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UBC Theses and Dissertations

How culture, law, and language are all barriers to effective cross-cultural legal communication, specifically… Beveridge, Barbara Jane 1998

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HOW CULTURE, LAW, AND LANGUAGE ARE ALL BARRIERS TO EFFECTIVE CROSS-CULTURAL LEGAL COMMUNICATION, SPECIFICALLY INTERNATIONAL COMMERCIAL CONTRACTS by BARBARA JANE BEVERIDGE B.A., The University of British Columbia, 1982 LL.B., The University of British Columbia, 1985 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES I. FACULTY OF LAW We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA April 1998 Copyright Barbara Jane Beveridge, 1998 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of L \ A ^ The University of British Columbia Vancouver, Canada freely available for reference and study. I further agree that permission for extensive DE-6 (2/88) -11 -ABSTRACT Today we live in a world of global economics, global communications, global politics, and attempts at the globalization of law. Because many countries around the world are adopting the laws of the western world, it may appear that, legally speaking, we are becoming more alike, however, a look below the surface reveals otherwise. What I attempt to show in this thesis is that the culture of a society affects, in a significant way, all aspects of that society, including its legal system and its use of language. The result being that if we wish to enter into any kind of international commercial relationship and expect it to be successful, we must be fully aware of the barriers to understanding created by the cultural, legal and linguistic differences which may not be readily apparent but which are clearly there. Because we automatically adopt the cultural values and norms of the society into which we are born, we take these values and norms as given, as automatic, as natural. It is only when we look carefully at other cultures do we realize that all the minute ways in which we see the world are culturally determined. In Chapter One I look at the many cultural differences that exist between nations - those that are readily apparent and those that are so subtle that we could never hope to understand them on our own. In this chapter we see just how much our way of thinking and our use of language are directly affected by our culture. In Chapter Two we see how these cultural differences are totally interwoven with our legal systems and what happens when the legal system of one nation is transplanted into a completely different culture. We see that even though the written laws may look the same as those of the exporting country, the way they are understood and used by the importing country is directly affected by that country's legal and cultural background. Chapter Three continues to examine these cultural differences by looking at the relationship between languages and legal systems and at the insurmountable problems that exist in trying to translate legal documents from one language to another. The alternative, the use of legal English in the drafting of international legal documents, poses additional problems as we see how it is intimately tied to the common law system and in such a way that makes it difficult for a non-common law lawyer to understand it or understand it in the same way a common law lawyer would. Finally, in Chapter Four, by analyzing extracts from actual international commercial contracts, we - Ill see how closely the language, structure, and concepts used in the contract are tied to the legal system from which the drafter has come, which is often different from that by which the contract is governed, and, as a result, how they operate as barriers to a complete understanding of the contractual terms by the parties involved. - iv -TABLE OF CONTENTS Abstract Table of Contents iv Foreward vi INTRODUCTION 1 CHAPTER ONE - THE BARRIERS POSED BY CULTURE Introduction 5 The International Business Management Perspective 5 The Cultural Anthropological Perspective 15 The Linguistic Perspective 23 Conclusion CHAPTER TWO - THE BARRIERS POSED BY LAW Introduction 34 The Western Family of Law 39 The Civil Law System 40 Historical Development 40 Structure and Divisions of the Law 43 The Common Law System 48 Historical Development 48 Structure and Divisions of the Law 56 The Eastern Family of Law 59 Chinese Law 61 Historical Development 61 Structure and Divisions of the Law 67 Japanese Law 72 Historical Development 72 Structure and Divisions of the Law 81 The Religious Family of Law 87 Jewish Law 87 Hindu Law 88 Islamic Law 88 Historical Development 88 Structure and Divisions of the Law 95 Conclusion 100 CHAPTER THREE - THE BARRIERS POSED BY LANGUAGE Introduction 102 The Problem with Translations 102 Legal English Generally 110 The History of Legal English 122 Conclusion 136 - V -CHAPTER FOUR - THE IMPACT OF CULTURAL, LEGAL, AND LINGUISTIC DIFFERENCES ON ACTUAL INTERNATIONAL COMMERCIAL CONTRACTS Introduction 137 The Effect of the Different Styles 141 The Language Barriers 146 The Legal Barriers 155 The Cultural Barriers 160 The Technological and Economic Barriers 166 CONCLUSION 168 BIBLIOGRAPHY 175 APPENDIX A Extract from an American model form for an International Agency Agreement 185 APPENDIX B Extract from the ICC Model International Agency Agreement 188 APPENDIX C Extract from the UNIDROIT Principles of International Commercial Contracts 192 APPENDIX D Extract from an American model form for an International Joint Venture 193 APPENDIX E Extract from an actual Shareholders Agreement in effect in Turkey 200 APPENDIX F Example of the wording in a Japanese Contract 206 - vi -"Only by manifold contrasts the contrary becomes completely clear; only by the observation of similarities and differences and the reasons for both may the peculiarity and inner nature of each thing be thoroughly established." - Anselm Feuerbach 19th century legal philosopher -1 -INTRODUCTION This thesis has developed out of my experiences in Istanbul, Turkey where I developed and taught a course in Legal English for International Commercial Transactions. The course is specifically designed for lawyers who are non-native speakers of English, who have been trained in a legal system other than the common law and who wish to practise in the area of international commercial law. In the course, we work with actual international contracts in such areas as agency agreements, distribution agreements, licensing agreements, franchising, sale of goods, and joint ventures. By being immersed for almost four years in a culture that was so different from my own, I soon came to realize that if we want to truly communicate with people of another culture, it is just as important to learn about the cultural differences as it is to learn the language. At that time I spoke of culture as being a third language. It is interesting to note that Edward T. Hall, a cultural anthropologist whose work I look at in Chapter 1, refers to culture as the silent language. We shall see that his description is more apt than mine. In my teaching I was also exposed to discussing legal concepts with lawyers who were trained in a legal system very different from my own. I learned that we shared many concepts but there were also those that were unknown to either them or to me. As well, the way in which we categorized these concepts was very different. I also realized in the course of my teaching that the way in which we structure our contracts and the language we use in them is very closely tied to our particular legal system. The result of this was that I came to realize that a large part of the legal English that I was teaching, and which is found in the majority of international commercial contracts, is totally inappropriate in the international setting. It was during the 1950's and 1960's that we witnessed the large scale exportation of western economic, political, and legal concepts in the name of modernization and development. By the 1970's many academics came to realize that because the legal systems of nations are so intimately tied to their individual cultures, to try to transplant the legal system of one society into a completely different society and expect it to work in the same way was sheer folly. This - 2 -knowledge however seems not to have been passed on to those in the economic, political and legal communities, many of whom continue to operate with these outdated and incorrect beliefs. I was one of them. What we are seeing today in the push towards a global economy, is an accompanying push towards the globalization of law. Whether or not this globalization of law is actually possible is arguable, although certainly many attempts are being made. Part of the problem may well be that these attempts are based on the above-noted outdated and incorrect beliefs. And because of this, some would argue that what globalization of law there is, is only really happening among western nations. Nonetheless, in order for developing economies to try to partake of this global economy being driven by the west, they must first be seen to be adopting the economic, political and legal ways of the west. But what is getting lost in this push (and why I say it is arguable whether or not globalization of law is possible) is the reality that just because the same vocabulary may be used by these different nations, it does not mean that it is being used or understood in the same way. What I attempt to show in this thesis is that the culture of a society affects, in a significant way, all aspects of that society, including its legal system and its use of language. The result being that if we wish to enter into any kind of international commercial relationship and expect it to be successful for both sides, we must be aware of the significant barriers to understanding created by these cultural, legal and linguistic differences which may not be readily apparent but which are clearly there. I begin in Chapter 1 by looking at the many cultural differences that exist - those that are readily apparent and those that are so subtle that we could never hope to understand them on our own. Because we automatically adopt the cultural values and norms of the society into which we are born we take these values and norms as given, as automatic, as natural. It is only when we look carefully at other cultures do we realize that all the minute ways in which we see the world are culturally determined and not universal. In this chapter we see just how much our way of thinking and our use of language are directly affected by our culture. - 3 -In Chapter 2 we see how these cultural differences are totally interwoven with our legal systems and what happens when the legal system-of one nation is transplanted into a completely different culture. What becomes clear is that even though the written laws may look the same as those of the exporting country, the way in which the importing country understands and uses these laws is directly affected by the legal and cultural background of that importing country. In the first part of Chapter 3 we continue to see the impact of these cultural differences when we look at the relationship between languages and legal systems and the virtually insurmountable problems that exist in trying to translate legal documents from one language into another. Also in Chapter 3 we look at our own legal language in more detail and the history behind it because it is this legal language, legal English, which is the one being used worldwide in virtually all international commercial contracts. I believe that this scrutiny of legal English shows how it is tied to the common law system in such a way that it is difficult for a non-common law lawyer to understand it in the same way a common law lawyer does. I believe as well that this helps to highlight how inappropriate much of this language is in the international setting. In Chapter 4 we look at extracts from some actual international commercial contracts and, in light of what we have seen in Chapters 1, 2, and 3, we see how closely these contracts are tied to the legal systems from which the drafters have come and, as a result, the problems the language, format, and concepts in these contracts can create in understanding. In this chapter I also look at how the various cultural differences impact on the negotiation and implementation of some international commercial contracts. As I discuss in the conclusion to this thesis, I believe it is incumbent on all legal educators in North America (and probably the English-speaking common law world although at this point in time I am not familiar with what is happening in England, Australia or New Zealand), to become more aware of these cultural, legal and linguistic differences and to impart this knowledge to their students. If the western drafters of international commercial contracts continue to proceed with their format, language, and concepts without regard for the very real differences in understanding, it is highly likely that they are not going to come away from the transaction receiving what they expected. There are numerous stories of deals gone awry with each side blaming the other for - 4 -the problems. A lack of awareness and understanding of the very different ways in which people speak, of the way they view situations, of the way they react to situations, and of the way they understand these situations will most certainly result in losses, misunderstandings, and recriminations on both sides. - 5 -CHAPTER ONE - THE BARRIERS POSED BY CULTURE I. INTRODUCTION In order to communicate with someone from another culture, we must first learn to speak the same language. This, however, by itself, is not enough. If we want to fully understand the meaning and behaviour which are incorporated in the other individual's use of the language we must learn more about the culture from which that individual comes. This is because language does not operate on its own, but rather follows from one's thought processes which are greatly modified by the culture in which we are raised. As Edward T. Hall states, "...we must learn to understand the "out-of-awareness" aspects of communication."1 Only by appreciating and understanding how much the culture into which we are cast controls these out-of-awareness aspects of communication, will we be able to truly communicate with each other. There have been a variety of approaches taken in the study of intercultural or cross-cultural communication. In this chapter I will be looking at three. The first is the work of Geert Hofstede,2 who has proceeded from an international business management perspective. He provides us with a broad framework into which the work of the other two approaches fit. The second approach I will look at is that of Edward T. Hall3 who, as a cultural anthropologist, brings us first-hand observations from within different cultures. The final approach is that of Ron Scollon and Suzanne Wong Scollon4 who have spent over twenty years researching intercultural intra-organizational communication in North America, Taiwan, and Korea from a linguistic perspective. II. THE INTERNATIONAL BUSINESS MANAGEMENT PERSPECTIVE Geert Hofstede, in his work, refers to an individual's thought processes as mental programming. He notes that even though everyone's mental programming is "partly unique" it is also "partly 'Edward T. Hall, The Silent Language, Garden City, N.Y.: Doubleday & Company (1959) at 52 2See Culture's Consequences, International Differences in Work-Related Values, Beverly Hills: Sage Publications (1980) and "The Cultural Relativity of Organizational Practices and Theories" Journal of International Business Studies, Fall 1983 at 75 3See also Beyond Culture, Garden City, N.Y.: Anchor Press/Doubleday (1976); and Edward T. Hall and Mildred Reed Hall, Hidden Differences, Doing Business With the Japanese, Garden City, N.Y.: Anchor Press/Doubleday (1987) 4See Intercultural Communication, Oxford: Blackwell (1995) - 6 -shared with others".5 Our collective mental programming "...includes the language in which we express ourselves, the deference we show to our elders, the physical distance from other people we maintain in order to feel comfortable, the way we perceive general human activities like eating, making love, or defecating and the ceremonials surrounding them."6 Hofstede believes that what is in the minds of the individuals becomes crystallized in the institutions of their society: in the "...government, legal systems, educational systems, industrial relations systems, family structures, religious organizations, sports clubs, settlement patterns, literature, architecture, and even scientific theories."7 And these institutions, in turn, reinforce the mental programming that led to their creation.8 It is, of course, not as simple as I have made it sound. Hofstede advises that there are also subcultural components to the mental programmes of individuals, such as those shared by individuals of the same educational level, socioeconomic status, occupation, sex or age group. In addition to this, some countries are more homogeneous than others. As well, Hofstede warns us that "[sjtudents of culture should be aware of linguistic, regional, verbal, ethnic, religious, or caste cleavages within nations which can make data nonrepresentative for the whole of the nation. But apart from such specific cleavages, when we compare cultural aspects of modern nations, we should try to match for subculture."9 Another matter of utmost importance in cross-cultural studies is the use of language itself. As noted above, language is not neutral. Hofstede discusses at length the methods he used in attempting to make the language of his questionnaires as neutral as possible and he points out that "[l]anguage in this case becomes a variable in the analysis and not just a source of bias."10 Notwithstanding all the potential for problems, Hofstede has found that "modern nations do have dominant national character traits which can be revealed by survey studies and by the comparison 'Hofstede (1980) at 15 'Hofstede (1980) at 15 'Hofstede (1983) at 76 "Hofstede (1980) at 26 'Hofstede (1980) at 38 '"Hofstede (1980) at 37 of measurable data on the society level."11 - 7 -In the 1950's and 1960's, it was believed that the principles of sound management were universal, and that national differences should not matter. However, by the 1970's it became clear that this belief was incorrect and in fact national and even regional differences did matter, to the point that they "may become one of the most crucial problems for management - in particular for the management of multinational, multicultural organizations, whether public or private."12 Hofstede began collecting the data for his studies more or less by accident.13 In 1971 he was working as a psychologist on the international staff of a large multinational corporation. Part of his job involved collecting data on the attitudes and values of every employee, from unskilled workers to research scientists around the globe. He did this by way of standard questionnaires. He ended up collecting over 116,000 questionnaires from employees in 40 countries. Later he became a teacher in an international business school where he asked the participants, who were managers from all over the world, to answer the same questions. Later still, when he was working as a researcher at the European Institute for Advanced Studies in Brussels, data for an additional 10 countries and 3 multi-country regions became available. In his work in Brussels he also looked at 40 other studies which had compared aspects of national character across borders and found that they confirmed the differences he had found in his study. The main constructs that Hofstede used were values and culture. He defines a value as "a broad tendency to prefer certain states of affairs over others".14 He notes that culture has been defined in many ways, but for his work he defines it as "the collective programming of the mind which distinguishes the members of one human group from another."15 Values can be attributed to individuals as well as to collectives, however culture presupposes a collective.16 "Hofstede (1980) at 38 12Hofstede (1983) at 75 "Hofstede (1983) at 77 '"Hofstede (1980) at 19 15Hofstede (1980) at 25 16Hofstede (1980) at 19 - 8 -In his work, Hofstede developed four different dimensions for describing national cultures, all of which are largely independent of each other. They are: 1. Individualism versus Collectivism; 2. Large or Small Power Distance; 3. Strong or Weak Uncertainty Avoidance; and 4. Masculinity versus Femininity. The theoretical reasoning behind these dimensions was that "every dimension should be conceptually linkable to some very fundamental problem in human societies, but a problem to which different societies have found different answers."17 The Individualism/Collectivism dimension describes the relationship between an individual and his or her fellow individuals. It has numerous value implications and it is intimately linked to societal norms.™ The central element in our mental programming which is involved in this dimension is our self-concept. At the Individualistic end of the scale are societies in which everyone is supposed to look after his or her own self-interest and maybe that of the immediate family members. This is possible because of the large amount of freedom given to each individual. At the Collectivistic end of the scale are societies in which the ties between individuals are very tight. People are born into groups which may be their extended family, their tribe, or their village. Everyone is supposed to look after the interest of his or her group and have no opinions or beliefs other than those of the group.19 Hofstede found a tendency for the wealthy countries to be more Individualistic and the poor countries more Collectivistic,20 but this was not universal, as he found a residual variance in the scores which could not be explained by wealth but rather, he suggests, by historical or traditional factors.21 Not surprisingly, the United States (with an index of 91) heads the list as being the most Individualistic, with Australia (90) and Great Britain (89) following closely behind. Canada and the Netherlands follow next, each with an index of 80. Those countries which are the most Collectivistic are Venezuela (12), Colombia (13) and Pakistan (14). But following closely are Taiwan (17), Thailand (20), and 17Hofstede (1983) at 78 '"Hofstede (1980) at 213-214 "Hofstede (1983) at 79 '"Hofstede (1983) at 81 "Hofstede (1980) at 233 - 9 -Singapore (20).22 Countries found in the middle are Japan (46), Spain (51) and Austria (55)23 (although Hofstede did find that "values and organizations in Japan are shifting fast to the more individualistic side."24) Some of the values associated with work that can be found in the more Collectivistic countries are: emotional dependence on the company; moral involvement with the company; managers aspire to conformity and orderliness and rate security in their position as important; group decisions are considered better than individual ones; managers endorse traditional points of view; individual initiative is socially frowned upon; and people are thought of in terms of ingroups and outgroups. The comparative values found in Individualistic countries are emotional independence from the company; calculative involvement with the company; managers aspire to leadership and variety and rate having autonomy in their position as important; individual decisions are considered better than group decisions; managers endorse modern points of view; individual initiative is socially encouraged; and people are thought of in general terms.25 Some of the societal norms Hofstede found to be associated with more Collectivistic countries are: people are born into extended families or clans which protect them in exchange for loyalty; there is a we consciousness; one's identity is based in the social system rather than in the individual; one's private life is invaded by organizations and clans to which one belongs; one's opinions are predetermined; expertise, order, duty and security are provided by the organization or clan; friendships are predetermined by stable social relationships but there is a need for prestige within these relationships; and value standards differ for ingroups and outgroups as opposed to applying to all in a universal fashion. Some comparative societal norms found in Individualistic countries are: there is an / consciousness; one's identity is based in the individual; everyone has a right to a private life and opinion; there is emphasis on autonomy, variety, pleasure and individual financial security; and, there is a need for specific friendships.26 Hofstede notes that "[b]ecause they are tied to value systems shared by the majority, issues of collectivism versus individualism carry strong moral overtones."27 22It is to be noted that China was not included in Hofstede's studies; also, if there is a correlation with wealth, as noted, it is possible that Taiwan and Singapore would score higher today. 23Hofstede (1980) at 222 "Hofstede (1980) at 236 "Hofstede (1980) at 230 "Hofstede (1980) at 235 J7Hofstede (1980) at 215 - 10 -The second dimension, that of Power Distance, looks at how a society deals with the fact that people are unequal.28 Hofstede notes that all societies are unequal but some are more so than others and it is the Power Distance dimension that measures the degree of inequality.29 "Inequality can occur in areas such as prestige, wealth, and power" but different societies will put different weight on the "status consistency among these areas."30 Hofstede found that values about inequality are coupled with values about the exercise of power, and that in countries with a large Power Distance, power needs less legitimation than in countries with a small Power Distance. He goes on to state that in small Power Distance countries, such as Sweden, power is something the power-holders are almost ashamed of and they try to play it down.31 Some of the societal norms Hofstede identified as coinciding with large Power Distance countries are as follows: there should be an order of inequality in this world in which everyone has his rightful place; a few in society should be independent but most should be dependent; hierarchy is related to existential inequality; superiors consider subordinates and subordinates consider superiors as being of a different kind; power is a basic fact of society which antedates good or evil, its legitimacy is irrelevant; power-holders are entitled to privileges and powerful people should try to look as powerful as possible; there is a stress on coercive power; the way to change a social system is by dethroning those in power; and, other people are a potential threat to one's power and rarely can be trusted.32 The consequences for political systems are fairly evident from this, with an unsurprising factor being that tax systems protect the wealthy. Some of the consequences for organizations in large Power Distance countries are: greater centralization, a large proportion of supervisory personnel and large wage differentials.33 The countries which showed the largest Power Distance are the Philippines,34 Mexico, Venezuela, and India. Interestingly, France and Belgium also showed a fairly large Power Distance, with France ranking seventh from the top and Belgium ranking tenth. The countries showing the smallest Power Distance were Denmark, Israel, and Austria. Canada, the United States, Italy, and Japan were in the middle range with J8Hofstede (1983) at 81 "Hofstede (1983) at 81 '"Hofstede (1980) at 92 "Hofstede (1980) at 121 "Hofstede (1980) at 122 "Hofstede (1980) at 135 "This may be different today due to the change in the political situation. -11 -Canada being smaller and Japan being larger.35 Hofstede found that there is a global relationship between Power Distance and Collectivism: Collectivistic countries show large Power Distances but Individualistic countries do not always show small Power Distances.36 As noted above, France and Belgium ranked high on the Power Distance scale, however on the Individualism scale France had a fairly high index of 71 and Belgium an even higher 75 (the range was from a high of 91 to a low of 12). Hofstede's third dimension is Uncertainty Avoidance. Because uncertainty creates anxiety, human society has developed ways to cope with the inherent uncertainty in our lives. The solutions have been found in technology, law, and religion. "Technology has helped us to defend ourselves against uncertainties caused by nature; law, to defend against uncertainties in the behaviour of others; religion, to accept the uncertainties we cannot defend ourselves against."37 Religion would include secular religions such as Marxism, dogmatic Capitalism, meditation, and science.38 Hofstede notes that different societies have adapted in different ways and that these ways differ not only between traditional and modern societies but also among modern societies.39 In weak Uncertainty Avoidance societies people have a tendency to feel relatively secure. These societies have "socialize[d] their members into accepting this uncertainty and not becoming upset by it. People in such societies will tend to accept each day as it comes. They will take risks rather easily. They will not work as hard. They will be relatively tolerant of behaviour and opinions different from their own because they do not feel threatened by them."40 In strong Uncertainty Avoidance societies there will be "a higher level of anxiety in people, which becomes manifest in greater nervousness, emotionality and aggressiveness."41 As well, dogmatic, intolerant, ideological positions are more likely in strong Uncertainty Avoidance countries. The countries which ranked strongest on the Uncertainty Avoidance Index (UAI) were "Hofstede (1980) at 150 "Hofstede (1983) at 81 "Hofstede (1980) at 154 38Hofstede (1983) at 83 "Hofstede (1983) at 83 40Hofstede (1983) at 81 "'Hofstede (1983) at 81 - 12 -Greece (with a UAI of 112), Portugal (104),42 Belgium (94), and Japan (92). On the opposite end were Singapore (8), Denmark (23), Sweden (29) and Hong Kong (29). Canada and the United States ranked in the middle with 48 and 46, respectively.43 Some factors which Hofstede found to be associated with strong Uncertainty Avoidance are: more emotional resistance to change; a tendency to stay with the same employer; a higher average age in higher level jobs; managers should be selected on the basis of seniority; lower ambition for individual advancement; hierarchical structures of organizations should be clear and respected; company rules should not be broken; conflict in organizations is undesirable; initiative of subordinates should be kept under control; a lower tolerance for ambiguity in perceiving others; a lower readiness to compromise with opponents; a suspicion toward foreigners as managers; citizen pessimism about ability to control politicians' decisions; and pessimism about people's amount of initiative, ambition, and leadership skills.44 Hofstede noted that in societies with a lower tolerance of uncertainty (ie. with a strong Uncertainty Avoidance Index), those who control the uncertainty will be more powerful than if uncertainty is more easily tolerated. He went on to note that this explains the difference between Indian (UAI of 40), French (UAI of 86), and German (UAI of 65) authoritarianism, "In India it is pure personal power ("a basic fact of society which antedates good or evil"). In France it is the same, plus the fact that power holders control uncertainties, to confront which would be too threatening to many people. In Germany "the use of power should be legitimate", but the impact of formal power is strong because of the uncertainties it controls, which corresponds to many people's profound needs."45 Hofstede's final dimension is that of Masculinity/Femininity. The fundamental issue here is the relationship between the sexes and their roles in society. Hofstede has given the Masculine index to those societies with a "maximized social sex role division" and the Feminine index to those societies with a "relatively small social sex role division".46 In Masculine societies "the traditional masculine social values permeate the whole society - even the way of thinking of the women. These values include the importance of showing off, of performing, of achieving 42The figure for Portugal may be different today with the change in the political situation there. 43Hofstede (1980) at 165 "Hofstede (1980) at 176 45Hofstede (1980) at 189 46Hofstede (1983) at 85 - 13 -something visible, of making money, of "big is beautiful"."47 In more Feminine societies, the dominant values for both men and women are "those more traditionally associated with the feminine role: not showing off, putting relationships with people before money, minding the quality of life and the preservation of the environment, helping others, in particular the weak, and "small is beautiful"."48 Hofstede found the most Masculine country by far to be Japan with a Masculinity Index (MAS) of 95. 4 9 Austria was second with a M A S of 79, Venezuela next with 73, followed by Italy and Switzerland, both with 70. The most Feminine country was Sweden with a M A S of 5. Also at the Feminine end were Norway (8), the Netherlands (14), Denmark (16), and Finland (26). Both Australia and the United States placed above the mid-point with 61 and 62 respectively. Canada was rated more Feminine with a M A S of 52. France and Spain were more Feminine still with 43 and 42 respectively.50 Some of the societal norms Hofstede found to be associated with Masculinity are as follows: performance and growth are important; achievement and independence are the ideal; decisiveness is important as opposed to intuition; and there is less benevolence shown towards the third world.5 1 Hofstede points out that isolating the dimensions, as I have done above, is a useful exercise in order to "structure our observations" but it must be remembered that in reality the four dimensions interact with each other. As mentioned above, he points out that the effect of interaction is particularly relevant for Power Distance and Uncertainty Avoidance and he has done a comparison of the four combinations. In this comparison he has noted what the implicit model of organization would be. They are as follows: 1. Small Power Distance/Weak Uncertainty Avoidance = Market 2. Small Power Distance/Strong Uncertainty Avoidance = A well-oiled machine 3. Large Power Distance/Weak Uncertainty Avoidance = Family "'Hofstede (1983) at 85 ""Hofstede (1983) at 85 "'Japan has been undergoing a number of changes in recent years in this regard and may well have a different MAS today. '"Hofstede (1980) at 279 "Hofstede (1980) at 294 - 296 - 14 -4. Large Power Distance/Strong Uncertainty Avoidance = Pyramid52 An illustration of how these work was conducted by a colleague of Hofstede's. He gave an organizational problem to three groups of students. One group was French, one West German and one British. The problem described a conflict between two departments and the students were asked to resolve the problem. The French students referred the problem to the next higher authority level (#4 - a pyramid). The West German students suggested the setting of rules to resolve such problems in the future (#2 - a well-oiled machine). The British students wanted to improve the communications between the department heads, possibly with some kind of human relations training (#1 - a village market). Hofstede believes that if an Indian had been given the problem, the fourth organizational model - the family - would have been employed.53 Hofstede found as well that the combination of Uncertainty Avoidance and Masculinity is the best predictor of "need for achievement". The "masculine risk-takers" appear to be the "entire Anglo cluster, plus some Asian countries: India, Phillippines, Hong Kong, and (marginally) Singapore."54 Of interest in this regard is that the latter countries are former United Kingdom or United States colonies. In reviewing Hofstede's work, it must be kept in mind that the economic interdependence of the world is growing at an incredible rate. This, along with the growth in technology, represents a major force at work in changing national cultures. As Hofstede's studies were conducted in the 1970's, it is possible that we would see significant changes in some of the data today. Hofstede himself notes that, because of the widespread influence of modern technology, some authors have concluded that all societies will become more similar.55 He however believes that "technological modernization is an important force toward change which leads to partly similar developments in different societies. However, it does not wipe out differences among societies and may even enlarge them; as on the basis of pre-existing value systems societies cope with technological modernization in different ways."56 "Hofstede (1980) at 319 "Hofstede (1983) at 87 "Hofstede (1980) at 324 "Hofstede (1980) at 343 56Hofstede (1980) at 343-344 - 15 -Hofstede believes that the imposition of free-market capitalism on the more collectivist societies is likely to have "strongly disruptive effects" on these societies. This is because capitalism is rooted, historically and culturally, in individualism. He notes that many American managers and politicians have a problem recognizing that their type of capitalism is "culturally unsuitable" for more collectivist societies.57 He suggests that "[v]arious forms of state socialism or state capitalism are more likely to appeal to the collectivistic values of people in this case, regardless of whether these alternative economic orders actually protect their people effectively."38 It would appear that China is trying to do just this. However, it is extremely unfortunate that Russia did not do the same, as Hofstede's prediction has been borne out In fact, what we see today is Russian President Boris Yeltsin trying to "rein in the free-wheeling "robber capitalism" of the past five years and replace it with a state-guided economy."59 Although Hofstede provides a chart showing the four dimensions for each country,60 it is obvious that one is not going to be able to accurately predict the behaviour or thought processes of different individuals by simply slotting them into the chart. I do believe, however, that Hofstede's work is extremely valuable in that it gives us extensive insight into some of the mental programming of different national cultures. Just making us aware of the multitude of differing values and societal norms as well as the dynamics at work within different national cultures is, in itself, highly instructive. As all those engaged in cross-cultural study note, "[t]he cultural component in all kinds of behaviour is difficult to grasp for people who remain embedded in the same cultural environment; it takes a prolonged stay abroad and mixing with nationals there to recognize the numerous and often subtle differences in the way they and we behave, because that is how our society has programmed us."61 III. THE CULTURAL ANTHROPOLOGICAL PERSPECTrVE Edward T. Hall would agree with this last-noted remark of Hofstede's, however he warns of some of the problems an approach such as Hofstede's presents when studying other cultures. In this regard he states, "Hofstede (1983) at 89 "Hofstede (1980) at 389 59See the Vancouver Sun, September 25, 1997 at A15 under "Yeltsin seeks end to freewheeling 'robber capitalism'". "Hofstede (1980) at 315 "Hofstede (1980) at 28 - 16 -"[b]ecause cultures are wholes, are systematic (composed of interrelated systems in which each aspect is functionally interrelated with all other parts), and are highly contexted as well, it is hard to describe them from the outside. A given culture cannot be understood simply in terms of content or parts. One has to know how the whole system is put together, how the major systems and dynamisms function, and how they are interrelated."62 Working from "inside" a number of different cultures, Hall has managed to reveal even finer distinctions. The main components of his work which are of benefit to me for this thesis appear to fall within Hofstede's Collectivism/Individualism dimension. By putting the findings of the two together we gain an even greater understanding of this dimension, which, as noted earlier, has extensive value implications and is intimately linked to societal norms. The main components of Hall's work that I will be looking at relate to time and context. I will deal with a third component, action chains, very briefly. Just as with other aspects of our culture, the way we view time is something we all take for granted and we assume that everyone sees it in the same way. Often, when we are in other countries and the citizens of those countries do not respond to time in the same way we do, we become angry and frustrated. We usually blame their different responses on other culturally-induced notions, such as rudeness, laziness, and the like. What we do not realize is that different cultures deal with time in very different ways, ways that are not at all related to rudeness or laziness. Hall has characterized the two different ways of dealing with time as monochronic time (M-time) and polychronic time (P-time). "M-time systems emphasize schedules, segmentation, and promptness. P-time systems are characterized by several things happening at once. They stress involvement of people and completion of transactions rather than adherence to preset schedules."63 As Hall notes, "[f]or M-time people reared in the northern European tradition, time is linear and segmented like a road or a ribbon extending forward into the future and backward to the past. It is also tangible; they speak of it as being saved, spent, wasted, lost, made up, accelerated, slowed down, crawling, and running out. [These metaphors] express the basic manner in which time is conceived as an unconscious determinant or frame on which everything else is built. M-time scheduling is used as a classification system that orders life."64 The problem for M-time people though, is that many cultures around the world operate on P-'Hall (1976) at 195 'Hall (1976) at 14 'Hall (1976) at 16 - 17 -time. As Hall notes, "Americans overseas are psychologically stressed in many ways when confronted by P-time systems such as those in Latin America and the Middle East.... Particularly stressing to Americans is the way in which appointments are handled by polychrome people. Appointments just don't carry the same weight as they do in the United States.... Nothing seems solid or firm, particularly plans for the future, and there are always changes in the most important plans right up to the very last minute."65 M-time systems have grown out of the industrial revolution where the labour forces were required to be on hand and in place at the factory at an appointed hour. Hall notes that without schedules it is unlikely that our industrial civilization would have developed as it has.66 In this respect, Hall notes that Germany and Switzerland are classic examples of M-time cultures, "where the percentage of individuals whose personalities fit this pattern seems to be higher than among other peoples of the world."67 He also tells us that the Japanese combine both M-time and P-time. "In their dealings with foreigners and their use of technology, they are quite monochronic; in every other way, especially interpersonal relations, they are polychrome."68 This fact may seem quite strange. However, by looking closer at those cultures which have P-time systems, it becomes easier to understand. As mentioned earlier, I believe there is a connection between the M-time/P-time paradigm and the Collectivist/Individualist dimension. The more Individualistic societies have grown out of the industrial revolution in Europe (I will speak more on this later) and, as mentioned above, it is out of this that M-time has developed. As Hall states many times in his writings, M-time is not inherent in man's natural rhythms and creative drives and, in fact, helps to alienate us from ourselves. This is readily apparent in our society where we often feel that time is controlling our lives, and where more and more people are suffering from "hurry sickness" because we are continually trying to accomplish more than is humanly possible. Hofstede's more Collectivistic societies, however, share similar characteristics with Hall's P-time societies. Looking at Hofstede's listing of societal norms associated with the more Collectivistic 6 5Hall (1976) at 14 - 15 "Hall (1976) at 16 < 7Hall & Hall (1987) at 17 "'Hall & Hall (1987) at 18 - 18 -societies, he states that there is a we consciousness, that identity is based in the social system, that one's private life is invaded by organizations and clans to which one belongs, and that the individual is emotionally dependent on the organizations and institutions to which he or she belongs. Hall notes that P-time people are committed to people and human relationships, and that they are more concerned with those who are closely related (family, friends, close business associates) than with privacy.69 He goes on to note that "[i]n P-time systems, appointments mean very little and may be shifted around even at the last minute to accommodate someone more important in an individual's hierarchy of family, friends, or associates. Some polychrome people (such as Latin Americans or Arabs) give precedence to their large circle of family members over any business obligation."70 By realizing this, it is easy to understand the Japanese position. In order to maintain their plan for technological advancement following the Second World War, it has been necessary for them to adapt (in some ways) to the western notions of time, however, because their society is more Collectivistic than Individualistic, for all other matters, P-time controls. This adaptation to M-time by P-time societies does go beyond Japan. Hall notes that P-time people will master M-time as a different system when it is situationally appropriate.71 There are additional facets to the difference between M-time and P-time. Two of these relate to waiting time and lead time. Once again, these are areas that can be very frustrating for the M-time businessperson or lawyer. Because P-time people are not concerned with schedules and appointments, their notion of what is an acceptable waiting time is at great variance with that of M-time people. Anyone from an M-time culture who has lived or worked in a P-time culture is well aware of the difference. I lived and taught in Turkey, which is definitely a P-time culture, for just under four years. I would conclude that it is normal for traditional Turks (ie. those who have not become westernized) to be one-and-a-half to two hours late for a planned meeting. I would also conclude that the degree to which a Turk has become westernized will affect his or her ability to see the meeting as "situationally appropriate" for M-time scheduling.72 "Hall & Hall (1987) at 18 7 0Hall & Hall (1987) at 19 7 1Hall (1976) at 18 72In this regard, one of my students, who has an extremely busy law practice, was complaining to me how her Turkish clients would often not show up for their appointments or would be late and all of this without advising her. She also complained how they would just drop by at any time, without an appointment, to talk about their files and find out how - 19 -The other facet, lead time, can again cause great frustration. In the United States, "lead time can be read as an index of the relative importance of the business to be conducted, as well as of the status of the individuals concerned."73 The longer the lead time, the greater the importance. Once again, this does not carry over to other cultures. My experience in Turkey is similar to Hall's comments on Arab countries. He notes that it is "pointless to make an appointment too far in advance, because the informal structure of their time system places everything beyond a week into a single category of "future", in which plans tend to "slip off their minds".74 In Japan, the lead time is usually much shorter than in the United States. The reason for this is that before a meeting can be scheduled, there must be extensive discussions within the organization. However, once consensus has been reached, the Japanese then want to move quickly. Hall calls this "slow, slow; fast, fast"75 The other major component of Hall's work which I believe falls within Hofstede's Collectivist/Individualist dimension, is what Hall calls high- and low-contexts. He notes that "Japanese, Arab, and Mediterranean peoples who have extensive information networks among family, friends, colleagues, and clients, and who are involved in close personal relationships, are "high context". As a result, for most normal transactions in daily life they do not require, nor do they expect, much in-depth background information. This is because it is their nature to keep themselves informed about everything having to do with the people who are important in their lives."76 At the other end are low-context (LC) people, which would include Americans, Germans, Swiss, Scandinavians, and other northern Europeans.77 Low-context people have information networks but they are limited in scope and development. Hall notes that low-context people "feel the need to be contexted any time they are asked to do something or to make a decision. This need for detailed background information stems from the fact that [their] approach to life is quite segmented and focuses on discrete, compartmentalized bits of information."78 As a result, they everything was proceeding. Her response to what was traditional Turkish behaviour had become totally westernized. I truly believe she would not have had this response if she was not always so short of time. "Hall & Hall (1987) at 25 7 4Hall (1959) at 26 "Hall & Hall (1987) at 81 7 6Hall & Hall (1987) at 8 7 7Hall & Hall (1987) at 8 7 8Hall & Hall (1987) at 9 - 20 -need "to know what is going to be in that compartment before they commit themselves."79 This difference in approach can be very frustrating for both parties. Hall notes that "[high-context (HC)] people are apt to become impatient and irritated when LC people insist on giving them information they don't need. Conversely, low-context people are at a loss when high-context people do not provide enough information. One of the great communication challenges in life is to find the appropriate level of contexting which is customary both at home and abroad. Too much information frequently leads people to feel they are being talked down to; too little information can mystify them or make them feel left out."80 Hall notes that the French have never been easy for the northern Europeans, the Americans or the English to understand. He believes the reason for this may be that "French culture is a mixture, a melange, of high- and low-context institutions and situations. It is not always possible for the foreigner to predict in what proportions they will be found or in what order they occur."81 A comparison of the Japanese and American criminal trial systems exemplifies the difference between high- and low-context justice. As Hall notes, the Japanese trial has a completely different purpose. "Because of the inclusiveness of HC systems, it eschews the protagonist-antagonist conflict which characterizes the American court. Very high-context systems, by definition, take much more into account, and this has the effect of putting the accused, the court, the public, and those who are the injured parties on the same side, where ideally, they can work together to settle things. The purpose of the trial is to provide a setting where the powers of government can act as a backdrop for a performance, where the consequences and the impact of the crime are played out before the accused. It also provides an opportunity for the accused to be properly and publicly repentant for disrupting the orderly processes of life, for releasing the evil of disorder by failing to observe the regulative norms expected of decent human beings. In a word, the function of the trial is to place the crime in context and present it in such a way that the criminal must see and understand the consequences of his act. It is crucial that the culprit exhibit a high degree of contrition."82 This difference in the notion of justice is also highlighted by Alan Fox in his discussion of what the correct word for justice is in Chinese. Westerners would accept the notion that "justice is fairness", however Fox argues that there is "no exact parallel in the Chinese tradition." He says instead, "we see...an emphasis on the regulation of harmonious processes within the body of society. This can be seen in the use of the Chinese word zhi to refer both to governing and to "Hall & Hall (1987) at 9 ""Hall & Hall (1987) at 10 - 11 "Hall (1976) at 94 ^Hall (1976) at 96 - 97; it is interesting to note that in B.C. our Attorney-General has introduced a programme similar to this into the juvenile justice system to try to improve a system which clearly does not work. healing. - 21 -Another creation of western culture that is tied to low-context situations and institutions (and in particular to our legal system) is logic. Hall notes that experience has taught him not to trust logic, as he has worked with cultures that do not find logic to be an effective, convincing or acceptable way of arriving at a decision.84 He argues that "Western philosophies and beliefs are...taken for reality when all they are is an idea or explanation"85 just as "[t]he ideas and concepts of the Chinese philosopher Confucius mean one thing to the Chinese, [and] something else to Westerners."86 Dr. Rosalie Tung, from the School of Business Administration at the University of Wisconsin at Milwaukee, discovered this as well in her study on "Business Negotiations with the Koreans: a Cross-Cultural Perspective". She noted that "[v]irtually all American partners who were interviewed perceived that Koreans were illogical in the decision-making process. The Americans felt that the Koreans tended to focus on trivial or emotional matters rather than on issues that were the subject of negotiation. The Korean partners on the other hand felt that Western logic or reasoning may not be the only way of trying to persuade or convince your partners to pursue a certain course of action. According to S.H. Jang (a consultant in Korea), it is important to understand kibun, which translates as "the personal feeling, attitude, mood, the mental state which is an extremely important factor in ego fulfillment"."87 I became aware of this difference concerning logic when I was teaching in Turkey. I took it for granted that my students, Turkish lawyers, would understand what I meant when I said "What is the logical solution?" One of the exercises in my Legal English course deals with the problems that can arise from vague drafting. It consists of a municipal by-law with three parts, "Alan Fox, "The Aesthetics of Justice: Harmony and Order in Chinese Thought", in 19 Legal Studies Forum 43 (1995) at 43; see also Richard Steers at http://hoshi.cic.sfu.ca/forum/steers.html on the Internet for a summary of his presentation "Culture and Communication Patterns in Korean Firms" where he notes "when an individual in the West perceives that he has been injured, he will aim for fair resolution of the problem even though it may be at the expense of harmony. In several East Asian countries the opposite often occurs where the individual will subvert his own interests for the good of the society." •"Hall (1976) at 187 - 188 8 5Hall (1976) at 188 ''Hall (1976) at 188 ^Presented at the Pacific Region Forum on Business and Management Communication at the David See-Chai Lam Centre for International Communication on October 26, 1990 and reported on the Internet at http://hoshi.cic.sfu.ca/forum/tung.html - 22 -each of which can be interpreted in two different ways. The class was divided in two, with one group representing the municipal officers who were enforcing the by-law and the other group representing a lawyers association which wanted to make use of the by-law. Each group received, along with some other information, instructions on how it was to interpret the by-law, but it was not aware of the content of the instructions given to the other group. The goal of the exercise was to try to come to a resolution of the problem. But no class was ever able to do so. They just hammered back and forth at each other with their respective positions, even though the problem was set up in such a way that it was possible to logically work out a solution. I learned early that for every new class I needed to preface the exercise with two qualifiers: they could not take the matter to court,88 and no bribes could be paid (both solutions having been proffered instantly in the first few classes). Only one student made the logical arguments that I was expecting. When I tried to prompt the others with my question "What is the logical solution?", no one was able to respond. In only one class did a very bright young man suggest that maybe our logic is different from Turkish logic.89 The final component of Hall's work which is relevant for my purposes is what he terms action chains. An action chain is an established sequence of events in which usually two or more individuals are involved.90 Action chains can be simple (such as the series of verbal exchanges on meeting someone for the first time) or they can be complex (such as defusing an emotionally charged controversy between two parties). Hall believes that all social action involves some sort of action chain. For P-time people (who are generally HC), completion of a job is not as important as being courteous, kind, and sociable, so their action chains are built around human relations. It is not too difficult to imagine that the possibility for misunderstanding is great when an M-time person and a P-time person are engaged in an action chain, as not only will each view the process from different angles and have different objectives, but they will each have different priorities.91 **I note that this is a similar response that the French students gave to the exercise conducted by Hofstede's colleague - it is also interesting to note that the Turkish education system was modeled on the French 8'I have given this exercise to a friend of mine who teaches in a legal-assistant programme here in Vancouver. She advises me that her "western" students love the exercise but she has noticed that her immigrant students of Asian background don't enjoy it in the same way. "Hall (1976) at 124 "Hall (1976) at 132 - 23 -IV. THE LINGUISTIC PERSPECTIVE The final approach I will be looking at in this chapter is that of linguists Ron Scollon and Suzanne Wong Scollon. I believe that their work gives greater dimension to the work of Hofstede and Hall and it does so in a direction that is beneficial for my purposes. The Scollons believe that the "major sources of miscommunication in intercultural contexts lie in differences in patterns of discourse."92 They note that "...the discourses of our cultural groups, our corporate cultures, our professional specializations, or our gender or generational groups make it more difficult for us to interpret those who are members of different groups."93 This is because each of these groups has its own discourse system. And each discourse system has its own principles for organizing its presentations. As a result of this use of different discourse principles, Asians are often described as "inscrutable" and Westerners as "frank and rude". The following is an example of this different use, "...the Asian speaker uses a "topic-comment" order of presentation in which the main point (or comment) is deferred until a sufficient backgrounding of the topic has been done. ... On the other hand, a western speaker of English tends to expect a discourse strategy of opening the discussion with the introduction of the speaker's main point so that other speakers may react to it and so that he or she can develop arguments in support as they are needed. ... This difference in discourse pattern leads the westerner to focus on the opening stages of the discourse as the most crucial while the Asian speaker will tend to look for the crucial points to occur somewhat later."94 The Scollons point out that another major problem is the fact that languange is inherently ambiguous. We are only able to understand what someone else is saying to us by drawing inferences based on our general knowledge of the world.95 The inferences we draw, of course, will be based on our concept of the normal, day-to-day world in which we live and which we take for granted. Where the problem necessarily arises in cross-cultural communication, is when the parties are drawing on their own concept of what a normal, day-to-day world consists of and, as these will often be very different, it will be difficult for each of them to draw the correct inference as to what the other person means.96 This simple dialogue illustrates the point, 92Scollon & Scollon (1995) at xii 93Scollon & Scollon (1995) at xi "Scollon & Scollon (1995) at 1 - 2 9 5For example, to be able to understand the difference between the two sentences - There's a man at the door, and, There's a taxi at the door. - we must call on our general knowledge about men and taxis and how they wait "at" doors in order to understand the difference between these two sentences; Scollon & Scollon (1995) at 7 ^Scollon & Scollon (1995) at 10 - 12 - 24 -MS. ANDERSON: Hassan was looking at your paper. ABDULLAH: He was? MS. ANDERSON: Yes. He copied some of your answers. ABDULLAH: Perhaps he didn't know the answers. MS. ANDERSON: I'm sure he didn't. ABDULLAH: Then it's lucky he was sitting next to me. For us, Abdullah's final remark is confusing. This is because we would see this action as cheating. Abdullah, however, sees it as helping a friend. For Abdullah, no purpose is served by keeping information to himself when he can help someone else by sharing it, especially if this will save his friend from the embarrasment of doing poorly on the test. As well, if the situation were reversed, he would expect Hassan to do the same for him.97 This short dialogue illustrates very well the different inferences drawn in collectivist and individualist societies. This second dialogue illustrates another very common problem, MS. YOUNG: We will charge you $5 per unit if you order $10,000 units. MR. KAWABATA: That's a good price, Ms. Young. MS. YOUNG: So you accept that price? MR. KAWABATA: It's very good. MS. YOUNG: Great! Let's talk about a delivery schedule then. What Ms. Young does not realize but which every Japanese would see automatically, is that Mr. Kawabata is saying no. In many Asian societies, people do not like to say no because to even imply displeasure or disappointment risks humiliating the other party, which must be avoided.98 To expand further on the example given earlier concerning the use of different discourse principles, the Scollons note that Asians often use an inductive (topic-delayed) pattern whereas ^ "Craig Storti, Cross-Cultural Dialogues, 74 Brief Encounters with Cultural Difference, Yarmouth, Maine: Intercultural Press, Inc. (1994) at 15 and 26; I experienced a similar situation in Turkey - I had scheduled my various classes to write the final exam during their regularly scheduled class times, but after requests from a number of the students (Turkish lawyers), I changed this so that they would all write at the same time. The reason for this was that those who wrote first would tell those who wrote later what the questions were. When I said that they were only hurting themselves if they did so, the response was that they would have no choice, but that they would be obliged to tell the other students, even though they didn't want to, as it would be expected of them. "Storti (1994) at 90 and 106; I found a similar situation in Turkey - the way I termed it is that people will tell you what they think you want to hear. One of the things I learned from this is to never ask anyone for directions, because they will never say they don't know but will point you in any direction and often the wrong direction. - 25 -Westerners more often use a deductive (topic-first) pattern. They stress that "there is nothing inherently Asian or Western in either of these patterns, since, as far as we know, both patterns are used in all societies."99 But in trying to answer the question as to why Asians prefer an inductive pattern for the introduction of topics and why Westerners prefer a deductive one, the Scollons found themselves looking more closely at the collectivist/individualist dimension. Hall puts this indirection (as he calls it) on the part of Asians, down to their societies being high-context. The Scollons do note the difference between inside and outside interactions, but they have found as well, that in interpersonal relationships, there is a strong carry-over from Confucianism. They state that "[g]enerally speaking, Asians feel that such relationships as those within the family or between people who have frequent and longstanding relations with each other should be governed by careful propriety. That careful propriety in inside relationships includes careful concern for face relationships among participants in speech events."100 They go on to note that "...it is certainly accurate to say that hierarchy in relationships is much more consciously observed than it is in the west. The carry-over from Confucianism means that even today, most Asians are quite conscious in any interaction who is older and who is younger, who has a higher level of education, who has a lower level, who is in a higher institutional or economic position and who is lower, or who is teacher and who is student."101 In their discussions with Asians concerning the difference with Westerners in topic introduction, the Scollons realized that the crucial issue is not who speaks first but rather who is in the higher position, because in the Asian discourse system it is the person in the higher position who has the right to introduce the topic and this right supersedes the matter of who speaks first.102 They point out that the ancient Confucian code Li Ji or Li Chi, the Book of Rites, "lays down quite a clear set of appropriate behaviours in interpersonal communication, which corresponds quite closely with Asian communicative practice in the twentieth century [but] our evidence is that Asians are not conscious, on the whole, of these ancient rules of etiquette."103 The Scollons go on to state that it is unusual for the person in the lower position to introduce his or her own topic without having first received permission from the person in the higher position. "Scollon & Scollon (1995) at 75 100Scollon & Scollon (1995) at 81 ""Scollon & Scollon (1995) at 81 10JScollon & Scollon (1995) at 81 103Scollon & Scollon (1995) at 82 - 26 -"While the Li Ji does not use the term, it seems clear that this is a description of the inductive pattern for the introduction of topics in a discourse."104 As a result, the difference lies not in the introduction of topics but rather in the structuring of situations. This cultural structuring can take a number of different forms. In a symmetrical deference politeness form, all speakers will avoid the direct introduction of their own topics. (This is the form preferred by Asian businessmen at an initial business meeting.) In a symmetrical solidarity form, all participants assume that they are members of the same social or discourse group and, as such, feel free to introduce their own topics. (This is the form the American businessman expects.) In the final form, an assymetrical (ie. hierarchical) politeness form, if there is confusion on the part of the participants as to whether there will be mutual deference shown or deference for a higher position, there may be problems concerning the introduction of the topic. This can result in the appearance of one party asserting his or her power or attempting to take control inappropriately.105 The Scollons note that this mismatch of strategies is not only a major cause of miscommunication, but "it can also be the source of bitterness and other negative attitudes when participants fail to come to agreement."106 Ancient Confucian texts continue today to have a strong influence in East Asian countries in a variety of different ways. These include the learning of classical Chinese writing and ethical philosophy, as well as kinship relationships. Two aspects of kinship which relate to the topic under discussion are hierarchy and collectivism. The discussion above shows the consequences of hierarchy on cross-cultural communication.107 The emphasis on collectivism results in discourse in which individuals do not act independently but rather as part of a hierarchical relationship.108 The problem this can present has become well recognized now among Westerners, as western negotiators generally have the authority to make decisions on the spot, whereas Asian negotiators are often restricted to the giving and taking of information.109 I04Scollon & Scollon (1995) at 82 105Scollon & Scollon (1995) at 85 - 87 l06Scollon & Scollon (1995) at 87 ""Scollon & Scollon (1995) at 125 - 130 ""Scollon & Scollon (1995) at 131 1MIn 1989, when I was practising law, I was acting for a Hong Kong company that was wanting to purchase one-half of a city block in downtown Vancouver. The representative they sent was a young, recent university graduate and this was his first assignment. In meetings with the solicitors for the vendor, I was looking to this young man for instructions but he was - 27 -Another way in which collectivism affects discourse relates to ingroups and outgroups. The Scollons note that "...in a collectivist society, many relationships are established from one's birth into a particular family in a particular segment of society in a particular place. These memberships in particular groups tend to take on a permanent, ingroup character along with special forms of discourse which carefully preserve the boundaries between those who are inside members of the group and all others who are not members of the group. ...[M]embers of an ingroup feel that it is a kind of ingroup betrayal to use ingroup forms of language to non-members."110 It is easy to see that if the party on the other side of the communication is not aware of this difference, once again, there can be a misunderstanding, resulting in negative consequences. Another aspect of culture that the Scollons see as playing a major role in intercultural communication, is the question of how a particular culture conceives the function of language.111 They note that "Chinese in its many forms is a major aspect...of the definition of Chinese culture."112 They have found that cultures are "different from each other in how much importance they give to one function of language over [another]."113 For example, the Japanese "place a very high value on the communication of subtle aspects of feeling and relationship and a much lower value on the communication of information."114 The Scollons note that the Japanese have a tradition of communication without language, which they call isshin denshin, and which "...has been strongly influenced by Zen Buddhism. This influence originated in China in the early Tang Period (AD 618-907) and has had a major impact on Chinese, Korean, and Japanese cultures, even in the modern period. In this tradition of thinking about communication, it is believed that the most important things cannot be communicated in language, that language is only useful for somewhat secondary or trivial messages. ...[W]e do know that throughout Asia, members of Chinese, Japanese, and Korean cultures have been strongly influenced in their thinking about language by such traditions. As a result, one might expect the average Asian to be somewhat more skeptical about the value of direct, informational communication, and to place a higher value on thinking deeply about a subject."115 The oft noted difference in the initial stages of business negotiations between Westerners and completely frozen with fear as he had no idea what to do. Needless to say, it was a difficult experience for both of us. ""Scollon & Scollon (1995) at 134 - 135 l nScollon & Scollon (1995) at 137 - 138 I12Scollon & Scollon (1995) at 137 "'Scollon & Scollon (1995) at 138 114Scollon & Scollon (1995) at 138 l l5Scollon & Scollon (1995) at 139 - 28 -Asians illustrates this point. The Westerner likes to get right down to business on initial meeting because he or she believes that the best way to exchange information is by speaking directly. The Asian, however, likes to initially set up a series of social events so that the parties can "more directly approach each other and begin to feel more subtle aspects of their relationship."116 What the Westerner is unaware of is just how much these social events are another form of business communication. Another way in which the different notions about the function of language impacts on cross-cultural communication is in the "extent to which relationships are thought to be freely negotiated...or given by society in a fixed form".117 The Scollons see a major difference in the way human relationships are understood in Asia (and other traditional societies) and the way they are understood in contemporary Western society. In Asian cultures, human relationships are thought of as being largely vertical, between preceding and following generations. In this way, most relationships are understood to be given by society, not negotiated. One's personal identity is given by the situations into which one is born. In contemporary Western society, relationships are made between people who freely choose to enter into them. Within the Asian or traditional societies, language is "...thought of as being used for the purposes of ratifying or affirming relationships which have already been given. On the other hand, in the contemporary western concept of relationships, language is seen as a major aspect of the ongoing negotiation of the relationship."118 As we have seen, the difference between group harmony and individual welfare is a major difference in the collectivism/individualism dimension. The Scollons note that one major difference between Ancient Chinese and Ancient Greek rhetoric was on this dimension. "Ancient Chinese rhetoric emphasized the means by which one could phrase one's position without causing any feeling of disruption or disharmony. Ancient Greek rhetoric, on the other hand, emphasized the means of winning one's point through skillful argument, short of, Aristotle says, the use of torture."119 The Scollons conclude that this additional difference in assumptions about the function of 116Scollon & Scollon (1995) at 140 117Scollon & Scollon (1995) at 140 "'Scollon & Scollon (1995) at 141 "'Scollon & Scollon (1995) at 142 - 29 -language will affect cross-cultural discourse between Asians and Westerners in the following way, "[w]e know that Asians will tend to state their positions somewhat less extremely if they feel that not to do so would disrupt the harmony of the negotiations. We also know that Westerners will tend to assume that each party has only in mind achieving their own best advantage in negotiations, and that they will do so, even if it should cause a feeling of disharmony. This difference in assumptions about what is actually going on can easily lead to more complex misinterpretations in the discourse."120 The foregoing discussion clearly illustrates not only the extremely subtle influence of cultural factors in discourse, but also the on-going influence of historical factors of which we are not even aware. Which leads me to now look at the historical factors behind Western discourse systems. I mentioned earlier in my discussion of Hall's work that different aspects of our western way of life are a result of the industrial revolution. The Scollons have developed this in more detail and look at how our forms of discourse have grown out of the Enlightment and, as a result, how the ideological tenets of that time continue to influence us today. They argue that it was Adam Smith's (1723-1790) An Inquiry into the Nature and Causes of the Wealth of Nations, that laid the foundation for the modern concept of capitalist economic exchange. Combined with this was Montesquieu's (1689-1755) The Spirit of Laws, which developed the concept of government by laws, out of which the American Declaration of Independence, Articles of Confederation, and Constitution were founded. They go on to argue that Immanuel Kant (1724-1804), in his essay "The Science of Right", laid down the principles upon which the idea of intellectual property rights (specifically, copyright) were established. And it was John Locke (1632-1704) who extended studies of the physical universe to include human beings as physical entities.121 The Scollons note that "[t]his concept of the human being was a radical departure from the concept of the person upheld until that time in Europe, and, indeed, throughout most of the world. Before this, and elsewhere, humans have been thought of as deeply connected participants in a larger social and spiritual structure of society. The new Enlightenment concept of the human was to isolate each person as a completely independent, rational, autonomous entity.... Locke, Smith, Montesquieu, Kant and the other Enlightenment thinkers reduced humans and human life to the same simple principles: isolated entities and social laws."122 Jeremy Bentham (1784-1832), in trying to find "an ethical principle to replace the idea that good 'Scollon & Scollon (1995) at 142 Scollon & Scollon (1995) at 100 !Scollon & Scollon (1995) at 100 - 101 - 30 -was defined by the authority of God or the Christian Church",123 coined the term Utilitarianism. The Scollons summarize the main ideological tenets of the Utilitarian movement, which grew out of the Enlightenment, as follows: 1. "Good" is defined as what will give the greatest happiness for the greatest number. 2. Progress (toward greater happiness, wealth, and individuality) is the goal of society. 3. The free and equal individual is the basis of society. 4. Humans are defined as rational, economic entities. 5. Technology and invention are the sources of societal wealth. 6. Creative, inventive (wealth-producing) individuals are the most valuable for society. 7. Quantitative measures such as statistics are the best means of determining values.124 Our government-controlled public schooling grew out of this period along with an exaggerated value being given to formal learning, accompanied by a powerful devaluation of non-formal types of learning.125 And, of course, what was taught in these schools was the ideological system of the Utilitarians. The Scollons argue that "[t]he seven principles...could easily be taken as the governing principles of schools throughout the European-based societies of the world. The emphasis in these schools is on the inventive and creative development of individuals who are seen to be in competition with each other. The goal is for them to become "productive members of society". There is an ever increasing emphasis on experimentation, rationalism, and technology. And evaluation is primarily based upon numbers (grades or marks)."126 The Scollons go on to outline the six main characteristics of the forms of discourse preferred within the Utilitarian discourse system: 1. anti-rhetorical 2. positivist-empirical 3. deductive 4. individualistic 5. egalitarian 6. public (institutionally sanctioned)127 What is meant by anti-rhetorical is that the "discourse forms should appear to give nothing but information,...they should appear to be making no attempt to influence the listener or the reader 'Scollon & Scollon (1995) at 102 'Scollon & Scollon (1995) at 104 'Scollon & Scollon (1995) at 105 'Scollon & Scollon (1995) at 105 Scollon & Scollon (1995) at 107 - 31 -except through his or her exercise of rational judgement".128 Positivist-empirical refers to the belief that scientific thinking is the best model for all human thinking. "It was believed that all reality was simply the interaction of the physical universe and universal laws of logic. It was assumed that the role of discourse was to simply state these observations and these results as clearly and directly as possible."129 The Scollons explain the deductive form of discourse as resulting from the anti-authoritarianism and anti-rhetorical position of Utilitarianism. Since the relationships of the members of the discourse system are down-played, "the text of the discourse itself comes to have primary authority".130 The individualistic form of discourse stresses that the sovereignty of the individual should be demonstrated. This is accomplished in two ways: the individual can say whatever he or she wants; and, what the individual says must be original. Prior to this, plagiarism was rampant, there was no author's copyright, and there was no property in ideas.131 The notion of egalitarian discourse comes out of the ideological position that individuals are the basis of society. This notion however applies only to those individuals who are members of the Utilitarian discourse system.132 The final characteristic of the Utilitarian discourse system refers to the fact that not all speech is free but rather only that which is institutionally authorized.133 This Utilitarian discourse system has come to be the central and dominating discourse system throughout the western world.134 It is evidenced throughout "most western governments, virtually all western and international corporations, schools, private manufacturing and service businesses, [and] professional associations".135 The Scollons believe that "[s]ince international business and government circles have generally taken the political and economic philosophies of the Enlightenment as self-evident, they have also taken this discourse system as self-evident."136 mScollon & Scollon (1995) at 108 129Scollon & Scollon (1995) at 109; it is interesting to note that the format that this Masters thesis must take follows the format discussed here. 130Scollon & Scollon (1995) at 109 "'Scollon & Scollon (1995) at 110 '"Scollon & Scollon (1995) at 110 '"Scollon & Scollon (1995) at 111 1MScoIlon & Scollon (1995) at 114 "'Scollon & Scollon (1995) at 115 "6Scollon & Scollon (1995) at 118 - 32 -The problem with this position, of course, is that it is not the only discourse system in existence. As a result, communications which are framed within a different discourse system are seen as "faulty or inefficient".137 The Scollons go on to argue that "members of the Utilitarian discourse system are judged to be "progressive", "democratic", "free" and "developed", and non-members are judged to lack these assumed qualities."138 The Scollons support their position by pointing to the 1948 Universal Declaration of Human Rights where the ideology of the Utilitarian discourse system "has been taken for granted as the natural and rightful state of human life on earth, though it includes many aspects which had never or rarely been observed in human culture before the seventeenth century, except by the aristocracy".139 One final point the Scollons make, which I believe not only underlies everything said so far but also impacts on our notions of dispute resolution, lies in the different ways in which cultures view the nature of the human person. Confucian ideology holds the view that human nature is basically good. In contrast to this, Christian ideology holds that humans are basically evil or sinful.140 It is not difficult to see how this has been extrapolated into aspects of our culture, and in particular, into our criminal justice system. V. CONCLUSION It is clear from looking at the work of Hofstede, Hall and the Scollons, that the extensive cultural differences that exist between nations cannot help but have an impact on any form of cross-cultural interaction. Some of the areas of concern to me in this thesis are the impact these differences have on business negotiations, the formation and content of commercial contracts, and the objectives and management of the many international joint ventures which are entered into pursuant to these negotiations and contracts. I will be exploring these particular matters in more detail in Chapter 4, but first I will look at how these cultural differences impact on the various '"Scollon & Scollon (1995) at 118 138Scollon & Scollon (1995) at 117 "'Scollon & Scollon (1995) at 117; I would argue that in the public international law area, even though many of the international Conventions and Treaties may be driven by the western world and ratified by non-westem countries, this does not mean that these non-westem countries are accepting what is written. I would argue that the lack of compliance with a great many of these Conventions and Treaties testifies to the acceptance being not much more than bowing to pressure in an international forum. 140Scollon & Scollon (1995) at 152 legal systems of nations. - 34 -CHAPTER TWO - THE BARRIERS POSED BY LAW I. INTRODUCTION We have just seen in Chapter 1 how the bulk of our thought processes or mental programming (to use Hofstede's term) are formed by and shared with the society into which we are born and, as such, are completely interwoven with all aspects of this society, be it in family relationships, the educational system, the form of government, the language and methods of discourse, or the legal system. In this chapter I wish to look more closely at some of these legal systems. Quite clearly there are at least as many legal systems as there are countries, however I have chosen to follow a fairly standard process used by legal comparativists, namely the grouping of the various legal systems into legal families. Mary Ann Glendon, Michael W. Gordon and Christopher Osakwe note that "[c]omparativists believe that the grouping of legal systems into legal traditions or families is possible because within every national legal system there are certain constants as well as certain variables. In grouping law into legal traditions comparativists look for the constants Those legal systems that have the same recurrent constants fall into the same legal tradition. There is no unanimity among comparativists as to what denominators should be used in grouping legal systems into traditions of law. Among the criteria that are often used for this purpose, however, are the following: historical background and development of the legal system, theories and hierarchy of sources of law, the working methodology of jurists within the legal system, the characteristic legal concepts employed by that system, the legal institutions of that system, and the divisions of law employed within that system."1 The four major groupings I will be using are Western, Eastern, Traditional, and Religious.2 These groupings or families are of course subject to subgroupings. Briefly, the Western family is divided into civil law and common law; Eastern is divided mainly into Chinese and Japanese; and for Religious, brief mention will be made of Hindu and Jewish law but the emphasis is on Islamic law.3 Traditional would include mainly Black African law, however as it has minimal influence today in international commercial transactions, I will not be dealing with it within the 'Mary Ann Glendon, Michael W. Gordon, Christopher Osakwe, Comparative Legal Traditions, St. Paul: West Publishing Co. (1982) at 4 'Although there is some dispute about this grouping, I have chosen to use it as I believe it to be the best structure for my purposes; for a discussion of alternative forms of grouping see the Introduction and Chapters One and Two of Legal Systems and Social Systems, Adam Podgorecki, Christopher J. Whelan & Dinesh Khosla (eds), London: Croom Helm (1985). 3Ahmed Aoued argues that Islamic law should be seen as a separate legal family rather than being included as part of the religious family. He notes that David & Brierley (1985) call it one of the greatest legal systems in the modern world and that it is completely original when compared to other legal systems; see Ahmed Aoued, "Algeria: Reconciling Faith and Modernity" in Studies in Legal Systems: Mixed and Mixing, Esin Orucu, Elspeth Attwooll & Sean Coyle (eds), The Hague: Kluwer Law International (1996) at 193 scope of this thesis. - 35 -In choosing these particular groupings or families, I hope to build on a number of the cultural differences we saw in Chapter 1, in particular, the differences between east and west. But in addition to this, a point I want to highlight in this chapter is that even though many countries have adopted western-style laws in their need and desire to modernize, their historical and cultural differences continue to play a significant role in how they understand these new laws and how they adapt them to fit within their own cultural context. As Mary Ann Glendon, et al, note "[l]aw is a form of cultural expression and is not readily transplantable from one culture to another without going through some process of indigenization."4 In this regard, John Henry Merryman points out that "[i]n a substantial number of...nations the paper legal system will look much like that of France or Spain or Italy, or of England or the United States. But if one looks at the actual role of law in the lives of important elements of the population - the penetration of the legal system - the resemblance is only superficial. Thus along two dimensions, the aspects of social life that the law proposes to affect and the extent to which it actually does so, the scale of divergence of legal extension and legal penetration between societies can be, and often is, substantial."5 And Esin Orucu tells us, "...it is not the borrowing of the rules and provisions, even the principles and standards of another legal system that is crucial. What is crucial is the borrowing of a mode of thought and the handling of the law, its structure and sources!"6 It is clear when we look at the law in China and in Japan and Islamic law that this difference in the mode of thought plays a significant role. For this reason I believe it is necessary for us to look at the historical background of these legal systems as it is this background which helps us to understand more clearly these different modes of thought. And understanding these is crucial, I believe, for any. lawyer who wants to practice in the field of international commercial law. But this difference in mode of thought is not restricted to the differences between east and west, as we will see that there is also a difference in thinking between the civil and common law systems even though these are both in the Western family of law. The differences between these "Mary Ann Glendon, et al (1982) at 10 5John H.Barton, James Lowell Gibbs Jr., Victor Hao Li, John Henry Merryman, Law in Radically Different Cultures, St. Paul, Minn.:West Publishing Company (1983) at 2 6Esin Orucu, "Mixed and Mixing Systems: A Conceptual Search" in Esin Orucu, et al (eds) (1996) at 338 - 36 -systems are significant not only for the members of the countries where these systems have originated, or where they were introduced through colonization, but also for the overall international picture. This is because most countries which have voluntarily adopted western-style laws have chosen to follow a civil law system due to the ease provided by the codification found in such systems. However, a large number of the international commercial contracts in use today are prepared by international law firms emanating from the United States, Canada, England, and Australia - all countries with common law systems. Even if these law firms, or other English-speaking common law lawyers, are not preparing the contracts, often legal precedents written in English are being used by non-native English speaking lawyers in the drafting of their international commercial agreements or any other agreement that needs to be drafted in English.7 The problem with this, as will be seen in Chapters 3 and 4, is that much of the language and many of the legal concepts found in these contracts are tied directly to the common law system.8 For this reason I believe it is important not only for civil and common law lawyers but also lawyers from countries which have transplanted western laws to be more aware of the similarities and differences between these systems. As we will see when looking at the civil law portion of this chapter, differences exist as well between the various civil law countries (most noticeably between France and Germany). Such differences will also impact on those countries which have transplanted French, German, Swiss, Dutch or other European laws into the laws of their own countries.9 As discussed in Chapter 1, until we are made aware of the many subtle differences between ourselves and others we often wrongly assume that they think 7One of my students in Turkey told me of a Turkish law firm charging another Turkish law firm US$5,000 for a precedent for a joint venture agreement written in English. Also, while in Turkey, I reviewed the terms of a contract for a friend. He advised me that it had been prepared by what was considered the top Turkish law firm in Istanbul. It was clear that it had been drafted following a common law precedent and it was also clear that the drafter was not an English-speaking common law lawyer as some of the terminology being used was an attempt to copy legal English however it was used incorrectly. I admit that it was probably the best legal drafting I had seen by a non-common law lawyer who was a non-native speaker of English, however the lack of understanding of some of the terminology was evident. 8In this regard I note an upcoming International Bar Association Conference "International Financial Law" in Barcelona on June 10-12, 1998. The last session of the conference is entitled "English legalese in non-English contracts". The advertisement for the conference notes "[e]very day thousands of lawyers in non-English speaking countries draft contracts in English, to be used by English speakers and vice versa. This session focuses on the question of whether the English legalese used in these contracts means the same to both English and non-English speakers." 'These differences may also impact on any dealings with someone from a common law country who may make assumptions about one civil law system based on knowledge of a different civil law system. - 37 -the same way we do and that they understand what we are saying in the same way that we do.10 I believe as well that by developing some knowledge of those legal systems which are very different from our own it will ultimately help us to look more closely and more critically at our own system to see how it fits into the global perspective. As Duncan Derrett notes, "[t]here is little point in exploring the minutiae of one's own system if one has hardly grasped that it is itself only one of a group of intensely developed attempts to effectuate justice amongst human beings. It is only one method, agreeing perhaps with others in many places (as one would expect), yet disagreeing in many ways, ways of varying significance and importance - some apparently fundamental."" It may be argued that the classification system I am using here is far too simplistic in today's world where so many jurisdictions have a complex mixture of legal traditions.12 However, as stated by Esin Orucu, "complicated classifications create confusion and are not particularly helpful, and defeat the purpose, since classifications are made for the purpose of simplification."13 As well, I agree with Duncan Derrett's position that "[a]n awareness of the broad features of the competing systems is obviously desirable."14 Any discussion of legal systems must invariably begin with a discussion of what is meant by law. This may seem like a simple exercise but, in fact, there are a variety of answers to this question, and as noted by Rene David, these "have merely served to keep alive a seemingly endless "The lawyers and legal scholars who prepared the UNIDROIT Principles of International Commercial Contracts can attest to this - Professor Marcel Fontaine, who was involved in the preparation of the Performance portion, noted "[i]t soon became clear that the contents of a chapter on 'performance of contracts' were perceived in quite different ways by common lawyers on one hand and civil and socialist lawyers on the other. ... The problems are not so much with the choice of the best technical solutions, but often mainly with the need to overcome barriers of understanding between the different legal systems. It has been difficult, and the outcome may not be completely satisfactory." - see XL The American Journal of Comparative Law 645 (1992) at 645 and 656. "See the Preface by Duncan Derrett in An Introduction to Legal Systems, J. Duncan M. Derrett (ed), New York: Frederick A. Praeger Publishers (1968)at xv; Stanley Lubman, writing in 1991, noted that, with respect to the study of Chinese law, he has found "[fjoreign observers create additional difficulties by not being self-conscious enough about their own theoretical assumptions. Both extreme cultural relativism and insistence on intellectual categories derived from Western legal systems have threatened to skew study, with the latter trend more evident in recent years." (see "Studying Contemporary Chinese Law: Limits, Possibilities and Strategy", 39 The American Journal of Comparative Law 293 (Spring 1991) at 294) lJSee Esin Orucu, et al (eds) (1996) for discussions of such mixed systems as Quebec, Scotland, Sri Lanka, Turkey, Hong Kong, Israel, South Africa, Algeria, Mauritius, Malta, and Japan, among others. "See Esin Orucu in Esin Orucu, et al (eds) (1996) at 335. "Derrett (ed) (1968) at xiv - 38 -dispute".15 I do not propose to enter into this dispute but rather will deal with this question within each of the various groupings or families of law that I will be discussing. The reason for taking this approach is because of the completely different attitude toward law shown by different societies. We in the western world have grown up with the concept of the rule of law,16 even if we do not know it as such. For us, laws are essential in order to keep our society well-organized and functioning in a productive manner. This concept would hold true as well for those countries governed by Islamic law. The situation however is quite different in many Asian countries, where the ideal of social peace and harmony is completely separate from the notion of law. In these countries, stress is placed on the obligation and duty of each individual to maintain the social harmony. Resort is made to the law only on rare occasions and only if all else fails. As has been seen in Chapter 1, it is this idea of obligation and duty, as opposed to the notion of individual rights, which highlights a major difference between eastern and western ways of thinking.17 But it is not only eastern countries which look to obligation and duty as the harmonizing force in the society. African law also "is ignorant of law as a weapon placed in the individual's hands for defending himself. African law is bound up with the idea of duty. It takes the form of a rite which must be obeyed...".18 Just as with the definition of law, I believe that in order to better understand the differences between the various legal systems it is necessary to deal with them not by way of analytical "international Encyclopedia of Comparative Law, Vol. II, Chapter 1 - "The Different Conceptions of the Law" (1975) at 3 16Henry W. Ehrmann in Comparative Legal Cultures, Englewood Cliffs, N.J.: Prentice-Hall Inc. (1976) at 48 notes that "[i]f the rule of law is a widely used term in England and the United States, its meaning is often loose and shifting. A common denominator of its various meanings...includes an injunction against governmental arbitrariness, a high-level guarantee of "reasonableness" in relations between man and state."; P.S. Atiyah in Law and Modern Society, Oxford University Press (1983) notes at 64 that the concept of 'the rule of law' is very hard to pin down or define even though lawyers and politicians in western societies frequently make the claim that their countries are subject to the rule of law. He goes on to state at 66-67 that "[m]ore recently, academic lawyers have suggested that the Rule of Law is a concept with an identifiable content, much of which has to do with the procedures governing the making and enforcing of the law. ...[I]t has been argued that, although wide discretionary powers are not inconsistent with the idea of the Rule of Law, it is necessary that such discretions should be exercised and guided by open and relatively stable general principles of law. Similarly it has been said that the Rule of Law requires that laws should generally be prospective (and not retrospective), that they should be open, published and reasonably intelligible to those whose conduct is to be guided by them. So also the independence of the judiciary and the accessibility of the courts may be said to be requirements of the Rule of Law. ... New laws should, in general, be made after due publicity and after the opportunity for debate and consultation; adequate discussion should be allowed during the legislative process itself, and adequate warning should be given of legal change to those most affected." 1 7As it relates to China, see in this regard "The Chinese Concept of the Individual and the Reception of Foreign Law" by Herbert H.P. Ma in 9 Journal of Chinese Law 207 (Fall 1995). 18Keba M'Baye, "The African Conception of Law" in International Encyclopedia of Comparative Law, Vol. II, Chapter 1, Section VII at 138; M'Baye, at 140, defines 'African law' here not to mean law of the African continent but rather the law of Black Africa, Ethiopia, the Sudan, Somaliland and Madagascar. - 39 -comparison but rather by following more of a descriptive approach.19 As Stanley Lubman notes, quoting from Berman, "[s]tudents of foreign law are always "in danger of uncritically transferring to [the foreign law] the assumptions which we make about the underlying foundations of our own law"."20 It is for this reason that my treatment of the different legal systems (including our own)21 is fairly detailed as I believe that such is necessary in order to help us better understand and thus eliminate some of the assumptions we make so uncritically. II. THE WESTERN FAMILY OF LAW As noted above, the Western grouping or family includes both civil law and common law systems. The civil law tradition emanated from western Europe whereas the common law tradition began its life in England. Both of these systems have been transplanted (voluntarily and by way of colonization) to various countries and areas around the world, however, for purposes of looking at the western family of law, I will only be discussing them as they relate to the countries of the western world. Both the civil law and the common law have an historical connection with Roman law and, as such, they have a number of similarities. Similarities also result from the fact that they are1- both based on reason and logic, two concepts which took hold in western Europe at the time of the Renaissance of the 12th and 13th centuries22 and were further developed during the Enlightenment of the 18th century. As noted in Chapter 1, the idea that progress was the goal of society also took hold in Europe at this time. Barton, et al, note that "[t]he idea of progress receives significant expression in Western law.... What was new about the Age of Reason was its faith in reason as an agent of progress. ... It is this confidence in progress that underlies much Western (and particularly American) legal thought: a curious mixture of belief in the inevitability of social betterment and in the special ability of lawyers to hasten and direct the process."w "Some comparisons will inevitably arise, particularly between sub-groups within the same family, however the basic approach is descriptive. "Stanley Lubman "Studying Contemporary Chinese Law: Limits, Possibilities and Strategy", 39 The American Journal of Comparative Law 293 (Spring 1991) at 323 2 1 Another reason for presenting the common law system in such detail is to provide an underpinning for the history of legal English which is dealt with in Chapter 3. 2JDavid & Brierley (1985) at 39 "John H. Barton, et al (1983) at 8 - 40 -As noted above, the civil and common law systems also share a common adherence to the rule of law which, being inspired by the same notion of justice, often results in substantive solutions which are very similar. At the same time that they share many similarities, these systems, because of their very different historical development, have a number of acute differences. A. THE CIVIL LAW SYSTEM 1. Historical Development The civil law system was initially developed during the 13th century in the universities of western Europe. As Rene David notes, "[t]he medieval universities considered the law as a model of social organisation and aspired to formulate the essence of justice rather than to impart to students a mastery of legal technique. The purpose of the study of the law was not to state which solution the courts would give to a trial in fact; and subjects such as procedure and evidence were left to practitioners and administrators. Law was to tell judges how they should decide in justice. It prescribed the rules which just men must observe in their social behaviour. The law, like morality, was a Sollen (what ought to be done), not a Sein (what is done in practice). The teaching of law adopted this view, therefore, that law was linked to philosophy, theology and religion."24 It was a combination of Roman law and Canon law which formed the basis for this teaching of law in the universities. Roman law had been the law of the Roman Empire which, after the 5th century, ceased to exist in Europe. However, a compilation of this law, in the form of a Code and Digest, was prepared by the Emperor Justinian between the years 529 and 534 A.D. 2 5 and it was this compilation which the universities seized upon. This revival of Roman law initially took place in Northern Italy (centred at the University of Bologna) in the latter part of the 11th century where the "David & Brierley (1985) at 41 2 i J.A.C Thomas, "Roman Law" in An Introduction to Legal Systems, Derrett (ed) (1968) at 1; Geoffrey Sawer, "The Western Conception of Law" in International Encyclopedia of Comparative Law Vol.11, Chapter 1, Section II at 17 puts the dates at 530-534A.D. however other writers have put it at 529-534A.D.(see Frederic W. Maitland and Francis C. Montague's A Sketch of English Legal History New York: G.P. Putnam's Sons (1915) at 4 for one); Glendon, et al (1982) note at 16 that the Corpus Juris Civilis was made up of four parts: the Institutes, the Digest, the Code and the Novels, but that it was the Code and the Digest which together were meant to be a complete and authoritative restatement of Roman law. - 41 -scholars (who became known as the Glossators) tried to reconstruct and explain the Digest. But because it contained so many institutions and problems that no longer existed, this process gave way in the 13th century to the methods of the Commentators (or Post-Glossators) who began adapting the Roman law to the problems of their own day. They were influenced at this time by the new notion of rational inquiry and began to search for the rationale and underlying principles of the Roman legal rules.26 This, however, was only the beginning, as the study and teaching of Roman law underwent an extensive evolution with the legal scholars moving further and further away from the positions and methods of Justinian's time. It was in the 14th and 15th centuries when Canon law became a major influence in the study of Roman law and it was from Canon law that the principle that it is just for individuals to be bound by their promises - pacta sunt servanda (ie. agreements are binding) - was adopted.27 As a result of the above-noted evolution, by the 14th and 15th centuries the universities were teaching a "modernized Roman law". However by the 17th and 18th centuries respect for Roman law had declined and the universities were showing more concern for "discovering and teaching the principles of a fully rational law".28 It was at this time, the time of the Enlightenment, that interest in reason, individual rights, justice, and the rule of law were solidifying. And it was at this time that the belief was "... that man's reason was to be the sole instrument for establishing the just rules of an immutable, universal law common to all people for all time."29 This focus on reason allowed the legal scholars to develop rationalised principles and to formulate general definitions which eventually facilitated a period of codification of national laws. This codification began with the Code Napoleon in France in 1804. Germany followed with its Civil Code in 1896, as did Switzerland from 1881 to 1907. Before the codifications, it was the norm that the rules of law being taught in the universities were not those laws which were being used in actual practice. It was the customary laws of each "Glendon, et al (1982) at 20-21 "David & Brierley (1985) at 44 28David & Brierley (1985) at 46 "David & Brierley (1985) at 46 - 42 -country and often canonical laws which held sway in actual practice. As such, it was not until codification occurred that theory and practice became one. An additional consequence of codification, and an unexpected one, was that the tradition of the universities - the search for just laws and the proposal of a model law which was supranational - became obscured. Law was no longer seen to be associated as much with justice but rather with the will of the sovereign, and legal scholars came to view their own national codes as the only law of value.30 This definitely was a move away from the origins of the civil law which "was never founded on anything but a community of culture. It came into being and continued to exist independently of any political considerations...."3* Concern over this focus on national codes and the move away from the tradition of the universities lessened over time as doctrinal writings32 and judicial decisions began to play an essential part in the evolution of the civil law. In addition to this, the many international conventions, the development of comparative law, and the formation of and membership in the European Union has forced judges to look beyond their own national codes and consider foreign concepts and interpretations. In the civil law system, a code is not expected to provide specific rules which can be applied immediately to particular situations, but rather it provides an organized system of general rules from which a solution can be deduced. As a result, there is a necessary degree of abstraction in civil law codes. They are expected to establish the framework of the law and provide the judge with standards in his or her decision-making but at the same time they leave the judge a certain amount of discretion in coming to a decision. As noted above, the judge will look to doctrinal writings and earlier judicial decisions to assist in this decision-making.33 Phillipe Bruno explains the procedure as follows, "[b]ecause a society's morals are often ahead of its laws, the [civil] lawyer's task is to interpret the same article in light of this evolution. New law may be born from a new interpretation of the same article. Almost all of current French tort theory was created through a series of 30David & Brierley (1985) at 66 "David & Brierley (1985) at 40 "Legal scholars play the key role in formulating doctrine. "The amount of reliance on and importance given to previous judicial decisions does vary considerably from country to country. - 43 -interpretations of the same article of the Civil Code by the French Supreme Court. The article has remained exactly the same since the origin of the Code, while its interpretation has evolved over the years, creating a complex and far reaching legal theory out of almost nothing. Because of the relative rigidity of the written rule of law, which cannot evolve until and unless it is changed, the developing interpretation of the rule has become an important source of law in civil law."34 In addition to looking at doctrinal writings and earlier judicial decisions, judges also make use of certain overriding principles35 which are sometimes found in the enacted law but are also found outside it. These relate to the notion of justice and they reign supreme over any written law. They permit a judge to set aside or modify a statutory law if need be in the interests of public order or good morals so that a judge need not permit a decision which he or she deems to be socially unjust.36 Without such overriding principles, there exists the risk that law and justice could become divorced from each other. 2. Structure and Divisions of the Law An area which can cause major difficulties for lawyers from different legal systems relates to the structural differences between the systems. These include not only differences in the legal concepts used in each system, but also differences in the categories within which the legal rules in each system are arranged.37 A result of these differences is that there can be a legal rule in one system which is completely unheard of in another (ie. the requirement of consideration in common law contracts is unknown in civil law systems),38 or there can be a rule in one system "Philippe Bruno, "The Common Law from a Civil Lawyer's Perspective" in Introduction to Foreign Legal Systems, Richard A. Danner & Marie-Louise H. Bemal (eds), New York: Oceana Publications, Inc. (1994) at p 9 35Which Rene David calls super-eminent principles, see David & Brierley (1985) at 150. 36The common law system has similar principles based on the notion of justice as well as being based in the court's inherent jurisdiction. 3 7For an enlightening discussion of the problems faced by those from different systems see the comments made at the Symposium: Contract Law in a Changing World, by the lawyers and legal academics involved in producing the UNIDROIT Principles for International Commercial Contracts. These are recorded in The American Journal of Comparative Law, Vol. XL, Summer 1992, No. 3. 38Other examples of common law concepts unknown in civil law are the trust, bailment, estoppel, and trespass. Some examples of concepts found in civil law but unknown in common law are paternal authority, acknowledgment of natural children, usufruct, and moral persons. As well, an obligation which can be said to be the basis of civil law commercial contracts but is not found in common law contracts of the British Commonwealth countries (the United States, as a common law country, is the notable exception in this case) is that of bona fides or good faith. Although this situation appears to be changing, there is currently no general obligation on traders in British Commonwealth countries to deal in good faith. For a more detailed discussion of this see the article by Peter Jones, "Reasonableness, Honesty and Good Faith", IBA Section on Business Law, International Sales Quarterly (March 1995). But see also John H. Barton "Implications of International Legal Integration for Law Teaching" in Law and Technology in the Pacific Community, Philip S.C. Lewis (ed) Boulder: Westview Press (1994) at 318 where he notes that "[cjivil law concepts of good faith are stronger than those in the United States and reach into the contract formation process." For a discussion of good faith at the negotiation stage see Michael Furmston, - 44 -which does not exist in the other system, however the same function performed by that rule will be performed in the other system by a rule of a different sort. In the latter situation, the end result of a particular problem may be the same in both systems, but what is different is the route which was taken to arrive at that result.39 Philippe Bruno, a lawyer who holds both American and French law degrees, notes that with respect to the civil and common law systems, "...the same solution may apply in both systems for entirely different reasons. I have found that to be the case most often in the area of torts and tortious liabilities. The biggest surprise of all is when both systems have the same legal solution for the same reasons. All things considered, this happens relatively frequently."40 And Philippe Nouel, a French lawyer involved in the Channel Tunnel project, had the following to say on the difference between French and English rules of law, "[o]n the face of it, the rules were different, sometimes even contradictory; yet a common principle had to be found to exist. This daily miracle was made possible, largely because all of us, members of the panel, arbitrators and lawyers, decided to go beyond the mere wording of the legal provisions and find the basic principle behind them. The principle usually matched."41 Henry W. Ehrmann, in discussing the dual systems of law in Canada, notes that "...most observers believe that this dual system has not given rise to major difficulties [at the level of the Supreme Court of Canada]: even though the reasoning of the two groups of judges may occasionally have been different, they always reach the same results."42 As noted above, because of these different concepts and categories, a direct comparison of legal systems is virtually impossible. However, by looking at how a particular problem is solved in each system, one may then see how the system works for that particular problem and, ultimately, the similarities and differences in the result.43 Takao Norisada & Jill Poole, Contract Formation and Letters of Intent, Chichester: John Wiley & Sons (1998) at Chapter 10 - Is there a duty to negotiate in good faith?. "Stanley Lubman (1991), writing about Chinese law, notes at 315 that "[i]n studying the "intended function and actual operation" of traditional law, we may discover that values and institutions in Chinese society may have served functions analogous to those of law in Western society." 40Danner & Bernal (eds) (1994) at 8 ""Philippe Nouel, '"Cartesian Pragmatism': Looking for Common Principles in French and English Law", International Business Lawyer (January 1996) at 23 42Henry W. Ehrmann Comparative Legal Cultures, Englewood Cliffs, N.J.: Prentice-Hall Inc. (19.76) at 15 43When I was teaching in Turkey, the procedure I followed was to discuss the meaning of a particular legal word or phrase. This involved explaining the legal concept behind the word or phrase. My students would then discuss amongst themselves what the legal Turkish word for this concept was. As Turkey has adopted the Swiss Civil Code, there were very few instances where the legal concept was completely unknown to them. By proceeding this way, basically from the bottom up, we were able to easily see the similarities and differences between the civil and common law systems. If I had proceeded by discussing Contract Law or Tort Law, as we know these topics in a common law system, my students would have been totally confused. Many of the concepts that we discussed (and which I would know as being part of contract or tort law) were understood by my students as being part of their Code of Obligations or their Commercial Code. - 45 -Turning to the structure of the various civil law systems, the main division accepted by all is that between private law and public law. This division dates back to Justinian's Digest where the law was divided into ius publicum and ius privatum; the former ultimately coming to refer to affairs of the state and the latter to affairs of the individual.44 Even though this division is accepted by all civil law systems, the scope of these two divisions differs substantially among the various countries, with the greatest difference being between the French and the German systems.45 Charles Szladits, in the International Encyclopedia of Comparative Law, notes that the majority of European laws (namely Switzerland, Italy, Spain and Austria) follow the German scheme, however Belgium, and the Netherlands46 with some qualifications, follow the French scheme. Private law is usually divided into private law proper (or civil law) - which includes the law of persons, law of obligations, law of property (or things), family law and law of succession - and special laws which relate to specific groups of people - such as commercial law and labour law. Generally all the civil law countries divide the subject matter of private law proper (or civil law) in this way and arrange it in one code, the Civil Code, however the countries differ considerably in how their Civil Codes are arranged and structured.47 ""Charles Szladits states in "The Civil Law System" in International Encyclopedia of Comparative Law, Vol. II, Chap. 2 at p 16 that this division in Roman times was not all that important and it is only in modern times that it has developed into a fundamental division of the law, Christian Dadomo and Susan Farran in French Substantive Law, Key Elements, London: Sweet & Maxwell (1997) at 1 note that it was under the influence of the "Age of Reason" when doctrines on the "rights of man" became influential and the idea that no one was above the law became popular, that public law began to emerge as a separate subject. 45Within the French system, public law {droit public) is divided into constitutional law, administrative law, financial law, and public international law. Private law {droit prive) includes private law proper {droit civil), commercial law (which includes maritime law), civil procedure, penal law (even though of a public law nature, it is attached to private law because many provisions protect private law relations), and certain special areas of law where private and public law are intermingled, including labour law, agricultural law, industrial property law and copyright, air law, forestry law, mining law, insurance law, transport law, and private international law. Within the German system, public law includes constitutional law, administrative law, tax law, penal law, criminal procedure, civil procedure (including the law of execution), bankruptcy, the law of non-contentious litigation, church law, and public international law. Private law is divided into civil law proper and that special part of the private law which includes commercial law, law of companies, law of negotiable instruments, copyright, law of competition (which includes patents, trademarks, and designs), and private international law. Labour law is generally viewed as being neither private nor public. For further discussion of the differences see Charles Szladits in the International Encyclopedia of Comparative Law, Vol II, Chapter 2 at 15-76 •""Although the Netherlands has prepared a new Civil Code which was proclaimed in force in 1992. 47The structure and arrangement of most civil codes have been influenced by and copied from the French, German, or Swiss Civil Codes. The French Civil Code is divided into 3 books: Book I. Of Persons; Book II. Of Property and the Different Kinds of Ownership; and Book III. Of the Different Ways of Acquiring Property. The German Civil Code is markedly different from the French and is divided into 5 books: First Book - General Part; Second Book - Law of Obligations (this book deals with contracts and torts); Third Book - Law of Things (this book deals with real and personal - 46 -The above-noted distinction, drawn in some countries, between civil law and commercial law is not a logical one for those of us from a common law system, but Charles Szladits tells us that it has come about for historical reasons, "[f]or many centuries commercial law, as an international jus mercatorum, consisted of the customs of merchants applied by the consular jurisdictions and the courts of fairs and markets. Most of its institutions (for example, banking, commercial associations, bills of exchange, bankruptcy) originated from rules and customs developed during the Middle Ages in the great maritime centers and the cities of Northern Italy. With the disappearance of the traditional international fairs and markets, the international courts were discontinued, but commercial custom as a special body of rules remained as part of the national law, frequently being administered by special national courts for commerical matters. ... Unlike the English law merchant, commercial law was not absorbed into civil law on the continent."48 Szladits notes that this dichotomy of civil law and commerial law, and hence civil and commercial codes, has led to some difficulties and confusion within the countries that have both. And Ole Lando notes that this confusion extends to relations between the different civil law countries because in some countries, "commercial law has never existed as a distinct legal concept and in others it has been abandoned. In those [countries] which have retained it, its scope and limitations are conceived differently."49 In addition to the codification of the law, another significant difference between the civil and common law systems relates to the procedures followed in matters requiring litigation. As noted by Philippe Bruno, "(j]udges are at the centre of the civil law system. Not only do they issue the final decision, but they decide everything else related to the matter at hand as well. There are no rules of evidence, no cross-examination, and no objections, because judges have sole discretion to decide what evidence to accept, what questions to ask of the witnesses and what behaviour to tolerate in the courtroom. With the exception of certain criminal cases, there are no juries to decide factual questions because the judges have been trained and chosen to play this role."50 property); Fourth Book - Family Law (including marriage and divorce); and the Fifth Book - Inheritance Law. The Swiss civil law is in two codes: the Civil Code and the Code of Obligations. The Civil Code is made up of 4 books: I. Law of Persons; II. Family Law; III. Law of Inheritance; and IV. Law of Property. The Code of Obligations has 5 parts: I. General Provisions (for creation of obligation by contract, tort, and unjust enrichment); II. Particular Obligations (for particular contracts like sale, loan, etc.), III. Commercial Associations; IV. Commercial Registers, Firms and Commerical Bookkeeping; and V. Negotiable Instruments. For a more complete discussion of the codes see International Encyclopedia of Comparative Law, Vol.11, Chapter 2 at 67-70; and Herbert J. Liebesny Foreign Legal Systems: A Comparative Analysis. 4th Revised Edition, The George Washington University (1981) at 29-46. ^International Encyclopedia of Comparative Law, Vol II, Chapter 2 at 70 49OIe Lando, "European Contract Law", in International Contracts and Conflicts of Laws, edited by Petar Sarcevic, London: Graham & Trotman/Martinoff Nijhoff (1990) at 8 50Danner & Bernal (eds) (1994) at 5 - 47 -He goes on to note that "litigation under common law is not something for which the civil law lawyer is fully prepared legally, mentally and psychologically."51 It has been said that the litigation procedure followed in civil law countries is inquisitorial whereas in common law countries it is adversarial. Herbert Liebesny, disagrees with this distinction, because, from the viewpoint of a civilian lawyer in France, "the court must decide the case on the basis of the materials the parties have submitted, not on the basis of materials it has gathered itself, and both parties must be heard on all issues."52 He does concede however that, from a common law point of view, "the judge in a civilian trial is more of an active participant in the proceedings and the trial therefore does not have the strictly adversarial appearance that it has in the United States or in England."53 I would suggest, however, that a common law lawyer would well see the civil law system as inquisitorial due to the fact that the judge in civil law systems may, on his or her own motion, order the examination of witnesses, the provision of experts' reports, or that any legally admissible investigative measure be taken. An additional reason for this inquisitorial designation could well be that "...in France and other continental countries conversations between an attorney and prospective witnesses, be they his own or those of his adversary, are regarded as a breach of professional ethics [P]roof-taking is primarily the court's function and the lawyer therefore tends to wait for the court proceedings. A "coached" witness may make a bad impression in court."54 As the objective of the civil law judge is to establish the truth, he or she will "direct the case and see to it that the parties provide complete information on all relevant points and make all the applications and motions which the progress of the matter may require."55 A.K.R. Kiralfy, in a discussion of English law, gives a good overview of the common law procedure, which helps to illustrate why it has been designated as adversarial. He states that "[t]he judge preserves a neutral position between the parties and decides the case on the relevant evidence put before him by the parties on their own initiative and at their own expense. Not only does he not need to seek other proofs for himself but if he had personal knowledge of the facts of the case he would have to disqualify himself from trying it at all. The conduct of the case is largely left to advocates (barristers in the superior courts), who examine and cross-examine witnesses as to the facts and present legal authorities to the court on matters of law. The judge 5IDanner & Bernal (eds) (1994) at 6 "Herbert J. Liebesny (1981) at 309 "Herbert J. Liebesny (1981) at 309 "Herbert J. Liebesny, (1981) at 308 and 327 "Herbert J. Liebesny (1981) at 331 - 48 -only occasionally intervenes to give some legal ruling necessary for the further conduct of the case or to ask for clarification of some ambiguous statement. At the close of the case the judge will 'sum up' the facts and direct the jury, if any, on the law."56 Kiralfy goes on to point out some of the distinct deficiencies in the common law system. Specifically, by "...treating the trial as a contest of parties, [the adversary system] limits the power of the court to arrive at the objective truth of a case, and the doctrine of precedent makes us slaves of the past and not infrequently compels the judges to give legal rulings of which they openly disapprove."57 As noted above, judges in civil law countries often look to earlier judicial decisions when interpreting the various code provisions, however, the weight required to be given to such is not the same as in common law countries. The general principle in civil law countries is that court decisions are not a source of law. In practice, however, case law often plays a significant role and it does so in different ways. Some countries will regard "[a] series of decisions of superior courts applying a particular legal rule...as creating a sort of "custom"."58 Judges will then be obliged to follow this custom. Another way in which case law influences subsequent court decisions is under the guise of interpretation of the legislative texts. Rene David notes, "[n]ot only does it often...distort the rules enacted by the legislature, but judges find decided cases of such persuasive value that it is difficult not to see therein the acceptance of a pure rule of precedent."59 The major difference, however, with the common law is that the civil law judges are not bound to follow these earlier decisions in the same way as common law judges are. B. THE COMMON LAW SYSTEM 1. Historical Development "For a thousand years our law has pursued an ordered path, linking the past and present, though sometimes the steps may have been slow and even faltering. ... The English legal system, which includes for this purpose that of the United States of America and of most of the British Commonwealth of Nations, has been peculiar among modern systems in this unbroken link with the past. It is the heritage of a profession and a people which made its own law and whose debt to foreign systems is small."60 5 6A.R. Kiralfy "English Law" in Derrett (ed) (1968) at 181 "Derrett (ed) (1968) at 192 ^International Encyclopedia of Comparative Law, Vol II, Chapter 3 "Sources of Law" at 117 ^International Encyclopedia of Comparative Law, Vol II, Chapter 3 at 116 "A.K.R. Kiralfy, Potter's Historical Introduction to English Law and Its Institutions, Fourth Edition, London: Sweet & Maxwell Limited (1962) at 4 - 49 -As noted above, the common law system originated in England. In examining its history, we find thai different writers have divided it into different periods/1 Rene David uses what he calls "four principal periods".62 I note his divisions because I find his categories to be most illustrative of the distinctive features of the common law system (even though some may disagree with the actual dates he has chosen for each period). The first is the Anglo-Saxon period - that period before 1066 (when the Normans conquered England). The second period runs from 1066 to the accession of the Tudors in 1485. It was during this period that the common law (that is, the law common to all of England as opposed to local custom) was developed. During the third period, which runs from 1485 to 1832, the rules of equity developed alongside the common law. And the fourth period, from 1832 up to the present, is the period in which statutory law was greatly expanded and in which governmental and administrative authorities began to have more authority over peoples lives.63 English legal historians generally place the beginning of English law at the end of the period of Roman occupation (that is, at the start of the 5th century) when the different Germanic tribes (Saxons, Jutes, Danes and Angles) divided up England.64 Knowledge about the law in this Anglo-Saxon period is limited, however it is known that it was made up of the local customary rules of the different tribes and that tribunals were set up for its enforcement but there was no specialised legal profession. It was also in this period that conversion to Christianity took place in England. Kiralfy notes that "[n]o proper estimate has been made of the effect of Christianity on English law, but there is no shadow of doubt that it was far-reaching."65 It was around the year 600 that Aethelbert, the King of the Jutes in Kent, put the law of his people into written form. It consisted of ninety brief sentences written in Anglo-Saxon, the language they spoke and "A.K.R. Kiralfy (1962) uses six periods: the Anglo-Saxon Era, the Norman Conquest, the Middle Ages, The Renaissance and Civil Wars, the Age of Stability and Stagnation, and the Age of Reform and Legislation; see Maitland & Montague (1915) who use eight different divisions. "David & Brierley (1985) at 309 "David & Brierley (1985) at 310 "David & Brierley (1985) at 310 6 5 A.K.R. Kiralfy (1962) at 9; the extent of this influence however did not carry over into the post-Conquest law because of the separation of church and state under the Normans and also because of the feudal origins of the common law - see Kiralfy in Derrett (ed) (1968) at 160 - 50 -which would eventually become English.66 The laws of four other kings of this period were also put into writing: Ine of Wessex (688-726), Offa of Mercia (757-96), Alfred (871-901), and (the great Dane) Canute (1017-35).67 A review of these shows that law at this time was concerned with the simple facts of life: the sale of goods, redress for violent injury, and the ownership and possession of land. With the Norman Conquest of 1066 came the end of tribal rule. It did not however mean the end of Anglo-Saxon law, as William the Conqueror expressly proclaimed that Anglo-Saxon law would continue in force.68 It did so with the exception, however, of the law related to the ownership and possession of land. As Kiralfy notes, "one of the first results of the Conquest was that the land law tended to become Norman, and so assimilated to Continental feudalism. This assimilation was of great importance in the development of the common law since disputes over large landholdings were brought into the King's courts and determined according to Norman law, and land law remained the main part of the common law until the seventeenth century."69 Initially the local courts (county or hundred courts, feudal courts, and ecclesiastical courts) continued to handle the great bulk of matters that needed to be dealt with, but under Henry II (who ruled from 1154-89) the King's court, which had up to this point dealt mainly with the protection of royal rights and the causes of the King's barons, "...flung open its doors to all manner of people, ceased to be for judicial purposes an occasional assembly of warlike barons, became a bench of professional justices, [and] appeared periodically in all the counties of England under the guise of the Justice in Eyre. Then begins the process which makes the custom of the king's court the common law of England."70 Because there was no written Norman Code and because the written laws in England were in Anglo-Saxon, which the Normans, who were French-speaking, could not understand, the King's See Frederic W. Maitland & Francis C. Montague, A Sketch of English Legal History, New York: G.P. Putnam's Sons (1915), Appendix I at 193 for these rules. 67Maitland & Montague (1915) at 3-10; Maitland & Montague, at 13, tell us that Edward the Confessor, the last of the English kings never made a law; these written texts of laws were called Dooms ''David & Brierley (1985) at 311; Rene David notes that it is still possible today for English lawyers to invoke a rule of-law dating from this period; see also S.F.C. Milsom,, Historical Foundations of the Common Law 2nd Edition, London: Butterworths (1981) at 11; Kiralfy (1962) at 13 notes that several attempts were made during this period to restate the old law. < 9 A.K.R. Kiralfy (1962) at 13 70Maitland & Montague (1915) at 31; see S.F.C. Milsom Historical Foundations of the Common Law, 2nd Edition, London: Butterworths (1981) at 27-31 for a discussion of the Eyre system - 51 -court "could be a law unto itself."71 It in fact preserved many of the English institutions, particularly those advantageous to the King, but the private law which it began to develop was very much like the customary law of Northern France.72 It soon became necessary however to diverge from Norman customs due to the unique form of English feudalism.73 As Kiralfy notes, "The judges had necessarily to use discretion in devising rules, but these rules had to be maintained as strict law and logically and rigidly worked out, for the sake of security of title. ... It was because so little was certain in the matters that came before them that the judges of this period manufactured law fast, and the rapidity of the development of this royal justice was not viewed with favour by many, as appears from certain clauses of Magna Carta. It was indeed the strength of the royal authority in this country, due to political and constitutional causes, which enabled the common law to progress so far in the age preceding Edward I."74 The judges at this time were not lawyers but royal officials from the civil service who were selected because of their particular learning - they had some training in Canon law and often Roman law, but they also tended to attach much weight to natural justice (or morality), as it was understood at that time.75 The common law which was developing in the King's courts was known, at the time, as comune ley. As the conquerors spoke French, it was 'legal French' which was the language spoken in these courts and which was carried throughout the land by the travelling justices.76 However, the written language of the law was the same as in the rest of Europe - it was Latin.77 Maitland and Montague tell us that hundreds of years would pass before anyone would try to write about the law in English, and "when at length this is done, the English will be an English in which every important noun, every accurate term, is of French origin."78 By the end of the middle ages, the King's courts had become the only courts of justice.79 71Maitland & Montague (1915) at 32 72Maitland & Montagure (1915) at 32 "A.K.R. Kiralfy (1962) at 20 7 4 A.K.R. Kiralfy (1962) at 20-21; Edward I ruled from 1272-1307 "A.K.R. Kiralfy (1962) at 20 76I will be discussing the use of French in the law courts in greater detail in Chapter 3. "David & Brierley (1985) at 312; Maitland & Montague (1915) at 32-35 78Maitland & Montague (1915) at 32 7 9 The ecclesiastical courts were still operating, however they only heard cases in relation to marriage and the discipline of clergy - David & Brierley (1985) at 314-5. - 52 -However, it was not automatic that one would be entitled to bring a matter before them. As Rene David notes, "...to press a claim before the king's courts was not a right but a favour which the royal authority might or might not grant. The person who solicited this privilege had first of all to address his request to an important royal official, the Chancellor, asking him to deliver a writ (breve), the effect of which was to enable the royal courts to be seized of the matter upon the payment of fees to the Chancery. Apart from this procedure the judges could only be seized directly upon a complaint or petition (querela, billa). ... It was not automatic that a writ would issue from the royal Chancery or that the judges would be convinced that they should take up a matter upon which a complaint was lodged. ... For some considerable time, each instance had to be individually examined to determine whether it was expedient that the writ should issue, and the list of established situations where writs were granted automatically (brevia Li cursu) was slow to grow."80 If a particular type of action was brought often enough, the writ would acquire a common form. When this happened it became known as a writ of course (or breve de cursu). Such a writ then automatically gave rise to a form of action.81 During the reign of Henry II there was no limitation put on the number and variety of writs which the clerks of the Chancery could issue. However, by 1258 (during the reign of Henry III) with the passage of the Provisions of Oxford, the Chancellor was no longer able to seal a writ which was not a writ of course, unless the King and Council82 otherwise agreed.83 The Statute of Westminster II in 1285 attempted to remedy the resulting rigidity by allowing for actions on the case, wherein the Chancellor could deliver a writ in instances which were closely similar to those for which there was a writ of course. This expanded the permitted writs somewhat but not to any great extent. Because an action could generally not be commenced without a writ, "...no right could be ""David & Brierley (1985) at 315 8 lThe writs of this time simply called on the defendant to respond to the King's judges concerning the specific matter in question (such as a claim that a debt was owing). It did not tell the judges how they were to determine the rights of the parties. That was left to the judges themselves, to decide as they saw fit. ^The King's Council was originally called Curia Regis. The authority of the King's Council came from the notion that, after the breaking away of the common law courts from the Council, a residue of justice was left in the King. This residue of justice was exercised by the King in Council. This notion allowed the Council to intervene in a wide variety of cases. As well, it was not confined to the writ system or any special rules of procedure. The Chancellor was the president and most learned member of the Council which, by the time of Edward I, was primarily made up of the magnates who were to become the House of Lords (ie. the highest court of the realm). For a discussion of the King's Council see A.K.R. Kiralfy (1962) at 138-148. "The feudal barons fought against the flow of cases to the king's court as this reduced the cases going to their courts and subsequently reduced feudal dues. It was during their temporary increase in power that the barons were able to stem the tide of new writs by way of the Provisions of Oxford. - 53 -recognized by the common law unless a writ existed which provided a remedy for its breach."84 Even though the substantive remedy was not readily known at the time of commencing the action, if there was a permitted writ under which an action could be commenced, the court would have jurisdiction to hear the matter and ultimately would determine a substantive solution. (This requirement of a specific writ has been considerably relaxed over time, however the notion that one cannot bring a matter before the court unless there is a recognized cause of action for which the law will provide a remedy has continued to today.) Over time each form of action developed its own procedural peculiarities which were required to be followed. As Rene David notes, "[t]o each writ there corresponded in effect a fixed procedure which laid down the other steps to be followed, the handling of incidental questions, the admissibility of evidence, and the means of enforcing the decision. In any given procedure the plaintiff and defendant had to be styled by specific wording; their inappropriate use in another procedure would be fatal to the proceeding."85 What developed was a very rigid and procedurally-oriented system.86 As Maitland and Montague note, "...our jurisprudence...became a commentary on formulas."87 And it became a system which was highly unsatisfactory. Because of their dissatisfaction with the common law and its system of writs, people began more and more to appeal, by way of petition, to the King, as "the fountain of justice",88 to provide them with some form of remedy. "These petitions covered a miscellaneous collection of complaints which were originally dealt with by the King's Council, but some of them came to be looked upon as routine matters. They were then relegated to the Chancellor, who in time established his own Court of Chancery."89 The decisions emanating from the Chancellor in the beginning appear to have been based in natural justice and therefore derived from moral rules.90 As well, Kiralfy tells us that ""A.K.R. Kiralfy (1962) at 21 85David & Brierley (1985) at 316 ^Sir William Holdsworth in A History of English Law, Volume II, Fourth Edition, London: Methuen & Co. Ltd. (1936) at 475 notes that "it is not surprising [at this time] to find that statutes relating to procedure pure and simple are more numerous than any of the other statutes which deal with matters of pure law." •"Maitland & Montague (1915) at 101 ^A.K.R. Kiralfy (1962) at 33 "'A.K.R. Kiralfy (1962) at 34 '"Rene David states that the substantive principles applied by the Chancellor were largely taken from Roman law and Canon law - see David & Brierley (1985) at 325. - 54 -"[t]he special remedies introduced by equity to supplement the common law are similar to those of Roman law and no doubt inspired by them. Specific performance of contracts rather than payment of damages is used in English equity, but, characteristically, only where land is in question. ... The injunction, by which the Chancery judge forbids the performance of some act, e.g., publication of a book or the construction of a building, is also similar to the Roman interdicts."91 Over time, these decisions of the Chancellor became more systematized until the "application of equitable doctrines soon amounted to additions and correctives to the legal principles applied by the royal courts."92 It was at the time when the Tudors came to power in England, in 1485, that the common law courts started to take a back seat to the Chancellor's courts of equity and, before long, came perilously close to being permanently replaced by the Roman law being propounded in continental Europe at that time.93 But the common law lawyers fought back and in the end, "a compromise was worked out which left the Common law courts and the court of the chancellor side by side, in a kind of equilibrium of power. ... A tacit understanding was established on the basis of the status quo. It was understood that the jurisdiction of the chancellor was to remain but that it would attempt no new encroachments at the expense of the Common law courts; it would also continue to adjudicate according to its precedents and thus escape from the criticism that it was arbitrary. ... Even the nature of Equity itself was to change: the chancellor, as a legal or political figure, was no longer seen as judging on the basis of morality alone and tended to act more and more as a true judge."94 This dual structure of English law has continued up to the present time, and the rules of equity have become as strict and legal as the common law rules. Now, if there is to be any intervention to correct a defect in the law, it is the role of Parliament to enact the necessary legislation. But at the time of this judicial rivalry, statutory law was very limited. With these restrictions on the development of the law by the courts, and with the changing social and economic conditions of the 16th century, came the need for the development of statutory "Derrett (ed) (1968) at 177; One area of law which was developed by the courts of equity and which is completely foreign to the civil law is the notion of the trust. But it was because of the very different way in which the civil law developed that there was no need for such. MDavid & Brierley (1985) at 325 93See F.W. Maitland's lecture on this subject reproduced in English Law and the Renaissance, Cambridge University Press (1901). '"David & Brierley (1985) at 327; see also A.K.R. Kiralfy (1962) at 36-51 for a full discussion of the judicial rivalry of this period. - 55 -law.95 Now, an additional role for the courts was to interpret (and develop) the principle that had been laid down in the statute. It was at this time, with the decision in Heydon's Case,96 that the rule to be used by the courts for the interpretation of statutes was formulated, "That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discussed and considered: First, what was the common law before the making of the Act; Secondly, what was the mischief and defect for which the common law did not provide; Thirdly, what remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth; Fourthly, the true reason of the remedy: and then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy...."97 At this same time, with the increase in commerce, distinct rules of mercantile law were developing quite separate and apart from the common law, and often at odds with the common law. These rules were based on custom and were international in character, often following Roman law. They were initially dealt with by the Admiralty Courts, but with the common law judges trying to restrict the jurisdiction of those courts, the law merchant (or lex mercatoria) was taken over by the common law courts. In doing so, the common law lawyers "assumed power over shipping, marine insurance, and many other commercial matters, and accepted mercantile custom as a living source of common law."98 With the rise of Jeremy Bentham99 and the Utilitarian philosophy, there was a call for the simplification of the procedures in the courts and the elimination of all of the archaisms in the law. Many at this time thought that codification of the law would be the answer to making it more accessible and more scientific. Quite clearly the codification movement did not succeed, however it did succeed in forcing Parliament to turn its attention to legislative reform - not to overturning the law but rather to developing it and at the same time eliminating that which was obsolete.100 And, of course, this role of Parliament has continued up to the present day. The 19th and 20th centuries are exceptional in the unprecedented development of statutory law. Not It was at this time that bankruptcy legislation was first introduced, as well as the Poor Law Acts which dealt with the problems of destitute labourers and their families. 96(1584) 3 Co.Rep. at f. 8a "A.K.R. Kiralfy (1962) at 45-46 ^Derrett (ed) (1968) at 171 "Bentham lived from 1748-1832 and was an English jurist as well as a philosopher. I O OA.K.R. Kiralfy (1962) at 60-61 - 56 -being fettered by the forms of action and procedures of the courts, Parliament was able to turn its attention to the substantive law. Not only has this era seen an increase in what can be called public lawm (such as constitutional law and administrative law) but as well there has been an increase in social legislation (such as landlord and tenant legislation, workers compensation legislation, legislation concerning a minimum wage, and labour legislation, to name a few). 2. Structure and Divisions of the Law The common law, unlike the civil law, was never a law of the universities nor a law of principles. Rather it is a law that was, and is, shaped by practitioners. As noted by Kiralfy, "The 'tough law' of the Inns of Court in London, bodies of legal practitioners, assumed the authority in England enjoyed by the law professors abroad, with a resultant stress on the practical and useful rather than the logical and philosophical."102 Even today, legal scholars have little authority in the common law.103 Because of the way in which the common law has developed, the concepts which have emerged and the resultant categories into which the concepts have been organized, appear to a civilian lawyer to be rather disjointed and overlapping. Tony Weir believes that "[t]he absence of clear divisions is principally attributable to two factors. First, the jurisdiction of the higher courts is unified, for they can deal with all justiciable matters, whether public, private, commercial, civil or criminal;.... Secondly, English law has grown in bits according to need and was not laid down in slices by an act of will, and "any sytem of law in which legal rules are always created ad hoc must at its best lack formand symmetry"."104 Unlike the civil law, in the common law there was no overall doctrine or theory, "with the result that legal topics and subdivisions of topics grew up in tight compartments."105 For example, ""Common law lawyers are familiar with this term however it does not carry the same distinction as in civil law countries since we do not have the same major division between public and private law. 102Derrett (ed) (1968) at 166 103Legal scholars often will attempt to distill principles from the decided cases in order to clarify a particular area of the law, however their texts or treatises are mainly for the benefit of students and practising lawyers. These treatises are sometimes considered by the courts but only as secondary sources and only if there is no case law on the matter in question or if the area of law is in transition. 104Tony Weir, "The Common Law System", International Encyclopedia of Comparative Law, Vol II, Chapter 2 (Structure and the Divisions of the Law) at 77 105Derrett (ed) (1968) at 167; there is no agreed upon curriculum in common law universities, however it is probably safe to say that there would be basic topics in Contracts, Torts, Criminal Law, Evidence, Civil Procedure, Criminal Procedure, Real Property, Company Law, Trusts (and Succession), and Family Law. As well, there would be a variety of other courses in a variety of areas including Tax Law, Conflicts of Law, Administrative Law, International Public Law, International Private Law, Commercial Transactions, Employment (or Labour) Law, Immigration Law, Insurance Law, - 57 -instead of having a Code of Obligations that deals with the obligations individuals have towards each other, be it by way of contract or personal actions, the common law has the category of Contracts within which it deals with all the rules related to contracts. It also has the separate category of Torts wherein it deals with all the rules related to tort law. There may be overlap between some of the principles incorporated within each of these categories, but common law lawyers would not think about these and may only come to recognize them in the discussion of a particular problem.106 As Kiralfy notes, "[t]he law luxuriated in sophisticated detailed rules to meet infinitely various situations but at a very low level of abstraction. Convincing solutions of pressing disputes were preferred to abstract and internally elegant worlds of legal norms."107 It is because of this that the common law system can be described as inductive (as contrasted with the civil law being deductive), in that a ruling is arrived at after consideration of a number of actual cases similar to the one in question, as opposed to finding the solution to a particluar problem by looking at a limited number of unchanging prescriptions. The natural corollary to this is that, as noted above, the common law courts are not so much governed by the notion of finding the truth, but rather of providing solutions to disputes. Because of this function, the common law courts have become mired in procedural matters, including evidentiary rules. The early emphasis on procedure and evidence has continued up to the present day, even though attempts are continually being made to streamline them. As a result of the device of reviewing earlier decisions in order to arrive at a solution in the matter before the court, the doctrine of stare decisis (or binding precedent) developed. As Kiralfy tells us "[b]y following each other's decisions, wherever not obviously defective, judge-made law imitated the uniformity, of custom and the unchanging character of the words of statute law. Precedent was evolved as a curb on possible over-weening acts of judges, and began to make the common law predictable for litigants. ... Where parties are likely to make arrangements in advance to regulate their affairs with confidence, as in transactions with property, the courts proceed carefully and Intellectual Property Law, and Maritime Law, among others. 106In discussing with my Turkish students the case oiDonoghue v. Stevenson (as an example of how the common law develops), they could not understand the difficulties that the plaintiff faced in that case because in their (civil law) system such an action would have been automatic. A number of the students declared quite hostilely that it was a stupid case, and one of the older students (who had been practising for about 30 years) stated that he would never have taken on such a silly case. 107Derrett (ed) (1968) at 167 - 58 -responsibly. They are especially careful not to overrule long-accepted decisions which parties obviously used for their guidance."108 If there is no case law or statutory law which applies to the matter in question, the common law begins with the premise that everything is lawful. As such, the courts try to give every transaction its intended effect, unless it violates some paramount consideration such as being contrary to public morals or public order. As Kiralfy states, "...the layman devises a transaction or creates a relationship, his legal advisers clothe it in legal form, and the court, in case of dispute, passes judgment on its validity. The layman does not wait for judicial approval before he acts, nor is anyone concerned with the tidy place to be filled by his conduct in the legal pattern."109 Since the common law "does not directly deal with abstractions like honour, prestige, [or] general comfort",110 we find the courts are generally aimed at redressing material loss. As such, a court will only accept jurisdiction in a matter between private parties if the complaining party can show that he or she has actually suffered some loss.111 Because the common law generally provides a fair amount of freedom of movement, the notion of reasonableness has developed in order to put a check on this freedom.112 This notion also allows the law to adapt to changing conditions, as the standards required will change along with changes in such things as experience and technological advances. This requirement of reasonableness permeates all areas of the common law - it can be found in tort law,"3 in contract law,114 and in criminal law115 to name just a few. 10SDerrett (ed) (1968) at 163-164 109Derrett (ed) (1968) at 162 ""Derrett (ed) (1968) at 178 ^The party as well must have a recognized cause of action. " 2As noted above, unlike the civil law, common law countries (the United States being the only exception) do not have the specific requirement that traders must act in good faith towards each other. See Peter Jones, "Reasonableness, Honesty and Good Faith" IBA Section on Business Law International Sales Quarterly March 1995; the determining factor is what the reasonable person would do, or expect, or understand in the circumstance in question - of course it is not always possible to verify this empirically and the answer ultimately depends on the view of the court. It has been said that the reasonable person is simply the anthropomorphic embodiment of the court's idea of justice (as per Lord Radcliffe in Davis Contractors Ltd. v. Fareham Urban District Council, [1956] A.C. 696 (HL.) at 728) "'Generally, liability in tort will follow from the failure of one party to take reasonable care to avoid a reasonably foreseeable injury to the other party. 114It can be argued that the purpose of the law of contracts is to protect each person's reasonable expectations. "5One can use reasonable force in defending oneself. - 59 -Those western countries, besides England, which are adherents of the common law include Canada, Australia, New Zealand, and the United States. Even though the United States is considered a common law country, there are some decided differences between it and the other countries just mentioned. Because the United States is made up of 50 individual states,116 each with its own statutory and case law, there has been some concern over the uniformity of American law. As a result, there has been a move to have uniform or model laws drafted which each state would then adopt (with any variations necessary for that particular state). The Uniform Commercial Code (the UCC) is one such uniform law which has been adopted wholly or substantially by all of the states.117 It governs various aspects of commercial law, and as such, plays a decided role in international commercial transactions.118 The American Law Institute has also created a series of Restatements of the law in such areas as Contracts and Torts. These Restatements set out what the law in the general category is, how it is changing, and what direction the authors (leading legal scholars in the field) think it should take. These Restatements do not have the force of law, however, they have had a definite impact on American law and are frequently cited by the courts. The UCC and the Second Restatement of the Law of Contracts make the United States different from the other common law countries mentioned due to the fact that in the other countries, contract law (and commercial law to some extent) have not as yet been codified but are still to be found in the case law.119 III. THE EASTERN FAMILY OF LAW The Association for Asian Studies (the AAS), the leading organization of Asian scholars in the United States, has created categories or families within Asian law itself. They are as follows: 1. China and Inner Asia (China, Mongolia, and Tibet) 2. Northeast Asia (Japan and Korea) 1 1 6And the District of Columbia. "'Black's Law Dictionary, Abridged 6th Edition, 1991 1 1 8The UCC and the Second Restatement of the Law of Contracts were among the national codifications or compilations used by the working group of UNIDROIT as guides in their preparation of the Principles of International Commercial Contracts (see The American Journal of Comparative Law Summer 1992 No.3 at 675-681); often the UCC of a particular state will be part of the governing law of an international contract where one party to the contract is American; it is because of the UCC that the United States is the only one of the above-noted common law countries which specifically requires parties to a commercial transaction to act in good faith. "'American contract and commercial law also differ substantively from English law and for the last three decades Canada has been turning more and more to American case law in these areas and away from the English. - 60 -3. Southeast Asia (the ASEAN countries and Indochina) 4. South Asia (India, Nepal, Pakistan and Sri Lanka)121 James Feinerman notes that "within these legal systems another pattern of influence and common norms emerges." He divides them as follows: 1. Confucian nations of East Asia (China, Japan, Korea and Vietnam) 2. Buddhist nations of Southeast Asia (Thailand, Burma, Cambodia and Laos) 3. Hindu nations of South Asia (India and Sri Lanka) 4. Islamic nations of Asia (Pakistan, Malaysia and Indonesia)122 In addition to these, of course, is the influence of the different legal systems brought by colonizers. The common law influence has affected India, Pakistan, Sri Lanka, Burma, Malaysia and Singapore. The civil law influence (from colonial times) has affected Vietnam (French) and Indonesia (Dutch). Other Asian countries which escaped colonization (such as Japan123 and Thailand) have adopted some form of civil law in their attempts at legal modernization, with most of them following the model of the German Civil Code. As Feinerman notes, "...the attractions of the civil code are legion: it is relatively compact, requires little or no specialized interpretation, and can instantly create formal requirements of a legal order."124 But as discussed above, these Codes invariably undergo a process of indigenization. Rene David goes so far as to say that "the western structures and institutions in many instances are no more than a facade, behind which social relations continue to be ruled in large part by the traditional models."125 It is for this reason that it is important to look at the traditional models and influences that were in existence before the western influence, in addition to looking at how the two have blended. As noted earlier, I will be dealing here only with the law of China and that of Japan. As the categorizations of the AAS show, these legal systems differ greatly today, but as noted by Feinerman, they do share a Confucian influence. In looking at these two systems we will see ASEAN is the Association of Southeast Asian Nations which was formed in 1967 by Indonesia, Malaysia, the Philippines, Singapore and Thailand. Brunei joined in 1984. ASEAN is a regional grouping for the purposes of trade. 121See James V. Feinerman, "Introduction to Asian Legal Systems" in Danner & Bemal (eds) (1994) at 96. 122Danner & Bernal (eds) (1994) at 96; Buddhism has also had an influence on Japanese law, as will be seen below. 1 2 3As will be seen, the American occupation of Japan after 1945 did bring with it an American influence in Japanese law. 124Danner & Bernal (eds) (1994) at 98 125David & Brierley (1985) at 517 - 61 -how the Confucian influence has continued even though there have been other influences which have effected major differences. A. CHINESE LAW 1. Historical Development Confucianism is the basis for the form of social order which has been the ideal in China for centuries. Confucius lived between 551 and 479 B.C.. Before his time, the Chinese regarded mankind "...as being so organically a part of the system of the universe that not only did human society depend in the final resort on natural forces but that these forces in their turn were themselves affected by human conduct. Any action by man which was not consonant with the natural order tended to disrupt the cosmic rhythm, and if serious or widespread enough could result in calamities of the greatest sort."126 These beliefs were not opposed by Confucius but rather were taken up and developed by him. In the process of this development, Confucius eliminated theology - he declined "utterly to express any views on such matters as the immortality of the soul, or the existence of a personal god."127 What he did stress was the importance of man's duties in this world. And the way in which to teach men these duties was through education and example. For Confucius, "...the most effective method of instruction was the polishing of manners by a scrupulous observance of etiquette and the cultivation of such refining arts as music in a properly regulated community penalties...would scarcely ever be used."128 "In traditional Confucian terms, a ruler should govern by means of virtue rather than law."129 As Confucius stated "[i]f the people be led by laws and uniformity sought to be given them by punishments, they will try to avoid punishments but have no sense of shame. If they be led by virtue and uniformity sought to be given them by //' [proper behaviour], they will have a sense of shame and, moreover, 1 2 6 H . McAleavy, "Chinese Law" in Derrett (ed) (1968) at 107 "'Derrett (ed) (1968) at 107; see also Yosiyuki Noda "The Far Eastern Conception of Law" in International Encyclopedia of Comparative Law Vol II, Chapter 1 at 122 where he notes that "Confucius spoke neither of marvels, nor of extraordinary force, nor of disorder, nor of divinity. ... Zilu [a disciple of Confucius] asked the master if one should serve the gods. Confucius replied: 'If I cannot yet serve men well, how shall I so serve the gods?' Thus he is preoccupied with the world of men. So is Xunzi, one of the most illustrious Confucianists:...Reality gets out of sight if you admire Heaven without paying any attention to the world of man."; however, Benjamin Schwartz, in Barton, et al (1983) at 106, says the question of Confucius' religious attitude is much debated. 128Derrett (ed) (1968) at 108 129Barton, et al (1983) at 103 - 62 -will become good."130 This is the basis of the belief that more laws do not make for a more harmonious society. In fact, in Confucian thought, the opposite is true, namely, an emphasis on law "makes people more litigious and loop-hole happy, and...diverts attention away from the more important work of moral education."131 When there is an emphasis on law, people will develop a contentious spirit and will no longer be in awe of their superiors. By internalizing the rules of proper behaviour, society will operate more harmoniously and there will be no need for law. This raises the question of what is proper behaviour? Feinerman tells us that "[s]elf-cultivation, the performance of one's allotted social role and yielding to others in the resolution of disputes were highly valued. The preservation of social harmony was emphasized above all other social goods."152 Confucius did recognize that there are always going to be some segments of society that need to be controlled by law, and as such law (or fa) did occupy a legitimate place in the nature of things. "In all areas where //' cannot be made to apply, fa must be employed to maintain order."133 Following Confucius' death, his opinions were unable to withstand the emergence of a group of political philosophers known as the legalists or the school of fa. This group came into being at a time when warring kingdoms were vying for domination of the Chinese world. The legalists, even though they accepted Confucius' definitions of //' and fa, did not believe that //' alone was enough to order this society, but rather asserted that social order could only be maintained by /a. 1 3 4 1J0From Benjamin Swartz ,"On Attitudes Toward Law in China" in Government Under Law and the Individual, Milton Katz (ed) Washington, D.C. American Council of Learned Societies (1957) at 27-39 (reproduced in Barton, et al (1983) at 108). 13,Barton, et al (1983) at 104 132Danner & Bernal (eds) (1994) at 101; I believe a recent development in South Korea in the wake of the current financial crisis and the drastic drop in the value of the won is illustrative of this attitude and is something which would be unheard of in the western world, namely the collection of gold, by the government, from private citizens in order to raise badly needed foreign currency. The request was made January 5, 1998 and continued until January 31, 1998. People delivered rings, necklaces, bracelets, keys, coins, bars, and turtles (a common gold item held by Koreans) which were then melted down into gold ingots. By January 13, 1998 the government had collected more than 40 tonnes worth more than US $400 million - see the Vancouver Sun, January 12, 13, 1998. 133Barton, et al (1983) at 108 '"Benjamin Schwartz in Barton, et al (1983) at 109 - 63 -Benjamin Schwartz tells us that "the typical Confucian attitude revolves about [this] basic dichotomy".135 He states that //', which has been translated as propriety, is associated with Confucius himself, whereas fa, which has been translated as Jaw,136 is associated with the harsh Ch'in dynasty. This dynasty came into being in 221 B.C. after the kingdom known as Ch'in overran all its rivals and united them into one empire which the outside world began to call China.137 H. McAleavy, in his article on Chinese Law, states that "[t]he victory was achieved by the construction of a ruthless machinery of government for which the blueprints were devised not by idealists pining for cosmic harmony but by men whose theories have earned for them the name of Fa Chia or Legalists and who taught that the commands of a ruler rigidly enforced were the only source of law that deserved to be taken seriously." 1 3 8 In other words, the legalists believed that it was the will of the sovereign that was the primary source of law. While the Ch'in dynasty did not last very long (as the severity of its rule provoked a rebellion), it created for the first time, in this vast area of warring kingdoms, a centralized bureacratic empire. Along with creating a centralized government it created what would today be called administrative law. It also initiated "...all sorts of institutional changes by government enactment."139 With the disappearance of the Ch'in dynasty and the rise of the Han dynasty, Confucianism once again became the official state philosophy, however, the structure that the 135Benjamin Swartz in Barton, et'al (1983) at 104 "These translations are very simplistic and as Schwartz notes, in Barton, et al (1983) at 105, the actual situation is much more complex. He states that "[t]he term li embraces a far richer range of meanings than anything encompassed by the pale word "propriety" the word fa is probably much narrower in its scope of reference than many Western conceptions of the meaning of law social role is the key term in the Confucian definition of social structure: the structure of society is basically a network of relations of persons enacting certain social roles. Social roles do not merely place individuals in certain social locations but also bear within themselves normative prescriptions of how people ought to act within these roles. The notion "father" does not refer to a social status but prescribes a certain pattern of right behaviour. ... Later Confucianism reduces these relations to the "five relations" - relations between father and child, husband and wife, elder and younger brother, ruler and subject, friend and friend.... These categories are presumed to embrace all fundamental relationships. ... Now within this structure li refers to the rules of conduct involved in these basic relationships. They are the rules governing the behaviour of the individual in his own social role and governing his behaviour toward others in their social roles. ... Another aspect of // is its association with moral force rather than with the sanction of physical force. ... ...in a society where men are governed by //, conflicts of interest can be easily resolved. Both sides will be ready to make concessions, to yield (yang), and the necessity for litigation will be avoided." See pages 104-110 for a more detailed discussion of the difference between the two; see also Liang Zhiping "Explicating "Law": A Comparative Perspective of Chinese and Western Legal Culture" in 3 Journal of Chinese Law 55 (Summer 1989) for a discussion of the meaning of fa. "'Yosiyuki Noda notes that the period from 481- 221 B.C. is known as the Fighting Kingdoms period - see International Encyclopedia of Comparative Law, Vol II, Chapter 1 at 121. "8Derrett (ed) (1968) at 108 "'Barton, et al (1983) at 110 - 64 -Ch'in dynasty created, a centralized bureacratic state, remained. Along with it remained the basic structure which the legalists had devised for compelling the enforcement of rules - a detailed system of penal law. The Han dynasty, which was created by one of the leaders of the revolt against the Ch'in dynasty, ruled for the next four hundred years, until 220 A.D.. Since that time, a central government has been the norm in China.140 Even though the rule of the Ch'in dynasty was short-lived, the orthodox Confucian attitude toward fa was strongly felt. Fa chih, which is, ironically, translated as the rule of law has become associated with "harsh despotism, heavy reliance on brute force, and oppressive demands on the people by an interventionist state.... Furthermore, all attempts to improve society by heavy reliance on institutional change initiated by state enactment has also been associated with fa as a result of this experience."141 Over the centuries, the Chinese people have learned to fear a formal legal system, yet, as Feinerman tells us, "Confucian rulers developed increasingly comprehensive structures of legal rules for governing the far-flung empire."142 The enactment of penal and administrative codes by these successive dynasties followed on the Ch'in model, along with "severe chastisement decreed against those who infringed these statutes".143 Feinerman notes that "[t]hese laws were an amalgam of Legalist severity and Confucian moral suasion, an example of what one Chinese scholar has called the "Confucianization of law"."144 A result of this Confucianization of law has been "...to inhibit the growth of an all-inclusive legal system and of an elaborate system of legal interpretation. It has inhibited the emergence of a class of lawyers and has, in general, kept alive the unfavorable attitude toward the whole realm of fa.1,145 140McAleavy in Derrett (ed) (1968) at 108 141Barton, et al (1983) at 110 14iDanner & Bemal (eds) (1994) at 101 143McAleavy in Derrett (ed) (1968) at 109; the earliest dynastic code and the one which set the pattern for future legislation was that of the T'ang dynasty in the 7th century A.D.. It consisted of two parts - a body of statutes called lu, which imposed penalties for certain acts, and a body of positive ordinances called ling. Both parts were concerned with what we would call public law. 144Danner & Bernal (eds) (1994) at 101; the Chinese scholar referred to here by Feinerman is Professor Ch'u T'ung-tsu (see Schwartz in Barton, et al (1983) at 111). 145Barton, et al (1983) at 111; Feinerman notes in Danner & Bernal (eds) (1994) at 102 that "...before China's contact with the West, traditional Chinese called those who assisted others with pleadings and legal documents songgun, best translated as "litigation tricksters". Overcoming such deeply entrenched attitudes has been a difficult task for China's modem legal order." - 65 -Before the 20th century, all contracts and commercial transactions were governed by customary practice which had been developed by associations of merchants or tradesmen known as hang (which is usually translated as guilds). As McAleavy notes, "[a]s far as the cosmic rhythm was concerned...it scarcely mattered - so long as good faith was kept - what rules were created by custom to govern business contracts."146 The Confucian state was more than happy to have parties settle their affairs between themselves and not resort to the law. If an individual did appeal to a magistrate for help in settling a dispute, this individual, even if in the right, would be seen as a trouble-maker.'47 The introduction of Western law had its beginnings in 1842 when the Opium War with Britain ended in the Treaty of Nanking, the first of the so-called Unequal Treaties. One consequence of these Treaties was that foreign residents were able to extract extra-territorial concessions from the weak Qing dynasty. It was at this time that "...the Western powers told nineteenth-century China that its full sovereignty would be restored only when more "civilized" Western-style laws were promulgated."148 Because of this, the last dynasty, the Qing, and the successor Republican government which came to power following the revolution of 1911, tried to modernize the legal system. But it was not until a new government had been established following the Nationalist Revolution of 1926-1928 that a series of codes, based on Swiss, German and French models, was adopted.149 On the surface, China now had a European-style system of law. However, in reality, traditional concepts and customary law persisted. Rene David notes that if by chance an individual did go before the courts "...the Chinese judges still decided according to the standards set by Confucius rather than by an application of the rules of written law. They would for example refuse to evict a poor tenant who had committed no fault if the landlord were well-off and not in need of the premises; they granted delays to borrowers in embarrassed circumstances if their creditors were rich."150 David goes on to note that "[e]ven the most advanced thinkers considered a return to the 146Derrett (ed) (1968) at 110 , 47McAleavy notes in Derrett (ed) (1968) at 125 that "...the giving of legal advice to the public was regarded as an encouragement of litigation, and was a crime." 148Danner & Bemal (eds) (1994) at 102 1 4 9The codes were a Civil Code in 1929-1931 (encompassing private and commercial law), a Code of Civil Procedure in 1932, and a Land Code in 1930. 150David & Brierley (1985) at 524 - 66 -principles of Confucius to be desirable."151 The Nationalist laws in fact were abrogated in February of 1949152 but not because they were not working. It was because the Communists under Mao Zedong153 had come to power.154 "Beginning from the Marxist principle that law is the embodiment of the will of the ruling class, the Chinese Communist Party [CCP] leadership since 1949 has consistently stressed the point that law must serve the tasks of rebuilding Chinese society."155 Initially, fundamental laws based on the Soviet model were adopted.156 However, the history of the CCP in China has been a history of "frequent reversals and radical shifts in course" and has "engendered caution and suspicion" when it comes to a new legal order.157 But it has become clear to both the Chinese people and their leaders, as a result of the excesses and suffering during the Anti-Rightest Campaign (also known as the Great Leap Forward) of the late 1950's and the Great Proletarian Cultural Revolution of the late 1960's, that greater due process (in the sense of fundamental fairness and substantial justice) is required. Victor Li tells us that "[s]ince the fall of the Gang of Four in 1976, China has been moving sharply toward expanding the role of law."158 China's new leaders (for the most part themselves victims of the Cultural Revolution) in their determination to prevent such abuses from ever occurring again have 151David & Brierley (1985) at 524 1S2Laszlo Ladany in Law and Legality in China, The Testament of a China-watcher, London: Hurst & Company (1992) at 55 sets this as the date on which all Nationalist laws were abrogated, however, H. McAleavy in Derrett (ed) (1968) at 128 puts the day in September 1949. Ladany notes that the old laws were annulled eight months before the government of the People's Republic was established and that it was in September 1949 that a provisional Constitution was promulgated and the courts were set up. 153In the past the written form for the pronunciation of Mao's name has generally been Mao Tse-tung. The newer form is Mao Zedong. 154Victor H. Li, in "The Evolution and Development of the Chinese Legal System" in China: Management of a Revolutionary Society, John M. H. Lindbeck (ed), Seattle: University of Washington Press (1971) notes at 226-227 that the administrators continued to use a number of the Nationalist laws even though they had officially been abrogated. 155Danner & Bernal (eds) (1994) at 103 '"Although no criminal code was published until 30 years after the establishment of the People's Republic. '"Danner & Bemal (eds) (1994) at 104; as Laszlo Ladany (1992) at 79 notes "[t]he country had been ruled by the arbitrary will of the masters and by inner departmental regulations and instructions which had not been made public." 158In "The Drive to Legalization" in Anne Thurston & Jason Parker (eds) Humanistic and Social Research in China, Social Science Research Council (1980) reproduced in Barton, et al (1983) at 127. - 67 -turned toward a form of the rule of law as the answer.159 Victor Li notes that "[t]rying the Gang of Four in a court of law was a key element in the legalization drive. The leadership, essentially, was tellling the public that even the most critical national issues can be dealt with by legal means. The lesson was supposed to be that individuals and enterprises also ought to turn over their legal problems to the judicial system for resolution."160 At the same time, the reformist forces, following the lead of Deng Xiaoping, have determined that economic development is now the main task for China's leaders and population. 2. Structure and Divisions of the Law The decision to abandon Maoist policies of isolation and self-reliance in favour of greater openness to the developed world and with it an openness to foreign investment made it evident in China that there was a need for a legal framework that was acceptable to the West.161 In this regard, a new Constitution was promulgated in March of 1978.162 And "[o]n July 1, 1979 the first seven major laws to be promulgated by the National People's Congress since the 1950's were announced, including a law authorizing Sino-foreign joint ventures and the first criminal code and criminal procedure code since the founding of the People's Republic."163 But by 1982 extensive revisions had to be made to the Constitution, then again in 1988 and again in 1993 in order to keep up with the numerous changes that were occurring, including the emergence of the private economy.164 A noted Chinese jurist has stated that the 1993 "'At the Third Session of the Eleventh National Party Congress on December 13, 1978, Deng Xiaoping said the following in his speech to the Congress: "Democracy has to be institutionalized and written into law, so as to make sure that institutions and laws do not change whenever the leadership changes or whenever the leaders change their views.... The trouble now is that our legal system is incomplete.... Very often what leaders say is taken as law and anyone who disagrees is called a lawbreaker. That kind of law changes whenever a leader's views change. So we must concentrate on enacting criminal and civil codes, procedural laws and other necessary laws.... These laws should be discussed and adopted through democratic procedures." Four dimensions emerged in the Congress debate: 'to perfect the law' (ie. ensure complete codes), 'to observe the law and to act according to law', 'to insure equality before the law', and to strengthen the 'supreme authority of the law' in the life of the state (see Ronald C. Keith China's Struggle for the Rule of Law, New York: St. Martin's Press (1994) at 9) 160In "Gang of Four Trial", Los Angeles Times, February 2, 1981, Part II, Page 5, reproduced in Barton, et al (1983) at 132; the Gang of Four were brought to trial in December 1980, the trial lasted until January 25th. 161Danner & Bernal (1994) at 104 l62It laid out the goal of the "four modernizations" and emphasized promotion of socialist democracy and the elevation of science and education. 163Danner & Bemal (eds) at 104 I 6 4 Yu Xingzhong, "Legal Pragmatism in the People's Republic of China" in 3 Journal of Chinese Law 29 (Summer 1989) at 44; for a discussion of the development of the regulations for private enterprise see Alison W. Conner, "To Get Rich is Precarious: Regulation of Private Enterprise in the People's Republic of China", 5 Journal of Chinese Law 1 (Spring 1991) - 68 -amendments mark "an important and big step toward a rule-by-law society."165 It was in the 1993 amendments that Deng Xiaoping's theory of "building socialism with Chinese characteristics" was first set out. Another significant amendment at this time was the replacement of the wording "[t]he state practices economic planning on the basis of socialist public ownership" with the new wording "[t]he state practices a socialist market economy."166 Feinerman notes that "[i]n at least four areas, formal legality has begun to make inroads in the People's Republic of China that could not have been predicted a decade ago. These areas are: state structure, the domestic economy, the criminal justice system and international commerce. Each one has not only been touched by the recent developments in law; they have been shaped, even transformed, by law."167 However, Feinerman does go on to state that "[a]t the same time, it is important not to be misled by the formal aspects of legal change; a nuanced examination of both legislative change and its impact on Chinese society is necessary for a proper understanding."168 He points out that, with respect to foreign investment in China, there has been a series of legal regulations: rules permitting foreign companies to open representative offices in China (1980), constitutional I65OW2903134793 Beijing XINHUA in English 1334 GMT 29 Mar 93; as to the use of this particular term, Ronald Keith notes this "...was featured in Richard Baum's distinction between 'rule by law' and 'rule of law', the former connoting 'statist instrumentalism' and the latter, a 'pluralist law' reflecting a 'delicate balance of social forces, acting as a shield to protect various socio-economic classes and strata against "the arbitrary tutelage of government'". The former invokes both the doctrines of traditional Chinese legalism and the 'bureacratic ethos of Soviet socialist legality, as elaborated under Stalin and subsequently transferred to the PRC in the 1950s. The latter evolved out of a flowering pluralism which challenged the political monopolies of the European feudal estates." (see Ronald Keith (1994) at 7); but see also Jiang Ping, "Chinese Legal Reform: Achievements, Problems and Prospects", 9 Journal of Chinese Law 67, (Spring 1995) at 75 where he draws the distinction between 'rule by law' and 'rule by man' and states "[s]erious attention must be paid to...encouraging respect for rule by law rather than rule by man in China."; I believe it is important to note that Jiang Ping uses the phrases 'rule of law' and 'rule by law' interchangeably and as such it may simply be a question of semantics and not an understood and clearly discerned distinction on the part of the Chinese. 166See Amendment 7 which amends Article 15 of the Constitution. 167Danner & Bernal (1994) at 105; but note the argument of Yu Xingzhong in "Legal Pragmatism in the People's Republic of China" 3 Journal of Chinese Law 28 (Summer 1989) at 47 where he argues that "[t]he purpose of law is only "to finalize, stipulate, and standardize that policy of the party which has proven correct and effective." What is "correct and effective" is necessarily determined by the CCP. Anything inconsistent with the policy of the CCP is therefore neither correct nor effective. The process is simple: begin with CCP policy, articulate it into legal form, and the result is law. "Socialist law is an important and necessary tool for realization of the party's policy," observes one legal scholar." "It plays a particular and active role in the implementation of party policy." Thus, law is always an expression of policy and has no independent status of its own."; see also Pitman Potter, Foreign Business Law in China, Past Progress and Future Challenges, San Francisco: The 1990 Institute (1995) at 5 where he notes that "...laws and regulations are enacted explicitly to achieve immediate policy objectives of the regime. Law is not a limit on state power, it is a mechanism by which state power is exercised."; see also the comments by Feinerman that the National People's Congress (NPC) is meant to function as China's legislature, however foreign observers usually refer to it as China's 'rubber stamp' legislature as it is the CCP that has all the power (see Danner & Bernal (1994) at 110). 16SDanner & Bernal (1994) at 105 - 69 -guarantees to protect "lawful rights and interests of foreign investors" (1982), conditions under which joint ventures may be formed and operated (1983), and protection for intellectual property through Trademark (1983) and Patent (1985) laws. But at the same time he points out that "[difficulties have presented themselves at almost every turn to those foreigners who have become any more than tangentially involved with China's economy."169 Pitman Potter notes that in 1994 a unified Foreign Trade Law was enacted. Prior to this "...Chinese foreign trade relations were governed by a variety of specific laws and regulations governing different aspects of the system, often with little or no attempt at consistency. This approach continues even after the enactment of the Foreign Trade Law...."170 And Jiang Ping, a Professor of Law with China University of Politics and Law, notes "[although many excellent laws have been promulgated in China, enforcing these laws is a continuing problem. This problem is particularly severe where the government is concerned, as failure on the part of the government to observe the law undermines the whole concept of the rule of law."171 One of the results of the opening up of China was that the Chinese people began to see they were not doing as well, economically, as their neighbours. As part of the process of reform, the CCP introduced the notion of exchange by contract between state enterprises in an attempt to overcome the inadequacies of the traditional institutions and they enacted the Economic Contract Law of the People's Republic of China (1981) to govern these contracts. A review of the way in which these contracts operate leads a Westerner to conclude that this is more administrative law than contract law.172 However, Cheng and Rosett note that " [westerners tend to associate contract and contract law with individualism, autonomy, and private agreement. But to a considerable extent contract is ambivalent in these respects. The link between contract law and market structure is subtle and potentially confusing. Use of contract law to structure economic transactions does not necessarily imply an open market structure in that economy. Contract law has been used in a variety of nonmarket economies In this sense, "contract" can be adopted to serve a socialist system of central planning almost as readily as it can be used to support a capitalist system of free enterprise. At the very least, contract techniques make it easier to decentralize the planning process by allowing the parties at the operating ends of the system to create a binding form of obligation, the contract order. Although the central planner may remain in control of the operation, everything does not have to stand still and wait for the issuance of detailed commands from the center before the plan is translated into specific 169Danner & Bernal (1994) at 106 170Potter (1995) at 11 1 7 1 Jiang Ping (1995) at 74 172See Barton, et al (1983) at 701-712 for a discussion of the contract system in state enterprises and for a reproduction of portions of the Economic Contract Law. - 70 -transactions."173 China has tried to keep these domestic contract transactions separate from the international transactions and to this end has adopted two distinct legal regimes. However as Cheng and Rosett note "[t]here is an inevitable tension between these two systems."174 They cite the comments of Stanley Lubman in this regard, "not only is there a question of allowing domestic transactions to be influenced by internationally recognized legal concepts, but in practice there is also the danger that international contracts in trade and investment transactions, despite their ostensible dependence on recognized international principles, come to be influenced by fluid, flexible and anti-legal Chinese notions. I'll show you my scars sometime."175 Cheng & Rosett note that "[a]s China joins the world system, it is increasingly confronted with the indivisibility of that system and with the infeasibility of selectively choosing to adopt some aspects of that system and to reject others."176 Jiang Ping tells us that there is recognition of this problem and that "[i]n the push to overhaul China's legal system, this fragmentation in the law of contracts is to be changed. In two years, a uniform law of contracts is to be promulgated one of the proposed goals of the new contract law is to prevent excessive state interference into the formation of contracts and thereby to facilitate the operation of the market economy."177 In looking at China's methods of dispute resolution, Pitman Potter notes that the Foreign Economic Contract Law (FECL) lists four different procedures for settling disputes involving foreign business interests. These are consultation, mediation, arbitration, and litigation. Although the emphasis is on consultation and mediation, the FECL does not explicitly require parties to go through these first before seeking redress through arbitration or litigation. However, if there is an arbitration clause in the contract or an arbitration agreement, the FECL will not allow the 1 Lucie Cheng & Arthur Rosett, "Contract with a Chinese Face: Socially Embedded Factors in the Transformation from Heirarchy to Market, 1978-1989" in 5 Journal of Chinese Law 143 (Fall 1991) at 162-164 174Cheng & Rosett (1991) at 190 17iCheng & Rosett (1991) at 190-191 176Cheng & Rosett (1991) at 191 177Jiang Ping (1995) at 70-71; Potter (1995) notes at 17-18 that "...in the Foreign Economic Contract Law, trade contracts must be in compliance with state policies, as these represent official articulation of the public interest. Similarly, the Customs Law and the regulations on import and export licensing refer specifically to the need for policy control. This permits approval authorities (whose consent is generally a condition for legal validity) wide discretion in approving trade transactions." - 71 -parties access to the courts.178 But this may not be such a bad thing, as Donald Clarke notes that China's courts are "often unable or unwilling to enforce legal standards."179 He cites a number of reasons for this: the judges may lack the necessary education;180 the judges may be corrupt or partial;181 the decision of the judge may be overriden by higher authorities within the court;182 the court as a whole is subject to outside pressures and is vulnerable to local government direction;183 and the courts have little in the way of autonomous enforcement powers.184 Jiang Ping notes that because of these problems, "some people have argued for the creation of an integrated court system that is independently administered and separately financed."185 But he also notes that this would not be easily accomplished because it would require a Constitutional amendment as well as a change in the practice of the courts. With respect to arbitration, Potter notes that all Chinese standard form contracts require that disputes be handled by the China International Economic and Trade Arbitration Commission (CIETAC) even though this is not required under the FECL. He goes on to state that "...the general consensus is...that the arbitration results at CIETAC at least are generally fair and generally reach the "correct" results, even if often for the wrong reasons. Foreign lawyers may participate directly on behalf of their foreign clients, and the CIETAC list of arbitrators available to be selected to decide a given case contains a number of respected foreign jurists. Indeed, some studies have shown that CIETAC decisions favor the foreign side more often than not. CIETAC is relatively internationalized and keenly interested in maintaining its international reputation."186 A problem arises however when trying to have this decision enforced, as CIETAC does not have the authority to enforce its own decisions. Only the courts do. And, as noted above, this may be difficult. As Potter states, 178Potter (1995) at 70 179Donald C. Clarke, "Dispute Resolution in China" in 5 Journal of Chinese Law 245 (Fall 1991) at 257 180Because there was little legal education for many years there is a great shortage of qualified persons to serve as judges -Clarke (1991) at 257. 181Official corruption is a serious problem in China and it extends to the judiciary - Clarke (1991) at 258. 182Courts at all levels have an Adjudication Committee headed by the president of the court and it has the power to override the decision of the judges - Clarke (1991) at 260. 183It has long been the practice for local Party secretaries or Party committees to review and approve the disposition of cases by the courts - Clarke (1991) at 261. 1 8 4For the various reasons see Clarke (1991) at 263-268. l85Jiang Ping (1995) at 73 186Potter (1995) at 76 - 72 -"[t]he conflict between the internationalism of the Chinese arbitral organs and the parochialism of the courts present obstacles to the full development of a foreign dispute resolution system in China. For without the enforcement powers of the courts, arbitral decisions, domestic and foreign alike, are rendered moot. Unfortunately cooperation between arbitral and judicial organs seems increasingly remote...!"187 Another major difficulty facing China today is the "problem of legally defining the parameters of government authority in general."188 As Jiang Ping notes "[b]esides its power to promulgate laws, the government has the power to issue administrative plans or orders of sweeping scope, as it did in the heyday of the planned economy. Further, the government has unbridled discretion to interpret the law or to suspend enforcement of a law by administrative fiat. If something is not done to limit the government's ability to arbitrarily manipulate the law, people will lose their confidence in the concept of rule by law."189 In addition to this, much of the legal system remains closed to outsiders - this is not only foreigners but also the Chinese. There are many internal laws and regulations which are disclosed only to government officials and the Party elite. Jiang Ping concludes that "in light of these problems, one should not be overly optimistic about the prospects for improvement within the next 5 to 10 years in the enforcement of laws in China. Although by the end of this century, I think China will have the trappings of a comparatively complete legal system, the situation will not be equally promising in terms of the credibility of this system."190 B. JAPANESE LAW 1. Historical Development The first written information on Japan is found in a Chinese book, Chronicle of the Former Han Dynasty, written around the end of the 1st century A.D. 1 9 1 From Chinese records, it is hypothesized that the Japanese state came into existence in the 3rd century A.D. under the Queen Himiko. Those records also tell us that in the 3rd and 4th centuries A.D., law in Japan was not 187Potter (1995) at 79 188Jiang Ping (1995) at 74 189Jiang Ping (1995) at 74 I90Jiang Ping (1995) at 75; at 67 Jiang Ping notes that "according to the five year plan for legal reform drafted by the Eighth People's Congress, close to 152 laws are expected to be enacted between 1993 and 1998." 1 9 1The Japanese language did not have a written form until the end of the 4th century A.D. when it began to use modified Chinese characters. - 73 -distinguished from social or religious rules but was seen as the will of the gods.192 Yosiyuki Noda notes that "[traditional Japanese religion considers ancestors as gods; hence Himiko served the gods and the foundation of her political power was religious."193 At this time, positions in public office were hereditarily occupied by the leading families, as were certain trades and crafts.194 Noda notes that "[t]he governmental institutions of the era were not influenced in any way by foreign civilization and in them is reflected the manner of thinking that is peculiar to the Japanese people."195 Because of its geographical isolation, Japan was free from foreign invasion until 1945. It did however have relations with China and was influenced by this contact throughout different periods of its history. As Noda tells us, "[t]here can be no question of denying the very powerful and millenial influence that Chinese ideas have exercised upon the whole Japanese culture, and naturally the conception of the law has not escaped it. However, this is not to say that Japanese culture is a faithful copy of the Chinese. The ecological, historical, and characterological circumstances of the development of the two cultures are not the same."196 It was in the 7th century A.D. that a centralized government (similar to that in China) under a single Emperor, and Chinese-style legal codes, ritsu-ryo, were developed.197 They introduced "a form of state and moralistic planning"198 and their purpose was "to educate ignorant men and lead them toward the Confucian ideal."199 The codes devised a land sharing system200 and contained a series of prohibitions (ritsu) along with rules of administration (rvo).201 Under this system, the imperial government distributed public offices and land to individuals in accordance with the 192Yosiyuki Noda, Introduction to Japanese Law, University of Tokyo Press (1976) at 19-21 193Noda (1976) at 21; the religion at this time was Shintoism. 194Joseph Emest de Becker, Elements of Japanese Law, Yokohama (1916) (reprinted in 1979 by University Publications of America, Inc.) at 1 195Noda(1976)at21 '^International Encyclopedia of Comparative Law, Vol II, Chapter 1 at 129 1 9 7Also at this time Buddhism became the state religion under the control of the Emperor - see Aritsune Katsuta, "Japan: A Grey Legal Culture", in Esin Orucu, et al (eds) (1996) at 250 198David & Brierley (1985) at 534 199Noda (1976) at 23 J00Prior to this, the land was owned by the large clans or families who also held political power in conjunction with this ownership. These clans lost the land and the power to the imperial government. 2°'The codes closely imitated the codes of the Chinese T'ang dynasty with some adaptations being made for the customs and social conditions peculiar to Japan. - 74 -ritsu-ryo}02 Hereditary occupation of offices was abolished and eligibility for public office was now based on education and merit. As well, everyone was now free to practice any trade, profession or craft they liked. But as this egalitarian philosophy of ancient China was unknown to Japan and certainly at odds with the existing conditions, the system did not function well and most of the provisions fell into disuse.203 In the 9th and 10th centuries a seigneurial system developed in its place. Under this system, estates (sho) were created "by means of usurpation, hoarding, and accepting offers of those who wanted to submit themselves to the patronage of the strong".204 In addition, within the sho, the master came to have legislative, administrative and jurisdictional powers. At the same time, a new military class (samurai),205 made up of members of the powerful families from the provinces, was developing. Over time, this increase in the power of the masters of the sho (and resultant decrease in the power of the central government) along with the increase of the power of the samurai in the provinces, resulted in the Genji clan gaining control of the imperial government in 1185 and establishing its own military government (the Bakufu) at Kamakura. This form of military government continued until 1868. Throughout this period the Emperor had no control over the imperial government and held no power. He did however continue to be a revered and important figure.206 From a legal perspective, the centralization of the ritsu-ryo gave way to feudalism. Noda tells us that " [t]his feudal system developed in two separate stages, dual feudalism and unitary feudalism."207 During the regime of dual feudalism, there was a mix of feudalism and sho. The sho were the economic basis of the feudal system,208 however, only the samurai were governed 2 A certain amount of land was given for life to each person six or more years of age - see Noda (1976) at 25. But as de Becker (1916) notes at 2, neither sale nor succession was allowed. On death, the land reverted to the state. 203Noda (1976) at 24 notes that these laws were not formally abrogated and some were even applied after 1868; for Japan, as an agrarian society, the rules governing land-holding were simply not conducive to this way of life. 204Noda (1976) at 25 2 0 5Also known as buke or bushi. 20*When the position of the emperor was created in the 7th century, the idea that he was a living god was also invented, so as to give his powers religious authority - see Noda (1976) at 25. 207Noda (1976) at 26 Henderson (1968) notes it "rest[ed] solidly on the rice tax". - 75 -by it. Under Yoritomo, the head of the Genji clan, "a hierarchical order was established with Yoritomo at the top. In this order the inferior owed his superior a duty of devoted service and the latter gave the former some benefits by way of reward. each group of samurai linked by a blood relationship constituted a coherent unit directed by its head. The head had the right and the duty to receive obedience from the members of his group. ... The vassal owed his overlord an absolute duty of fidelity but had no legal right to ask for the fulfillment of the overlord's duties. ... In this characteristic, it is said, is the essential difference between vassalage in Japanese feudalism and Western feudalism."209 The sho eventually came to an end after Yoritomo, as the chief of the military, was able to send his vassals onto each sho, even those not belonging to him. The rights of these samurai sent by Yoritomo increasingly exceeded those of the masters of the sho until eventually the sho regime broke down entirely. The law at this time was generally of a customary nature with the exception of the personal law governing the samurai which has been likened to a code of chivalry. With the disappearance of the masters of the sho there arose local lords (daimyo) who seized power over the lands in question (han). These daimyo were perpetually at war, each trying to gain power over all of Japan. Finally, in 1603, Tokugawa Ieyasu succeeded and established a unitary feudal regime encompassing all of Japan. Under this regime, all of Japan, including the imperial court, was dominated by the samurai, although the Emperor did continue to be the symbol of national unity and the spiritual head of the country. The hierarchical structure which had been created earlier continued and, along with it, the absence of any rights on the part of the vassals. The head of this regime was simply the strongest of the daimyo and bore the title of shogun. The regime of the Tokugawa shoguns continued up to 1868 and is known as the Tokugawa or Edo 2 1 0 era. Throughout this period, social order was maintained by the strict separation of the social classes (essentially a division of vocations) which were arranged in a hierarchy. The four vocational classes, from top to bottom, were warriors, farmers (or peasants), artisans, and merchants211 Dan Henderson notes that 209Noda (1976) at 27 J'°Present-day Tokyo "'Merchants were on the bottom of the hierarchy because they were regarded as unproductive. - 76 -"...within the major status groups there was much refinement of rank, title, and status, particularly among the warriors. Even in the rural villages there was a social hierarchy of old and new families and other kinds of people (eg. serviles, tenants, and so forth), which were often based on unwritten pedigree, custom, and tradition, but sufficiently pronounced to leave no doubt that the village was not egalitarian. Second, the authoritarian Confucian family relations - father and son, husband and wife, older brother and younger brother - constituted a universal status system throughout all strata of society, derived from birth and with profound influence on the law and, as a model, on political concepts as well."212 Confucianism was made the official ideology of the country as it supported the hierarchical order which had already been established.213 As Noda notes "[the rulers] tried to convince the people that the established order was an immutable natural order. The result was that authoritarian ideology was deeply rooted in the heart of the nation."214 In addition, "[t]he whole way of life of a Japanese was determined on the basis of the class to which he belonged: the type of house inhabited, the type and colour of cloth worn and type of food consumed were all predetermined."215 Minutely defined rules were developed which specified exactly how each individual was to act in every situation. These rules of behaviour are called giri. As Rene David writes, "[t]he giri therefore replaced law and, according to some Japanese, even morality. It was spontaneously observed not so much because it corresponded to a series of moral values or strict duties but rather because social reprobation attached to its non-observance. It would be a source of shame, a loss of face, for a Japanese not to respect one of the giri in which he was involved. A code of honour, wholly customary, thus determined all forms of behaviour. Until recent times, the system of the giri made any intervention of law in the western sense useless and even offensive."216 In addition to the rules for each status, it was forbidden for anyone to change his status, and each social level was clearly separated from the others by an "impenetrable barrier; each individual belong[ed] from birth to a given social status which impose[d] on him a manner of life adapted 212Henderson (1968) at 49 2 1 3Kyoko Inoue in MacArthur's Japanese Constitution, A Linguistic and Cultural Study of Its Making, Chicago: The University of Chicago Press (1991) at 42 notes that "[o]ne element in the Confucian tradition...was the desirability of cultivating benevolence and wisdom in political rulers. ... This aspect of the Confucian thought...later proved to be of great importance. Not only was it used to justify the Restoration [during the Meiji era], it also helped foster among its leaders a strong, elitist sense of responsibility to rule the nation well for the benefit of the people. The top-ranking bureaucrats, politicians, and business leaders in contemporary Japan still conceive of their roles in these terms." 214Noda (1976) at 32; as Henderon (1968) notes at 49, it was also a 'natural' principle that men were unequal and status law must treat them unequally. 215David & Brierley (1985) at 537 216David & Brierley (1985) at 538 to that status."217 - 77 -The law of this period was mainly local customary law, emanating from each daimyo over his vassals.218 However there was some legislation, mainly to regulate the relations between the Bakufii and the daimyo, but also governing foreign relations, communication, Christianity, currency, and other matters affecting the country as a whole.219 But as Dan Henderson notes "[t]he unifying thread running through the whole Tokugawa governance was the rule-by-status. This was essentially administrative, not legal. From the shogun at the top to the individual person at the bottom, this thread ran by successive delegations of power, unpoliced by justiciable law. ... The critical fact was that against the authority of any of these superiors (feudal, village, or family) there was almost no right of appeal - no legally justiciable right either before a court or even before the next higher official superior. ... The law...left settlement of...disputes to the will of the master, father, teacher, or other superiors as a matter of "jurisdiction"."220 Henderson goes on to note that "Tokugawa law did not stop at simply prohibiting suits against superiors.... In the traditional ritsu-ryo format, it also supported these prohibitions with harsh criminal penalties...."221 And Noda tells us, "...it is clear that the law for most Japanese meant little else than the means of constraint used by the authorities to achieve government purposes. Powerless before the government might, the people could only obey, but because they were not convinced they developed a complex (jnenju-fukuhai) which became part of their psychological make-up."222 What menju-fukuhai means is "that one obeys one's superior outwardly but rebels against him inwardly."223 2 l 7Noda (1976) at 33 2 I 8Each han was politically and legally autonomous. 2"lnoue (1991) notes at 43 that "[i]n addition to fiercely persecuting Christians, [the Bakufu] issued orders preventing ships or people from leaving Japan, as well as forbidding Japanese living outside the country from returning. The bakufu allowed a small amount of foreign trade to be conducted through Nagasaki, a city they ruled directly. Only those Western nations that did not send missionaries were allowed to participate in that trade...and in practice that meant only the Dutch." 220Henderson (1968) at 52 "'Henderson (1968) at 53 222Noda (1976) at 37 223Noda (1976) at 37; life for the farmer or peasant class, which made up 80% of the population, was extremely difficult during this period. They had heavy burdens in the form of taxes and service and as such were required to live very frugally and work from dawn to dusk. The artisans and merchants were of even lower status than the farmers and also had many restrictions placed on them to make sure they did not try to rise above this status. - 78 -It was during the Tokugawa era that a policy of isolation was maintained. For 250 years the Japanese people had virtually no contact with the outside world.224 But in 1853, Commodore Perry of the United States Navy arrived in Japan, accompanied by four warships, to ask Japan to once again open its doors to foreigners. The intention of the United States was clear and the Bakufii was forced to comply. By 1858 it had entered into commercial treaties with the United States, England, France, Russia, and the Netherlands, but because of its ignorance of international law, it entered into these treaties on unequal and unfavourable conditions. These treaties were the final nail in the coffin of the Bakufu and its system of military government and in 1867 the last Tokugawa shogun handed power back to the Emperor.225 Thus began the Meiji era.226 And thus began the process of westernisation. Suffering from the humiliation of the treaties of 1858, the goal of the country now was to put Japan on an equal footing with the world powers. She needed to advance her industry and agriculture and, at the same time, become strong militarily. But she could only do this with a strong central government and a modernized state. In 1869 the daimyo surrendered title to their han and registries of their people to the Emperor. And in 1871 these autonomous domains became a centrally supervised system of prefectures, thus signalling the end of the fuedal era. To modernize the state Japan turned to Western laws. As adoption of the Common law would have been a long and difficult process, she looked to the Civil law of the European continent. French and German legal experts were brought in to work with Japanese drafters to adapt the Continental law to Japanese society.227 In 1882 a Criminal Code and the procedural Code of Criminal Instructions were brought into 24It is not completely clear why they instituted isolation but it is thought that they may have feared that the Western powers would use trade and Christianity to meddle in Japanese affairs - see Inoue (1991) at 43; Inoue also notes at 39 that it was during this period that "many of modem Japan's fundamental political ideas and patterns of political behaviour developed." 225In the late 17th century a group of intellectuals advocated the revival of Shintoism along with the mythical origin of Japan and the imperial family. In the late 18th century this group criticized the Confucian ideology and the Bakufu. As Inoue notes at 43, [fjhose criticisms eventually became politically significant, because of their emphasis on reverence for the Emperor, and his role as the head of Japan, perceived as one household." This revival gave added legitimacy to those who opposed the rule of the Bakufu in the name of the Emperor. 2 2 6Also called the Meiji Restoration. 2 2 7 An English legal advisor helped with the drafting of the Constitution. - 79 -force.228 In that same year the Regulations for Bills of Exchange and Promissory Notes were introduced. A Constitution was enacted in 1889.229 The first Bank Regulations were announced in 1890. And in 1890 and 1891 a number of principal enactments were brought into force, including: the Law for the Organization of Municipalities, Towns and Villages; the Law of the Constitution of the Courts; the Code of Civil Procedure; the Regulations Governing Prefectural Organization; the Regulations Governing Rural District Organization; and the Law of Administrative Litigation. The Commercial Code came into effect in 1893 and the Civil Code in 1898. With the introduction of the Bank of Japan as the central banking organ and the adoption of the gold standard, Japan's economy, in 1897, became linked to the world economy. In less than 30 years capitalism had become firmly rooted in what had previously been an isolated country governed by feudal institutions. But even though these feudal institutions had been eliminated, the way of life they engendered - the interests of the individual subordinated to the group and the inferior bound to the superior by strong ties of loyalty and obedience -continued on in the everday lives of the people. Ishii notes that "[tjheir preservation was beneficial to the government leaders, first of all, because it helped them to maintain their power. And secondly, they were preserved because of the need to employ extreme measures in overcoming the several decades handicap which separated Japan from the Western powers."230 Yet the new codes which had been introduced were all predicated on "...a bourgeois society in which every individual is presumed free and equal with everyone else, in which all legal relationships constitutive of rights and obligations are formed by the individuals themselves, and where legal relationships are created by the exercise of the individual's free will."231 Before these codes the Japanese had no knowledge of rights or legal duty and the drafters, in creating the codes, had to create new words for such notions. There were great debates on even Henderson (1968) notes at 77 that a part of the criminal law which was "enormously important to politics was, however, outside of these codes. This body of special laws included the Police Regulations on Public Meetings, the Press, Libel, Book Censorship and Peace Preservation. Violation of these controls were criminal offences. ... This technique of the special police law was a useful vehicle for the authoritarian control of popular or parliamentary agitators throughout the Meiji era, particularly during the period of constitution-making (1881-1890)...." "'The Constitution guaranteed executive supremacy by recognising broad imperial prerogatives, but it also provided for a Diet, including a Lower House, of elected representatives. 2 3 0 R. Ishii, Japanese Legislation in the Meiji Era, (1958) reproduced in S. Salzberg (1988) at 72 231Noda (1976) at 58 - 80 -introducing the idea of rights in the Constitution as "in regard to the Emperor the Japanese subject had nothing but a definite station in life and obligations."232 But, notwithstanding the concern, the Constitution and the codes did not change the society. Noda believes that the reason for this is that the lower-ranking samurai, who were the main instigators of the political reform of this period, "had absolutely no intention of abandoning the feudal principles which they considered constituted a morality far superior to the European. They understood that they could not preserve Japan's independence without recourse to the material means that the Western powers controlled, but they believed that it was possible to adopt the material civilization of Europe and to harmonize it with Oriental morality. ... All the modern industrial enterprises were promoted by the government and then given by way of concession to individuals subject to the diligent protection of the state. The Japanese bourgeoisie was nurtured by the government, and was, in a sense, the favorite daughter of absolutism. There was neither liberalism nor individualism in its spirit."233 The position Inoue takes is that "...although there was widespread discontent before the collapse of the bakufu, there was no popular movement for a new political order based on a different set of governing principles."234 With her defeat and surrender in World War II and the subsequent American military occupation, Japan was forced to accept the Potsdam Declaration and, with it, substantial changes. Under the declaration, the Japanese Government was required to "remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people. Freedom of speech, of religion and of thought, as well as respect for the fundamental human rights shall be established."235 Guided by General Douglas MacArthur, a new Constitution was enacted,236 including a new bill of rights, and the existing codes and laws were amended so as to be in harmony with the Constitution. Alfred Oppler notes that there "were powerful movements among the people of enthusiastic support of Occupation objectives. ...some of these movements had existed long before the war, but were repressed and became dormant. Their followers had welcomed MacArthur as liberator. ... MacArthur therefore had some reason to believe that the majority was in accord with the principles of the new Constitution. 232Henderson (1968) at 78 233Noda (1976) at 59 234Inoue (1991) at 55 "'Political Reorientation of Japan (Report of Government Section, Supreme Commander for the Allied Powers, September 1945-September 1948) reproduced in S. Salzberg (1988) at 99 23<It has been called the MacArthur Constitution. - 81 -There was, however, a great deal of confusion as well as enthusiasm...."237 The new Constitution and new laws have certainly effected change in Japan, change which is continuing today and will continue for some time. But as Rene David notes, writing in 1985, "[i]t is true that Japanese mores are evolving, and they are approaching more and more, especially in urban society and among members of the younger generation, those presupposed by their law. But from all points of view Japanese society is still far from being a western society. The former habits and ways of thinking are still very much alive among the majority of Japanese, even those living in cities, the working classes and in commercial dealings. ... In Japan the application of modern law runs counter to Japanese mystical sentimentalism, the outcome more of a poetic than a logical spirit, which has rendered the Japanese historically indifferent to the ideals of individual freedom and human dignity entertained in the West." 2. Structure and Divisions of the Law As has been seen above, there has been both a civil law influence and a common law influence in the laws of Japan. As the codes created during the Meiji Restoration were based on French and German law, Japan became a civil law country both substantively and procedurally. However, during the American occupation between 1945 and 1951, there was a great influx of American law and institutions. The Constitution of 1946, along with the necessary corresponding amendments to other legislation, were drafted by American lawyers. As such, American common law is now evident in Japanese constitutional law, administrative law, the family and succession provisions of the Civil Code, and the company law section of the Commercial Code, as well as in the area of criminal procedure. In addition, Japanese antitrust law and labour legislation are patterned after American notions. This mix has created some problems. Takayanagi, writing in 1963, noted that "[i]f one compares commentaries on the Philippine constitution with those on the new Japanese constitution, he will be surprised at the striking difference in the mode of exposition and interpretation, even in cases in which the constitutional text is exactly the same. The former works reveal the mind of common-law lawyers, the latter that of jurists trained in the civil law. Thus Japanese jurists' interpretation of principles of common-law origin has sometimes been justly accused of resembling the interpretation of an English text through canons of German grammar, and, in some cases, serious misinterpretations have resulted."258 237Alfred C. Oppler, Legal Reform in Occupied Japan.sA 43-49 (reproduced in Salzberg (1988) at 111); see also Kyoto Inoue (1991) for an interesting look at how the English and Japanese versions of the MacArthur Constitution differ in meaning. J38Kenzo Takayanagi, "A Century of Innovation: The Development of Japanese Law, 1868-1961" in Law in Japan: The Legal Order in a Changing Society, Arthur Taylor von Mehren (ed), Cambridge: Harvard University Press (1963) at 37 - 82 -However, more recently many Japanese are studying in the United States so one may assume that this problem should be lessening. But what is of even greater importance in the interpretation and use made of the various laws relates to the continued influence of the distinctive Japanese mores as well as (for lack of a better term) the Japanese national temperament.239 Noda notes that "...it might be thought that this attitude of the Japanese derives from Confucian influence. However, though Confucian influence is undeniable, Chinese ideas constitute only one of the many factors which have gone into the formation of the Japanese conception of law. Indeed the essential factors appear to be, along with Chinese and Buddhist ideas, geographical and historical conditions and the basic character of the Japanese themselves."240 As Noda and others note, the Japanese, who belong to a character type of emotive predominance, "feel an aversion to the law".241 As well, an indifference to logic can "...be noted in the Japanese character right from the earliest period."242 At the same time, the Japanese readily adopt strange or foreign things. "Japan has received ideas from China, India, and Europe and, with little regard for logical coherence, the Japanese have allowed these ideas from different sources to coexist without ever asking whether one system of thought is compatible with the others."243 Noda goes 2 3 9 As Professor J.M. Maclntyre noted in his paper "Dispute Resolution in Japanese and Canadian Labour Law" for the 1985 U.B.C. Conference Canadian Perspectives on Japanese Law, "...what happens in practice is not always what appears in books, and [the Canadian labour lawyer finds] that he is only touching the surface of a very complex combination of culture, traditional law, and new law." (at 2) 240Noda (1976) at 160; J. Toshio Sawada in Subsequent Conduct and Supervening Events, Tokyo: University of Tokyo Press, and Ann Arbor: Univeristy of Michigan Law School (1968) at 173 cites Nakamura's Ways of Thinking of Eastern Peoples - India, China, Tibet, Japan (1964) with respect to his analysis of the Japanese character and notes the following: "spirit of tolerance; overstating of social relations; social relationships take precedence over the individual; observance of family morals; absolute devotion to specific individual symbolic of the social nexus; sectarian and fractional closedness; weak awareness of religious values; indifference to logical rules; lack of interest in formal consistency; slow development of exact logic; intuitive and emotional tendencies; tendency to avoid complex ideas; fondness for simple symbolic expressions; lack of knowledge concerning the objective order." 241Noda (1976) at 166; Zensuke Ishimura in "Legal Systems and Social Systems in Japan", Podgorecki, et al (eds) (1985) at 119-20 notes that, following Kawashima's lead, surveys done in the 1970's revealed a lenient attitude toward the law and law enforcement. In response to the statement "If you are confident that the purpose of your action could be justified, you do not mind breaking the law", 51% were in agreement and 43% were not. In response to the statement "I like those public officers who pervert the law according to the circumstances", 66% in one survey and 73% in another were in agreement with 29% and 20%, respectively, not in agreement. In response to the statement "Law should be applied to the circumstances. It is not wise to apply the law literally." 62.3% in one survey and 65.7% in another were in agreement. 242Noda (1976) at 169 243Noda (1976) at 169; in a footnote Noda quotes from Grieger with respect to the difference between intellectualizing and emotionalism - "Intellectualizing and emotionalism vary in an inverse ratio the one to the other. Emotionalism has its basis in the innermost recesses of our being and this is why a person whose mental life is controlled by emotions demonstrates little inclination or liking for rigorous logical structures. He is little worried about pure rationality in thought or conciseness in expression." - 83 -on to note that "[t]he systems of thought that have been introduced to Japan one after the other have thus undergone no logical confrontation with each other."244 "In this mental climate it is possible to speak of a fashion in ideas. An idea is not followed because it is rationally convincing, but because it is newer and therefore satisfies curiosity so much the better."245 As well, the Japanese have been influenced by both Confucianism and Buddhism.246 The Confucian influence has been noted above. What Buddhism preaches is resignation - "[d]o not rebel against the conditions in which you find yourself, but follow your fate to the end."247 As Noda notes "[t]hese two doctrines became deeply ingrained in the subconscious of the Japanese people for over more than a thousand years, and against such a background it is very difficult for a lively consciousness of subjective rights to be created."248 Kyoko Inoue, in discussing the Japanese understanding of the concept of rights, notes that in Western thought, "...rights normally imply corresponding duties on the part of others."249 But in Japanese thought there is a greater emphasis on nonspecific obligations. She notes that "[t]wo ideas central to the Japanese ethos during the long feudal era were the concepts of on and giri. On refers to a nonspecific sense of indebtedness and gratitude in hierarchical relationships, particularly of the [samurai] toward his lord (called chu) and of a child toward its parents (called ko) for their benevolent care and sacrifice. This concept is expressed in writings as far back as eighth century Japanese legends An individual had the obligation to serve his lord and parents, not simply as individuals, but as figures who personified (or occupied) important social positions. ... More generally, the emphasis on on and giri, rather than on rights, reflects a profound difference in the way the Japanese view the relationship of the individual to society. The Japanese never see themselves primarily as individuals, but as participants in social relations with other people, and they identify with roles they are expected to perform. They do not emphasize their claims against their group or community so much as their obligation to contribute to the smooth and harmonious functioning of society."230 ^Noda (1976) at 170 245Noda (1976) at 171 "'Motoori Norinaga, a scholar of the Edo period, in an attempt to explain the Shintoist quality of Japanese thought has stated, "If it is difficult to rule without Confucianism, rule according to Confucianism. If Buddhism is indispensible to government, use Buddhism. Both Confucianism and Buddhism constitute the temporal aspect of Shintoism." (see Noda (1976) at 170) 247Noda (1976) at 172 ""Noda (1976) at 172-3 "'Inoue (1991) at 51 250Inoue (1991) at 53; David Cohen and Karin Martin in "Western Ideology, Japanese Product Safety Regulation and International Trade" 19 U.B.C. Law Review 315 (1985) note at 359 that "[j]ust as the Japanese individual in feudal society exchanged loyalty for protection from a lord, today he seeks similar economic and social security from the state." - 84 -Toshio Sawada conducted a study of Japanese businessmen to test the hypothesis "that the pertinent positive law rules are generally ignored in business practice."251 He found that "...the very idea of resort to law in matters relating to contracts is found to be generally incompatible with the basic characteristics of the Japanese.252 In looking into the reasons for this non-legalistic approach, he states that he did not try to "...unfold an overall picture of the Japanese national character as such, but through a discussion of some selected materials, trie[d] to show what types of pronounced features of the Japanese are relevant in the understanding of their attitude toward law, contracts, dispute avoidance, and dispute resolution."253 Sawada classified the various basic characteristics of the Japanese into three main categories: those connected with fatalism; those concerned with the sense of solidarity; and those which show a neglect of logic. In explaining the attitude toward law, he found that the communal solidarity and neglect of logic categories were pertinent. "One relies on others and expects them to act in a certain manner. It is not desirable, therefore, for one to conceive his expectation or claim as a "right" which may be asserted."254 Sawada notes that these two features "are incompatible with the very purpose of codified laws, that is, to clarity the rights and obligations. ,"255 However he notes that as the Japanese still tend to be submissive, they do respect laws which reflect authority or establish organizational structure, such as criminal and administrative law. When it comes to law governing actions between individuals, they "...prefer 251Sawada (1968) at 162 252Sawada (1968) at 162; Gordon Matei in "Challenging the Myths: Japanese and Canadian Attitudes Towards Commercial Contracts" at the 1985 U.B.C. Conference Canadian Perspectives on Japanese Law, argues that it is important to realize that there is a disparity between the "traditional" Japanese attitude toward contracts and the attitude of the modem-day Japanese businessman engaged in international trade. He argues that today the Japanese businessman will probably have similar attitudes towards the contract as those of the Canadian and that it is very likely that he will "insist that the contract be as precise as possible, cover a wide range of potential problems and allocate legal rights and duties among the parties in the event of all foreseeable occurences." However Matei does acknowledge that there is one fundamental difference that does linger and it relates to the function of the actual written document. He notes that "[t]he Canadian sees it as a safety net which will be there to use only in the case of an emergency. It is for his own protection. ... Some Japanese, on the other hand, see it also as a weapon which might be used against them in the event of unforeseen circumstances should events occur which place them in an uncomfortable position, they worry that the Canadians will hold them to the letter of the agreement." (at 19) I would suggest that this difference goes to the root of the different attitudes towards the purpose of a contract. I would also suggest that the similarities that Matei found and used to conclude that the attitude towards contracts is no longer different, in fact do not relate to attitudes towards contracts but rather simply relate to what is good business practice. The areas where he found differences - as noted above and also as noted at 15 in the different responses to standard contractual provisions - are the key components in showing there are different attitudes towards commercial contracts. 253Sawada (1968) at 169 254Sawada (1968) at 178 Sawada (1968) at 178 - 85 -discovering vague and case-by-case solutions to such relationships rather than subjecting themselves to impersonal standards of law."256 With respect to the creation and maintenance of contractual relationships, Sawada states that the communal tendency and neglect of logic are again pertinent. He notes that "...whenever possible, the Japanese...attempt to fuse their contractual relations into the family-like atmosphere of a communal society. ... Even if they have entered into the contract in a legal spirit, the reversion from modern contractual relationship to the more archaic relationship promptly tends to occur such a personal relationship is often manufactured, for it affords a unique sense of security. And it is alien to the maintenance of a pleasant personal relationship to know that certain rights or obligations arise or terminate under a contract at a specific point in time. ... Thus the proper means of solving problems arising in connection with the performance or non-performance of contracts is subtle extralegal negotiation."257 With respect to dispute resolution, Sawada notes that "[bjitter disputes have been known in all types of communities."258 However, he points out that the Japanese "...generally abhor impersonal, logical and clear solutions. The parties to a dispute prefer (1) quietly working out solutions themselves (2) without resort to the objective rule (3) in vague, quantitatively indeterminate ways."259 Nothwithstanding this, Sawada does note that in large, industrial communities people are more rights conscious and it is "...common to see attempts to take maximum advantage of legal provisions to escape from obligations."260 He also notes that changes are taking place in the Japanese attitude to law, contract, and dispute resolution. In particular, "...the emphasis on the individual rights guaranteed in the post-war constitution had great impact on the younger generation through the revised curricula of primary and secondary schools. The comprehensive discussion of individual rights in social studies textbooks and the formation of...student's self governments served to enhance consciousness of rights, and trained students to express their opinions and to assert their rights. ... As to contracts, a move towards more objective legal solutions is discernible both in the preventive measures taken by businessmen and in their manner of settling disputes."261 Sawada notes that the signs of transition are such that "[i]n large cities such as Tokyo the 256Sawada (1968) at 179 257Sawada (1968) at 180-2 258Sawada (1968) at 183 2 5 9The latter being for the purpose of saving face; Sawada (1968) at 183 260Sawada (1968) at 187 261Sawada (1968) at 190-191 - 86 -changes may rapidly result in a drastic transformation of the community into an individualistic society."262 Notwithstanding this, "...a number of traditional Japanese traits still regulate the conduct of business, particularly among companies conjoined in vertical or horizontal associations." As well, "the present survey of business practice in cases of impossibility or changed circumstances revealed that traditional behavioural patterns are still extant."263 Kawashima, writing in 1974 about the legal consciousness of contract in Japan, notes that with respect to the form of contract provisions, "...indefinite contract provisions that give a feeling of uneasiness to Westerners give a feeling of security to Japanese."264 And conversely, contracts which are made definite and fixed give the Japanese a feeling of uneasiness because they would lack flexibility. Kawashima goes on to state that "[i]n Japanese contracts the parties not only do not stipulate in a detailed manner the rights and duties under the contract but also think that even the rights and duties provided for in the written agreement are tentative rather than definite. Accordingly, when a dispute arises, they think it desirable at that time to fix such rights and duties by means of ad hoc consultation. Therefore, even something such as the due date of a debt is not thought of as something strictly defined but as fixed "give or take a few days"."265 Kawashima notes further that "...even if detailed provisions are inserted in contracts, they do not have very much significance; and consequently, the parties do not read them carefully or regard them seriously. Rather, when problems arise, it is very important for them to "confer in good faith", to arrive at a harmonious settlement, and to let the dispute "wash away". In this sense the confer-in-good-faifh clause is the core of our country's contracts. Accordingly arbitration is not employed in Japan and a fortiori courts cannot be adapted to such purposes. There is a great fondness for conciliation (chotei), and it has been affirmed as an institution of national law and is used extensively."266 262Sawada (1968) at 193 263Sawada (1968) at 225; it would appear that the lack of change in this area is continuing as was shown in Matei's study (noted above) which was conducted at least 17 years after Sawada's study. 2 6 4 T . Kawashima, "Legal Consciousness of Contract in Japan" Law in Japan (1974) (reproduced in S. Salzberg (1988)) at 190 265Kawashima (1974) at 191 266Kawashima (1974) at 192; as noted by Michael K. Young in "Dispute Resolution in Japan: Patterns, Trends, and Developments" in Legal Aspects of Doing Business with Japan 1985, Isaac Shapiro (Chairman), New York: Practising Law Institute (1985) at 325-326, "[i]n an ongoing relationship, give-and-take is constant, imbalance of interests the rule. It is felt, therefore, that to be settled fairly, a dispute must be resolved in the context of the parties' relationship as a whole, and that it is the parties themselves, not 'outsiders' (which includes the courts, the law, and other external agencies) who should do the settling. ... This attitude manifests itself in two ways: aa. a preference for including in contracts a clause stating 'disputes will be settled harmoniously through consultation between the parties', rather than arbitration or litigation-oriented 'choice of law and forum' clauses that create the need to resort to outside parties; and bb. a preference on the part of courts and arbitrators not to adjudicate disputes, but to facilitate settlements through compromise by the parties themselves." - 87 -As noted by other writers, Kawashima agrees that this contract consciousness is changing but he also notes that "[i]t is not rare for many Japanese businesses that are engaging in transactions with foreign businesses not to read or to ignore the clauses written in contracts, to invite economic disaster, and to damage their commercial reputations."267 And Noda concludes that "[p]resent indications are that the Japanese attitude to law wil l continue to become more Westernized but that the Japanese outlook wil l not necessarily come to be identical with that of the West. Japan has often adopted European ideas which have enriched the Japanese spirit greatly, particularly with respect to rationality and objectivity, but this has never prevented the Japanese spirit from retaining its congenital characteristics. The Japanese spirit wi l l change in the course of time, but it wi l l always be Japanese."268 IV. THE RELIGIOUS FAMILY OF LAW As we have already seen, religion has played a major role in the development of many legal systems. So the question arises, why is there a separate grouping for religion? The answer is that the Jewish, Hindu and Islamic religions are more than belief systems. They are systems of law and actually form part of the written laws of different countries. How Islamic law differs from Jewish and Hindu law, and why I will be dealing with it in more detail, is that it not only impacts on individuals' personal lives but, as well, some of its tenets impact on international commercial matters. With the current resurgence around the world in Islam269 and with its importance in countries which are actively involved in international commerce, I believe that a basic introduction to some of its tenets is important. A. JEWISH LAW "Jewish law is an all-embracing body of religious duties, regulating all aspects of Jewish life."270 It is made up of rules governing private and social behaviour as well as rules of worship and ritual. Those parts of Jewish law governing personal status actually form part of the modern-day 267Kawashima (1974) at 194 268Noda (1976) at 183 269Hassan Afchar, a Professor at the Faculty of Law in Tehran, Iran, notes in "The Muslim Conception of Law" in International Encyclopedia of Comparative Law, Vol II, Chapter 1 that since World War II, the number of Muslim countries has been continually on the increase. 270Ze'ev W. Falk, "Jewish Law" in Derrett (ed) (1968) at 28 - 88 -law of Israel. Its most important application is with respect to domestic relations, however some of its concepts can also be found in Israel's Joint Houses Law (1952) and its Succession Law (1965). Jewish law applies to all Jews, regardless of domicile, citizenship, or belief. B. HINDU LAW Duncan Derrett notes that "Hindu law is applied as part of the law of the land to over 400,000,000 Hindus in India, Pakistan, Burma, Malaysia, Singapore, Aden, Kenya, Uganda, and Tanzania".271 It is also applied to a limited extent in the West Indies. And it is the foundation of the national legal system in Nepal.272 As with Jewish law, it is a personal law which every Hindu carries with him or her. The designation of Hindu means an Indian by racial extraction who is not a member of a non-Hindu community. In other words, someone who is not a member of the Muslim, Christian, Zoroastrian (Parsi), or Jewish religions. A Sikh or a Buddhist can be Hindu as, originally, these were both reform movements within Hinduism. Just as with Jewish law, to be a Hindu for legal purposes it does not matter that the individual be a believer, however as Derrett notes "...the vast majority of Hindus adhere to the basic religious postulates of the indigenous Indian civilisation." Hindu law has been codified in India and forms part of the personal law relating to succession, marriage, divorce, and guardianship. C. ISLAMIC LAW 1. Historical Development The Arabian peninsula, which includes Saudi Arabia, Yemen, South Yemen, Oman, the United Arab Emirates, Qatar and Kuwait, is the cradle of Islam. It is a hot, dry area with only two oases, at Mecca and Medina, and they became rivals for the trade route which crossed Arabia between the East and the West. Although there is some dispute over the extent to which other legal systems have influenced Muslim law273 Afchar simply notes that, "...Mecca had commercial dealings with India and the Roman Empire and it is inconceivable that 271Duncan M. Derrett, "Hindu Law" in Derrett (ed) (1968) at 80 272Duncan Derrett & T.K. Krishnamurthy Iyer, "The Hindu Conception of Law" in International Encyclopedia of Comparative Law, Vol II, Chapter 1; see also Charles S. Rhyne Law and Judicial Systems of Nations, Washington, D.C.: The World Peace Through Law Center ((1978) under •Nepal'. 273See Dr. S.E. Rayner The Theory of Contracts in Islamic Law: A Comparative Analysis with Particular Reference to the Modern Legislation in Kuwait, Bahrain and the United Arab Emirates, London: Graham & Trotman (1991) for a discussion of the various positions in this dispute. - 89 -no legal system existed which could deal with the needs of this commerce. The merchants of Mecca, like their Western counterparts, had a commercial law based on custom. Also the Jews living in Medina had some influence over the Arabs as is shown by the rules relating to the ceremonies of the pilgrimage, animal sacrifice, marriage and divorce amongst others. ... On the whole, in the first century of Islam the ancient system of arbitration and established customs continued to be applied. However, some of these customary practices were displeasing to the more enlightened...."274 It was in 570 A.D. that Muhammad, the Prophet of Islam, was born into an aristocratic family in Mecca. Persecution forced him to leave Mecca for Medina where in 621 a dozen Medinese had embraced his teachings. By 622 the number had increased to 75. "The essential aim of the Prophet was to replace the old tribal organization by the Community of the Faithful. ... The differences of opinion between the religious sects were causing unease amongst the people and pushing them, without being aware of it, towards the search for a new faith, one able to guarantee a less vulnerable stability."275 Muhammed preached a belief in one God, "kind and merciful, creator of everything for the well-being of men, his greatest creation before whom the angels were forced to bow down."276 As it was a simple religion, without mystery or a ministry, it expanded very quickly. Before Muhammad's death in 632 he had conquered the whole of the Arabian peninsula. But it was under the Umayyad dynasty (661-750) that "Islam was transformed from the small and closely knit religious community of Medina into a vast military empire with its central government at Damascus."277 Afchar notes that "[u]nder the Umayyads...the greater part of Spain was conquered. ... In the north, Islam extended to the borders of Asiatic Turkestan, and in the West to the Pyrenees. In the East it reached as far as Sind and the Punjab. In the south its dominion was bounded by the Red Sea, the Indian Ocean and the Nubian desert, and on the West by the Atlantic Ocean. The conquered territories equalled about twice the area of Europe today."278 With such a vast territory to govern, local governors were appointed. These governors typically delegated their judicial powers to an official called the qadi (or kadi). But because Islamic law "was moulded by Islam which accepted, transformed or forbade, according to the circumstances, ^International Encyclopedia of Comparative Law, Vol II, Chapter 1 at 85; it is thought that the Islamic prohibition of riba (usury or interest) may have come into being because of the usurious interest rates being charged at the time and that this is the reason there is no exact definition of riba, namely because the existing circumstances were well known. ^International Encyclopedia of Comparative Law Vol II, Chapter 1 at 86 ^International Encyclopedia of Comparative Law, Vol II, Chapter 1 at 86 J77Derrett (ed) (1968) at 58 ^International Encyclopedia of Comparative Law Vol II, Chapter 1 at 86 - 90 -already existing practices rather than creating new ones"279 the decisions of these qadi produced a great diversity in legal practice. The Qur'an (or Koran), believed to be the word of God as revealed to Muhammad,280 is "historically and ideologically the primary expression of the Islamic law."281 However, it is not a code of law, but rather a basic formulation of Islamic ethics282 and as such, it often produced differences of opinion. As well, with Islam encompassing such a broad empire, the local customary law at the time included Byzantine, Roman, and Persian law. Mounting hostility, generally, against the Umayyads found particular expression in the area of the law. As Coulson notes "[p]ious scholars, concluding that the practices of the Umayyad courts had failed properly to implement the spirit of the Qur'anic precepts, began to give voice to their ideas of standards of conduct which would represent the systematic fulfillment of the true Islamic religious ethic. Grouped together for this purpose in loose studious fraternities, they formed what may be called the early schools of law. These schools mark the true beginning of Islamic jurisprudence, and their development derived a major impetus from the accession to power of the Abbasids in 750; for the legal scholars were publicly recognised as the architects of an Islamic scheme of state and society which the Abbasids had pledged themselves to build. From Abbasid times onwards it is upon the jurist, or faqih [or fakih], that attention must focus; for it was the fuqaha who formulated the doctrine, which it was simply the task of the qadi to apply."283 But the problem of different interpretations continued. Afchar notes that "[e]ach of these schools claimed to follow one of the most famous of the Companions of the Prophet284 and regarded him as its founder."285 Within these different schools, which were situated in different cities in different countries, jurists were entitled to exercise their personal reasoning (ra'y) which was ^International Encyclopedia of Comparative Law Vol II, Chapter 1 at 90 280In 609-610 A.D 281Derrett (ed) (1968) at 55 2 8 2 An example of one of these basic formulations is "O ye who believe! Fulfill all obligations." It is unanimously agreed that this formulation is applicable to all obligations, contracts, and covenants between individuals as well as between individuals and God. P. Nicholas Kourides, citing Yusuf Ali, notes that there are three kinds of obligations: divine obligations arising out of our relationship with God; mutual obligations we enter into with our fellow man; and tacit obligations to morally uphold society's framework. - see P. Nicholas Kourides "The Influence of Islamic Law on Contemporary Middle Eastern Legal Systems: The Formation and Binding Force of Contracts", 9 Columbia Journal of Transnational Law 384 (1970) at 394-5 (reproduced in Barton, et al (1983) at 618) ^Derrett (ed) (1968) at 59 J84Afchar states, at 87, that for a person to be recognized as a Companion of the Prophet there were three conditions to be satisfied: he must have met the Prophet when he was converted; it must have been possible for him to understand the hadith (which basically refers to the words, deeds, behaviour and expressions of approval attributed to the Prophet) and to commit it to memory; and he must have died a Muslim. 281'International Encyclopedia of Comparative Law, Vol II, Chapter 1 at 91 - 91 -obviously conditioned by their social environment. Afchar notes that "[fjrom the beginning there was a wavering between the Sunna286 and reasoning to provide the answer in different cases. Although the jurists within each school were agreed on the general principles recognized by their Imam [religious leader], they differed between themselves on points of detail. Several of the jurists banded together, thus transforming the various local centres into personal schools. Thus with time the number of solutions unanimously agreed became less and less." Of the original schools, the four main ones are Hanafi, Maliki, Shqfi'i, and Hanbali. The founder of the Hanafi school is considered by many as the father of Muslim juridical science. He accepted only a limited number of the hadhh and Afchar notes that the Hanafi school adheres more than any other to the letter of the law, however it does accept that the law may change with the times. This school first developed in Iraq but now the majority of Muslims in Egypt, Syria, Turkey, the Balkans, Afghanistan, Pakistan, India and China belong to the Hanafi school. As well, the Sunnites287 in Iraq, who are a minority in that country, are mainly of the Hanafi school. Afchar tells us that the traditions of Medina, the city of the Prophet, form the cornerstone of the Maliki school and that the Maliki doctrine "permits more differences than that of any other Sunni school, and it accepts that to the extent that this is necessary, adaptation may be made because of circumstances of time and place."288 This school predominates in Africa, with the exception of Egypt and parts of East Africa. The head of the Shafi'i school was originally a student of Malik in Medina. He then travelled to Iraq and studied the teachings of theHanafi school. He tried to reconcile the two schools by adopting a position mid-way between them. Coulson tells us that "Shafi'i was the first jurist to expound, systematically and unequivocally, the principle that certain knowledge of Allah's law could be attained only through divine revelation. Outside the Qur'an, he maintained, the only other legitimate material source of law lay in the decisions and precedents of the Prophet Muhammad [the sunna]. ... Where problems arose which were not specifically solved by any text of the Qur'an or sunna, Shafi'i acccepted the necessity for reasoning, but only in the strictly disciplined and subsidiary form of reasoning by analogy (qiyas) [or kiyas]. ... [For Shafi'i, the] function of jurisprudence was not to make law but simply to discover it from the substance of divine revelation and, where necessary, apply the principles enshrined therein to new 28*The sunna is one of the sources of Islamic law and it is the main source after the Qur'an. It is composed of all the hadith. The sunna is also called the Traditions. 287See below for a discussion of the differences between Sunnites and Shiites. ^International Encyclopedia of Comparative Law, Vol II, Chapter 1 at 92 - 92 -problems by analogical reasoning. ... Shafi'i's avowed aim in thus formulating a firm theory of the sources from which law should be derived was to instil into Muslim jurisprudence a uniformity which was conspicuously lacking at this time. ... But...his dream...was not to be realised."289 Afchar notes that adherents of this school are found in East Africa, in Central and Southern Arabia, in the Middle East amongst most of the Kurdish tribes, and that it dominates in Central and South East Asia (in Malaysia, Thailand, Vietnam, and the Philippines) and in Indonesia. The fourth school is the Hanbali school which represents a return to the Medinan tradition. It espoused that the Qur'an and the sunna were of primary importance and that qiyas could only be resorted to if no solution could be found in a hadith. This school went through a number of phases, the last being the Wahhabi movement. "At the beginning of the twentieth century Wahhabism strove to give importance once again to almost extinct traditions and held itself out to be the sworn enemy of innovation."290 The doctrine of the Hanbali school is that applied in Saudi Arabia. Afchar notes that there are also many Hanbalites found in the United Arab Emirates. Coulson tells us that "...it is clear that the schools represent essentially distinct systems whose individual characteristics were fashioned largely by their circumstances of origin and growth. The philosophy of the mutual orthodoxy of the schools should not obscure the fact that geography and history created a four-fold division in the legal practice of Sunni Islam."291 In trying to ascertain the divine law (the method of doing so is called ijtihad), orthodox Islamic jurisprudence followed the methods of Shafi'i: look first to the Qur'an and the sunna and if no answer can be found then turn to qiyas, reasoning by analogy (which replaced the individual reasoning (ra'y) of the jurists). Orthodox jurisprudence then added to Shafi'i's theory by including the doctrine of ijma (or idjma). Ijma is translated as 'consensus' and refers to the agreement of the qualified legal scholars in a given generation.292 As Coulson explains it - "ijma ^Derrett (ed) (1968) at 61-62 ^International Encyclopedia of Comparative Law, Vol II, Chapter 1 at 93 291Derrett (ed) (1968) at 64 2 9 2This is the definition given by Coulson. Afchar states that "[s]ome hold that the agreement must be that of all Muslims, others that it must be of the learned, and there are others who maintain that it is enough if there is agreement of one generation of learned men belonging to one of the centres of theological study." (at 88) - 93 -thus guarantees the totality of the results of ijtihad legitimately exercised."293 Ijtna is considered to be an infallible expression of God's law. For orthodox jurists, the four sources of the law, in descending order of importance, came to be the Qur'an, the sunna, the ijtna, and qiyas?9* According to Afchar,295 it was after 975 that the adherents of these four schools, called Sunni jurists, believed that they alone were orthodox. He states that "[t]hey held all others to be heretical and accused them of dividing and wrecking the Muslim community."296 The largest of these other schools is known as Shi'i (or Shi'a or Shi'ah).291 Afchar tells us that the Sunni jurists eventually came to believe that the Shi'i school had no theological or legal aspect, but were purely a political movement. The Sunnites and the Shiites differ in a number of important ways: one of the main differences relates to who they believe are the true successors of the Prophet; another difference relates to the sources of the law - Shiites do not accept reasoning by analogy (qiyas) but rather reason ('aql) and for them this is the most important source of law after the Qur'an and sunna. Afchar argues that 'aql provides greater scope for future development than does qiyas. The Shiites and Sunnites differ as well on how the hadith, which together make up the sunna, are verified and classified, which of course results in each using different hadith in formulating what the law is.298 The people of Iran and the majority of the people of Iraq are Shiites. Afchar notes that there are also many Shiites in Lebanon, Kuwait, India, Pakistan and Indonesia. Within Sunni law, the ijtna (or consensus) endorsed the various doctrines of the four schools as being equally legitimate. But it also created a problem in that it served to close the door on 293Derrett (ed) (1968) at 64 3 9 4 Or as Parviz Oswia in Formation of Contract, A Comparative Study under English, French, Islamic and Iranian Law, London: Graham & Trotman (1993) at 68 states: the Koran, the Traditions, Consensus, and Analogy. 295See the footnote to Professor Afchar's contribution in the International Encyclopedia of Comparative Law where it is noted that there is disagreement between his view of the Muslim conception of law and that of European Orientalists. For a different presentation on the difference between Sunnites and Shiites see Coulson in Derrett (ed) (1968) at 65. ^International Encyclopedia of Comparative Law, Vol II, Chapter 1 at 93 J97Another of these schools is Sufism. The 'whirling dervishes' of Turkey are of the Suftsm sect. J98See the International Encyclopedia of Comparative Law, Vol II, Chapter 1 at 93-95 and Owsia (1993) at 68-70 for more detailed discussions of the differences between the two. - 94 -ijtihad (independent effort). As Coulson states "...the contemporary situation was irrevocably ratified inasmuch as to propound any further variant opinion was to contradict the ijma, the infallible expression of God's will...."299 So from the 10th century on, jurists became nothing more than imitators "bound to accept and follow the doctrine established by their predecessors."300 This is known as the era of taqlid or imitation. The legal literature that developed simply amounted to exhaustive commentaries on the works of the originators of the doctrines.301 What inevitably followed from this was a divergence of theory and practice. With respect to criminal law and land law, the general practice was that these cases were assigned by the ruler to an official other than the qadi. These officials were seen as imparting the ruler's law as opposed to God's law. But Coulson notes that "[w]ithin the accepted bounds of their jurisdiction, the courts of the qadis also deviated in certain limited respects from the strict doctrine of the Shari'a texts on the ground of social or economic necessity. This was particularly the case in the realm of civil transactions, where the doctrine expounded by the classical jurists was of a highly idealistic character. Here, the twin basic prohibitions of riba (illicit profit) and gharar (uncertainty) had been developed to a degree of systematic rigour which eliminated any form of speculative risk in contracts and which postulated standards totally unrealistic in the light of the practical demands of commercial and economic life. Shari'a courts therefore in certain instances recognised and applied elements of the local customary law."302 What also developed at this time was a special branch of legal writings called hiyal. These are legal fictions created to allow one to achieve indirectly what could not be achieved directly through the shari'a™ Abraham Udovitch notes that "[i]n later Hanafi literature, this...circumvention is incorporated into the very body of the legal codes."304 And Coulson notes that Shafi'i courts also accepted the validity of hiyal, however the Maliki and Hanbali courts outrightly condemned this manipulation of the law. The 19th and 20th centuries and the impact of Western civilisation have wrought many changes 299Derrett (ed) (1968) at 66 300Derrett (ed) (1968) at 66 3 0 1The total of this literature together is called the shari'a. 302Derrett (ed) (1968) at 69 3 0 3For example, to overcome the restriction of riba, the device of a double sale was created. Another device was to label interest charges as 'service charges' since the shari'a allows one to charge for services rendered. 3MAbraham L. Udovitch, Partnership and Profit in Medieval Islam, Princeton: Princeton University Press (1970) (reproduced in Barton, et al (1983) at 621) - 95 -on Islamic law and major changes have occured in civil, commercial and criminal law. Coulson notes that "[t]he Shari'a law of civil obligations, based upon the comparatively simple commercial activities of medieval Arabian society and involving a total prohibition of any form of interest on capital investment, was quite incapable of catering for modern systems of trade and economic development. Equally insupportable in the modern state was the criminal law of the Shari'a...sash as amputation of the hand for theft and stoning to death for adultery, were no longer generally acceptable from a humanitarian point of view.... As a result of these considerations the nineteenth century witnessed the abolition of the Shari'a criminal law and the law of civil transactions in most Muslim countries and a large-scale reception of codes of European law to replace it."305 Another area that has undergone change is that of taqlid (imitation) which has been openly challenged and, as a result, the door of ijtihad (independent effort to determine the divine law) has been re-opened. Rayner notes that "[i]n the interests of a logical necessity to incorporate the novel principles of the twentieth century and its concomitant institutions, the rejection of Taqlid was accepted by all but the most stubborn of traditionalists as the lesser of two evils: to recognise the body of the law as a living, progressive organism relevant to the modern day; or to reject it as a dead and rigid antique. The methodology employed by the modern jurists in their Ijtihad is no less eclectic than that used by their eighth century predecessors The legal modernists wanted revisionism at the cost of Islam; yet they were not prepared to abandon altogether the cultural and spiritual ascendancy of their Islamic heritage. Therefore token representations of the Classical tradition were interspersed among the code provisions, partially thwarting the abhorrence of the Traditional jurists, and proving, perhaps, the firm hold that the religious tradition has on the minds of even the most modern of jurists."306 2. Structure and Divisions of the Law As is clear from the discussion above, it is only possible to speak of the structure and divisions of Islamic law generally. Between the different Muslim countries there is great variation in the modernist and traditionalist attitudes and, as such, both the substantive and procedural law differ considerably. Even within each country these elements are at odds and Coulson notes that "[traditionalist and modernist elements at present lie in uneasy juxtaposition, often within the ambit of a single piece of legislation."307 Because of these differences I will look only at some of the basic characteristics of Islamic law as it relates to commercial matters and will make reference to some of the more traditionalist countries as discussed in the recent works of Dr.'s Rayner and Owsia. 'Derrett (ed) (1968) at 70-71 !Rayner(1991)at48 TJerrett (ed) (1968) at 77 - 96 -The duties outlined in the Qur'an with respect to commerce are either positive or negative injunctions. The positive injunctions can be seen as requiring "...meticulous honesty, consideration and delicacy in business relations, and, above all, fair dealing".308 As noted above, a Muslim must fulfill all his obligations, "but if his business partner through hardship is forced to request cancellation of the contract, he should not insist upon execution."309 The negative injunctions in the Qur'an are derived from the Muslim abhorrence of unjustified enrichment.310 These injunctions are made up of six prohibitions: 1. the prohibition of usurping another's property 2. the prohibition of Riba (usury, interest) 3. the prohibition of Gharar (risk) which includes any element of uncertainty 4. the prohibition of hoarding or monopoly 5. the prohibition of May sir (gambling or aleatory transactions) 6. the prohibition of bribery. Mutual consent, which is one of the most important concepts in the Islamic law of obligations, is authorized by both the Qur'an and hadith. Rayner tells us that the concept of freedom of contract does exist in Islamic law but discussion concerning it centres around the different types of contracts beyond the nominate contracts that were established by the early juqaha (legal scholars). There are some who hold that there is no freedom of contract in Islamic law and that the list of nominate contracts is closed, however, Rayner states that the majority of the Hanbali school advocate freedom of contract. She goes on to note that "[a]n argument which is gaining more'force in the modern era, is that the only condition required according to Qur'anic stipulation for the validity of any contract is the mutual consent of the contracting parties. ... These advocates thereby conclude that subject to such consent, and such prohibitions and limitations as yet set down by the law, every contract is valid whether or not they coincide with any of the recognized nominate contracts."3" Notwithstanding the argument that freedom of contract does exist, Islamic law provides for "...considerable intervention by a judge to reconstruct or readjust an existing contractual obligation. Thus extra-contractual obligations may be imposed upon the parties by this judicial intervention. 308Rayner (1991) at 80 309Rayner(1991)at81 310Joseph Schacht notes that unjustified enrichment means "receiving a monetary advantage without giving a countervalue". If someone does receive it then he must give it to the poor as a charitable gift - see Joseph Schacht An Introduction to Islamic Law, London: Oxford University Press (1964) (reproduced in Barton, et al (1983) at 615). 3"Rayner (1991) at 94; Rayner notes that in 1961 in Damascus the Congress of the Week of Islamic Law stated that all kinds of contracts are acceptable provided they do not contradict the basic principles of the shari'a law of contract and the general principles of Islam. She states, at 96, that the majority of the Arab states followed suit. - 97 -... A court could also intervene, for example, in a case of istighlal (unfair advantage), where a disproportion of obligation exists between the contracting parties, to readjust those obligations in a more 'equitable' manner. The system of judicial intervention may therefore set aside the private arrangements of the contracting parties by seeking justification in an Islamic system of 'equity'. The intervention nevertheless operates in conjunction with the high esteem accorded to sanctity of contracts in Islam."312 Even though recognition is given to non-nominate contracts, most modern Civil Codes do recognize the Islamic nominate contracts, of which there are four basic ones. These are: 1. bay' (sale) - where right of ownership passes for consideration 2. hiba (gift) - where right of ownership passes without consideration 3. ijara (hire or rent) - where transfer of possession occurs for consideration 4. 'ariya (loan) - where transfer of possession occurs without consideration Other nominate contracts include salam (a contract for delivery with prepayment); mudaraba (silent partnership agreement; equity sharing between bank and client); sharika (partnership); rahn (mortgage); ju'ala (award); wadi'a (deposit); al-muzara'a (an agricultural contract where labour is exchanged for land, seed and plants); and 'umra (an unconditional donation in perpetuity). Oswia notes that with respect to Iran, the Civil Code has followed the French theory of contract, however it has also retained, almost intact, the shari'a law of nominate contracts and this has produced a number of anomalies, in that it has particular aspects which are neither French nor Islamic.313 Even though, as noted above, the Qur'an prohibits riba and gharar, many modern Islamic codes permit both. What is evident in the constitutions of these countries is a provision requiring jurists to follow the shari'a law "where no specific provisions of the relevant codified law exist."314 The Civil Codes of Egypt, Iraq, Kuwait, and Dubai explicity allow contracts containing elements of gharar. And the constitutions of Kuwait and Bahrain expressly authorize judicial enforcement of contractual agreements for the payment of interest on commercial loans (which is arguably 312Rayner (1991) at 93-94 313Where some of the anomalies also arise is in the fact that the basic statutory provisions on contracts are the same as before the 1979 revolution, however the approach to the interpretation and application of these provisions has greatly changed - see Owsia (1993) at 148-150. 314Rayner (1991) at 97 - 98 -contrary to the prohibition of riba).315 Rayner argues that it has been absolutely necessary for these countries to make these changes due of the "vast machinery of international commercial relations". It is to be noted that riba has been defined as 'usury' or 'interest'. The reason for this is that there is no clear definition given in the Qur'an or the sunna. Riba today is usually translated as 'usury' or 'excessive interest' however it means literally 'increase in' or 'addition to'.316 The traditional pious interpretation requires the elimination of 'interest' in any form whatsoever and in recent years there has been an increase in support for this interpretation. The Islamic Jurisprudence Academy of the Islamic Conference held in 1986 supported this restrictive interpretation and condemned all interest-bearing transactions as void. A variety of mechanisms have been employed to avoid riba: mudaraba (equity sharing between client and bank; silent partnership agreement); muqarada (Islamic bonds on which no interest is earned but whose market value varies with the anticipated profit share); and lease financing. As well, there has been an upsurge in Islamic banking in the Middle East. Ann Mayer notes that many of the Islamic banking arrangements are inspired by mudaraba however she also notes that this mechanism is ill-suited for many situations, such as demand deposits, savings deposits, short term loans, and consumer credit.317 A number of countries, such as Egypt, Bahrain and Kuwait, are not following this fundamentalist approach, however a number of others, such as Iran, Pakistan and Saudi Arabia, are. Rayner notes that even though neither the shari'a courts nor the administrative courts in Saudi Arabia will uphold riba, Islamic banking is not mandatory in Saudi Arabia. This however is not the situation in Iran and Pakistan where there is statutory enforcement of Islamic banking. Rayner notes that the current situation regarding Islamic banking is somewhat tenuous and that "[t]he divergence of opinions between the commercial bankers and the public customers, the Islamic bankers and the international community is resulting in a cavalcade of new suggestions 315Rayner (1991) at 98 notes that the provisional draft of the federal Commercial Code of the UAE also recognises and enforces interest payments on commercial loans. 3l6Interestingly, David Mellinkoff in The Language of the Law, Boston: Little, Brown and Company (1963) at 89 notes that "[u]ntil expulsion from England in 1290, the Jews...had a virtual monopoly of undisguised money-lending, for interest was forbidden to Christians by both the Church and the common law. Usury carried its meaning from Classical Latin usura -not excessive but any charge for the use of money." 317See Ann Elizabeth Mayer, Islamic Law and Banking in the Middle East Today, Middle East Executive Reports (October 1979) (reproduced in Barton, et al (1983) at 623) - 99 -for an interest-free, internationally compatible system of banking."318 She adds that "[t]he fact...that modern commercial legislation upholds the collection of interest and is prepared to award legal recognition to contracts which are undeniably ribawi, does not settle the problem once and for all. The legal protection for such contracts is...not predictably assured in any of the Gulf Constitutions.... The consequence must, understandably, be that parties entering into any contract tainted with riba, should not automatically anticipate that the courts will enforce it, although where there are express provisions, it is likely that these will be upheld, subject to no other illegality."319 She also notes that even if there is legislation in place allowing for riba, in practice, more and more lawyers and judges, as a matter of conscience, are refusing to entertain cases involving it. As well, the current trend of public opinion is largely against riba. Another prohibition, that of gharar, as noted above, is permitted in some countries, however if the amount of risk or uncertainty exceeds all reasonableness, the transaction will be forbidden. In order to prevent gharar, all matters concerning consideration, the date of payment, the identification, quality and quantity of the product, the date of delivery, and any other necessary matters must be established at the time of contracting. Some examples of contracts which would be invalid for gharar are ones that provide for payment "three days after harvest", or ones for a sale involving non-existent or future objects, such as future crops. What constitutes an acceptable or reasonable level of uncertainty, of course, differs between the four Schools. The notion of gharar (risk) is based on the prohibition of maysir (gambling). And it is because of the prohibitions of both maysir and gharar that our western notion of 'insurance* is forbidden in Islamic law. Rayner notes that "...the effect of gambling was regarded as similar to that of alcohol. Speculation, like alcohol, they said, leads to the neglect of religious duties."320 However, the shari'a generally accepts speculation in commerce as the Qur'an "draws an unambiguous distinction between unnecessary risks taken for frivolous purposes, and necessary risks encountered in pursuit of business. The risks attendant upon business were regarded as unavoidable. Islam therefore, if somewhat reluctantly, accepted the legality of some 'Rayner (1991) at 303 'Rayner (1991) at 288 'Rayner (1991) at 293 - 100 -commercial transactions which were aleatory in nature because it recognized that all business ventures anticipating yield of profit inevitably entail certain incalculable and unavoidable risks. To deny this form of speculation would be to stifle the essence of enterprise which forms an indispensable process conducive to productivity."321 With respect to insurance, it would appear that the shari'a permits insurance where both parties share an equal risk and, as such, both hope that the contingencies insured against do not occur, however, the majority of the Arab states today accept the legality of insurance contracts for the purpose of profit and as such regulate them by statute. As well, in some of the Arab states the position taken on stock-exchanges has been clarified and officially sanctioned by statute. Saudi Arabia does not have a stock market however the Saudi Government Financial and Economic Agency operates a Stock Index and provides facilities for security dealing and trading of shares by the banks. V. CONCLUSION In this chapter I have tried to show how completely different the concepts and attitudes towards law are in different cultures. I believe it has become clear in looking at the legal systems in China and Japan and under Islamic law that there is an incredible diversity in how those countries which have transplanted western laws (or have had western laws imposed upon them) actually deal with these transplanted or imposed laws.322 It is clear that the old ways continue even though there is an appearance in the legislative texts that new ways have been adopted. We have seen that China (albeit reluctantly) and Japan (much more quickly) are moving more towards the western ways, whereas what we are seeing in many Islamic countries is the reverse - it is a move away from some of the western ways and a move back towards traditional Islamic law. The adoption of western ways has been necessary in order for many countries to take part in international commerce and the growing global economy, however (and I believe the move of some Islamic countries is evidence of this) we cannot assume that this will always be the case. The position of the West has been that these countries needed to modernize their laws and in order to do so needed to become more like the West. However, I would argue that this attitude Rayner (1991) at 297 See also Brian Z. Tamanaha, Understanding Law in Micronesia, An Interpretive Approach to Transplanted Law, Leiden: E.J. Brill (1993) for an extremely interesting look at how the Micronesians have adapted to and adapted the transplanted American law. - 101 -has come about because of a lack of understanding of, and a lack of interest in learning about, these other cultures.323 Their adoption of western laws has generally come about because they were in a weaker position economically. But this may not always hold true, and I believe that we will be witness, in the next century, to a change in this balance of power. (I shall discuss this matter in more detail in the conclusion to this thesis.) Quite apart from where I believe we are going, the differences we have seen between the legal systems create problems today with respect to communication between parties coming from these different systems. In the next chapter I examine in more detail some of the specific problems related to language and the different legal systems. I noted at the beginning of this chapter that it is very often the English-speaking common law lawyers who are drafting the many international commercial contracts currently in existence. Clearly these lawyers are going to draft these contracts in a manner that they know and understand. We have seen in this chapter how different the common law is from the civil law and we have seen the manner in which the common law developed. What we will see in the next chapter is how closely the language and style of common law contracts is tied to this development of the common law system. And in the final chapter we will see just how inappropriate much of this language is for international commercial contracts. 323See Tamanaha (1993) at 2 for a discussion of the Law and Development Movement of the 1950's and 1960's which helped to foster this attitude. - 102 -CHAPTER THREE - THE BARRIERS POSED BY LANGUAGE "If terms be incorrect, then statements do not accord with facts; and when statements and facts do not accord then business is not properly executed; ...when business is not properly executed, order and harmony do not flourish; when order and harmony do not flourish, then justice becomes arbitrary; and when justice becomes arbitrary the people do not know how to move hand or foot.... Hence whatever a wise man dominates he can always definitely state, and what he so states he can always carry into practice, for the wise man will on no account have anything remiss in his definitions."1 I. INTRODUCTION It should be abundantly clear at this point that culture and law are inseparable. We have also seen that culture and language are inseparable, as it is our culture which helps to determine how we see the world and it is our language which helps us to express that view. Or as M.J. Shapiro puts it, "[p]ersons do not simply express their individual thoughts in words; they enter the flow of language and particular discursive practices which contain preconceived ways of thinking...."2 As noted in Chapter 1, we can only truly communicate with each other if we understand the culture lying behind the words. And this holds true with respect to legal communication. In this chapter I will be looking more closely at the relationship between law and language and how the common law has developed its own special form of legal language, legal English. II. THE PROBLEM WITH TRANSLATIONS The translation of the legal rules of one culture, expressed in their own special language, into the language of another culture, with its different legal rules and different legal terminology, is fraught with difficulties.3 Comparativists all make mention of the variety of problems created by language when looking at foreign legal systems. As Alan Watson notes, 'From The Analects of Confucius as translated by W.E. Scothill, Yokohama: Fukuin Printing Co. (1910) at 609, 611 (reproduced in Dennis R. Klinck The Word of the Law, Ottawa: Carleton University Press (1992) at 38, endnote 1; see also a different rendering of this passage at 8 in Klinck (1992)). 2M.J. Shapiro, Language and Political Understanding: The Politics of Discursive Practices, New Haven: Yale University Press (1981) (reproduced in Klinck (1992) at 18) 3For an interesting look at how the official translators in Japan intentionally translated the MacArthur Constitution so as to make it acceptable to the Japanese (and at odds with the English version) see Kyoko Inoue, MacArthur's Japanese Constitution, A Linguistic and Cultural Study of its Making, Chicago: The University of Chicago Press (1991); see also Kamanaha (1993) at 47-55 "A Case of Translation", for a discussion of the problems resulting from different versions of the Micronesian Constitution - one in English and one in Pohnpeian. - 103 -"...too frequently linguistic deficiencies interpose a formidable barrier between the scholar and his subject. This...must be emphasized. What in other contexts would be regarded as a good knowledge of a foreign language may not be adequate for the comparatist. Homonyms present traps. The French contrat, domicile, tribunal administratis, notaire, prescription, juge de paix, are not the English contract, domicile, administrative tribunal, notary public, prescription, and justice of the peace."4 As we have seen, the reason for the latter is because each legal system has its own concepts, rules, and corresponding terminology. And they are not always translatable between systems. Some actual examples have been illustrated by Rene David in looking at the translations of two international treaties, "[t]here are many cases where a concluded international treaty has been interpreted differently in one country or another, for want of..precaution. Thus, it was noticed (but only afterwards) that the word debt used in the English text of the Treaty of Versailles, does not have the same meaning as the word dette used in the French text of the same treaty. In the same way, in a Treaty between Germany and Switzerland it has been observed that a reference to "the date when the contract was concluded" does not refer to the same moment according to German and Swiss laws."5 The many difficulties encountered by UNIDROIT6 in trying to create its Principles of International Commercial Contracts are also illustrative of this problem. The objective of the Principles is "to establish a balanced set of rules designed for use throughout the world irrespective of the legal traditions and the economic and political conditions of the countries in which they are to be applied."7 But when the different members of the Working Group tried to create the Principles, they encountered tremendous difficulties because of the different approaches, different concepts, and different terminology that each of them used in their own legal systems. One of the solutions they devised in order to eliminate some of the problems was to deliberately avoid "the use of terminology peculiar to any given legal system."8 To do so they made use of terms commonly used in international contract practice, however, where necessary, they created entirely new concepts with corresponding new terminology.9 4Alan Watson, Legal Transplants An Approach to Comparative Law, Edinburgh: Scottish Academic Press, (1974) at 10 5Rene David & John E.C. Brierley, Major Legal Systems in the World Today, An Introduction to the Comparative Study of Law, London: Stevens & Sons (1968) at 7 footnote 14 'The International Institute for the Unification of Private Law headquartered in Rome, Italy. 7UNIDROIT Principles of International Commercial Contracts, Rome (1994) note 26 at viii 'UNIDROIT Principles (1994) note 26 at viii *UNIDROIT Principles (1994) note 24 at 1128 - 104 -Rene David advises us that when one is translating the legal vocabulary between French, German, Spanish, Italian, Dutch, Greek or Portugese legal systems, there is generally no problem as the vocabulary employed as these systems were developing was the same and the concepts were the same. However subsequent changes in the national laws of these countries have brought some problems as the same term may continue to be used but the substantive law underlying the term may have changed. In the same way, in the various common law countries the same term may be used for a similar concept however the substantive law, which has developed independently in each country, may be different.10 Amber Lee Smith, in discussing the problems inherent in translations of foreign law, echoes Alan Watson and notes that "[ijnaccuracy in translations has two forms: in one, the translator chooses the wrong word altogether because of the unfamiliarity with one of the languages. This kind of inaccuracy is easy to identify because the resulting document does not make sense. More subtle inaccuracies occur when the translator, because of unfamiliarity with legal matters or with the differences among legal systems, chooses the wrong word for the context. An example of the latter problem is the translation of the Spanish word notario from a Mexican document as notary or notary public in English. This translation does not in any way convey that in Mexico the notario is a lawyer who has served an additional clerkship in the office of another notario, or that the functions of the notario are crucial to the conveyance of any real property and are quite distinct from the basic signature authentication functions of the notary public in the United States."" Parviz Owsia adds her comments to the matter of problems in translation between legal systems, "[t]he French and English ways of analysing and framing a legal concept are significantly different; the Islamic way fundamentally diverges from both; and the Iranian way is at variance totally with that of the English and partially with that of either French or Islamic. As a result, it is not sufficient simply to render a passage, whether out of statutory provisions, judicial decisions, or juristic writings, from French, Arabic, or Persian into English to conduct a proper comparative study. ... Similar or identical terms and expressions used under two linguistically close legal systems are often misleading since they may represent divergent legal concepts. ... The same is true...in Arabic and Persian. 'Aqd, an Arabic term equally used in all Islamic schools and Iranian law to denote contract, does not have the same legal significance when Islamic and Iranian laws are compared."12 Or conversely, the same concept may have different terminology, such as the tort of passing off which exists at common law but which is covered by the Lanham Trade Mark Act in the United States and as such is known by the terminology used in that legislation, namely the likelihood of confusion. "Amber Lee Smith, "Foreign Law in Translation: Problems and Sources" in Introduction to Foreign Legal Systems, Richard A. Danner & Marie-Louise H. Bernal (eds), New York: Oceana Publications, Inc. (1994) at 268 I2Parviz Owsia, Formation of Contract, A Comparative Study under English, French, Islamic and Iranian Law, London: Graham & Trotman (1993) at 183-184 - 105 -These translation problems are not just restricted to the different legal concepts and rules, as is shown by looking at the Japanese language. Yosiyuki Noda tells us that the Japanese language "...is capable of expressing every subtle shade of feeling, but is quite unsuited to expressing the logical relationship between objective things. It is a language of poetry, not of science."13 And Ruth Benedict notes that "[b]oth the Chinese and the Japanese have many words meaning obligations. The words are not synonyms and their specific meanings have no literal translation into English because the ideas they express are alien to us."14 As we can see, both these statements support the premise noted above that words give shape to thought.15 This premise is supported as well by the work of Clifford Geertz, a legal anthropologist, who has looked at what he calls the distinct legal visions of the Islamic, the Indie, and the Malaysian, as represented by Morocco, Bali, and Java respectively. By analyzing the adjudicative styles that are connected with three specific words (one from each society) which cannot be adequately translated but which Geertz alternately refers to as meaning right, law, or justice, he argues that "[l]aw...is local knowledge; local not just as to place, time, class, and variety of issue, but as to accent - vernacular characterizations of what happens connected to vernacular imaginings of what can."16 The works of L.J. Mark Cooray17 and Brian Z. Tamanaha18 serve to elaborate this premise even further. Cooray looks at some of the problems encountered in de-colonized Sri Lanka in changing the existing body of law from English into swabasha (mother tongue). In discussing the problems legal educators faced when they were requested to teach, in Sinhala, laws which were written in English, he notes that "[t]he language of the law is something more than a medium. ... Law appears to be tied to language in a way no other subject is. ... [The law] is a deliberate system for regulating actual IJYosiyuki Noda, Introduction to Japanese Law, University of Tokyo Press (1976) at 12 wRuth Benedict, The Chrysanthemum and the Sword, Patterns of Japanese Culture, Boston: Houghton Miflin Company (1946) at 99 "See Klinck (1992), Chapter 2 "Language and Thought", for a full discussion of this. ''Clifford Geertz, "Local Knowledge: Fact and Law in Comparative Perspective" in Local Knowledge, Further Essays in Interpretive Anthropology, New York: Basic Books, Inc. Publishers (1983) at 215 17In Changing the Language of the Law, The Sri Lanka Experience, Quebec: Les Presses De L'Universite Laval (1985) 18In Understanding Law in Micronesia, An Interpretive Approach to Transplanted Law, Leiden: E.J. Brill (1993) - 106 -human behaviour in a society. It has an inbuilt machinery which affects all persons directly merely on the strength of what it states. If in other subjects language is outside knowledge and is a means of getting at it, in law, substance and language are necessarily interwoven and are inseparable."19 Tamanaha, writing from what he calls an interpretive perspective (and which Geertz calls hermeneutics), notes the thesis of his work as follows: "...in Micronesia and, by extension, in comparable situations of transplanted law, the content of legal norms (what they mean), the substantive import of laws and principles and of legal ideals, such as democracy and the rule of law, are often of secondary consequence to the barriers and connections which exist on the level of thought and meaning. The point I consistently press is that what counts first is whether you think, know, and understand what is shared by the group of legal actors, or by other interacting communities of thought, and only second what that thought or knowledge stands for or represents. ... Legal analysis seldom directly considers the impact of barriers and connections on the level of thought and meaning."20 What becomes clear from all this is that the problem of translation goes to the very root of the system in question. Another example: how does one translate common law and equity so as to impart the history which is what gives these words their meaning in a common law system?21 One may argue that it is not necessary to do so in the context of an international commercial contract, but whoever makes this argument would be wrong because virtually every international commercial contract that has been drafted by a common law lawyer using standard precedents containing language that he or she is used to, will make use of the phrase in law or in equity, or there will be a reference to equitable remedies?2 The latter could very well be translated as fair remedies which we common law lawyers know is not correct and which could ultimately create problems, particularly in light of the different cultural attitudes toward dispute resolution. One can only surmise how in law or in equity would be translated. Since the general rule for legal translations has been to translate literally, such a translation may give the impression that this means "what is written in the law or what is determined to be fair", which of course is not "Cooray (1985) at 15 20Tamanaha (1993) at 17-18; Tamanaha notes at 101 - 103 that his methodology differed from that of Geertz in that he did not follow the common social science model of participant-observer where the individual "begins with an already informed theoretical perspective" but rather was first a fully involved participant (ie. a practising lawyer in Micronesia) and only later learned about the theoretical disciplines which "resonated" with his experiences as a participant. I note this because it coincides with my experiences in Turkey, in that I proceeded initially from a typical ethnocentric perspective which changed the longer I was there but has only come to full realization upon doing the research for this thesis. "When dealing with these words in my Legal English course, I actually give an historical explanation for them (and the students thus learn that equity has a number of meanings). 22We will see an actual example of this in Chapter 4. - 107 -correct. Susan Sarcevic in her latest text, New Approach to Legal Translation, notes that "...literal translation dominated legal translation until relatively late in the twentieth century. Literal translation is characterized by the use of linguistic equivalents such as literal equivalents, borrowings, and naturalizations. While the majority of linguistic equivalents are terms created to designate concepts foreign to the target legal system, natural equivalents are terms that actually exist in the target legal system.... One of the most respected reformers, the late Justice Pigeon [of Canada] rejected the use of literal equivalents which correspond only in appearance."23 Gerhard Obenaus, in his argument for the need to teach legal translators how to become information brokers, quotes two definitions which he believes "...summarize how the bulk of theorists and practitioners view legal translation: Legal documents...require a special type of translation, basically because the translator is more restricted than in any other form, [and] The translator's main task [in translating legal documents] is to translate a text as precisely as possible. He has to find linguistic equivalents which in their legal relevance correspond to both the original text of the source language and the translated text of the target language."24 Obenaus goes on to state "[fjhese definitions are not necessarily incorrect, yet the fact that legal texts require precision and impose restrictions on the translator is all too often misconstrued to mean that they have to be translated literally, leading to unsatisfactory and awkward results. In legal translation, then, translators tend to disregard the text as a whole and operate at the word and sentence level much more frequently than in other areas."25 But as Obenaus notes "[fjhe close link between legal documents and the cultural system from which they stem should come as no big surprise to most translators who have worked with legal documents. ... What is surprising, however, is that we are all the more unwilling to let go of the notion of equivalence when it comes to legal documents."26 And the errors which obviously ensue in the translation of legal documents can lead to serious 23Susan Sarcevic, New Approach to Legal Translation, The Hague: Kluwer Law International (1997) at 233-234 MGerhard Obenaus, "The Legal Translator as Information Broker", in Translation and the Law, Marshall Morris (ed), Amsterdam: John Benjamins Publishing Company (1995) at 248 "Morris (ed) (1995) at 248 26Morris (ed) (1995) at 249 - 108 -consequences. In this regard Sarcevic cites Christopher Kuner,27 with respect to international treaties, where he notes that "[t]he growing trend toward providing authentic texts of treaties in four or more languages poses dangers to the peace and stability of the international order."28 . Sarcevic tells us that "[t]here appears to be no consensus among lawyers and linguists on acceptable translation techniques, let alone on a theoretical approach to legal translation."29 And she notes that "[a]s a result of the tremendous burden placed on translators by the incongruency of legal terminology, some lawyers have openly doubted whether texts can be translated from one legal system into another."30 However, she adds that "[fjor the most part, lawyers are content to say that a translation equivalent is acceptable if it would not be misleading." But, as she continues, "[o]bviously this statement offers little help to translators who need to know in which circumstances a functional equivalent could be misleading."31 And as Vicki Beyer and Keld Conradsen put it, "...legal translation is extremely difficult; one is translating not only the words on the page but the underlying legal system as well. This fact exposes an additional difficulty, namely that the legal system is both defined and constrained by the language that expresses it. Legal philosophers have long admitted that the imprecise nature of language as a means of communication creates tension in legal discourse; reasonable minds can differ as to the meaning of any given expression. Yet, the translator is expected to render the expression into a different language without "interpreting" it or changing its meaning."32 With respect to the translation of international contracts, Beyer and Conradsen note that "[cjontract translation also becomes difficult when there is a complex agreement between the parties or when the contract is for the transfer of certain specialised technology. In an international transaction there may be several parties, each making different contributions to the transaction. The situation is further complicated when subsidiaries or joint venture companies are formed and these second tier entities have agreements with the parent companies under the same contract. As a contract is supposed to convey the intent of the parties, it is essential that the "From his article "The Interpretation of Multilingual Treaties: Comparison of Texts versus the Presumption of Similar Meaning" in Comparative Law Quarterly 40:4, 953-964 (1991) 28Sarcevic (1997) at 1 "Sarcevic (1997) at 2 30Sarcevic (1997) at 233, she cites Michael Beaupre Interpreting Bilingual Legislation, Toronto: Carswell (1986) for this position; it is for this very reason that legal dictionaries going from one language to another are usually full of errors and as a result are more dangerous than helpful. 3,Sarcevic (1997) at 241 3 2Vicki L. Beyer & Keld Conradsen, "Translating Japanese Legal Documents into English: A Short Course" in Translation and the Law, Marshall Morris (ed), Amsterdam: John Benjamins Publishing Company (1995) at 146 - 109 -translator fully understand the nature of the transaction."33 I would expand on this and add that not only do these contracts convey the intent of the parties, but with long term joint venture agreements these contracts are the documents which establish the details of the working relationship that the parties expect to have over a number of years. Serious errors in translation could have a devastating impact on the entire operation of the joint venture.34 Maurice Wolf, who specializes in international business transactions and is a senior partner with a Washington, D.C. law firm, believes that "[w]hile somewhat cumbersome, the only practical answer to this problem is to work simultaneously in the two languages, to have two working drafts. Then, when provisions are discussed, they can be translated into the other language and then discussed in the translated form. This procedure will provide both parties with agreed-on working texts, both in the original and in translation. It is also far easier to reach agreement, working in increments than to try to reach agreement, on the translation of text of a completed agreement."35 Wolf also believes that there should be only one executed document between the parties, rather than one in each language, because it is impossible for them to be identical. He goes on to state that if the agreement may have to be enforced in the courts of the non-English speaking country, then it is best to execute the agreement which is in that country's language. The reason for this is that "fm]any developing countries, in particular the Latin countries, will require any contract or agreement in a foreign language which is to be the subject of litigation or arbitration in that country, to be translated by a court appointed or approved official translator. The parties to the action do not have any input or control over that translation and the translator, although perhaps perfectly competent in both languages, not having been a party to the negotiations, will not totally understand or appreciate many of the nuances and concepts. Unfortunately the parties will be bound by this 'official' translation which may be erroneous or at least not completely capture the meaning and/or intent of the parties as set forth in the original language of the executed "Morris (ed) (1995) at 160-161 "While I was in Turkey one of my students was reviewing and correcting the translation of a contract. The client had originally been with the largest foreign law firm in Istanbul and had been assured by that firm that the Turkish and English versions of the contract read the same. The client had misgivings and approached the firm my student was with. She advised me that there were in fact a number of discrepancies between the two versions. "Maurice Wolf, "Special Issues and Problems Affecting International Joint Ventures in Emerging Nations" in International Joint Ventures, Washington, D.C: Federal Publications Inc. (1993) at V-7 agreement." - 110 -Wolfs recommendation may well be the best way to proceed, however it is a time-consuming and expensive method which may not always be possible. In addition to this, many English speaking common law lawyers simply do not realize how serious the language issues are and continue to create their own documents using their own legal language and concepts fully expecting the other party or the translators to understand.37 III. LEGAL ENGLISH GENERALLY "...this Society hath a peculiar Cant and Jargon of their own, that no other Mortal can understand, and wherein all their Laws are written, which they take special Care to multiply...."38 There is no dispute that the language of the law is distinctly different. As George Woodbine, writing in 1943, noted, "[fjhe professional language of the present day lawyer in the English speaking countries can hardly be called English. There are English words in it, to be sure, but at its core it is medieval French of a particular type [The words and expressions] have lost their original French pronunciation, but they have retained their medieval legal meanings with such tenacity that even today they are useful only to the lawyer."39 And Yon Maley notes that "[i]n the past twenty years, there has been a great efflorescence of interest in the language of the law from linguists, sociolinguists, ethnographers, discourse analysts, ethnomethodologists, and semioticians.... Much of the comment has been critical and has been directed at its bizarre and inaccessible forms; a related criticism is directed to the social consequences of the inequalities of power it realises. Lawyers themselves, particularly those of a reforming bent, have also begun to look more closely and critically at its characteristic forms and patterns. As a result of the analyses 3 6Wolf (1993) at V-8; in September 1997 the International Bar Association hosted a conference on Language and the Law. In the brochure advertising the conference they cited a number of problems that have arisen: "A foreign supplier had sent an offer to a Hungarian company. The purchase price was indicated in Forints. However, the word 'billion' was not translated properly and it remained 'billio' which means a thousand times more money than the amount in English. The Directors of the Hungarian company were so shocked they immediately turned to another supplier."; "A Hungarian company started legal action to claim damages from a foreign company and to try to freeze the company's bank account to secure the money. However, the relevant bank account was outside Hungary. The company submitted a petition to a provincial court in the non-English speaking country, where the account was held, requesting the court to freeze the bank account on the basis of the Hungarian procedure. However, the court insisted that the translation of the Hungarian petition should be done by their own 'official translator". The translator mistranslated the word 'petition' because in Hungarian it is written the same way as 'income'. As the translator had translated it into 'income', the judge was unable to understand why the Hungarian company wished to freeze the account because it 'had an income' already." 37The joint venture agreement that I will be discussing in the next chapter comes from the same seminar that Maurice Wolf was speaking at. It was created by another American lawyer, but not one who specializes in international commercial law but rather one who handles some international business transactions. 38From Part IV of Jonathan Swift's Gulliver's Travels (reproduced in Dennis R. Klinck, The Word of the Law, Ottawa: Carleton University Press (1992) at 133) 39George E. Woodbine, "The Language of English Law" in XVIII Speculum 395 (1943) at 395 - I l l -and critiques a great deal of legal language has been described and to a certain extent explained. However, because the language of the law is not one homogeneous discourse type but a set of related and overlapping discourse types, and because such a range of different theoretical models has been applied to each, but never to the whole, each analysis speaks only for itself. Whatever coherence or consistency may underlie or inform the language of the law as a whole is not available to view."40 Among these different researchers, the language of the law has been variously described. Roberta Kevelson calls it a "technical, idiosyncratic sublanguage system".41 Peter Goodrich (appearing to be in agreement with Swift) calls it an "archaic, obscure, professionalised and impenetrable language"42 which "has invariably...been the object of an elitist, revelatory or hierophantic, culture of interpretation."43 With respect to the written form of the language, David Crystal and Derek Davy believe that "[i]t is essentially visual language, meant to be scrutinized in silence: it is, in fact largely unspeakable at first sight...."44 Some writers, including Bernard Jackson, believe it to be an autonomous language.45 However others, such as Georges Mounin,46 see it as "no more than a specialized form of the ordinary language."47 Mounin's argument is that "...although some social group or class may have a specific lexicon, and even particular phonological and syntactic characteristics of its own, the essential bases of the natural language -the same phonology, the same general lexicon, the same morphology and the same syntax - are still found in it. Without them, there could be no understanding whatsoever between lawyers and non-lawyers of the same natural language group. Those features which do distinguish class or legal language are therefore to be regarded as socio-linguistic phenomena, and not questions of language proper."48 4 0Yon Maley, "The Language of the Law" in Language and the law, John Gibbons (ed), London: Longman (1994) at 13-14; It may be argued that Dennis Klinck (1992) has tried to pull together these different analyses into some sort of coherent whole. •""Language and Legal Speech Acts: Decisions" in Linguistics and the Professions: Proceedings of the Second Annual Delaware Symposium on Language Studies, R.V. DiPietro (ed), Norwood, N.J.: Ablex (1982) at 122 (cited in Klinck (1992) at 133) 42Peter Goodrich, "Law and Language: An Historical and Critical Introduction", 11 Journal of Law and Society 173 (Summer 1984) at 173 "'Goodrich (1984) at 178 •"David Crystal & Derek Davy, Investigating English Style, Bloomington: Indiana University Press (1969) at 194 45See Jackson (1985) at 47 where he states "[g]iven the way the legal lexicon is constituted, and the nature of any semantic relations....then legal language, having a lexicon constituted in a manner different from that of the ordinary language, and involving terms related to each other in ways different from those of the ordinary language, must be autonomous of the ordinary language." "'Klinck (1992) notes at 135 that another proponent of this position is H.Ph. Visser"t Hooft. 47Klinck (1992) at 134; Jackson (1985) at 47 also states "Mounin, while conceding that the language of law has both lexical and syntactic peculiarities, notes that it needs to draw upon the whole resources of the natural language for its intelligibility." "'Jackson (1985) at 47 - 112 -Jackson responds to this by saying that "Mounin's argument explains only cases of apparent intelligibility of legal language to the layman. The layman reads legal language as if it were natural language; he may be quite oblivious to those systemic differences which give the same words a different meaning to the lawyer. Equally, we have to account for the occurrence of incomprehension of legal language even amongst those who have a sophisticated knowledge of the natural language concerned. ... It is lack of knowledge of the system, rather than lack of knowledge of individual lexical items, which produces this effect."49 Based on my own experience, I tend to agree with Mounin as I have found that it is essential for my students to be at an advanced level of regular English before they take my course in Legal English. Those students I allowed in who were at an upper intermediate level of English simply could not grasp the legal English anywhere near to the same extent as the advanced English students. At the same time, the students were required to be upper-level law students or practising lawyers, as without some pre-existing knowledge of (western) legal concepts it was impossible for them to understand the course material. It may be argued that this latter point supports Jackson's position, however, I would argue that having some knowledge of the legal concepts is no different than having any specialized, technical knowledge. And my students did not have to have a complete understanding of the common law system to come to understand commercial contracts written in legal English, although, to support Jackson, I must admit that they would not understand them in exactly the same way that I would.50 However, the fact that my course, which is based on international commercial contracts, would not be understood at all by those unfamiliar with a free-market economy adds, I believe, further support to Mounin's position. In the end, I do not believe the distinction between the two positions is really that. I agree with many of Jackson's points and I agree that to have a complete understanding of the legal lexicon it is necessary to have a knowledge of the system. With respect to the use made by judges of the ordinary meaning of words in legal interpretation, and the supposed support this gives to Mounin's position, Jackson responds that "[t]he non-legal sense of a word adopted into the legal lexicon provides the jurist with the source of one possible choice as to its particular meaning in law. But the choice...can only be made from within the legal system, and does not occur automatically as a result of the semantic pull of the "'Jackson (1985) at 47-48 50But even if they could not understand them to the same depth as I would (meaning that I would understand extenuating situations that could possibly arise and how these would be dealt with) does not mean that the understanding that they have may not be adequate for the purposes at hand. - 113 -non-legal meaning."51 Again, I have no disagreement with this, and in fact agree that one must have some understanding of the system to be able to know when a legal or non-legal meaning will be given to a particular word. But once again one does not have to have complete understanding of the system, but rather some knowledge of the area in question. Obviously, this matter is one that I deal with in my Legal English course and I have found that once the students have been made aware of the different legal meanings that have been given to non-legal words, and in what context this legal meaning is to be used, they then have no difficulty with these words and when they are to be used. Again, they have not learned the entire legal system to be able to do this. It would appear that Dennis Klinck also supports Mounin's position when he concludes "[pjerhaps this is to say no more than that any technical specialist will read an ambiguous (ordinary/technical) or a technical text differently than a non-specialist; that does not justify our saying they speak different languages. Arguably, the specialist simply has a more sophisticated knowledge of the same language."52 Klinck makes this statement after drawing the conclusion from Jackson's position concerning the use made in law of the ordinary meaning of words that "[o]ne interesting possibility arising from this is that even people speaking the same words, and using the same syntax, may be speaking different languages."53 I have repeated this statement because I believe Klinck is incorrect when he says that the two speakers would be using the same syntax.54 His statement is supportable when dealing with a piece of literature, as literature is often specifically written to include different levels of meaning, however I do not believe this can be said about legal English." As 5 1 Jackson (1985) at 50 "Klinck (1992) at 138; Klinck also states in Chapter two of his text that he believes legal language not to be an autonomous language but rather a technical sublanguage. "Klinck (1992) at 137 54It is interesting to note that Woodbine (1943) makes almost the same statement as Klinck but eliminates the reference to syntax. He states at 396 "[s]o it happens that our lawyers may use the very same words that laymen use and yet speak a different language." "And in fact the example he includes after this statement is a poem entitled "The Notary". I believe Klinck confirms my position when he expands on his thesis at 154-155 and notes that the poem "can be read as at least two different language varieties. I imposed a "legal" reading on the poem, because my instructions were to read it as a lawyer would. Given such expectations, it was perhaps inevitable that I should find it full of "legal language". If I had been asked to do a theological reading, I would probably have found the language to be predominantly religious." Doing a "legal" reading or a "theological" reading of a poem is far, far removed from using legal language to accomplish some task within the law. It may be that Klinck has used this example to try to force his argument that the lexicogrammatical characteristics are not - 114 -any lawyer knows, it is easy to spot a non-lawyer trying to use legal language. Those who do not have any understanding at all are most easily spotted and readily dismissed (oh what power we wield!) however those who are using the lexical items (ie. the words) correctly often still do not sound the same and may prompt the lawyer to ask if the speaker is a lawyer. I believe the reason for this 'not sounding the same' is that the speaker is not using the same syntax. To clarify what I am talking about, I quote Bernard Jackson who tells us that "[t]wo essential features of any natural language are a lexicon and a grammar. The former is the totality of words (or dictionary) recognised as belonging to that language; the latter combines a syntax (rules governing the combination of words in sentences, so as to produce sense) and a morphology (rules governing the formal variations of a word depending on its context)."56 And legal English does have its own syntax.57 I have found in my teaching that this different syntax poses just as many problems as the different lexicon.58 But this syntax not only makes it difficult for lawyers who are non-native speakers of English to understand a document written in legal English, it also makes it difficult for the native speaker of English who is a non-lawyer.59 As will be illustrated in Chapter 4, the need for unambiguous language in common law contracts, and hence in legal English, often necessitates dispensing with what would be considered, in regular English, to be good grammar and adopting instead structures which help to avoid ambiguity. This often results in the repetition of a number of words and awkward or run-on sentence structures which can be very confusing. As Crystal and Davy note "[i]t seems that many types of discourse...prefer to convey connected information in a series of short sentences which need linking devices to show their continuity, while legal English moves in the opposite direction by putting all such sequences into the form of very complex sentences capable of standing alone almost the only formal linkage to be found between the long and self-sufficient sentences is the repetition of lexical items - and of this there is a good deal. The necessarily determinative in characterizing language as legal language but that one needs to consider as well the roles of function, context of use, and audience expectation. I for one am not convinced. "Bernard S. Jackson, Semiotics and Legal Theory, London: Routledge & Kegan Paul (1985) at 33 57Risto Hiltunen in Chapters on Legal English, Aspects Past and Present of the Language of the Law, Helsinki: Suomalainen Tiedeakatemia (1990) at 25 notes that most studies on legal English have been on the lexical aspects of it whereas there are hardly any studies on the syntactical and textual structure. 58From my experience, the morphology of legal English presents few difficulties. "Hence the plain language movement with respect to legal documents involving the general public. But I believe it is also true that the antiquated form of this syntax (particularly when combined with the use of antiquated words) even makes it difficult for many lawyers to understand what has been written. The really frightening consequence of this is that lawyers of a conservative bent (see Charrow & Erhardt below) or those who are just plain lazy are creating documents that even they themselves do not understand and which may not even make sense. This problem is not just limited to legal English, however, as one of my students in Turkey told me that sometimes he reproduces documents he does not understand and this is because they are the accepted, and expected, form and they are written in old Ottoman Turkish, of which a good portion of today's Legal Turkish is comprised. - 115 -habit is to be expected in a variety which is so much concerned with exactness of reference. ... But the matter goes further than sentence connection, and legal English is in fact notable for the extreme scarcity, even within sentence structure, of the pronoun reference and anaphora [backward oriented reference to previously mentioned nouns] which are used so extensively in most other varieties."60 Crystal and Davy also point out that "anyone who tries to produce a spoken version is likely to have to go through a process of repeated and careful scanning in order to sort out the grammatical relationships which give the necessary clues to adequate phrasing."61 As they note, "[t]he need to achieve precision or avoid ambiguity always takes precedence over considerations of elegance, and unusual sequences are as a result common".62 Of course the skill of the individual drafter also comes into play here and there are many who seem incapable of drafting easily understood yet legally unambiguous documents. I agree with George Orwell's argument that the "characteristics of the style of the passage correlate to qualities of the writer's thought: that it is sloppy, clumsy, vague, etc."63 As well, Klinck notes that "ambiguity is not always present, and even where it appears to be, may be resolved by syntactic analysis".64 He goes on to argue that the repetitiveness of legal English "contribute[s] to the formality and ritual quality of the language [thereby] making it impressive."65 Charrow and Erhardt as well believe that some of this bad drafting continues because of a conservative element in the profession who do not want the traditional legal language altered.66 There are also writers who subscribe to the view that language is deliberately manipulated in order to maintain domination.67 Peter Goodrich suggests that "linguistic structure itself encodes inequalities of power and is also instrumental in enforcing them...."68 And Dale Spender argues that "the group "Crystal & Davy (1969) at 201, 202 "Crystal & Davy (1969) at 194; this is of course what the students and I do in my legal English course and with some documents this can amount to verbal gymnastics! "Crystal & Davy 91969) at 205 - some examples they give with this statement are: "the payment to the owner of the total amount"; and "any instalments then remaining unpaid of the rent". "Klinck (1992) at 37 "Klinck (1992) at 261 "Klinck (1992) at 261 "Veda R. Charrow & Myra K. Erhardt, Clear & Effective Legal Writing, Boston: Little, Brown and Company (1986) at 19 <7I will look at this idea in more detail when discussing international law firms. '""The Role of Linguistics in Legal Analysis" 47 Modern Law Review 523 at 531 (cited in Klinck (1992) at 18) - 116 -which has the power to ordain the structure of language, thought and reality has the potential to create a world in which they are the central figures."69 I must agree that from my personal observations as a practising lawyer there is certainly a segment of the legal profession who use legal language in this latter manner. At the same time, it must not be forgotten that in a common law system there is a very legitimate fear of altering language which has a proven track record. What is often the case is that the lawyer may want to simplify some of the language being used but simply does not have the time to verify that the particular wording in question has not been given a specific meaning and, as such, will continue to use what has not created a problem in the past. As Charrow and Erhardt note, "[the] view of language as carrying the power of the law appears to be one reason that lawyers resist even minor changes. For example, many lawyers would hesitate to substitute stop for cease and desist because they would worry that tampering with a time-honored term might somehow bring about the wrong legal result. There may be legal reasons (either because of precedent or statute) for retaining many terms, but there are few valid legal reasons for clinging to Latinisms (prima facie, supra); strings of synonyms (null and void; any and all; rest, residue and remainder); or archaic words and phrases (yvitnesseth, thereinabove, hereinbefore)."10 I prefer to phrase it differently than Charrow and Erhardt when I am speaking with people who complain about the way lawyers cling to their language. I prefer to say that the law is in the •words and often it is for this reason that lawyers are not always able to change the way in which they use the words.71 As well, as noted by Crystal and Davy, "...the complexities of legal English are so unlike normal discourse that they are not easily generated, even by experts. It is a form of language which is about as far removed as possible from informal spontaneous conversation. ... The reliance on forms which were established in the past and the reluctance to take risks by adopting new and untested modes of expression contribute to the extreme linguistic conservatism of legal English."72 Another of the many syntactic peculiarities of legal English is the regular use of double or multiple negatives.73 Brenda Danet notes that negatives are an important syntactic feature of mMan Made Language, London: Routledge and Kegan Paul (1980) (cited in Klinck (1992) at 18); in this regard see also Arnold H. Leibowitz, "Language and the Law: The Exercise of Political Power through Official Designation of Language" in Language and Politics, William M. O'Barr & Jean F. O'Barr (eds) The Hague: Mouton & Co. Publishers (1976) at 449 70Charrow & Erhardt (1986) at 14 "Or as put by Sir Frederick Pollock & Frederic William Maitland in The History of English Law, Second Edition, Volume I (1898) (reissued in 1968 by Cambridge University Press) at 87 "...language is no mere instrument which we can control at will; it controls us." "Crystal & Davy (1969) at 194 7 3For more extensive discussions on the different syntactic features see Crystal & Davy (1969) and Danet (1980). - 117 -legal English.74 And Klinck points out that negatives are most likely to appear in contracts "where the parties may attempt to define the scope of their obligations by exclusion."75 But Klinck goes on to note that negatives often appear in legal discourse as well, possibly because of "lawyers' habit of circumspection. They do not want to commit themselves by making strong or unqualified statements."76 By using a double negative a statement is made weaker and less direct. The example Klinck gives to illustrate his point is the sentence "This is not unexpected." as opposed to "This is expected."77 I believe this fear of making a strong or unqualified statement can again be tied to the common law system where often every word and every turn of phrase is scrutinized carefully in the hope of giving the other side an advantage or a way out of a situation. With respect to contractual language, I would suggest that the overuse of double or multiple negatives can also be attributed to the predominance of conditional clauses. As noted above, exclusion is often used to define the scope of one's obligations. If this is combined with the conditional in the event of or simply if it is easy to picture the resulting double or multiple negatives. Native speakers of English generally have to stop and think about the meaning of a statement when they hear or see a double or triple negative. This difficulty is obviously multiplied when the reader is a non-native speaker of English. An additional problem for the non-native speaker of English is the large number of collocations (regularly recurring combinations of words) which are specific to legal English.78 Crystal and Davy note that the most characteristic collocations are those involving synonyms or near-synonyms, most often in pairs but sometimes in extensive lists. Many of these are a combination of English and French:79 last will and testament; terms and conditions; able and willing; goods and chattels; cease and desist; null and void; save and except; breaking and entering; free and clear; peace and quiet; force and effect; right, title and interest}0 These combinations, the use 74Brenda Danet, "Language in the Legal Process", 14 Law & Society Review 445 (Spring 1980) at 481 "Klinck (1992) at 262 76Klinck (1992) at 262 "Klinck (1992) at 262 7 8Or as Charrow & Erhardt (1986) at 12 put it "[w]hole phrases and clauses exist that have no counterpart in everyday language." 7'In some instances the words were originally Latin and have come via French. *°See Hiltunen (1990) at 54 for a more complete listing. - 118 -of which continues today, came about at the time when both English and French were being used in the law and there was some concern as to whether the words for the same referent had the same meaning. To avoid any problems the drafters began to include both terms and to "rely on inclusiveness as a compensation for lack of precision."81 But as Mellinkoff notes, "[w]hat may have once been rationalized as necessary translation soon became a fixed style"82 and one which lawyers used "[s]ometimes for clarity, sometimes for emphasis, and sometimes in keeping with the bilingual fashion of the day".83 An example of a collocation which is specific to contracts is including but without limiting the generality of the foregoing}* One of the shortened versions of this collocation is including without limitation}5 Lawyers who are native speakers of English may think that use of the second form is an advance on their part in that they have reduced the verbosity and antiquated language of the contract. However, use of the second form in international commercial contracts is even more confusing than the first for non-native speakers of English. I assume that translators would have similar difficulties. And it is for this reason that collocations should be included in legal dictionaries. As Beyer and Conradsen note "[dictionaries are essential to ascertaining the meaning of unknown words. In the case of translation, dictionaries provide potential translations of those words. It is important to bear in mind, however, that dictionaries do not provide meanings or translation equivalents for phrases. Further, they only rarely describe the word in context. Therefore, it is strongly recommended that any word be looked up in several dictionaries even after a standard translation for a particular term has been chosen, be aware of the context in which the term is presented throughout the piece being translated...."86 But with collocations which have been judicially interpreted or have been used consistently over a period of time and have come to have a specific meaning or have come about because of a particular legal rule or principle, looking up the individual words in dictionaries will not only be of little assistance but will probably produce errors in meaning. "Crystal & Davy (1969) at 208 ^Mellinkoff (1963) at 120 "Mellinkoff (1963) at 121 MFor those who say that maybe this collocation should be eliminated entirely, I would argue to the contrary, as it has a specific and helpful purpose. To put it into plainer language would involve the use of many more words - as is evidenced by the drawings and language I must use to explain its meaning to my students. 85Another one is including but not limited to. "Morris (ed) (1995) at 150 - 119 -Another reason for including collocations in legal dictionaries designed for lawyers who are non-native speakers of English is the problem posed by articles and prepositions. These little words usually create the most difficulty for a non-native speaker of English.87 At the same time, a common law lawyer is well aware of the errors that an incorrect or misplaced article or preposition can cause. Margaret Bryant has actually done a study on the part that articles, prepositions and conjunctions play in legal decisions and she notes that "[a]t least one of these three groups is used in almost every sentence that is spoken or read; occasionally, all three groups are present.... Since these words are so generally used, even by the most illiterate, it seems that they should present little difficulty. On the other hand, these are the words that cause most of the trouble, for they are used freely and indiscriminately. The person who uses the word does not realize that he must not only select the correct word of relationship, but must also use it in the right place. If either necessity is violated, the whole meaning is changed."88 As discussed above, legal English has many syntactic peculiarities, however probably the most striking difference between legal English and regular English is the different lexicon. As Crystal and Davy note "[i]t is especially noticeable that any passage of legal English is usually well studded with archaic words and phrases of a kind that could be used by no one else but lawyers. It seems likely that these words give the man in the street his most reliable guide for identifying the language of a legal document."89 There are a number of distinctive features of the legal English lexicon. Like any specialized language, it has developed a number of specialized terms, such as cause of action, defendant, plaintiff, negotiable instrument, stare decisis, ex parte, injunction, garnishment, and res judicata to name just a few. David Mellinkoff refers to these as terms of art or argot,90 however Brenda Danet prefers to call them technical terms.91 Crystal and Davy note that terms of art are "those words and phrases about whose meaning lawyers have decided there can be no argument."92 And they, like Mellinkoff, include within this category such words as appeal, bail, defendant, landlord, and plaintiff. I, like Danet, prefer the term technical as it does not require an additional "Articles are a particular problem if the native language does not use them, as is the case with Turkish. 88Bryant (1962) at 1 ^Crystal & Davy (1969) at 207 '"Mellinkoff (1963) at 16-19 91Danet (1980) at 476 92Crystal & Davy (1969) at 210 - 120 -definition to make it clear what is being referred to. As well, the meanings given to words are always subject to change, particularly within the common law. Another distinctive feature, as noted above, is the use of common words with uncommon meanings. Some examples of these are action (law suit), alienate (to transfer), consideration (a benefit to the promisor or a detriment to the promisee), counterpart (the duplicate of a document), demise (to lease), instrument (legal document), motion (a formal request for action by the court), execute (to sign a document), serve (to deliver legal papers), and without prejudice (without loss of any rights). As well, because French, Latin, and English terminology were all being used as the common law was developing, we continue to use French, Latin and Old and Middle English today. A number of the French words in use today would include agreement, attorney, claim, covenant, debt, easement, guardian, guarantee, heir, justice, lien, money, obligation, parties, partner, pledge, property, purchase, tort, and trespass.93 Although many of the Latin terms are gradually being eliminated there are others that continue to be used, including ab initio, affidavit, bona fide, et al, in personam, in rem, proviso, mutatis mutandis, and pari pasu. Old and Middle English words form the basis of many regular English words today, however there are others that have gone out of use in regular English but continue on in legal English. These include master (which is still used at sea, in shipping documents, and in maritime insurance contracts), forthwith (which is found in every commercial contract), such (used as an adjective), and herein, therein, therefor, thereby, whereas, whereby, and witness (all of which continue to be used in contracts). Apart from these words, there are also those which come from Legal French. They include chose in action, estoppel, fee simple, attorney general, laches, metes and bounds, quash, and voir dire.94 Legal English also uses what could be called formal language to a far greater degree than regular English. Some examples are know all men by these presents, approach the bench, the deceased, may it please the court, came on for hearing, and pierce the corporate veil. Two examples 93See Hiltunen (1990) at 52-53 and Pollock & Maitland (1968) at 81 for more of these French words which have become basic to our legal vocabulary. T h e French origin is evident in such terms as fee simple and attorney general where the adjective follows the noun which is the opposite of English where the adjective precedes the noun. - 121 -which can be found regularly in international commercial contracts are in the event of and time is of the essence. As well, legal English uses to a great extent words and expressions which have a flexible meaning. But as Mellinkoff notes, these are "to be distinguished from the inept, the inadvertent, and the unexpected."95 Rather they are deliberately chosen because of the need, in the context in question, for a word or expression which is broad enough to include a number of possibilities but at the same time is precise enough to be fairly easily determined (again a necessity in common law contracts). The most common of these words would be reasonable. Some other examples are adequate compensation, as soon as practicable, due care, existing, gross profit, incidental, in conjunction with, normal, promptly, substantial, sufficient, thereabout, undue influence, and unsound. At the same time, as discussed above, there is the need to be precise in order to avoid ambiguity. The collocation already noted, including but without limiting the generality of the foregoing, would fall within this category. This category would also include the use of a definition section within the contract to make it clear what the exact meaning for specific words, as used in the contract, will be. Some other collocations which would be included here include shall not be deemed to limit, nothing contained herein shall, words in the singular include the plural and vice versa, and words used in the masculine gender include the feminine and neuter. To the non-common law lawyer the need for precision at the same time as the need for flexible language, along with the extensive use of peculiar collocations must seem rather strange. But as discussed, this is all because of the nature of the common law, namely, the need to spell out very clearly all aspects of the parties relationship but at the same time providing for all possible contingencies and future events. As Crystal and Davy note, "...the concern with meaning affects more than the choice of terminology. Lawyers know that anything they write, and much of what they say, is likely to be examined with an acuity that is seldom focused on other forms of language. It is as if the products of their linguistic activity become objects to be dissected and probed - often in a purely destructive way. Consequently, much care is called for in the construction of these 'objects'. When so much depends on the results of interpretation, the lawyer must go to great lengths to ensure that a document says exactly Mellinkoff (1963) at 21 - 122 -what he wants it to say, that it is precise or vague in just the right parts and just the right proportions, and that it contains nothing that will allow a hostile interpreter to find in it a meaning different from that intended."96 Because the impenetrable nature of legal English is so closely tied to the history of the common law system and the history of English generally, I believe that it is necessary to look more closely at the history of this language in order to better understand it and thereby consider what parts of it may no longer be necessary. IV. THE HISTORY OF LEGAL ENGLISH It was noted in Chapter 2 that after the Norman Conquest of England, French came to be the language spoken in the courts, whereas Latin was the language in which the laws were written. Although this latter situation came to be true, for a short period after the Conquest the laws continued to be written in either English or Latin, with Latin the predominant. Oliver Emerson notes that, "[f]rom the time of Aethelberht, writs and other acts issued by the government were in English or Latin. William continued this practice, so that the writs of his reign are all in Latin or English, none being in French. After William's time the use of English in government documents grows rarer.... But the place of English in this time is taken not by French.but by Latin, so common during the Middle Ages."97 Mellinkoff argues (even though he acknowledges that it cannot be fully proven) that it was not just French which was spoken in the courts after the Conquest but a combination of English, French and Latin.98 George Woodbine appears to agree and states that "[t]he traditional belief has been that the use of French in England for all purposes was a direct result of the Norman Conquest Credence has been given to this traditional theory almost unanimously.... In spite of its widespread acceptance...it lacks the support of any direct evidence from any first class source. It is, in fact, contrary to the weight of our best evidence, which strongly suggests, if it does not prove, that French after the conquest did not drive out English as a generally used tongue, and that the use of French for the purposes of pleading in the law courts did not become fixed until long after the conquest, perhaps not until the time of Edward I [1272-"Crystal & Davy (1969) at 212 97OHver Farrar Emerson The History of the English Language, New York: The Macmillan Company (1935) at 69; see also Mellinkoff (1963) at 65-66; and see also L.M. Myers The Roots of Modern English, Boston: Little, Brown and Company (1966) at 120 where he notes that "[a]t least above the primary level (about which we know very little) the language taught in the schools was Latin, which was still regarded as the one important language of Christendom, and used for the most important documents of all kinds." '"Mellinkoff (1963) at 69 - 123 -1307], the period at which it began to affect English legal literature."99 L. M. Myers tells us that if we are only looking at the written language at this time then we will believe that English was eliminated, however the reality is that "English was always the only language of the great majority of the people; and in an age when so few of them were directly affected by education there was never any real chance that it would be supplanted."100 It was French and Latin that were considered to be the languages of learning.101 Myers tells us that "[t]he language in which Latin was taught was French, which was used, when Latin was inappropriate or impracticable, for all important affairs as well as the everyday affairs of practically all people of either education or position."102 One can surmise then that it is because of this that French has had such a substantial influence on the language of the law and in fact Woodbine notes that the lawyers who developed the technical language of the law were clearly subjected to some influence that did not affect the general population or at least not to the same degree.103 Myers notes that between 1200 and 1400 there were many technical words borrowed "Woodbine (1943) at 397-398; Otto Jespersen, Growth and Structure of the English Language, 8th Edition, Leipzig: B.G. Teubner (1935) at 87 notes that the French influence "did not begin immediately after the conquest, and that it was strongest in the years 1251-1400...."; one explanation for this later introduction of French into the pleadings in the courts may be due to the fact that William declared the Anglo-Saxon laws would continue in force and these laws were administered in the hundred and county courts which continued on as before - see Woodbine (1943) at 405-406 100Myers (1966) at 120; Woodbine (1943) at 408 also notes that there is nothing "that indicates or even suggests that French crowded out English as the spoken language." ""Woodbine (1943) notes at 399 that information "tends to indicate that at [the time of Henry II (1154-89)] the learned man in England was trilingual and spoke English, French and Latin; that other people in the upper classes were bilingual and used both English and French." 102Myers (1966) at 120 ""Woodbine (1943) at 399; Woodbine goes on at 399-400 to state "[j]ust what that influence was and when it was exerted is not easily determined. We know little or nothing about the English lawyer in the earlier days; his history is yet to be written, that is, if there were any lawyers at that time. The probability seems to be that for a long time after the coming of the Norman rulers, lawyers in the modern sense did not exist as far as the secular courts were concerned. In the ecclesiastical courts there were advocati, professional pleaders trained in the canon law As far as our present knowledge of the facts goes, the lawyer as we know him, the man who has been trained in the law and who makes his living by appearing for clients in court, comes on the scene rather suddenly in the last quarter of [the 13th century]."; but see Otto Jespersen (1935) at 79-82 who writes that "[w]e need only go through a list of French loan-words in English to be firmly convinced of the fact that the immigrants formed the upper classes of the English society after the conquest, so many of the words are distinctly aristocratic. ...[N]early all words relating to government and to the highest administration are French.... ... The upper classes, as a matter of course, took into their hands the management of military matters; and although in some cases it was a long time before the old native terms were finally displaced...we have a host of French military words, many of them of very early introduction. ... Another natural consequence of the power of the Norman upper classes is that most of the terms pertaining to the law are of French origin. ... As ecclesiastical matters were also chiefly under the control of the higher classes, we find a great many French words connected with the church...."; and see also Albert C. Baugh, A History of the English Language, Second Edition, London: Routledge & Kegan Paul Ltd. (1957) at 134-135 where he writes "[i]t is impossible to say how many Normans and French people settled in England in the century and a half following the Conquest, but since the governing class in both church and state was almost exclusively made up from among them, their influence was out of all proportion to their number. Whatever the actual numer of Normans settled in England, it is clear that the members - 124 -from French for use in government, law, religion and military affairs, which, as argued by Jespersen and Baugh, would be positions held and influenced by those of the upper classes.104 But Emerson argues that since French reached the height of its influence in the 13th century and "was the tongue of half the courts of Europe...it is not strange that it should have been used in England as well."105 Emerson also tells us that throughout the 13th and 14th centuries and even later "English was being influenced directly by Parisian French rather than by the Norman dialect."106 How ever it was that French came to have such an influence on the spoken language of the law, it was Latin that was the preferred language for writing. For two centuries it monopolised the language of the statutes and this continued through the first half of the 13th century.107 But by the second half of the century, even though Latin predominated, some statutes were written in French.108 By the 14th century French had become the dominant language of the statutes, even though some Latin did continue until 1461.109 However by the end of the 15th century (following the introduction of the printing press in 1476 and the acceptance of the London Standard as the standard form of written English)110 statutes began to be printed in English. It was also at this of the new ruling class were sufficiently predominant enough to continue to use their own language. ... For two hundred years after the Norman Conquest, French remained the language of ordinary intercourse among the upper classes in England."; but see also Emerson (1935) at 55 where he argues "[mistaken conceptions as to the influence of the Norman conquest on the English language are largely due to erroneous ideas [T]he actual number of the Normans coming in at the conquest has been greatly exaggerated in popular estimation. In reality they were comparatively few in numbers...." 104Myers (1966) at 129 105Emerson (1935) at 72-73 106Emerson (1935) at 55 ""Pollock & Maitland (1968) Volume I at 83 ' T h e first statute in French was the Statute of Westminster, in 1275. From then through 1290 there were 11 in Latin and 9 in French. All the statutes of 1291-1295 were in Latin. The Great Charter in 1297 was in both Latin and French. -see Woodbine (1943) at 401 109Baugh (1957) at 161; Woodbine (1943) at 401-402; Woodbine also notes at 402 that "[a]s far as law and government are concerned, the influence which causes French to be used in England as a regularly written language, begins to operate not at the time of the Norman conquest, but some two hundred years later, following that other French invasion which took place after the marriage of Henry III to Eleanor of Provence, and led ultimately to [the battles of] Lewes and Evesham." Woodbine also tells us at 404 in footnote 3 that French, unlike English, was not a literary language at the time of the Norman conquest and "ffjhis may explain why the Norman kings did not use written French in their documents, though they did use English." "°Baugh (1957) at 235; but see Hiltunen (1990) citing J.H. Fisher, "Chancery and the Emergence of Standard Written English in the Fifteenth Century" 52 Speculum 870 (1977) at 899 where he states that the Chancery played an important role in "raising the profile of English in the fifteenth century. ... Caxton, on returning to England in 1476, established his press, not in London, but in Westminster, "under the shadow of the government offices where Chancery Standard was by that time the normal language for all communication."" , Hiltunen notes that the Chancery Standard was not based on the London - 125 -time that the law was first written about in English, however it was not until the 16th century that a technical law-book in English was written.111 The registers of writs and all court records, however, continued to be in Latin, and when common law pleadings became written they were also in Latin and continued in this way until 1731 when they gave way to English.112 Middle English was the form of English that was used in England from the period 1150 to 1500. Mellinkoff notes that "[i]t marks the end of the Germanic inflections of Old English. It is the link between a language overwhelmingly Anglo-Saxon and one that incorporates not bits but whole chunks of Latin and French.""3 As noted above, by the end of this period the dialect known as the London Standard had become the accepted form of written English, however prior to this, Middle English was developing without standards or rules so that what resulted was a totally disordered language.114 Myers writes that "[d]uring the whole of the Old and Middle English periods there was not a grammar, a dictionary, or even a spelling book of English in existence. There was not even complete agreement about the alphabet - either the letters of which it was composed or the sounds that some of these represented.""5 And Mellinkoff notes that "[pjhonetic spelling and varying degrees of literacy made the simplest word an adventure."116 It was in this period of Middle English that the word law came to have its variety of meanings, meanings which continue up to this day: it can mean a particular rule; a body of rules; the profession of law; the action of law courts (as opposed to courts of equity);117 regional dialect; but see Emerson (1935) at 81-83 and Myers (1966) at 140 who hold that the London Standard was the accepted dialect for written English '"Pollock & Maitland (1968) Volume I at 87 "2Sir William Holdsworth, A History of English Law, Volume II, Fourth Edition, London: Methuen & Co. Ltd. (1936) at 479; Pollock & Maitland (1968) Volume I at 83 "3Mellinkoff (1963) at 83; Middle English was the language of Chaucer. "4Myers (1966) at 140-141 notes that at this time the London Standard was not truly standardized as no one had as yet written its rules, but it had enough prestige that people throughout the country tried to comply with it. "5Myers (1966) at 123 "'Mellinkoff (1963) at 84; Baugh (1957) at 243 notes that the development of English in this period took place under conditions peculiar to England, namely "none of the other modern languages of Europe had had to endure the consequences of a foreign conquest that temporarily imposed an outside tongue upon the dominant social class and left the native speech chiefly in the hands of the uncultivated." "7The continuing use of the language in law or in equity illustrates this use. - 126 -the custom of the country (as in the law of the land); and justice (as in law and order)}1* It was also at this time that words such as notwithstanding, also with multiple meanings,119 came into being. As well, the many where120 and there121 words, which have become commonplace in legal documents, developed at this time. Many lawyers may be surprised to learn that these words which they so faithfully reproduce are simply the result of "the whimsey of personal choice and personal penmanship."122 It was during this period of Middle English that the law of contract was slowly developing in England. Even though there were few written documents at this time, some of the phrasing that did develop continues even to this day. Mellinkoff tells us that the introductory terminology Know all men by these Presents came into being at this time, as did This is the agreement made between.123 It was also at this time that deeds (dealing with the transfer of land) were written with recitals listing the reasons for the grant and naming the parties present when it was being made. To this day, recitals are an integral part of most commercial contracts. As the Middle English period progressed, the use of French declined in the general population,124 however it stayed very much alive in the law. The Year Books, which first appeared in 1260 and continued until 1535, and which contained reports of court cases along with legal and personal comment, were written almost exclusively in French.125 Mellinkoff notes "...it is generally agreed that from about 1272, the writers of the Year Books were writing not merely the law language they were accustomed to write, but were writing also the law language they heard spoken in court: law French. The end-date of oral law French trails off in a haze of '"Mellinkoff (1963) at 84-85 "9It can mean in spite of, nevertheless, still, yet, and although. 120Whereabouts, whereas, whereby, wherefor(e), wherein, whereof, whereunder, whereupon 12lThereabouts, thereby, therefore), therein, thereof, thereunder, thereupon 122Mellinkoff (1963) at 86; even though this may be the case I would argue that some of these words do perform a useful function in contractual language and for that reason they continue to be used. '"Mellinkoff (1963) at 91-92 l24See Emerson (1935) at 61-68 for a discussion of this; see also Baugh (1957) at 169-177 '"Woodbine (1943) at 401 notes that the early Year Books "were commercial and unofficial reports whose purpose was to show the technique of successful pleading"; Theodore F.T. Plucknett in A Concise History of the Common Law, Fifth Edition, London: Butterworth & Co. (Publishers) Ltd. (1956) at 273 notes that the earliest proto-Year Books are partly in manuscript and unpublished uncertainty." - 127 -Woodbine puts this date a little later and states that it is clear from at least 1285 that oral pleadings in the king's courts were in French and that it was "a practice which no one questioned and to which everyone conformed."127 Pleadings were now conducted by professional pleaders who were "a special and professional class".128 However English, rather than French, was probably their normal tongue as it is clear in the early Year Books that "both court and counsel knew English".129 Mellinkoff believes the probable reason for this continued use of French in the law courts was that "[t]he more English became the common currency of all classes of society, the more French became the mark of the noble and wealthy."130 And it was the noble and wealthy who sent their sons to study the law as not only were they the only ones who could afford it131 but they also had a particular interest in land law which dominated the cases at that time.132 Melinkoff also believes that they had an interest in preserving the mystery of the law. As he puts it, "[w]hat better way of preserving a professional monopoly than by locking up your trade secrets in the safe of an unknown tongue? ... [French] was never the language of the people. And as time passed it would become incomprehensible to any but the initiate."133 As noted above, the extensive influence of Old French continues in today's legal English. An example of the difference between Modern French and Old French can be seen in the word 126Mellinkoff (1963) at 99; Mellinkoff cites Woodbine (1943) for this information however there is some error here - it may well be a typographical error as Woodbine does make mention, at 431, of 1292 being the date of the earliest printed Year Book. 127Woodbine (1943) at 429; Woodbine also notes at 429 that the use of French "may or may not have been customary in any one of the many other courts then functioning in England" as the source of this information only refers to the king's courts not to the secular courts. 128Woodbine (1943) at 429 129Woodbine (1943) at 431 130Mellinkoff (1963) at 100 131Holdsworth, Volume II (1936) at 479 notes that the common law was originally the law of the upper classes and even when it became the law for all classes it was still administered by the upper classes. He cites De Laudibus who stated "that it cost twenty marks a year to maintain a student in one of the Inns of Court, "and thus it falleth out that there is scant any man founde within the Realme skilful and cunning in the lawes, except he be a gentleman borne and come of a noble stock."" 132Holdsworth, Volume II (1936) at 475; Holdsworth also notes that this abundance of land law "was created for the most part by the labours of the lawyers". 133Mellinkoff (1963) at 101; Woodbine (1943) writes at 436, footnote 2, "[i]f French did not become the language of English law until the cradle tongue of the English people, including the lawyers themselves, was unquestionably English, the answer to the problem [of why French became the permanent tongue of lawyers alone] becomes plain." - 128 -contract. This is the Old French form of the word which was adapted from the Latin contractus. The Modern French form of the word is contrat. However, even within Old French there were variations depending on which dialect was used. The word gaol, still used in England, was from Norman-French whereas jail, which is used in Canada and the United States, was from Parisian French. Also, ward which is from northeastern Old French, and guard which is from central Old French, were at one time synonyms.134 They continue to be synonyms in warden and guard however they are now opposites in guardian and ward. Mellinkoff tells us that this variation of the w and gu in the French dialects eventually resulted in a legal distinction being made between warranty and guaranty (now also guarantee), even though, like guard and ward, these were originally the same word.135 With the Statute of Pleading136 in 1362 came the order that English was to be the language of court proceedings.137 This however was difficult to accomplish for a number of reasons: the study of law was in French (with some Latin), plus the prescribed form of the writs, which, as we saw in Chapter 2, required strict adherence, could not be translated into English and say exactly the same thing. This was also the case with the oral pleadings which were required to follow the form of the writs. If the oral declarations and denials did not correspond exactly to the required form then the matter failed before the court. Pollock & Maitland give an example of an omission which would be fatal: "if there is to be a charge of felony, an irretrievable slip will have been made should the pleader begin with 'This showeth to you Alan, who is here', This is the position Mellinkoff takes and he notes they are both from the same Old Teutonic source as Old English weard, guard, however, Emerson (1935) at 176 states that "guard is the French form of an original Teutonic word, the true English form of which is ward. '"Mellinkoff (1963) at 103; in the brochure announcing the IBA conference in September 1997 on Language and the Law, the following case was cited: "When working on a deal in Poland an English lawyer, a German lawyer and an Australian lawyer spent many hours negotiating the English language documentation arguing about whether different liabilities should be covered by a warranty, an indemnity or a guarantee. The day before the deal was signed they finally had the documentation translated into Polish only to be told by their Polish translator that there is only one word in Polish covering all three concepts." l 3 5This statute was written in French. 1 3 7 A brief excerpt, translated into English, reads as follows: ...because the laws, customs, and statutes of this realm be not commonly known in the same realm, for that they be pleaded, showed, and judged in the French tongue which is much unknown in the said realm...that all pleas which shall be pleaded in his courts whatsoever...or in the courts and places of any other lords whatsoever within the realm, shall be pleaded, showed, defended, answered, debated, and judged in the English tongue, and that they be entered and enrolled in Latin.... (this has generally been understood to be referring to the oral pleadings) - see Emerson (1935) at 64-65 - 129 -instead of 'Alan, who is here, appeals William, who is there'...." It took approximately one hundred years before the transition actually took effect and English became the main language spoken in the courts. Mellinkoff notes that "[t]he best informed surmise is that in the interim the basic pleadings remained French, but the closely associated argument at the bar was increasingly carried on in English."139 Meanwhile in the courts of equity, which had never been stifled by the required form of the writs and pleadings, English flourished. Records in this court were kept in English and the court itself was known as the "English side" of the court of Chancery whereas the common law side was known as the "Latin side".140 Mellinkoff tells us that "equity pleadings were experiments in written English."141 Because the applicants were literally appealing to the King for justice, the documents were filled with "an English stockpile of formalized piety and lament".142 They were also filled with the various forms of where and there and aforesaids which were developing at this time. These documents also contained double negatives, yet their use at that time did not cause the same result that such a construction would give us today. "As long as they were used with different words, negatives reinforced rather than cancelled each other (as most of us still feel that they do, even though we have been trained not to use them that way ourselves)."143 In these pleadings, English was mixed freely with French and Latin and it was at this time that the language we know today as goods and chattels; lands and tenements; right, title and interest; and part and parcel144 came into being. Mellinkoff notes that what began as bilingual combinations (as discussed above) became a habit of multiplying words and "[sjynonym for its own sake became an ornament of the age in which the legal profession matured."145 Jespersen raises an interesting point with respect to these synonyms: he notes that in some instances the main 138Pollock & Maitland (1968) Volume II at 605 139Mellinkoff(1963)at 115 ""Holdsworth, Volume II (1936) at 480 "'Mellinkoff (1963) at 116 ""Mellinkoff (1963) at 116 143Myers (1966) at 154; Myers notes as well at 154 that the theory that two negatives makes a positive comes from classical Latin and was misapplied to English. This may well be why we continue to have difficulties with them today. 144See Mellinkoff (1963) at 121-122 for more of these doublings 145Mellinkoff (1963) at 121 - 130 -difference between the English and the French is that the English is more colloquial and the French more literary, for example begin-commence, hide-conceal, feed-nourish, look for-search for, inner-interior, and outer-exterior.146 This helps us to better understand the penchant the common law lawyer of today has for what is seen now as more formal useage, as clearly the lawyers of this earlier time followed the more literary version. We now know that even though English began to be used more in the courts, and even though it "made a remarkable recovery"147 from the chaos of the Middle English period, it was never able to supplant French as the language of the law. The reason for this has to do with the fact that the French used in the courts had become a very exact and technical language. And, as Holdsworth states, it may well have been because of the increase in the use of English that as French became "less of a living language, and more of a professional language, its exactness and technicality increased."148 Coke, writing in the 17th century, noted that many of the "ancient terms and words drawn from that legal French are grown to be vocabula artis...so apt and significant to express the true sense of the laws, and are so woven in the laws themselves, as it is in a manner impossible to change them, neither ought legal terms to be changed."149 Of course this continued use of French prompted renewed complaints by the general public about the inaccessibility of the law. And in 1650 Parliament passed An Act for turning the Books of the Law, and all Proces and Proceedings in Courts of Justice, into English. The Act required that everything but English be eliminated from law writings and proceedings. But as Mellinkoff notes "[e]xcept for the Old English words law, book, -writ, and the half French, half English court hand, every law word in the statute is borrowed from either French or Latin."150 The Act lasted until 1660. With its repeal, the reports reverted once again to French and the forms of the pleadings to Latin.151 However within twenty years, some reports were being published in 146Jespersen (1935) at 93; Pollock & Maitland (1968) Volume I at 87 footnote 3 note that "the French that is a literary language in England under Henry III and Edward I should not be called 'Norman-French'; Parisian French, the French of the Isle of France, is already its model". ""Baugh (1957) at 243 ""Holdsworth, Volume II (1936)at 480-481 '"'Holdsworth, Volume II (1936) at 481 ""Mellinkoff (1963) at 127 '"Holdsworth, Volume VI (1937) at 571 - 131 -English.152 This was a logical step as in the court proceedings all oral testimony was in English, all citations from statutes were in English (the statutes had been English since 1489) and any words cited from a will were in English.153 By the 18th century the domination of the law by French and Latin was over and in 1731 a new English-for-lawyers law was passed. However, the wording of this law "repealed too much of the bar's accumulated learning"154 and by the time it was to come into effect, in 1733, it had been substantially modified by an amendment which "reinstated the customary law abbreviations and technical words".155 Roger North, writing in the 18th century, noted that the rules of English law were "scarcely expressible properly in English" and that a man could never be a lawyer "without a knowledge of the authentic books of the law in their genuine language."156 As we have seen, it is through these technical words or "genuine language" that French and Latin have continued to be a part of legal English. The period beginning in 1500 and continuing up to today is that of so-called Modern English. Mellinkoff tells us that it was an "age when the law was spinning its finest webs, its intricacies doubling, and its expenses multiplying."157 It was also the age of the printing press which helped to increase the literacy among the general population. It was at the beginning of this period that written pleadings (as opposed to oral) became the rule in the law courts and this, along with the printing press, had a far-reaching effect on the language of the law. Once again the fate of the lawsuit could depend on the words of the pleading. Holdsworth notes that "[u]nder the new system...the pleadings did not come before the court till they were complete. There was therefore much less chance of avoiding a fatal error before it was too late. At the same time the numerous cases decided upon points of pleading had tended to increase the minuteness, strictness, and precision of the rules of pleading. Practising lawyers, therefore, were laying an increasing stress upon the importance of these rules - a fact which is illustrated by the very large number of books of all kinds which were being published upon this topic at this period. And these lawyers had some reason; for this growth in minuteness and strictness and precision, made the manner in which the issue was reached and formulated of more importance than the substantial !Holdsworth, Volume VI (1937) at 571 'Mellinkoff (1963) at 130 'Mellinkoff (1963) at 134 'Mellinkoff (1963) at 134 'Holdsworth (1936) Volume II at 481 'Mellinkoff (1963) at 137 - 132 -merits of the case. It made it more and more possible for a skillful pleader to snatch a decision, in spite of a total absence of any substantial merit; and conversely, it made it quite impossible to win the strongest case unless it was properly placed before the court."158 Along with the development of the written reports of the cases developed the notion of binding precedent and by the 17th century it was the practice in the courts of equity as well as the common law.159 As the 17th century progressed, the majority of the reports being published were written in English.160 And even though the precedents of pleading and the technical rules and doctrines of pleading were most easily expressed in their original language, namely French, more and more English was being used in the courts. It had always been the language in the courts of equity, and it was now the language being used for new branches of the law that were developing, such as in commercial law and land law.161 Also at this time, a number of the older authorities were translated into English, as English was what the lawyers themselves were now demanding.162 French continued to be considered the language of the law, as all the technical terms were French, however it was now a French that was Anglicized.163 What the combination of precedent and printing press did was to vastly increase the body of law. As Mellinkoff tells it "[t]he more that was recorded, the more picayune the detail that counsel could ferret out for cavil. And higher grew the mountain of precedent."164 Of course the mode of education, which "may be summed up in two words, lectures and argument"165 (and the style which continues today) only added to this mountain. As Holdsworth notes, "no doubt it kept the practical, the argumentative, the procedural side of law prominently to the front - perhaps sometimes to the exclusion of legal theory."166 It was during the 16th and 17th centuries, when regular English was expanding rapidly, that many 158Holdsworth, Volume VI (1937) at 570 ,59Plucknett (1956) at 349 160Holdsworth Volume VI (1937) at 572 '"Holdsworth, Volume VI (1937) at 572 162Holdsworth, Volume VI (1937) at 572 •"Holdsworth, Volume II (1936) at 481 164Mellinkoff (1963) at 140 165Holdsworth, Volume II (1936) at 506 '"Holdsworth, Volume II (1936) at 508 - 133 -of the law's technical terms came into being, such as affidavit, alimony, corporation, subpoena, all borrowed from the Latin. The scholars of the Renaissance were again leaning to Latin but English was also borrowing from Greek (anonymous, autonomy), French, Italian, and Spanish. Emerson notes that this expansion was in part a result of the strong desire in England to improve English and "to place it on a level with the classic tongues."167 The means by which this was done was by "importation of words from the classical languages, especially Latin, and imitation of the rhetorical effects of the classical writers."168 With this rapid expansion, English continued to be a disordered language169 however, to correct this, purists established academies to create a standard grammar and in the 18th century lexicographers came on the scene to assist in this standardizing process.170 It would appear that our formal and wordy legal English syntax may well have developed out of this desire to imitate Latin, as well as from the translations of the early written pleadings which were in Latin. As Mellinkoff tells us, "literal translations failed to take into account that, unlike inflected Latin, intelligible English depends primarily on word order. Accordingly, the Latin predilection for holding a verb in reserve at the end of a sentence made grammatical monstrosities of pleadings translated into English. ... Following Latin form was not only clumsy but wordy. English made up in articles and prepositions what it lacked in inflection. "For instance," wrote Blackstone, "these three words, "secundam formam statutii," are now converted into seven, "according to the form of the statute.""171 The use of English as opposed to Latin also created problems with conjunctions. And is Old English and created few problems, however or has a much more varied history.172 Mellinkoff notes that "[f]he exact point in time has not yet been fixed when an unsung draftsman consolidated the progress into uncertainty by a formal coupling of and with or."173 Subsequent cases on the interpretation of and/or have resulted in a variety of conflicting results. 'Emerson (1935) at 85 'Emerson (1935) at 85 'it had never had a fixed grammar. 'Emerson (1935) at 90, 95 'Mellinkoff (1963) at 146 'See Mellinkoff (1963) at 148-152 for a discussion of the various meanings which or has been given. 'Mellinkoff (1963) at 151 - 134 -Punctuation was another area for confusion but Mellinkoff tells us that "[o]ut of [the] jumble of contrariety one common principle appears: all of this punctuation was addressed indirectly to the ear rather than the eye."174 One problem created by this 'punctuation for the ear1 was that it created "interminable sentences.... It also produced composition that was often sparsely punctuated and usually haphazardly punctuated."175 The English statutes followed this system of oral punctuation as did written petitions, deeds, leases, contracts and other documents. As Mellinkoff notes "[t]he practical result for later generations of lawyers and legal scriveners was an indifference to punctuation and an addiction to the long sentence. The long sentence was not a matter of carelessness but of principle. That was the way it had always been done and that was the way to do it."176 Verbosity was common to regular English at this time however another factor that aided in the verbosity of legal English was the introduction of documentary evidence into court proceedings. As Mellinkoff notes, "[sjince a party to a contract might easily become party to a lawsuit, the more verbose the document the better, lest the party be left to the uneven contest between a curt writing and a voluble disinterested witness. It was also easier now than in an earlier day to come by someone literate to set down a transaction in permanent form. As a result there was an increasing reliance on documentary evidence."177 Added to this was the development of the parol evidence rule. This gave "further encouragement to draftsmen to get it all in: the document would have to speak for itself."178 Mellinkoff notes that the situation was even worse in the courts of equity. All in all, "[t]he attention to detail, the affection for detail, stimulated by the blossoming rules of evidence...was no anomaly."179 The result being that, "[t]he finer the distinctions drawn, the more detailed were the documents drafted. Each distinction was reflected in more words. And each rash of words brought still further distinctions - now reduced to print for future lawyers to reproduce. Around and around."180 'Mellinkoff (1963) 154-155 'Mellinkoff (1963) at 156 'Mellinkoff (1963) at 164 'Mellinkoff (1963) at 173 'Mellinkoff (1963) at 173 'Mellinkoff