Who judges the law?

Types of law - Legal systems and culture - Eastern and Western legal systems
As the restrictions and prohibitions are multiplied in a country, the people grow poorer and poorer. When the people are subjected to over-much government, confusion reigns across the land.
Lao Tzu
Law is listed in the Oxford Dictionary as fifteen concepts. One of the major concepts is the legitimizing of what already exists such as the common law of England. The common law legitimizes the common usages that existed in England since time immemorial. Law can also be a morality (the law of Confucius), or a cultural expression of accepted business practices (mercantile law), or an expression of political theory (Russian law).
Religious, social, moral, or political law, is the way friction is dealt with. It is called `the law', but naming a body of opinion as the law, is misleading. It should be named as the law of the Torah, or the communist policy law, the free enterprise law, or some other combination. Law reinforces a particular viewpoint. It is not an unbiased body of knowledge handed down by wise immortals.
As law reinforces a particular viewpoint, the law of tribalised communities must reinforce the following:-
a) Friction is dealt with, as far as possible, by negotiated agreement.
b) Individual participation and responsibility.
c) The global marketplace.
d) An allegiance to a consumerism that is environmentally sustainable.
e) A concern for community.
Tribalised community law must show a concern, not only for looking after its own, but also for sustaining an economy. It is not concerned with individual morality or crime, except (due to the allegiance to consumerism) when it impinges on economic concerns. It is not concerned with divorce (a religious matter), or matters such as defamation.
Laws are culture specific. There is no such thing as a universal law. Comparative law studies reveal only one universal crime - murder. The laws of nations reflect the rules defining that society. In the United States and Britain the common law is a reflection of an individual belief in a sense of justice. In the Soviet Union and communist nations the law is a reflection of the values of the communist party. In Japan, China and East Asian nations the law is a reflection of the Confucian sense of authority. Nations that believe in State power use the Continental Code.
The global market is building a universal culture without an accompanying legal system. A vacuum exists, and into this a law, or set of rules, is slowly being formed. Law, government, and business are intertwined. A major change in one necessitates changes in the other two. The North Atlantic Co-operation Agency and the European community, moving towards a global government, require a legal system that is universal and not cultural specific. The emphasis must be on teasing out the growth strains and seeking a composite and universal whole.
There are already examples of a set of universal rules being formed. In September of 1987, International Business Machines (IBM) of the United States and Fujitsu of Japan, two giant computer organisations, resolved an important business dispute through arbitration.
IBM alleged that Fujitsu had infringed on its computer software. Both companies realized that they had to protect against infringement of their own software. At the same time the public demanded some certainty about software compatibility when new technology came onto the market. In the multi-billion dollar mainframe computer and software market the growth of new technology is so fast that a lengthy court battle could not be considered.
Protection under international copyright laws was not available. The law had not kept pace with worldwide demands for software protection. There are numerous judicial decisions that only further confuse an area already in turmoil. The legal process is also costly. In these circumstances the two computer giants preferred to use arbitration. They decided that a national system of justice, whether it be American or Japanese, was not suitable for this dispute.
IBM and Fujitsu agreed to appoint a panel of three arbitrators with legal, business, and computer software expertise. The panel had the authority to reach a decision and create a framework for each company to monitor the other for a period of five to ten years. The arbitrator's award therefore included a system of licenses, royalty payments, and a monitoring program to avert future disputes between the two companies.
Before looking at the creation of a universal set of rules into which the law of tribalised communities must fit, we need an assessment of the types of law presently in existence.
Types of law
Law varies from nation to nation but for simplicity's sake it will be divided into four main types; first, common law, which is the law of the United States, Canada, Britain, Australia, New Zealand and variations in South Africa, India and Pakistan; second, continental codes, the law of European and South American nations; third, communist codes, the law of communist nations; and fourth, Asian codes, the law of Asian nations other than China.
The common law is based on the adversarial system which assumes the truth can be determined by two parties battling it out. It is also based on the assumption of a similar situation occurring in history and that the decision in the previous situation can be re-applied.
The continental codes are based on the inquisitorial system where, if a charge is laid, it is assumed to be correct. The party accused must, to escape liability, show it is untrue. It is also based on the government decreeing what the law is.
The communist codes are closer to the continental codes than to the common law, but based on political attitudes rather than a government definition of good. That is, liability or otherwise is determined on adherence or non-adherence to communist ideology as expressed by the party.
Asian codes are an interesting mixture of codes and Confucian philosophies. Asian laws correct what has happened and thereby restore harmony. To quote from the LAW OF IMPERIAL CHINA,by Derek Bodde and Clarence Morris;
The penal emphasis of this law, for example, meant that matters of a civil nature were either ignored by it entirely (for example, contracts), or were given only limited treatment within its penal format (for example, property rights, inheritance, marriage). The law was only secondarily interested in defending the rights--especially the economic rights--of one individual or group against another individual or group and not at all in defending such rights against the state. What really concerned the law--though this is to be surmised rather than explicitly read in the Chinese legal literature--were all acts of moral or ritual impropriety or of criminal violence which seemed in Chinese eyes to be violations or disruptions of the total social order. The existence of the norms of propriety was intended to deter the commission of such acts, but once they had occurred, the restoration of social harmony required that punishment be inflicted to exact retribution against their doer. In the final analysis, a disturbance of the social order really meant, in Chinese thinking, a violation of the total cosmic order because, according to the Chinese world-view, the spheres of man and nature were inextricably interwoven to form an unbroken continuum.1
Legal systems and culture.
Each type of law produces slightly different results that reflect the differing cultural values. The largest jail population and the largest injury awards are to be found in the common law systems. This is a reflection of the respect for individual rights in common law nations.
The communist type systems produce results orientated towards political goals. When a train driver negligently does not obey signals and causes a train wreck he is likely to be jailed for not faithfully serving the proletariat.
A continental system is a law determined by government. It therefore abhors a threat to stability, particularly a threat to the government. In the late 1970's, West Germany felt threatened that control would be lost to terrorists. This was unacceptable and individual rights were submerged in searches for terrorists.
Asian systems are only used as a last resort. In criminal matters guilt is often admitted. Sentencing, compared with common law nations is light, reflecting a concern not to dishonour another person, and an attempt to achieve social harmony. It embodies the ethical norms of Confucianism which the ordinary person accepts due to their pervasive influence. Abhorrence is directed to the tearing of the social fabric - dishonouring the family or clan.
Legal systems are a continuum from paramount individual rights to paramount collective rights. The common law nations are at one end of the continuum with individual rights and individual morality. Next would be the continental codes with individual rights determined by collective morality. Thirdly would be the communist codes with collective rights determined by political morality. At the other end of the continuum is the Asian model with collective rights determined by collective morality.
The two ends of the continuum, the common law system and the Asian model, can be compared on the basis of economic effectiveness. Comparisons can be made between the laws in manufacturing centres, principally California in the United States and Japan.

Legal systems are part of the `cultural trance' and therefore their effectiveness to the consumer is not seriously questioned. It is assumed to be `the law'. They can, however, be tested in the market place. The test is consumerist; which is the most effective in the production of goods.
Eastern and western legal codes
It is a strange twist of fate that the major exponent of Western culture, thought, and law, California, faces the major exponent of Eastern culture, thought, and law, Japan, across the Pacific Ocean. The continuing interchange between these two provides a dramatic contrast of the strength and weaknesses of their cultures. Their attitudes towards law, and their emphasis on the use of the legal system, are quite different.
Assuming that the legal services are equally satisfactory, and the sophistication of both economies, relatively equal, comparisons can be made of the hours spent in producing a contract or obtaining a divorce on a mass scale. Comparisons can be made of the number of persons required to operate each system and the effect each system has on his or her society.
In California there is one lawyer for every 400 people. In Japan there is one lawyer for every 9,000 people. Japan in 1983 had a total of 15,000 lawyers whereas American universities graduate 35,000 each year. If the effectiveness of both systems is the same then there is about 67,000 intelligent and well educated lawyers plus their support staff causing an unnecessary expense to California, or to put it another way, one lawyer in Japan is as cost effective as twenty-five lawyers in California.
The greater the number of lawyers proportionally involved in the system the greater the number of citizens involved in legal transactions. This is another societal cost as the number of people involved in litigation are obviously not working. In comparing California and Japan it is clear that the Californians are much more litigious than the Japanese.
The Japanese place great emphasis on solving their disputes by reconciliation between the parties. To place the matter in dispute in the hands of a lawyer is an admission of failure to solve an interpersonal problem. The Japanese therefore avoid the legal system wherever possible. The concern for group approval and good will from a fellow country-man ranks so highly that problems are not viewed as matters that can be resolved merely by the payment of money. Money may well be involved in a settlement but efforts are more concerned with accepting that the event has occurred and then trying to repair the social fabric. It would not be assumed that a person deliberately intended to injure or damage another. To assume that someone intended to injure another would mean that a person who is a member of a group was acting contrary to that group's interests. To act contrary to a group's interest could mean expulsion and there is no greater penalty than to be expelled from the group and become an outsider. For a Japanese to be treated as an outsider is a devastating experience to be avoided at all costs.
Variations of this type of thinking are found throughout the nations that use the Asian type codes. The concern to preserve social harmony militates against excessive use of legal action. This concern has the teachings of Confucius as its basis. An example of these teachings is the following story.
The Duke of She observed to Confucius: "In my part of the country there is a man so upright that when his father appropriated a sheep he bore witness to it." Confucius said: "The upright people in my part of the country are different from that, for a father will screen his son, and a son his father. In that there lies uprightness".
The Eastern view is that crime is the responsibility of the group. It is everyone's concern that the clan, the family, and the society, strengthen and support each other.
During 1983 a couple in Japan won a court case against a neighbor who was looking after their child. The neighbor had allowed the child to wander and the child fell into a canal and drowned. Many children are looked after by neighbors when they come home from school if their parents are still at work. If the neighbor in this case was found to have a legal obligation to look after the child then that might affect how millions of children are cared-for after school.
The facts and the award given in the court case were reported in the newspapers. The couple were then showered with telephone calls, letters, calls at work, from total strangers expressing their disapproval. As a result of this harassment the couple returned to court, had the judgement set aside, and returned the award.
When compared to the California experience of medical doctors on the ski slopes refusing to treat injured persons because they fear a medical negligence lawsuit, several questions are raised.
Immediate treatment on the ski slopes is likely to aid a persons recovery and delayed treatment results in longer hospitalization. There is therefore an immediate economic loss in increased medical costs and a loss of time in which the worker could return to work. On a cost effective basis the Asian system is more efficient than the common law system.
From a social viewpoint the public are likely to lose respect for both the medical and legal professions when the legal system inhibits doctors from responding to an emergency. Once again the Asian system seems preferable.
The societal trance makes both peoples view each incident as acceptable. To the Japanese the concern of the many was paramount despite the fact that occasionally an unfortunate individual or couple suffers. The Californian protected any individuals right to the legal system despite the fact that there would be a loss suffered by society at large.
Another illustration concerns Honda Motorcycle Co. and Suzuki Motorcycle Co.. Honda developed a three wheeled scooter with the two rear wheels being able to operate differentially. Suzuki copied this design and produced its own three wheeled scooter. Honda threatened to begin a damage action against Suzuki for patent infringement. Within a period of less than six months the matter was settled. Suzuki continued to build three wheeled scooters but paid Honda a patent fee. The swiftness of the solution compared with the American experience where tremendous fights and awards occur in patent suits illustrates two hallmarks of the thinking prevalent in Asian type law: First, an acceptance that the event has happened without trying to reverse the situation, an acceptance of fate: Second, the forging of a solution that allows both sides to continue onward, economically and socially, by preserving social harmony.
The Western attitude is adversarial, the other side is the competition, and it is a battle that one tries to win. If the result is the loss of a corporation due to bankruptcy then the strong have survived and it is a survival of the fittest. Such an ethos is derived in part directly from the common law.
The cost efficiency of automobile workers, producing a world consumption article, is revealed in the market place. Law, not being a world consumption article, is shielded from market scrutiny.
Any test within a nation, applied to the efficiency and usefulness of a profession, depends on stature. If a profession has a high rank socially, economically, and politically, then no other profession has the ability, or willingness, to test its usefulness and efficiency. For example, politicians need only be concerned with public opinion. The California legal profession has high social, economic, and political ranking. It escapes any rigorous test. Automobile workers have a lower status and their efficiency and usefulness is tested in the market place.
The continuation of the litigious attitude in the common law nations has a detrimental effect on production. Not only because it draws an excessive number of people into the legal field, but also because acceptance and accommodation is a beneficial attitude to industrial relations. Social harmony increases production and it is likely that Confucianism and Bhuddism will emerge as the dominant attitudinal form for the production of goods.
The Eastern approach, accepts what has happened and seeks a solution that harmonizes with society. The Westerner seeks out his or her individual rights and obtains redress. The common law adversarial system pits the skills of one against another. A trial is a struggle to display the advantages of each side and to show them in their best, or worst, light. Weaker points are ignored or suppressed despite the possibility that they might give a clearer understanding of why the matter was brought to court. Trials become a game where one side tries to fix responsibility on the other, and the other side tries to evade it.
The common law develops a habit of evading responsibility and placing it on the other side. It is a divisive ethos and nurtures an attitude that searches for a scapegoat. The banking community will say that they are not responsible for inflation, the government is, and so on. The quick reaction in common law nations is to feel and react as if under attack rather than seeing a problem as something that all concerned must solve. The thought and emotion become part of the cultural trance.
The common law system has caused a decline in the effectiveness of Western industry. The continuing commitment of Britain to its principles of common law is burdening its people with an ineffective load in solving their problems. An example is that a roadway, permitting traffic from the European continent access to Britain north of London, without passing through London's heavy traffic, took many, many, years to build. A ring road was desperately needed and was begun in 1975. By 1983 the London ring road was less than half completed, largely due to continued discussion as to the rights of various parties. As one Englishman wryly commented, "We argue about it so much that by the time we have it finished, it will be obsolete".
Marilyn French has described the American system in her book, BEYOND POWER, as a profession devote to dominance and control, created by a class that wished to guarantee its own rights. She further states that the adversarial system with its emphasis on competition, individuality, and aggressiveness, has pervaded Western thinking for several centuries. The result has been that conflicts among business interests, military branches and well financed lobbies, rarely benefit the majority. Good government, supposed to result from competing interests, is a false assumption of contemporary liberalism.
It is a matter of great pride for Americans to point out the values and prestige of their legal system. The system, however, does have some flaws and Americans would be justified in pondering if their concern and solicitude to their legal system has blinded them to other realities.
The criminal law system of the United States is intended to reduce the level of violence within the nation. The level of violence in the United States is, however, considerable higher than most nations. In 1986, for every one hundred thousand people in the United States there were two hundred and eighty-six incarcerated. At the same time the comparable figure in Japan was forty-six or 16% of the American total. The cost of incarceration is in the region of $40,000 to $50,000 U.S. per inmate in a Federal penitentiary in the 1990’s. Such figures indicate the U.S. criminal system is not very cost effective compared to the Japanese figures. The Japanese control crime at 4% of the cost in the United States, measured in the cost of lawyers and other comparisons can be made all generally indicating is extremely expensive and, on the basis of return for money invested, and extremely poor investment.
All common law systems base their theory of sentencing on the three principles of deterrence, reformation and rehabilitation. Every working day thousands of judges give sentences based on these principles but a jail term or fine does not deter, or reform, or rehabilitate, the majority of wrongdoers. The three principles of sentencing do not work, and, according to criminologists never have.
Apologists are quick to point out the benefits, particularly in the field of civil liberties, cannot be measured in monetary terms. However, the citizens of all nations usually believe their civil liberties are adequately protected and such a defence is cultural blindness. The common law is best thought of as a 17th century morality play concerning good and evil with a wise man, the judge, protecting society.
A common law trial is often pure theatre where judges and lawyers play psychological patterns with everyone having a ‘nodding acquaintance’ with the law. - A theatre where the ‘top gun’ or ‘hired gun’ syndrome, easily assumed by lawyers, breeds arrogance fatal to the service of humankind.
The common law, as an integral part of the cultural trance, fails to enhance levels of production or effectively contribute to social harmony. Such failure should not be rewarded. Instead a search needs to be undertaken for a universal law where collective rights are determined by a collective morality.

1. P.4. The Law of Imperial China. Derek Bodde and Clarence Morris. 1971. Harvard Studies in East Asian Law series. Harvard University Press.