| | | You are here: Home >> Press Section >> We must start looking at non-Western legal systems | | | | We must start looking at non-Western legal systems | | We should not abandon our heritage, but rather set our scholarship in a global context, writes WILLIAM TWINING | | | | The Irish Times, 11th October 2010 | | | OUR ACADEMIC tradition has tended to be ignorant, even ethnocentric, about other legal traditions and belief systems. Ethnocentrism means “culturally biased judgment” or “a tendency to look at other cultures through the filter of one’s own cultural presuppositions”. The study of other legal systems has been treated as marginal at best. As with other branches of jurisprudence, Western normative jurisprudence has been quite insular.
Yet Western jurisprudence has a long tradition of universalism in ethics – witness, for example, natural law, classical utilitarianism, Kantianism and modern theories of human rights.
Nearly all such theories have been developed and debated with at most only tangential reference to and in almost complete ignorance of or indifference to the religious and moral beliefs and traditions of the rest of humankind. When differing cultural values are discussed, even the agenda of issues has a stereotypically Western bias.
As the discipline of law becomes more cosmopolitan we need to become better acquainted with the leading thinkers and salient ideas and controversies in other legal traditions, and to extend our orthodox canon of juristic texts.
Until now non-Western law and jurisprudence has been considered the province of specialists. Despite criticisms of “orientalism”, there has been some excellent work by Western scholars on Islamic, Hindu, Buddhist and Chinese legal thought. To a lesser extent, there are accessible writings by contemporary “Southern” writers.
As a modest first step in that direction I have undertaken a study of the general approaches to human rights of four “Southern” jurists: Francis Deng, Abdullahi An Na’im, Yash Ghai and Upendra Baxi.
All four deserve to be better known, but this is a limited exercise as these individuals were all trained in the common law, write in English, and belong to the immediate post-Independence generation.
They provide a useful bridge to other viewpoints, but there are many others, including not least Southern feminists and prominent jurists whose work has not been translated into English. Again the relevance of this kind of development will vary between specialisms.
The main purpose of this lecture is to suggest an approach for any individual scholar to reflect on the implications of globalisation for their specialism or specific research topic.
The key is to adopt a wide interpretation of globalisation, to identify one’s normal working assumptions when dealing with one’s specialism, and to identify points at which any or all of these assumptions are challenged by adopting a genuinely global perspective. One can set that against some perceptible trends in academic law as it has already responded, largely in a piece-meal way, to these challenges.
This kind of perspective suggests some likely directions in which our discipline may move in response to the changing situation. Again this is as much trend-spotting as trend-setting.
First in respect of fields of law one can expect the following: established transnational fields command increased attention; new subjects with a strong transnational orientation emerge; traditional subjects formerly perceived as domestic will acquire new transnational dimensions; there will be an increased awareness of pluralism and multiculturalism in the domestic context; these developments will require systematic re-thinkings of particular fields and their relations to each other.
So far as legal theory is concerned we need to review the Western canon and ask: are there forgotten jurists in the Western tradition who now deserve more attention? That has happened with Kant’s Perpetual Peace and to some extent with Vico, Grotius, and Leibniz.
We also need to re-interpret the mainstream, as has already been done by Tamanaha on Hart, Pogge on Rawls, and in a different way, Singer on Bentham. And, most important, we need to ask are there not jurists and schools of thought in other legal traditions that demand our attention as we try to cope with the problems of an increasingly interdependent world?
We cannot but work largely within our received tradition and law is a practical subject that on the whole requires particularistic detailed local knowledge. We should not abandon our heritage, but rather set our scholarship in a global context and have at least a working general knowledge of other traditions.
Prof William Twining, emeritus Quain Professor of Jurisprudence at University College London, will give the annual jurisprudence lecture in the conference centre, Griffith College on Thursday, October 14th at 7pm. Prof Twining has written extensively on jurisprudence, evidence, globalisation and law, and law in Africa.
To book, email law@gcd.ie
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