How does the diffusion of law affect our understanding of legal orders?

I. Introduction

The new academic approach towards analyzing global diffusion of law challenge the traditional understanding of legal orders. Instead of being perceived as separate, different entities it is now widely acknowledged that no legal order exists in total isolation. All of them are influenced by the 'neighboring' systems in a variety of ways: by processes which are imposed or voluntary, direct or indirect and finally deliberate or not. The aim of this essay is to analyze and point out in what ways does diffusion of law influence our understanding of legal orders.

In order to fulfill this aim, I will first briefly outline, what have been the traditional assumptions about the nature of legal orders. Then, using different academic theories I will demonstrate what is now perceived to be naïve about those assumptions, and how does it change our perception of legal orders. In this essay I will argue, that appreciation of the phenomenon of diffusion completely changes our understanding of legal orders and interactions between them.

II. Traditional perception of legal orders

The traditional perspective western academic scholars had on the nature of legal orders is now considered to have been municipal state law - biased (Twining 2004, 15). In 1950's legal systems around the world were being roughly divided into two major categories: that of common law and civil law. The major exception has been socialist law in countries under the influence of the Soviet Union, but those were still seen as belonging to civil law family. Legal orders were perceived to be strongly rooted in national state institutions. Their spread of legal orders was seen as occurring mostly through exporting legal solutions (acts, statutes, institutions) from developed, western, imperialist countries to their colonies (Twining 2004, 5). Those transferred laws were mostly supposed to replace the local customary law, or fill the 'legal vacuum', where certain areas of economy or social life have not been regulated by law before. Other commonly acknowledged assumptions were that the agents of transferring law were national governments, and that the spread of law occurred horizontally i.e. between separate national states.

III. Influence of diffusion on understanding legal orders

There currently seems to be an academic consensus about the significance of influence of diffusion on legal orders. It is that no legal order exists on it's own, uninfluenced by other systems around it. It follows from that assumption, that no legal order is pure in it's nature. For example English legal system, perceived to be the a common law system also incorporates different civil law systems and European Community law (Örücü & Nelken 2007, 172). All legal systems are also influenced by international legal agreements, like trade treaties, non-proliferation treaties and the non-intervention doctrine.

Moreover, the assumption that legal systems belonging to civil or common law orders are composed mostly of municipal state law is also challenged. When we take into account the influence of religious, customary and international law it seems that we cannot talk about any separate, 'pure' legal orders. If we establish that all of them are in fact mixes of different legal systems, the only issues to assess are the proportions and nature of those mixes (Örücü & Nelken 2007, 177).

In his essay on the nature of diffusion William Twining demystifies the false assumptions about the spread of legal ideas. It is useful to examine how do legal systems change because of diffusion, as it demonstrates how we should perceive the nature of legal orders. Below I will analyze four points professor Twining makes about the nature of diffusion and demonstrate how does it affect our understanding of legal orders.

Firstly, it needs to be noted that diffusion of legal ideas, codes and institutions occurs at different levels. It was traditionally understood to occur only on a horizontal, cross-national level, but it is now acknowledged that legal ideas also spread vertically e.g. from international to domestic law (Twining 2004, 21). A good example for supporting this claim is France, where rights and principles of the human rights movement (and in particular the European Convention of Human Rights) have been enacted in the national legislation. Hence we can see, that talking of legal orders only in terms of interactions between municipal state systems is not enough. There are clearly other levels on which law is being made and transferred, which also need to be taken into consideration. Those levels, such as international law, do not easily fall into the category of either civil or common law, but are rather a mixture of both, as well as other elements.

Secondly, it is argued that changes in the legal systems brought by diffusion may occur informally, without a legal enactment by a legislative body (Twining, 23). When ideas are transferred by colonialists, missionaries, travelers or even literature they still might be very influential in certain areas, even without being formally recognized. This claim indicates, that legal orders are very 'organic' in their nature i.e. constantly change and evolve without deliberate state action.

Another point Twining notes is that laws transferred to different countries are being changed and adapt to local conditions (Twining 2004, 27). It is another argument for the claim that legal systems are not static but interactive. Even though a complex set of legal regulations might be transferred from one common law country to another (e.g. from England to Kenya), it will be adapted to the local conditions, which are different from those in the exporting country. Kenya cannot then be classified simply as a common law country, since its legal system also relies on religious and customary law.

Finally, changes in the nature of legal systems can not only be brought by governments, but also by non-state actors (Twining 2004, 25). Religious law serves as a good example. Although common law was brought by the European colonialists to many African countries, often replacing or complementing local tribal and customary laws, the catholic religious rules brought by church missionaries were also very influential in regulating social life of local populations. Religious law diffuses independently and does not require state recognition to take bounding effect on the population. This demonstrates, that legal orders are capable of evolving in certain ways on their own and cannot be fully controlled by state authorities.

One of the most striking examples of creation of 'law without a state' is the emergence of a truly global lex mercatoria (Teubner 1996, 3). In his book on the phenomena of global law Gunther Teubner writes about the phenomena of possible emergence of the 'Global Bukowina' - Eugen Ehrlich's idea that law will be created by a global civil society. Although he argues that such possibility is still rather unrealistic, the case of commercial law is unique. The global system of contracting is special, because it's paradoxically self-validating (Teubner 1996, 16). The validity of lex marcatoria provokes many controversies, but if we acknowledge that it creates a legal system without a state then it would fundamentally alter our perceptions of legal orders as at least partly connected to state institutions.

IV. Conclusions

The study of diffusion makes us aware of the great complexity of legal orders around the world. It challenges our traditional perceptions of legal systems falling into two big categories of common and civil law. When examined closer, it is clear that no legal order stands on its own, without being influenced by other sources of law like religion, custom or even trade. Although diffusion of law occurs for as long as mankind developed a system of legal rules, globalization has greatly facilitated this process. The creation of truly global lex mercatoria is just one of the symptoms of this acceleration.

In the above analysis I have demonstrated, that diffusion of law makes us aware of the 'organic' nature of legal orders - the fact they can easily change and adapt to changing conditions. National legal systems can incorporate international regulations, while customary and religious law spread into spaces unoccupied by municipal law. In this extensive network of interactions it is almost impossible to identify simple patterns that would allow us to classify legal orders into certain categories. They rather ought to be treated as separate, specific cases, each with a peculiar combination of legal traditions. What is beyond doubt, is that the appreciation of diffusion fundamentally changed our traditional perceptions of static legal orders.

V. Sources

• Örücü, E. (2007) A general view of 'legal families' and of 'mixing systems'. In: E. Örücü and D. Nelken, ed. Comparative Law: A Handbook. Oxford: Hart.

• Teubner, G. (1996) Global Bukowina: Legal Pluralism in the World Society. In: G. Teubner, ed. Global Law Without a State. Aldershot: Dartmouth Publishing.

• Twining, W. (2004) Diffusion of Law: A Global Perspective http://www.ucl.ac.uk/laws/academics/profiles/twining/diffusion.pdf [Accessed 29/11/09]