A Comparison of America’s Legal System with the Hindu and Confucian Legal Systems

            There are numerous legal systems, both new and old across the globe, and most of these systems have been re-integrated to develop contemporary legal systems that are in operation currently. The re-integration is a result of the fact that most traditional or old legal systems were limited in scope, loosely defined, and unable to tackle all legal problems comprehensively under different contexts.[1]

The American Legal System

            The American legal system has its founding structures within the nation’s Constitution, Bill of Rights, and the Declaration of Independence. The American legal system is an integral part of the government and it constitutes the third arm of the government, which is the judiciary. The judiciary works alongside other arms such as the legislative and executive arms. All authority given to the judiciary system is conceived as being from God just like all government authority conferred on the three arms of the government. The legal system has a dual origin rooted in both civil and common law. Its civil laws are mainly drawn from codified documents such as the Bill of Rights and the Constitution, which are referable, while its common law originates from case law derived from the legal system’s principle of Stare Decisis.[2] The judicial system was established through the nation’s constitution as declared in Article III. The legal system is made of a dual court system having separate structures of federal and state courts. Laws are thus generated from the federal and state levels, which are the main sources of law. The federal court system is three-tiered. The highest court in the system is the Supreme Court that interprets law. The structure is completed with the courts of Appeal covering jurisdictional areas known as circuits, and the structure is completed by the district courts.[3] On the other hand, the state courts are made of varying structures of courts depending on the state’s choice on how to structure its courts. These courts determine what occurred in civil and criminal cases through inquisition, and thereafter; deliver judgments derived from law. These courts also offer alternatives in settling private disputes that parties may be unable to solve. The nature of dispute or crime and jurisdiction of the courts is the determining factor when deciding whether a case should go to the federal or state court.[4] However, legal issues relating to the constitutionality of law are often heard in the federal courts. Most authority and laws in this legal system are legally binding and have mandatory authority, but some have a persuasive nature related to the application of stare decisis principles. The legal system handles situations where there is legal controversy and precludes any advisory opinions. Therefore, specific threshold prerequisites have to be attained before a case is determined as being fit for hearing. These courts also confine themselves as much as possible to the presented dispute for hearing, and they tend to avoid constitutional issues when it is possible to solve disputes through statutory, procedural, or other grounds. In essence, the American legal system is among the most contemporary legal systems that blend different legal elements.[5]

The Hindu Legal System

            The Hindu legal system is more of a traditional legal system, which is rooted in religious origins and its original source is from divine revelation received through various messengers and prophets and given by the gods and goddesses of the Hindu religion. The revelations creating this legal system are found in four books known as the Sruti or Vedas, and the laws are taught by Brahmans from memory and by the use of mnemonic devices called Sutras, which are short chains of ideas and rules.[6]The Hindu law is a form of personal laws dealing with issues such as inheritance, adoption, marriage and other aspects of life that shaped Hindu life. In Vedic times this law was the main system, which was imagined and described in the Dharma??stra texts. This legal system was refined through the drafting of Sastras, which dealt with issues of daily life in Hindu life, and the Dharma??stras that are legal texts that defined law and also incorporated religious issues as well.Much of the earlier writings from which this law was derived were written by Manu approximately 100 BC, and in any legal conflict Manu’s writings prevail because he was the first writer.[7] Other drafters including Narada and Yajnavakalyadrafted more laws later on to expand the text. However, these drafters drafted more civil law than religious law. The traditional Sanskrit word for ‘law’ is dharma, but the concept of dharma and law are not equal. The inequality is as a result of the fact that some of the prescribed observances under this Hindu system did not totally refer purely to legal issues in the modern sense. Inclusions like dress codes, hygiene regimens, and purification rituals do not constitute law in the actual sense, but these were included alongside familiar legal issue such as inheritance and contract law.[8] In this respect, Hindu law is more similar to the Jewish and Islamic legal systems. The system thus concerned both legal and religious duties, and the Hindu system has always tried to keep the two systems together. Classical Hindu law contributed the legal practice that combined with the scholastic tradition of Dharma??stra to define medieval and classical Hindu law. The resultant legal system never completely conformed to Dharma??stra ideals, but the procedural and substantive laws of legal tradition indirectly affected practical law.[9]

Similarities and Differences of the Hindu System to the American System

The source of laws is perhaps the first difference that differentiates this system from the American system. Law in the Hindu system is divinely inspired by the Hindu gods and goddesses, but the American law is made by the people through Congress and the Supreme Court, which interprets law based on the authority given to it by the constitution.[10] Secondly, the Hindu system is more of a religious law that also defines mundane life activities among the Hindu such as hygiene and dress codes, but in contrast, the American law is purely secular. The use of case law or common law is also non-existent in the Hindu legal system as well as the dual court system.[11] The legal principles that establish the American legal system require the actual presence of a controversy for the legal system to intervene and swing into action, but the Hindu system requires no legal controversy to be invoked because it even handles issues that do not relate to actual conflicts. Therefore, unlike the American legal system, the Hindu legal system is not adversarial because there are no thresholds to be met before the system can be allowed to give legal advisory or opinions. For example, the American system there has to be some active legal conflict that needs to be solved before the court can decide to handle a case, but such a requirement in the Hindu legal system was not necessary.

 

 

 Confucian Legal System

              Though China currently has a legal system that reflects some aspects of contemporary civil and common law as practiced in the Western hemisphere, the country’s legal system has often been based on Confucian philosophy, which emphasizes social control through moral education and a legalist emphasis on coded law and criminal sanctions. The Confucian legal system originated from a lengthy tradition of formal law and sanctions that are held within Fa, which is the classical Chinese word for law that means ‘just,’ ‘straight,’ or ‘fair.’ The Confucian legal system is divided into ‘Fa’ and ‘Li.’Li was a socialist philosophy that was great than the domain of law, which was more of a kind of moral system requiring personal investment in observing legal structures as a moral rather obligatory duty.[12]Many forms of the practice of this legal system exist in a pluralist nature under overlapping boundaries. The legal system relies on individual expectations for its upholding of the legal fabric of society. The Confucian system was optimistic of human potential, hoping that humans are naturally upright moral beings and that they do have a sense of shame that can make them follow laws and become humane through observing norms, customs, and mores. While Li plays a persuasive role rather than a formal legal role, Fa takes a subordinate role to Li. The whole Confucian legal system was not only viewed as a legal framework of public order, but also a tool of politics, which is a rule by the law system in militarism.[13]

Similarities and Differences of the Confucian System to the American System

Perhaps the first unique thing about the Confucian legal system is its reliance on the participation of citizens through persuasion to establish social order. This is in contrast to the American system, which is adversarial and seeks to only deal with areas where active conflict exists, which gives the American system a mandate to ensure the legally binding laws are observed instead of persuading people to adhere to them.[14]Therefore, the Confucian system is persuasive and it produces social expectations, But the American one is mandatory and it produces legal obligations. Also, unlike the codified law, the laws under the Confucian system are not unchangeable or fixed with time, but they reflect what is acceptable at any one time. Therefore, unlike the American system that relies on common and civil law, the Confucian system does not offer clear outlines on what should be legally done or should not be done. The American system vests much of the legal power in the judiciary and legislature, but the Confucian system leaves much of this authority to the leader.[15] This was evidenced during the reign of Emperor Qin who made very harsh punishments and strict laws because the rulers under the system are left standing above the law with ultimate authority. The Confucian legal system also lacks common or case law as well as the dual court systems observed under the American legal system. Like the American system, the Confucian system is purely secular and not religious like the Hindu legal system.[16]

Benefits of the Legal Systems

            The American legal system is one of the most comprehensive legal systems having both common and civil law. Unlike the Confucian and Hindu legal systems, which are traditionally limited to tradition and religion-based issues, the American legal system is comprehensive and covers many areas of law that are not limited to religion and day-to-day norms. As such, the nation and its people can have their legal issues comprehensively covered within its system. Perhaps the second most important benefit lies in the autonomy of local jurisdictions and a state, which allows legal matters to be handled at the lowest level that is appropriate, and this fact presumably allow different outcomes for different jurisdictions.

The Hindu legal system is also beneficial because it clearly defines punishment both in the reformative and retributive manner. Also, the Hindu legal texts set standards that define what is right so as to define violations warranting punishment. The legal framework reviews the possibilities of violations, and therefore, defining wrongdoing. In addition, the legal system highlights the theories of assignability and responsibility of a wrongdoing as well as the degrees of guilt. Therefore, it elucidates the severity and form of punishments that befit the transgressions. Furthermore, the system comprehensively discusses the authorized forms of punishments, and how the punishments can be administered in a proper manner.

One of the major benefits of the Confucian legal system is that it embraces restorative justice. Restorative justice mends broken relations among humans and restorative justice seems to be one of the great pursuits of the Confucian legal system. Restorative justice is a principle of justice where judges seek to mend human relations instead of giving punitive punishments. It is thus not only a system of seeking justice, but also one of seeking peace. Confucian law is also advantageous because it has collective liability. This implies that if individual members of society are not successful in arbitrating or mediating then the next step would be to seek the services of the court or magistrate.

Challenges of the Legal Systems

            Although the American legal system is comprehensive in addressing legal issues, the system was found to be one of the most expensive legal systems by NERA Economic Consulting report published by the U.S. Chamber Institute for Legal Reform (ILR). Another challenge in the United States’ legal system is high focus on incarceration and punishment. The issue of incarceration has been a challenging problem in the past four decades because an estimated $1 trillion dollars have been spent on punishment, which has been the central focus of the American criminal justice system. The focus on punishment often leaves little room to pursue other forms of justice such as restorative justice.

            The weaknesses of the Hindu legal system include the fact that most of its legal structure only deals with issues of religious and moral norms, but fails to cover other areas such as legal issues about commerce and other sectors in modern legal systems such as those in America. There are also wide differences in the statement of crimes and their related punishments in different texts and this raises inconsistencies. Also, the Hindu legal system is greatly limited considering that it focuses on religious and pseudo-religious issues, but fails to have a clear look into other wider areas because law in contemporary society actually governs virtually everything and not only religious or culture-related issues.

The Confucian system also faces a number of challenges and one of them is the fact that the system relies more on the goodwill of the people to observe norms and practices out of self-persuasion resulting from the shame of having to do negative or things that would be deemed immoral. This is a serious weakness considering that it is the nature of man to err and be opportunistic if permitted. Therefore, there is little likelihood of people conducting themselves appropriately without a legal system that is mandatory and with binding rules. The second weakness is that the Confucian system and its laws do not clearly state what should or should not be done, and this leaves grey areas in laws that are loosely defined.

Solutions to the Challenges in the American Legal System

            American litigation is costly compared to other developed nations such as the European nations. One of the reasons why the costs are high is as a result of restrictive guild-like ownership structure of the legal businesses.[17] Non-lawyers are not allowed to own shares in law companies, and this requirement slows innovation and keeps legal fees high. In order to avoid this challenge that hinders non-lawyers from acquiring equity in law firms, there is a need for a change in laws. This requirement may be necessary because the current restrictive laws lead to high litigation costs and little flexibility. However, if the laws are changed, the costs could be lowered and ownership for non-lawyers would be more flexible, and the changes would encourage innovation. Other measures include setting caps on recoverable fees to do away with the incentive that wealthy litigants may have to try to ‘pay for a verdict.’[18] The loser pay option should be adopted in some cases, especially insurance cases so as to discourage initiation of expansive litigation processes, and instead opt for out of court settlements that are less costly.

The heavy use of punishment of a harsh nature characterized by long periods of incarceration is becoming a costly affair that seems to bring no better outcomes as evidenced by the high rate of recidivism.[19] In order to solve this shortcoming of the American legal system there is a need to explore and pursue other forms of justice approaches such as restorative justice and the use of fines, community services, and high probation rates on behavior improvement among the incarcerated so as to cut down the rate of incarceration and its related costs.

Conclusion

            There are many legal systems, both new and old across the globe, and most of these systems have been re-integrated to develop contemporary legal systems that are in operation currently. The re-integration is a result of the fact that most traditional or old legal systems were limited in scope, loosely defined, and unable to tackle all legal problems comprehensively under different contexts. In spite of the limited nature of these legal systems, they have created a basis upon which contemporary legal systems have emerged from to develop stronger legal systems than the traditional ones. The importance of these traditional legal systems is proven by the fact that some or at least most of them are still in use even in the current times. For example, the contemporary legal systems in India still include some elements of Hindu law into their legal systems. Also, the Chinese legal system has adopted some contemporary legal aspects from the west into its law, but it has never fully neglected some aspects of Confucian law. In a nutshell, old legal systems have become the basis of modern or contemporary legal systems.

 

 

 

 

 

[1]Glenn, P. H. Legal Traditions of the World: Sustainable Diversity in Law, pp.172-174 (5th ed. 2014).

[2]Fine, M. T. Basic Concepts of American Jurisprudence, (2016), http://www.lexisnexis.com/en-us/lawschool/pre-law/intro-to-american-legal-system.page

[3]Ibid. p.1

[4]Ibid, p.1

[5]Fine, M. T. Basic Concepts of American Jurisprudence, (2016), http://www.lexisnexis.com/en-us/lawschool/pre-law/intro-to-american-legal-system.page

[6]Donald Davis. The Spirit of Hindu Law, Cambridge University Press, page 13-16, 166-179 (1^st edition 2010)

[7]Ibid. p.13-16, 166-179

[8]Ibid. p.13-16, 166-179

[9]Ibid. p.13-16, 166-179

[10]Ibid. p.13-16, 166-179

[11]Donald Davis. The Spirit of Hindu Law, Cambridge University Press, page 13-16, 166-179 (1^st edition 2010)

[12]Ibid. p.71-85

[13]Ibid. p.72-80

[14]Ibid. p.79

[15]De Bary, Wm. Theodore and Tu Weiming. Confucianism and Human Rights, New York: Columbia University Press (2^nd edition 1998)

[16]Ibid. p.46

 

[17]US Chamber Institute of Legal Reform. U.S. Legal System Is World’s Most Costly According to a New Study (21^st September 2016), http://www.instituteforlegalreform.com/resource/us-legal-system-is-worlds-most-costly-according-to-a-new-study

[18]Gryphon, M. Greater Justice, Lower Cost: How a “Loser Pays” Rule Would Improve the American Legal System (Dec. 1^st 2008), http://www.manhattan-institute.org/html/greater-justice-lower-cost-how-loser-pays-rule-would-improve-american-legal-system-5891.html