An Overview of Certain Aspects of Comparative Law

Transcription

1 An Overview of Certain Aspects of Comparative Law Wilai Napanukroh * Influence of Roman Law in Western Legal System Civil and common law systems, as western legal system, have developed for a long time. Roman Law, as an ancient legal system, has played most important role in both two systems. In the legal profession, Classic Rome had leading lawyers, the jurists, the early ancestors of western lawyers. They are private professional lawyers emerged as advisors to a politician (the Praetor) in his effort to prepare the instructions (formula) to a one man jury (in iudex). (Rudolf B. Schlesinger, Comparative Law, Cases Text Materials, 310) These jurists were exceptionally knowledgeable in - ius civilis (formal principle and structures found in ancient sources such as the Twelve Tables) - ius praetorium of ius honorarium, flexible political platform Eventually the work of these jurists was synthesized and codified in Justinian s Corpus Iuris Civilis in 533 AD. The Orators, another early professional, works survives through the accounts of Cicero. They eloquently attempted the persuade the Iudex Litigants could be represented in court by any honest man, including a freedman, acting as a procurator (hence proctor in admiralty and in ecclesiastical courts more than a millennium later). Notaries were as yet simply the scriveners who wrote instruments know as tabellae. As tabelliones, they were to mature into a separate profession although not, in Roman days, to one enjoying ex offico the numerous priviledge and immunities to which advocates were entitled. (Schlesinger, 319) * President of the Election Division of the Court of Appeal, Region I. 1

2 Post 250 AD, no more authoritative texts were written by jurists because everything in civil law was already written. A closed profession emerged as an organized bar, limited in number and protected by imperial priviledge. (Schlesinger, 319) By the fifth century at the latest, professional instruction in law was obtainable at law schools in Rome, Constantinople and ---- at Beryt (Beyrouth). (Schlesinger, 320) They were authorities, unlike the jurists, did not create law. These scholars became socially important. Forensic legal profession was divided into a higher and a lower branch: advocates at the imperial courts, and procurators at the lower ones. (Schlesinger, 320) Tabellio, non-litigators, became a notary. One of other main contributions of Justinian to the development of the legal profession was the education system which was divided into five oneyear segments. The most influential legislative piece of all time is Justinian s Corpus Juris Civilis, the Body of the Civil law. It is a codification of Roman law, divided into four parts: the Institutiones, the Digesta or Pandecta, the Codex, and the Novellae. It disappeared during the Dark Ages. The second life of Roman law, starting with the recovery of the Digest in the late eleventh century and law teaching at Italian universities in the twelth found the notarial profession in place. Law teachers at the universities quickly identified with the Roman jurists, emulating the responsa of the latter with consulta, or learned opinions, to counsel in litigated cases as well. The learned lawyers acquired their legal knowledge, in Latin, in multi-year university course following Justinian s curriculum but now including Canon law. It was this latter legal system which provided the first coherent scheme of hierarchical juridical organization and legal procedure. A recent study places the emergence of a practicing profession of university-trained advocates in ecclesiastical courts in the latter part of the thirteenth century, with emphasis on the year 1274, which also is the date of enactment of the first French Royal ordinance relating to advocates. It is likely that this 2

3 profession, and ecclesiastical court practice generally, provided the prevailing model for civil lawyers. (Schlesinger, ) The historical influence Roman law had on modern European development can be divided in the development in education: the history f the law schools in the universities of medieval Europe, the development of State and administration in the same period, and the development of ideas about law in this period. (Schlesinger, 332) Legal education in the medieval universities was based on the Corpus Iuris of Justinian. Belogna had first law courses at the end of the eleventh century. The subject taught was at first only the Corpus Iuris of Justinian Bologna had two law faculties, one devoted to Roman law (the Legists), the other to Canon law (the Canonists) The educational system worked out in Bologna became the model for all legal instruction given at universities in Europe during the Middle Ages. (Schlesinger, 333) That is the reason for the Roman Law acquired significance on the European continent. Oxford and Cambridge did follow the model of Bologna and taught Roman and Canon law to the exclusion of local or territorial law. The result was that all over Europe a new professional group came into existence: the lawyers, the juristae. They all had had the same training, the ius utrumque; they all used the same method, the method of scholastic legal interpretation, and they all had at their disposal the same international literature on Roman and Canon law. (Schlesinger, 334) Universities in the later centuries of the Middle Ages produced trained lawyers to help princes, cities, and churches in their administration. It was the period of changes in administrative and judicial systems. Slowly and step by step, medieval feudalism is replaced by a centralized administrative system handled by civil servants at the centre as well as on the level of the local 3

4 administration, and it was in these new or transformed judicial and administrative bodies that the new profession of lawyers found its place in society. (Schlesinger, 335) Lawyers served in the Roman Catholic Church as judges and advocates. The Jurisdiction of ecclesiastical courts was extensive and extended to all matters of marriage, divorce status, wills and general contracts. But in states and cities, lawyers were counselors. Lawyers began to fill places in the new administrative organization and specially in the Central Courts which were set up. In many instances, they replaced the noblemen who is feudal times has been members of these courts. (Schlesinger, 336) The lawyers applied the Roman Canon Law they learned at the university in the exercise of their new functions in administrative and judicial matters. But lawyers in the service of states and free cities had difficulty in choice of law. States and cities had their own laws. Rules are also different for the individual professional groups, eg. merchants, peasants, noblemen, etc. The Italian law professors elaborated a convenient theory of sources of law ---- This theory was that a judge must first apply local customs and statutes, but whenever he could not find an appropriate rule to decide the case before him in this legal material, he could turn to Roman Canon Law and fill the gaps found in territorial or local law by the rules of Roman Law. He also was entitles according to this theory to construe local customs and statues within the framework of Roman Law Roman Law was to be considered as ratio scripta (written reason) and as such applied in every country Roman Law was a kind of treasure-house where everybody could enter and find what he needed to solve a legal problem. (Schlesinger, 337) The lawyers on the Continent applied a mix legal system whose components were on one hand local statutes and customs and on the other hand the law books of Justinian and the Canon Law. 4

5 The whole the system of Ius Commune on the Continent lasted up to the eighteenth century and was finally changed only by the modern national codifications Since then, the law on the Continent has been split up into a series of national systems We can still say today that Roman Law on the Continent is a kind of ratio scripta. It has given to Continental lawyer their underlying basic notions and Roman legal expressions still are the lingua franca of Continental lawyers (Schlesinger, 338) In England, ecclesiastical courts in medieval period applied the Roman Canon Laws. At the same time, Canon and Roman Law were taught in the law schools in Oxford and Cambridge. Up to the end of eighteenth century there were courts in England which not only followed Roman Canon procedure but also based their judgement, as far as substantive law is concerned, on Ius Commune. This is true for the High Court of Admiralty and the Curia Militaris, the Court of the Constable and Marshal. (Schlesinger, 339) In the formative years of the equity courts the Chancellors, who at the time tended to be clerics, adopted a Romano - canonistic form of procedure as well as a number of substantive principles derived from canon law In addition, both Roman and modern civilian ideas were imported into the United States during the first half-century of the Republic, and in more limited measure again in recent times, e.g., in connection with the Uniform Commercial Code. (Schlesinger, 341) Thus, Roman Law ideas, concepts and terminology had actually a quite important role in the early foundation of the English common laws tradition. (Schlesinger, 341) The Roman law not only has influence on current civil and common law systems, but additionally it creates the idea of a distinct western legal system separate from other systems. This idea concerns with the disputes of private individuals, with the notion of rights because when Roman law was developing,---- the legal problems that Roman law dealt with in the formative period were 5

6 what one would expect: the resolution of disputes between private individuals that arose out of torts, simple contract, and succession. In addition, there were problems of status, both because different groups of Roman society were sharply divided-patricians, plebeians, and slaves, for instance- and because Romans distinguished themselves from the citizens of other Latin states Although Roman society soon changed radically, the focus or point of view of Roman law had been set. Thus Gaius, writing in the period of the Antonines (C.161 A.D.), said, The whole of the law observed by us relates either to persons or to things or to actions Gaius analysis was continued by the draftsmen of the Corpus Juris of Justinian. (Schlesinger, 296) Distinctions between Courts of Common Law and Civil Law There are historical and other broader political reasons for some of the key or primary distinctions between the common and the civil law in how the courts systems are structured and how cases are adjudicated or more through the system. The modern age necessity to rationalize the legal system affected England as well as the Continent. Through the 18 th century the degree of discontent for the archaic functioning of the writ system of procedure and for the complexities created by the excessive number of courts became a serious political problem While in the continental academic tradition it was just natural to attempt rationalization by tacking substantive law, in the common law tradition, any successful attempt had to begin with the organization of justice, because the procedurally driven common law tradition had its most important legal formant in the judiciary. (Schlesinger, 489) In England, there was an attempt by the liberal government to establish a new hierarchical organization of the common law, equity and civilian courts. Modernization began with the Judicature Acts of as a two-tier hierarchy: a High Court (King s bench division for the 6

7 common law; Chancery division for Equity and Probate Divorce and Admiralty Division), and at top Court of Appeals. This was a reform of the courts. House of Lords which had long been a final extraordinary justice was taken away their authority but this model lasted three years. It was changed to a three-tiers hierarchy and the House of Lords was granted jurisdiction back, now the Supreme Court. Modern civil-law systems, like their England counterpart, have centralized jurisdiction and have organized themselves on one or more court hierarchies In civil law countries, there are generally at least two hierarchies of courts: one dealing with ordinarily civil and criminal cases and another with public law disputes, such as governmental licenses, tax matters, and other such cases. Some countries have more. The boundaries between the hierarchies are not the same in every country. (Schlesinger, 490) a) Courts of First Instance France has special courts for small criminal and civil cases, the tribunal d instance, and in Germany, the Local Court (Amtsgericht). In 2006 French formed an even lower level of courts, the jurisdiction de proximité, composed of one non-professional judge. In case of difficult legal issue, this judge can refer the case to the tribunal d instance. In France and Germany, specialized courts are assigned with subject matter. (Schlesinger, 490) Traditionally and particularly in Europe, these courts sit in panels of three judges, usually referred to in English somewhat confusingly as chambers. The number of panels will vary from court to court, depending on caseloads. The tradition of a collegiate panel of three judges in civil law countries has its advantages and disadvantages It increases the impartiality of the court, the quality of judgements ---- (a more thoughtful legal analysis and avoiding the prejudices of a single 7

8 judge, ---- and securing the independence of the judge, because the responsibility for a judgement is allocated amongst a group of judges that may not issue dissenting opinion. On the other hand, the single-judge court gives an appearance of accessibility to the parties and a sense of individual responsibility to the judge. The three judges are almost always career officials. The full-blown civil jury ---- is practically unknown outside the common-law orbit, and even there it is becoming rare. It has practically disappeared in England Lay participation in criminal trial is quite common in some civil law countries. (Schlesinger, ) In Western Europe, the increasing volume of litigation (and budgetary constraints) had led to a rethinking of the three-judge system for courts of first instance. In Germany, a single-judge Family Court was created In France, Family law cases are normally heard by a single judge of the court of first instance with general jurisdiction In any event, the trend towards singlejudge courts is inevitable, ---- as in Italy, Belgium, and Germany. (Schlesinger, 494) b) Intermediate Court of Appeal Court of Appeal hears the appeals from the first instance court. In civil law countries, the court of second instance may review issues of law and fact and normally sit in panels. Most of them are career judges with long experiences. In the U.S., the first appeals (to the intermediate court of appeals) is limited to issues of law. Finding of fact will only be reviewed if they are clearly erroneous, but courts exercise this possibility restraint, especially in cases tried by a jury, ---- Others common-law countries do not have jury trials in civil litigation except in rare cases In these common-law countries, the dichotomy is not between issues of fact and issues of law, but rather between oral evidence and other evidence. Australian courts are, in principle, authorized to review issues of fact and do not 8

9 display a blind reliance on demeanor evidence Courts of Appeal in U.S. must defer to the findings of fact of the court of first instance. (Schlesinger, ) In most civil-law countries the first appeal is a de nevo review of the law and facts. The French model may be the most liberal. The appeal is a new beginning, a full re-trial. Art. 561 of the French Code of Civil Procedure, stating that the matter is completely re-submitted to the court of appeals so that it may decide anew in its issues of fact and law. (Schlesinger, 501) German s reforms of 2001, only review facts if there is an indication of some doubt. In the common-law tradition, the second instance is considered neither a continuation of the first instance trial nor a new trial but merely a review of issues of law. Even a wrong decision of procedure or law will not lead to a reversal if the error was harmless and did not affect the final judgment. (Schlesinger, 502) Even repeat performance of the first instance procedure produces delays, but it is a good factfinding mechanism in civil law system that the judges are young civil servants. In common-law tradition judges are experienced practitioners. c) Supreme Courts In civil law countries, court of last resort means not only the supreme court but also the administrative court and the Constitutional Court. Focusing on the Supreme Court which is the highest court of the hierarchy of ordinary courts (not involving constitutionally or internationally protected rights), it has the last word. Some civil law countries, if both parties agree, they may bypass the Court of Appeals and appeal a case directly to the Supreme Court, exclusively limited to issues of law, not issues of fact which is similarly to U,S, law. Main differences in the rules governing the highest courts of civil and common-law systems are: 9

10 1. Can an appeal to the court of last resort be taken as of right or merely by permission? Most common-law countries have a selective process. The United States Supreme Court controls its docket, but in England, the Court of Appeals makes the selection for the Supreme Court. The principle of selectivity is used to control cases not to be so flooded in the highest court. It goes hand-in-hand with stare decisis because the court decisions have binding effect as precedents. In contrast with the traditional civil law ideology, they have greater right to an appeal. The Supreme Court focuses on correcting mistakes and maintaining uniformity of legal interpretation. Examples of courts that contrast their own dockets are US, Brazil, Argentina, Austria, the Netherlands and Japan. Germany is like UK. France and Italy have no significant selection. Even there is no selective process in France but it will quickly look at the case in smaller panels of three before bumping up to large panels. 2. What disposition can the highest court make of the case if it concludes the decision below rested on reversible error? There are two systems: (1) Common law/ Germany system: it can reverse, reverse and remand, reverse and modify. (2) Cassation system: the French system, the court breaks judgment of lower court and remand the case to the court of appeals for a decision on the merits. It is not binding, only persuasive. It is a non-adversarial process. The loser has a unilateral relationship with the Court. Other party can intervene but the proceeding is expensive because of hiring a special attorney. The non-binding nature discourages involvement. If the appeal court does not agree- appeal to a plenary session (assemblée plénière) composed of 19 judges. And each time it goes backdow it goes to a difficult appellate panel. Historical reasons for the cassation system were the parliaments of post-revolutionary France did not want to entrust the highest which much power. But there was a later reform, the Court of Cassation can often settle the issue without remanding and render the final decision. 10

11 3. Since the highest court of a civil-law country normally sits in panel of divisions, how can various panels avoid inconsistencies? Each panel of the Supreme Court is called a Senat in Germany, a Chambre in France, a Sezione in Italy. If a panel in Germany wishes to deviate, it must submit to a plenary session. The process was modifies so that now matter is referred to a superpanel, not plenary sessions. 4. What role may the government have on the Supreme Court? In the Court of Cassation, government can function like an amicus curiae in purely private disputes and it can intervene in any litigation to represent the public interest. This role is performed by the ministere public. The mistere public may file an appeal after the time for the parties to file has passed. Differences in the Legal Profession and Procedural Law between the American System and European System a) Legal profession The American legal profession is not controlled by the authority of the legislative. It is a selfregulating profession resulting from the doctrine of inherent powers. The American Bar Association imposes the uniformity standards over law schools in order to receive accreditation But the uniformity of the U.S. legal brain that results from these three years of legal education, and the generalized professional character of American legal education, are certainly a major structural difference between the U.S. and elsewhere. (Schlesinger, 639) Attorney at law is the formal tittle for the American lawyer after having passed Bar examination. Some states permit only graduates from ABA approved schools take the Bar exam. The passage rate in America is higher than in European civil law jurisdictions. (Schlesinger, 639) The entry 11

12 into a good law school is the true and only guarantee of professional success. (Schlesinger, 640) The size of the law firms in the U.S. is very large. The largest law firms in Italy, Germany or France is considered a medium small firm in the U.S. The American lawyers are allowed to use an aggressive advertising. The professional self-perception of the average European attorney would be disturbed by this commodification of his self-perceived noble service. (Schlesinger, 640) American professionals simply are not ashamed of being on the market, just as any other provider of services. They are not considered a noble cast, or in general part of a particularly respected elite. Fees are not considered a token of client s gratitude for a noble art, as sometimes they still are in other cultures. Dealing (directly) with money is not considered socially shameful or degrading for a doctor, let alone for or an attorney The absolute freedom of contingency fees and the peculiar allocation of the cost of justices ---- determined the birth of a plaintiff bar as opposed to a defendant bar, (Schlesinger, 641) non-exist elsewhere. The public interest firm tend to take matters with great public interest, civil rights, the environment, for example. They are financed by public and private sources. (Schlesinger, 643) They provide legal service, private not-for-profit. Like plaintiff s firms, they work on contingency in a lot of cases, but more careful about picking these cases ---- and they do charge but keep fees lower by keeping cost lower. Most lucrative cases for attorneys are personal injury because of high award cases taken on contingency fees. Plaintiff will not step in unless there is a high chance of an award. Some states have enacted fee-shifting in some kinds of cases. The small and non-injury litigation and family matters, for examples shift to mediators. Legal profession in the U.S. is a unitary profession because there is no split between those who present in court and those who do not and no difference between notaries and attorneys. 12

13 Germany model is a unitary profession in the civil law but it is much different from the U.S. model in many aspects. Government involves in a high degree. Attorney s role is highly regulated by the state. The entire process of legal education in Germany functions to educate unitary jurist. The focus is still mostly to educate judges and prosecutors rather than adversary attorneys. (Schlesinger, 648) Size of firm is smaller but is growing. Advertising of decent information is permitted. The Rechtanwalt who acts on behalf of less affluent clients are compensated by the state at the same level as privately hired attorneys The quality of legal services is guaranteed by the highly qualified educational characteristics of the German attorney due to its length and thoroughness ---- the young lawyer during his training receives a decent salary from the state. Legal profession in France has three step process. Pre-1971 there were two kinds of advocates, the Avoué was responsible for written pleadings and the Avocat responsible for oral agreement. Another profession is Agreé in the commercial courts. Notaries is monopoly on property and succession. Agreé was disappeared in 1971, Avoué was survived but just at appellate level. Also at the same 1971, France introduced a regulated system regarding legal advice and created the conseil juridique, legal advisers for large firms. In 1990 it was integrated with avocat allowing them to appear in all courts except the Court de Cassation and the Conseil d Etat so the conceil juridique disappeared.now all just avocats exist. b) Procedural Law Common and civil law are different in the area of civil procedure. In common law the remedy is said to precede the right, ----; where in the civil law right is said to precede the remedy, ---- (Guy I. Seidman, the Dynamism of Civil Procedure, Chapter 1, 2) The meaning is common law lawyers took procedure much more seriously as part of their pragmatist, less academic approach. In 13

14 contrast, civilian lawyers, the more academically inclined, were more interested in doctrinal theorization and less in civil procedure. (Seidman, 3) But now there are increasing similarities between these two systems. 1. Matter concerning judges and lawyers. In common law system, the judge is a passive umpire, a neutral arbiter, tasked with the narrow role of determining issues of law and giving instructions to the jury. The judge is not a fact-finder. (Seidman,5) American legal system is an adversarial model, the parties counsel have an important role in shaping and moving the case forward. In contrast, the civil law countries, judge is professional and a fact-finder. The judge plays active role in legal proceedings, the dominant figure in the trial, responsible for determining the law, examining the witness, discovering the truth, and seeing that justice is done Civil lawyers can make suggestions concerning the evidence, propose issues to be examined or questions to be asked at hearings, or submit comments concerning the legal basis of the dispute. (Seidman, 4) Judicial decision in Common law nations apply the doctrine of res judicata to prevent relitigation of claims and issues. Civil law countries do not apply this doctrine or the binding effect. Jury in common law system is an allocation of authority to the local people. But in civil law system judge is required to have various experiences. Now in France, judicial decisions in administrative law case is the example of judgemade case law. In England, laws are often enacted by statutes. American judges are now involved in shaping and managing complex cases, like the inquisitorial judge in civil law countries. Attorneys in civil law system have more role in an exchange of information and taking of evidence. Commercial lawyers of both legal systems have a primary role in defining the disputes as well as their legal and factual bases. (Seidman, Chapter 2, 3) 14

15 2. Matters concerning entry into court: money and standing In U.S. litigation, each party bear its own litigation costs, expenses and attorney fees. Contingency for contracts are permissible. In civil law countries follow the English rule or the loser pays rule. (Seidman, Chapter 1,4) Now in the U.S., some costs are shifted to the loser. No system makes the winner completely whole ---- The system that shift nearly all of the winner s litigation expenses to the loser (major shifting) is found in Germany, Austria, Netherlands, Poland, Finland and Turkey. Partial shifting is used in England, Australia, Canada, France, Mexico and Japan. American class action or group litigation have gone global. 3. Matters concerning the function of the trial The trial in common law civil procedure is a single and live event but trial often take place years after the event. The concerns are the accuracy of the testimony. Germany, Italy and Spain have moved more toward a single efficient trial. The American FRCP provide extensively for discovery of factual information and expert testimony prior to trial ---- Most countries require plaintiffs to provide, in their initial pleadings, substantial factual arguments and some evidence to support their legal claim. (Seidman, Chapter 1,3) But its seems that the U.S. is shifting away from the notice based exceptionalism towards a fact-based model more akin to the pleading standards in the rest of the world. In the discovery area, reform of the discovery rules has been to require more frank and early disclosure, and has been intended to circumscribe discovery abuse. (Seidman, Chapter 2, 5) Both common and civil law systems have difficulties in the appointment of export witness. Services of expert witnesses are too expensive. Civil law countries can solve this problem by having a court appointed expert or the sides jointly appoint an expert. 15

16 4. Social and Cuteral Aspects In civil law countries, private plaintiff with a tort action can join a criminal proceeding. Finally, it is said, at least according to critics, that a culture of grievance; rights-talk and litigiousness that exists in the U.S. encourages citizens to resolve any and every complaint through litigation. In civil law countries, by contrast, no such culture of litigiousness exists, and is indeed alien to societal norms. (Seidman, Chapter 1, 6) Islamic Law as a Private System Arguably Islamic law is the opposite a hyper private system (private beyond the ordinary degree). What aspects of Islamic law tend to support or undermine this idea? Islamic law is concerned with the individual s relation to God. Relations that are not infractions against God are seen as conflicts between individuals. Islamic law does not in principle recognize public prosecution and the state s responsibility to initiate legal proceedings against criminals. But this means that every case in court is based on one individual party, the plaintiff, making a claim against another individual, the defendant, both presenting their own cases, without lawyers or public prosecutors. This is true even if the end result may be a punishment, carried out by the state authorities. If fines are to be paid, they are most often paid to the injured party, not to the state. Thus there are no separate courts for private, public or criminal cases in the Shari a system, and the procedures that the court follows is by and large identical whether the matter at issue is a breach of contract or a murder. (Knut Vikor, Between God and the Sultan, A History of Islamic law, 3-4) These aspects of Islamic law support the idea that Islamic law focuses on private law. Islamic law or more common, Shari a law was a process of explicating doctrine, an intellectual engagement to understand all the possible ways of seasoning and interpretation pertaining to a particular case. It 16

17 was not the case that was of primary importance, but rather the principle that governed a group of cognate cases. On balance, the particular cases were more illustrative than prescriptive. Individual opinions, therefore, did not constitute law in the same sense in which we now understand the modern code, regulation or case law, nor was it the legal effect of stating the will of a sovereign that the Muslim jurists intended to accomplish in any way. Their law was an interpretive and heuristic project, not a body of rules of action or conduct prescribed by (a) controlling authority. It was not a solemn expression of the will of the supreme power of the state, for there was no state in the first place. The religious law was the intellectual work of private individuals, jurists whose claim to authority was primarily based on their erudition, legal knowledge, and religious and moral distinction. It was not political in the modern sense of the world, and it did not involve coercive or state power. The jurists were civilians and as such commanded neither armies nor troops. Nor was the Shari a subject to the fluctuations of legislation, reflecting the interests of a dominant class as the modern state is. (Wael B. Hallag, An Introduction to Islamic Law,166) From this excerpt, the Islamic Law does not involve state. But God is the legislator, the scholar s task is to find out what God meant the law to be in each particular case. This may look similar to a common law system, where society or its custom is the actual legislator, and the judge must discover what this lawgiver has said, through this particular methodology, precedence. In the same way, the Islamic jurist must use a particular method to discover what legal rule, hukm, God has assigned to the case at hand. The legitimization of the rule as God s thus lies in and acceptance of the methodology and of the scholar s ability to use it.(knut Vikor,8) Islamic law is not that found in the books of the jurists, but rather the outcome of a malleable and sensitive application of rules in a complex social setting. To know what Islamic law was, therefore, is to know how actual 17

18 Muslim societies of the past lived it; but most certainly it is not merely the law as abstracted in the book of jurists. (Hallag, 167) In conclusion, Shari a is a complex set of social, economic, moral, educational, intellectual and cultural practices. It is a complicated and sophisticated intellectual system. It was as much a way of living and seeing the world as it was a body belief and intellectual play. It is very accessible, democratic, populist and communitarian. Shari a gave direction and method to but did not coercively superimpose itself upon social morality. Qadi made to serve the imperatives of social harmony. So religious law in this operated to a. provided an intellectual superstructure that placed law in the larger tradition of Islam eg. adjudication not separate from the social world of disputants, legal process was about restoring that harmony, distribute justice in focus. b. Was not totalizing was not directed at controlling or managing society --- not law as we understand and practice law today. Religious law was the intellectual work of private individuals. Authority based on smarts and erudition. They were civilians, not state authorities. This perception of Islamic law has been altered by the merging of Islamic law and the state with all its formal structures and modes of enforcement. Over the past two countries or so, the Shari a has been transformed from a worldly institution and culture to a textuality, namely, a body of texts that is entirely stripped of its social and sociological context its ecological environment, so to speak. Furthermore, this textuality has been engaged in a kind of politics that its pre-modern counterpart did not know. Which is to say that the surviving residue of the Shari a its entexted form, functions in such uniquely modern ways that this very residue is rendered foreign, in 18

19 substance and function, to any of its historical antecedents. This profound transformation was the outcome of the confrontation between the Shari a and the most significant and weighty institution that emerged out of, and at once defined, modernity, i.e., the state. Conceptually, institutionally and historically, the state came into sustained conflict with the Shari a, initially coexisting with it in a condition of contradiction, but soon succeeding in displacing it once and for all. Among the specific efforts of this contest for mastery over the law was the desiccation and final dismantling of the Shari a s institutional structures, including its financially independent colleges and universities, and the legal environment and culture that afforded Muslim legists the opportunity to operate and flourish as a professional group. This dismantling (with the benefit of hindsight, inevitable and expected) finally led to the extinction of this group as a species, to the emergence of a new conception of law, and, in short, to the rise of new legal and cultural system. Shari a s subject matter became no more than positive law, emanating from the state s will to power. (Hallag, 167) Whereas pre-modern Islamic law operated largely outside dynatic rule, the extexted and transplanted Shari a had now come to be lodged within the structures of the state The intractable presence of the state the virtually all powerful agent exercising the option of reengineering the social order has preempted any vision of governance outside its parameters. To practice law in the modern era is to be an agent of the state. There is no law proper without the state, and there is no state without its own, exclusive law. Legal pluralism can no doubt exist, but only with the approval of the state and its law. If the way to the law is through the state, then Islamic law can never be restored, reenacted or refashioned ---- without the agency of the state. More importantly, none of these restorative opinions can be realized without the contaminating influence of the state, rendering extinct the distinctiveness of pre-modern Shari a as a non-state community based, bottom-up jural system The Shari a became the state tool, ---- the new 19

20 reengineering in the name of the Shari a ---- the work of a moralizing state. (Hallag, ) Essentialization occurs through the textualization and the incorporation by the state are the risk in all systems. 20