The Emergence of world legal cultures to create laws.

“To truly know a man, you must walk a mile in his shoes.” Charles H. Koch, Jr.1


World co-operation has generated a variety of supranational organizations, with responsibilities ranging from trade to crimes against humanity.2 These organizations often include judicial-like tribunals and these tribunals have and will increasingly create law. Together they are evolving a global legal culture.3 This legal culture will initially derive from national legal cultures and yet, over time, will transform national legal

1 Dudley W. Woodbridge Professor of Law, William and Mary School of Law. B.A. University of Maryland, 1966

2 The term “supranational organization” is used for a particular type of international organization that is “empowered to exercise directly some of the functions otherwise reserved to states.” Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory of Efective Supranational Adjudication, 107 YALE L.J. 273, 287 (1997).

3 “Legal culture” is used here to encompass the panoply of societal elements associated with a legal system. Lawrence Friedman, a United States legal sociologist, has focused on that concept. While he noted that other scholars have used the term differently, his use of the term “refers to ideas, values, expectations and attitudes towards law and legal institutions, which some public or some part of the public holds.” Lawrence M. Friedman, The Concept of Legal Culture: A Reply, COMPARING LEGAL CULTURES 34 (David Nelken ed., 1997). He intended that what falls within this term is “living law.” Id. at 36. The term is criticized for lack of rigor and coherence: “The imprecision of these formulations makes it hard to see what exactly the concept covers and what the relationship is between the various elements said to be included within its scope.” Id. at 13, 15. Catarrhal conceded that it is useful “for its emphasis on the sheer complexity and diversity of the social matrix in which contemporary state legal systems exist.” Id. at 29. In this article’s discussion breadth is much preferred to precision and hence the term seems appropriate.

cultures. The legal principles that will guide this emerging global legal culture must now be analyzed in order to gain some understanding of the future. This article offers a framework for thinking about the future development of global legal systems.

The twin pillars of the immediate iteration of this global legal culture will be the civil law and the common law systems. This prediction is not mere transatlantic chauvinism. These legal systems have, for good and bad reasons, migrated around the world. At present, 33.8% percentage of the world’s jurisdictions, encompassing 55.6% of the world’s population, are covered by the civil law model or civil law systems mixed with others (for example indigenous or religious legal ideologies). The common law model along with systems mixed with it include 28.24% of the jurisdictions, and 14.68% of the world’s population. Hence, combined civil law and common law based legal cultures cover over 70% of the world’s population in over 62% of the jurisdictions.4 Moreover, the two currently dominant governments are the United States (US) and the

European Union (EU).5 The US, with due respect to its country of origin, England,

4 University of Ottawa, at http://www.droitcivil.uottawa.ca/world-legal¬systems/eng-monde.html.

5 The term “EU law” in this article is a concession to popular usage. Technically,

it is a misnomer. Hanlon provided one brief description of the correct nomenclature: The TEU (Treaty of European Union or Maastricht Treaty) created the ‘European Union’. It consists of three ‘Pillars’. In the middle are three existing communities, (i.e. ECSC (European Coal and Steel Community), Eurotom and the E.C. (European Community)). These three communities will be known collectively as the European Communities. It will be noted that the TEU officially changed the name of E.C. dropping the “Economic” from the title. On either side of this central “Pillar” is the Common Foreign and Security Policy (CFSP) and Cooperation in Justice and Home Affairs (JHA). These three “Pillars” support the over-arching constitutional order of the Union. However, only the central Pillar, the E.C., is governed by Community law. The CFSP Pillar and the JHA Pillar are governed by intergovernmental cooperation. This means they are outside the jurisdiction of the Community institutions, particularly the Court of Justice. Neither will any of the Articles of the outside Pillars be enforceable, or challengeable, in National Courts. Thus, although the Union is wider than the European Community it has its roots in the Community.

JAMES HANLON, EUROPEAN COMMUNITY LAW 9 (2d ed. 2000). Another justification for

an inclusive sense of “EU law” is that the future will almost surely see a body of law covering all three pillars, although many of the aspects of the two “outside” pillars will

represents the common law system, albeit its own version. The EU has largely adopted civil law concepts, again with due respect to England’s and Ireland’s common law presence in the EU, and hence will add strength to consideration of civil law principles. For these reasons, the first steps toward a global legal culture will be dominated by some blending of civil law and common law.

Of course, analysis based on the merger of these systems can only provide a plausible beginning in envisioning the global legal culture because, as recognized below, other customary and indigenous legal cultures, many of which have mixed with the two transatlantic systems, will certainly have increasing impact on the global legal culture. Any prediction of global culture in any regard faces claims of overwhelming diversity but we have seen an unprecedented merging of cultures in recent times in the face of such cultural diversity. The development of supranational organizations such as the EU demonstrate the development of an integrated legal culture in the face of seemingly incompatible and even belligerent histories. In sum, it is plausible to conceive of a global legal culture even in the face of great diversity and to forecast that the early stages of that legal culture will borrow a good deal from civil law and common law experiences.

Careful consideration of this emerging legal culture has become an imperative. As a US legal scholar, I feel a particular sense of urgency in that enterprise. Other legal regimes, both supranational and national, have increasing impact on US legal practice and US laws. Yet, few US lawyers have little more than superficial knowledge of other legal systems. While legal systems are generally local and nationalistic, the US legal culture has remained even more isolated than most. On the other hand, lawyers from other legal systems have been studying the US system, often from the inside (obtaining US law degrees and participating in US firms), for generations. To a large extent, the health of the US legal culture and effectiveness of US practitioners depend on how quickly its practitioners and scholars can catch up.

To encourage all, but particular US, lawyers to think about transformation of the law, this article will attempt to envision a global legal regime. The purpose is more reflective than predictive. Nominally, the article has three parts. The first part offers an overview description of the emerging supranational legal institutions and the major forces moving them. The next part will outline civil law legal concepts and provide background for common law readers. To further the goal of this article, it will do so as it suggests some issues that will arise as the civil law system is incorporated into the global legal system. The last part will move to the article’s major goal of setting a framework

be ruled more by politics than law as in the US.

for contemplating the evolution of a global legal culture as it might be based, to some extent, on the merger of this globalized version of civil law thinking with US/common law thinking. Some effort is made to suggest how other major legal cultures may impact on this system but with the recognition that thinking about the interaction of the two major transatlantic systems is sufficiently ambitious for one article.

Actually, the analysis is a unit presented in three stages: institutions, civil law overview and then the blending of the civil law and common law legal cultures. The first stage of the analysis looks to the experience and development of four centralizing regimes with global impact: the US, Europe, the United Nations (UN), and the World Trade Organization (WTO). Since the work is about legal culture the concentration is on the adjudicative institutions of these four organizations. Largely for background, the piece looks to the experience of the US federal courts and the European trade and human rights regimes. The US provides the prediction with some 200 years of experience and Europe provides it with about 50 years. The latter experience is more on point because it is a recent uniting of a number of national legal cultures. As useful to this analysis is that Europe has taken some steps in melding civil law and common law legal cultures. The UN engages in human rights creation, promotion and enforcement. Its International Court of Justice (ICJ) presents a plausible and in fact working global tribunal for those purposes. It will also provide some experience in unifying a legal culture. Like Europe, the global regime has a trade regime separate from its human rights regime. The trade regime now has the WTO to promote and protect trade values. The WTO has its own court like bodies. Again the WTO adjudicative apparatus is presented more as a plausible vehicle for developing global law but it also provides centralizing experience. The European experience demonstrates that this putative trade regime will ultimate affect almost every aspect of national law, indeed society in general. Like Europe, both the UN’s rights tribunal and the WTO’s trade tribunal have been and must continue to deal with the tension between civil law and common law ideologies. So, we have plausible nascent world tribunals and we can engage in at least some preliminary thoughts about evolution of a global legal culture recognizing that these tribunals might be the vehicles for carrying it forward.

Now we can begin the job of contemplating what this global legal culture will look like. As stated, about half the world’s population is living under some form of civil law system. Thus, it is imperative that common law lawyers and scholars understand some of the basic tenets of a civil law legal system in order to engage in predictions about a global legal culture. Underneath this discussion and continued into the next stage is the observation that there are subtle but fundamental ideological differences between civil law legal thinking and common law legal thinking despite some appearance of convergence between the two great transatlantic systems and that our task

requires sufficient understanding of the civil law model in order to form some thoughts about the melding of that model with the common law model. While these two legal system have common cultural as well as legal sources, a person from a civil law system will have different intuitive understanding of law than one from a common law system. The task here is to gain enough understanding to contemplate how a civil law legal mind will think about an issue on the world stage. Thus, this part also projects the civil law ideology into the global legal culture in order to move the analysis forward as well as offer some common understanding of the civil law model.

Finally we can blend in the common law. A separate discussion of the common law ideology does not seem necessary because I anticipate that most of the readers will come from a common law legal culture, more precisely the US. An understanding of the basic tenets of the common law model are presented in the discussion of the interaction of the two models. The primary goal of this stage of the analysis is to identify areas of tension between common law and the civil law ideologies. Nonetheless, I suggest potential resolutions of those areas of tension. More ambitiously, I identify certain aspects of these models which might best be adapted to the global legal culture. These suggestions will be set up by the efforts in the second stage to suggest how a given aspect of the civil law system might emerge in the global legal culture. Some much more cautious attempts are made to identify aspects of other legal cultures, e.g. Islamic or Asian, that might have impact on the current development of the global legal culture. I recognize that a variety of potential legal ideas may be adapted from other legal cultures or develop from the creative energies of future generations but contemplating those is simply too much at this point.

Hopefully, these three analytical stages come together in the readers mind to present a framework for analysis. Some effort is made to engage in future gazing. That was simply irresistible but the real goal of this piece is to lay some groundwork and encourage thinking about the dimensions of a global legal culture. Although I encourage US lawyers and legal scholars especially to become engaged, all the citizens of the world must be active in the design of the global legal culture.

I. Emerging Global Institutions and the Forces That Will Shape Their Laws

This part examines the judicial-like tribunals that will contribute to the global legal culture. It focuses on the two major global adjudicative institutions, the World Trade Organization’s (WTO) dispute settlement apparatus and the United Nation’s (UN) human rights adjudications. In order to suggest the impact these tribunals may have and how they may contribute to the evolution of a global legal regime, it looks at the evolution of the European legal regime and to a lesser extent the centralization of US law

over its history.

A. Present and future world judicial regimes

Two parallel nascent global judicial regimes are evolving in a world-wide legal culture: the trade adjudicators and rights adjudicators. Trade adjudicators began to evolve when the WTO’s “dispute settlement bodies” (DSB) were constituted. An ultimate rights adjudicator machinery have evolved from the UN’s International Court of Justice (ICJ) (sometimes this tribunal has been referred to as the “World Court”).6