagan’s important comparative work on adversarial
legalism.
The
Lex Mundi study has value to the extent that it makes transparent some of
the policy choices being made deliberately or by default by nation states.
However, some history would help. Some of the ‘efficiencies’ being identified
in this study are of recent vintage and represent, not some immutable difference
between the civil and common law worlds, but juridification used as a regulatory
technique by the state. Teubner observes, for example, that the legal systems
of the US and Europe have been pressed into service to ‘constitutionalize’
the economic system. The regulatory state deliberately channels social conflicts
(such as evictions and debt collection) to the courts or to court alternatives,
where litigants receive a guarantee of quick, judicial intervention that at
the same time deprives them of other, non-legal strategies and masks any political
dimension of the dispute (1987:395). ‘Access to justice’ for the ‘ordinary
person’ is an ambivalent concept and needs to be understood as such, even
if, as in this study, the overriding normative priority is ‘efficiency’. It
would be a more persuasive study if it went to ask the reflexive question
whether, and on what basis, procedural efficiency should be the dominant value
in a legal system.
This
study assumes that civil law courts would be better institutions if they were
‘de-regulated’, an analytic step that ignores regulatory theory suggesting
that the outcome of ‘deregulation’
is usually more interventionist ‘re-regulation’ and that this is as true of
legal and non-legal adjudication as it is elsewhere. By treating courts as
simply processing venues for problems with generic transactions, the study
fails to provide a nuanced analysis of what the court as an institution represents
in different legal systems and what litigation means in different kinds of
cases. The authors try to hedge the latter question by disavowing interest
in complex litigation prosecuted by business interests and in ‘difficult’
cases such as divorce. This does not temper their claim that the study furnishes
firm evidence on which to advance broad procedural reform in the civil law
world – a claim that many lawyers would find fairly unpersuasive.
The contemporary utility of
the classical taxonomy: alternative approaches and more detailed contours
The ‘legal families’ approach
in classical comparative law is a remarkably durable mindset. It is simple,
convenient and contains some characterizations that seem broadly accurate.
After all, lawyers and judges and prosecutors in the US, China, Russia, France
and Singapore are different, are they not? They are educated differently,
train differently, do different kinds of work and think differently. Conversely,
when lawyers from Germany and Japan, or Australia and Canada, get together
they typically have much to discuss because their mindsets and legal institutions
have much in common.
At this rather abstract level,
the functionalist and taxonomic approaches of comparative law yield useful
‘mind maps’ and preliminary propositions for starting conversations or comparisons.
Similarity v Difference
Classical comparative law
had tended to emphasize the similarity of legal systems (or at least the similarity
of functional approaches within systems) in order to facilitate comparison
and, ultimately, harmonization of legal rules. A modest example of the harmonization
impulse is the Convention on the International Sale of Goods (CISG), which
combines both civil and common law concepts of contract formation and remedies.
A more radical and ambitious project is the current attempt to fashion a Civil
Code for the EU, distilling from a range of civil codes (and the common law)
some core principles that could be universally applicable. Predictably, this
has given rise to passionate debate.
It is true that there are
traditions and legacies that can be identified across legal systems or within
legal families and that there are marked and commonalities among legal systems
that are historically related to one another e.g. the mentalité of
judges; legislative drafting styles; the form of judgments; and historical
evolutionary paths of the legal profession. Upon closer study, however, these
resemblances also yield many differences that are specific to countries.
However, Richard Hyland (1996)
points out that the comparison of legal systems in the contemporary world
might be more fruitful if it concentrated on what is different as between
systems and why, rather than focusing on elusive (or superficial) similarities.
Sociological perspectives
Part of the impetus for Hyland’s
interest in ‘difference’ is undoubtedly the post-WW2 boom in legal sociology.
In the United States this drew in part on the intellectual legacy of the legal
realists of the 1920s and 30s, epitomized by Karl Llewellyn’s study of legal
norms among Native American tribes and influencing his approach to drafting
the UCC.
When we described classical
comparative law above, we framed it as being deliberately unconcerned with
context and primarily aimed at an understanding of formal law and formal legal
institutions.
Legal sociology by contrast
is concerned with the operation of law in context – the political, social,
economic, and geographic and other influences that shape the formal nature
of law and the people who are its agents. When legal sociology is comparative
it necessarily yields a great deal more contextual information than the classical
comparative functionalist approach, and does so without necessarily having
a normative conclusion, such as a recommendation about harmonization.
The ongoing tension between
the two fields is discussed in detail in Legrand and Munday (2003).
The sociological perspective
and the rich data that it yields through empirical research highlight a number
of key problems with classical comparative law. We select just a few of these
here:
·
Considerable
variation within the same ‘family’
The US, for example, is dramatically
different from other common law systems. Try comparing US and English law
and legal institutions. Consider,
for example, that Australia and Canada (‘common law’ systems) and Japan (a
‘civil law’ system) are all parliamentary systems with a sovereign as head
of state; institutionally they may have more in common with each other than
they do with the United States, another common law system and Japan’s occupier
(1945-1953).
·
Hybridization
is universal
No legal system today is purely
‘common law’ or purely ‘civil law’. Every industrialized state has borrowed
legal concepts and institutions from elsewhere or has had them imposed through
multilateral agreement (e.g. EU law, WTO law). Socialist systems are adopting
aspects of both civil and common law legal traditions. Common law countries
have been deeply influenced by civil law and vice versa (e.g. Britain’s entry
into the EU; the spread of the Scandinavian concepts such as the ombudsman
and freedom of information; and French concepts of administrative review embedded
in administrative tribunals in common law countries)
·
Legal concepts and institutions
look very different after export (or
import)
Consider the common law legacy
in India or in African states, compared with contemporary law in England.
Consider the Dutch legal influence in Indonesia and how differently the Indonesian
and Dutch legal systems and cultures function today. Consider the German legal
legacy in Japan and systemic differences between these countries.
·
Even apparently similar or
identical legal rules or institutions may function quite differently in different
places, for important social or political reasons
Rules about how to buy or
sell or lease real estate are a good example. Although land and buildings
look superficially similar the world over, the sale of land or the lease of
a house are transactions that are freighted with great economic, social and
political significance. Typically there are significant procedural differences
even among legal jurisdictions within the same country. You can test this
empirically by doing a comparison of the steps necessary to buy a house in
different legal systems. You can also consider the problems of formalizing
land title in post-colonial states and in developing states.
·
Law is more than simply a
tool for problem solving of dispute resolution
The functional approach by
definition limits the role of law to establishing rules for transactions or
procedures for dispute resolution. ‘Law’, however, is a much broader and more
contested concept. At the very least it includes elements that are symbolic,
as well as aspirational values and political compromises that do not translate
well into rational ‘rules’.
·
Most legal systems incorporate
some form of legal pluralism
In most legal systems, more than one formal or informal legal system operates simultaneously. We often think of law as modern, secular, formal, doc