Should Legal Literacy Efforts Consider Non-Western Approahes to the Law

source of consideration: The Malaysian Star. See: http://thestar.com.my/columnists/story.asp?col=reflectingonthelaw&file=/2010/12/29/columnists/reflectingonthelaw/7691447&sec=Reflecting%20On%20The%20Law Shad Saleem Faruqi's December 29, 2010 piece in the Malaysian Star deserves some attention. His piece is titled "Reflecting on the Law" and it argues that most law books in Malaysia tend to discuss law from a Western perspective rather than an Asian one. He argues that the "structure and content of our courses, the choice of core subjects, the categories of thought, the fundamentals, the methods of analysis and research... [and more]....all remain Western [as if they were] universal." As I shall discuss, while Faruqi's point has merit on its own, it also should be considered from the perspective of teaching about the law to those uneducated about the law.

He points out that legal philosphy courses tend to ignore Islamic, Chinese, or Hindu thinkers, He identifies the following examples of important but ignored texts: The Mahabharata, the Arthashastra, the Book of Mencius, Analects of Confucious, the the treatises of Ibn Khaldun Ghazali, Ibn Rushd, Mulla Sadra, Jose Rizal, Benoy Kumar Sarkar, Yanagita Kunio and Naquib al-Attas. I would add the Talmud as a great legal codification that deserves consideration in the accumilation of world legal philosophies. Our author identifes several ways of looking at the law that is missed by this Western-centric approach. For instance, in the Western approach, according to the author, the law is seen as an excercise of political soverignty rather than an excercise of culture, religion, or morality. Another unique aspect of the West is the rigid distinction between crime and tort. Our author further points out that the distinction between rights and duties in public and private are are also Western oriented. According to our author, the Eastern approach is more holistic. Our author's primary point seems to be how eastern texts are good sources from which to learn legal concepts cherished in the west, For instance, he writes "Prophet Muhammad’s sermon at Arafat is one of the world’s greatest human rights declarations. More than 1,400 years ago he spoke about liberty and property, racial equality, women’s rights and the ruler’s subjection to the law." He also points out that in Islamic criminal proces there is a legal presumption of innocence. He makes other similar points. The East is not the only non-Europeans sources of law which are commonly ignored. Many of the legal concepts which the West tend to believe were invented in the 18th and 19th centuries do not date back only to Islam but date back to the pre-Christian era Hebrew/Jewish culture--and may ever date back further than this. However, while Faruqi's points seem to be targed to the formal legal education world such as law schools, I think we who are concerned about educating the public about the law should take his comments to heart. As a lawyer who spends a fair amount of his time teaching non-lawyers about the law. When I started, I didn't fully appreciate what legal concepts were obvioius to all and which ones were obvious to me only because I had legal training in a western style law school. For instance, as a western-educated lawyer, the distinction between crime and tort seems natural to me, but when I educate non-lawyers, I become painfully aware that the distinction only seems natural to me because of my legal education. Although it is obvious to all that the executive brances of their governments are responsible for trying to seek remedies and punishments for certain types of crimes likes assaults and murder, it is not always obvious why the executive branch of the government is not interested in getting involved in disputes such as employment discrimination and defamation. Wrongs like theft and embezzlement can fit in either category, depending on the circumstance -- an opportunity for the most educated of laymen to get confused. Another examples is the distinction between a moral wrong and a legal wrong. In America, most employment is "at will," meaning that an employee has the right to resign his or her employment, an the employer has the right to terminate its employee regardless of motivation--unless it is an unlawful motivation. As an attoney who advises employees of their rights, I am often saying "your employer has clearly acted immorally and unethically; you were clearly wronged in many ways, but the employer did not violate the law in this situation." Those of us who educate the public would do well to appreciate the distinctive features of the legal system in which we operate. We need to understand that the legal presumptions we hold dear are often distinctive and are not obvious to our clients and students. Study of non-western legal systems would provide western lawyers with some perspective. When our appreciation of our own legal system is uniquely western-centric, it is much harder to teach those who do not share our same legal presumptions because we fail to articulate those presumptions. When we have perspective, teaching is easier because it is easier to issue-spot those presumptions.