Here is one for you Kim....
I was thinking the other day, what makes law, 'law'? I mean, what gives the law it's legitimacy? I'm asking this because a number of my students are law students and the first question that I always ask them is, "What is Japanese law based on?"
As far as I know, there is no tradition of law in Japanese history so I often wonder what the connection is between current law in Japan and Japanese culture.
Is law something inviolate? What gives the law it's authority? Is there a natural law (Divine, perhaps?) or is all law man-made?
Sleiman
As far as I know, there is no tradition of law in Japanese history so I often wonder what the connection is between current law in Japan and Japanese culture.
Is law something inviolate? What gives the law it's authority? Is there a natural law (Divine, perhaps?) or is all law man-made?
Sleiman
posted by sleiman @ 12:58 AM
1 Comments:
At 4:07 PM, December 03, 2005,
KH said…
OK - so that's a very big question you ask and has been the source of debate for a long, long time.
Fortunately though, I recently prepared a paper for a subject I did called 'Indigenous People and the Law'. (BTW - I just finished my Law Degree and will graduate with Honours! I told you you were holding me back!)
The title of the paper was The Inappropriateness of Non-Indigenous Laws to Indigenous Cultures and I included a summary of the development of the philosphy of Western law. There's also a bit in there on Australian Indigenous law. While neither of these directly addresses the development of Eastern systems of law I think there are some ideas in there that are transposable.
If anything seems out of context it was probably addressed later on in my paper - but i couldn't be bothered modifying the original to make it directly relevant to your question.
In any case, read through this then post any questions.
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Through the vast geographic and temporal distances in their development, Western and Indigenous cultures differ greatly in many aspects. Human progress however has seen the two collide and of the many factors that are still to be resolved, despite two hundred years of opportunity, the applicability of colonialist Western law to Indigenous Australians is perhaps one of the most important. The aim of this paper is to understand why there has been no real resolution to this tension, using the notion of law as culture and, where appropriate, the context of the Yolngu of Northeast Arnhem Land. The paper does not aim to focus on identifying the differences between Non-Indigenous and Indigenous law for the purposes of a comparative analysis, nor does it seek to identify ways in which non-Indigenous and Indigenous law can coexist in a modern context. Rather, cultural causative factors will be shown to have lead to a situation where Non-Indigenous law is, in many instances, inappropriate to Indigenous peoples. Through this process it is hoped that a better understanding of the root causes of this inappropriateness will elucidate possible solutions for future discussions and attempts at reconciling the two, currently disparate, entities.
DEVELOPMENT OF WESTERN PHILOSOPHY OF LAW
In understanding why cultural influence is critical to law it is important to appreciate how Western cultures have come to a point of recognising this necessary interplay. As Non-Indigenous, or Western, law is applied as the primary source of law in Australia and possesses the power to permit or deny the existence of Indigenous, or traditional, law, focus will be placed on its development. The manner in which this will be done is via an historical analysis of the changes in Western legal philosophy.
Law as a construct has been an integral topic of Western philosophical debate for millennia. Traditionally, law was seen as a system of social structures . These structures created power imbalances that were thought to provide a structure of ‘top-down’ law. Whether that ‘top’ referred to a deity or some omnipotent human is not particularly relevant at this time. The essential aspect is that from this top position, a tree of influence is formed which sees the people lower on the branches unable to influence the way in which those higher up create and administer the laws of a particular jurisdiction.
The basic premise of the above was the existence of some sort of natural law. Natural Law Theory posits that there are certain natural laws which exist independent of human agency. While natural law theory tends to be focused on moral or religious laws it follows through its arguments that all legal systems should conform to those natural laws. These natural laws bear characteristics such as immutability, an ahistorical nature and universality. In contrast to the notion of natural law is the Positivist position. Positivists see law existing not in a historical void but as a result of historical and social contexts. This form of law has nothing to do with morality or a higher existence but is simply law because it has been authoritatively determined to be so. Essentially, the argument is one of the importance of human acts in the creation of law and not mere acquiescence to some predetermined set of legal rules.
Historically, a demarcation can be seen at the time of the Enlightenment. Pre-Enlightenment the focus of law in Western cultures was one of myth, religion and an obsession with absolute authority. During the Enlightenment there was a move towards the separation of man and nature, and mind and body, creating new contexts in which to examine concepts such as law. The Modernist philosophy movement saw another step taken as the focus shifted to man as a liberated thinker observing the world objectively from a position of rationality and detachment.
In the early 20th Century Postmodernism arose as a critique of Modernist principles. Postmodernists rejected the notion of objectivity and the existence of the a priori subject as a source of meaning, authenticity and authority. Instead they sought to examine the existence of legal meanings not only as being the pronouncements of judges and legislators but also as a web of discursive and power structures. Deconstructionist theories, generally seen as developments on the work of Derrida, proposed that no single interpretation of a text should have priority or privilege. Instead, the limits of the law were considered to be neither within, nor outside of, the law which resulted in points of uncertainty of legal meaning at the edges. Because of the existence of points of uncertainty there were opportunities to question singular claims of truth regarding the creation and interpretation of legal systems. What this opened up was the possibility of law as a creation of many contextual discourses, not just an entity in and of itself. Of most importance to this paper is the effect that culture was thought to have on the development of law.
Following on from the work of Derrida, Foucault and other Postmodernists, Legal Realism promoted the idea of law as a social instrument , that is, law could only be explained with reference to its historical and empirical existence and the social ends to which it was directed. A further development of the above idea, Critical Legal Studies, notes that because of this dependence on particular references, law is inherently political and, as such, the only way to fully understand it is by dropping the pretence of objective reasoning in favour of overt political reasoning. An outcome of this reasoning was the idea that minority groups, such as Indigenous Australians, could only obtain the benefit of the rhetoric of rights and autonomy imbedded within modern Western law if they were subordinated and accepted the political forces which created them. In other words, for Indigenous Australians to achieve the benefits of Western law they would have to modify and limit their cultural beliefs and autonomy.
A clear problem with this hypothesis is the notion that any culture should have to give up internationally recognized rights, such as self-determination, in order to be afforded protection under the law of a particular jurisdiction. A further problem is that there is no indication that Indigenous Australians want or need the benefit of Western law, particularly considering the fact they have their own systems of law developed over millennia. Irrespective of the latter, most Indigenous Australians will be touched by Western law at one point or another, either by choice or otherwise. Because of this, it is essential to consider ways in which Western law can accommodate the Indigenous cultures it wishes to regulate, in line with Western legal philosophy.
Prior to this accommodating process, however, Western law must first look to understand the differences between Western and Indigenous cultures. This paper seeks to aid in this process, using Legal Cultural Studies as a tool, by outlining some of those cultural differences and why they may make Western law inappropriate for Indigenous Australians. It is worth noting at this point that the Yolngu have a word in Yolngu matha (language), ‘rom’, which can be understood in English as either ‘culture’ or ‘law’. This serves to exemplify the understanding the Yolngu already have of the importance of a genuine interrelationship between law and culture. The significance of ensuring this relationship exists is therefore critical to Indigenous and Non-Indigenous cultures alike.
Stuart Hall, a prominent Legal Culturalist defines culture as a set of shared meanings which enable people to understand and communicate with each other. These meanings are developed through, inter alia, personal and social interactions, everyday rituals and practices of daily life, narratives, stories and fantasies and rules, norms and conventions. Essentially, all social practices, in as far as they are relevant to meaning, and require meaning for their operation, have a cultural dimension. As mentioned above, the end result of this position is that culture is constitutive of law just as law is constitutive of the culture it seeks to regulate.
Interestingly, Hall suggests that because of this, the way to influence people is to exert control over their cultural practices. That is, mere regulation is inefficient without regulation of culture as well. This type of cultural control has been exerted upon Indigenous Australians since the beginning of a Western presence in Australia and still continues today. Whether the agenda throughout that time has been to promote acceptance of Western law through the active control and destruction of traditional culture, and the simultaneous supplanting of it with Western cultural practices, is not entirely clear. What is clear, however, is the effect. Traditional culture has been devastated in many parts and Non-Indigenous law remains misaligned with the Indigenous cultures it seeks to regulate, rendering it largely ineffective. Examples of the ways in which this misalignment exists are provided below.
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