, Research Paper
Many attempts have been made around the world at reforming current legal systems in search of a better one. As the amount of crime rises worldwide, people are constantly on the lookout for new and improved ways to fight it, and prevent it. Three such attempts involving attempts to change legal systems have been discussed the last half of this course. The change from the system put in place when a country was under colonization, as in Kilamanjaro, and Papa New Guinea. An attempt to revert to the historically cultural ways of dealing with conflict, as in China and India. In addition, an attempt by the more modern industrialized societies to become more attuned to the people with whom they are trying to help, as in Japan, and Santa Anna. By studying these examples and implementing one of them, almost any kind of stagnant legal system can attempt to change for the better.
Many countries were colonized throughout the history of the world, by more dominant countries. These colonizing countries often only wanted the newly acquired country for the land, resources, or the labor they could offer. Often these colonizers brought into the new country their style of government and law, neglecting the native people. Many times, this new system caused many of the problems in the colonized country. Two examples of a country being colonized and the subsequent changes that occurred once the colonizers left are in Kilamanjaro and in Papa New Guinea.
Kilamanjaro was colonized first by the Germans in the mid 1880’s, and then by the British during WWI, and finally gained independence in 1961 (Tanzania). Each country brought with it their own system of government and law, and attempted to impose these on the people of Kilamanjaro. To the native people, land is extremely important, and often the cause of many conflicts. There are two different types of farmland on the mountain, a high one and a low one, and coffee is the dominant cash crop. Since there isn’t enough prime farming land for everybody, a system of patriarchal lineage developed where the male would give his existing compound to his oldest son, and move somewhere else inviting his youngest so to live with him, and have the farm upon his death. If there was a middle son, he was forced to operate independently. As the population continues to grow rapidly, inevitably, stress has begun to compound this system; there just isn’t enough land for all the people. This led to many conflicts arising over who actually owns land, since it was essential to the survival of the people.
Historically the chief was the most important people in Kilamanjaro, as he is responsible for several districts over an area. Chiefs controlled the long distance profitable trade, received half of the cattle fro the wars, could at any time call on his people to help do anything such as build a fence, and sometimes even received an extra child from his people to use as another worker. These chiefs were often fair people, they believed in not squeezing the poor but taxing the rich. They wanted to help the poor, and create a mutuality situation between them and the rich. When it came to conflict resolution chiefs were able to settle disputes, but often didn’t, as many people tried to keep the dispute with in their own family or lineage. They went to the elders instead and sought their advice. A case would go to the chiefs only if deemed necessary by the elders. Under the German period of occupation, this system was altered. They insisted on recognizing the customary law and ruling through the chiefs. However they didn’t really let the chiefs have any power. The Germans took over the long distance trade, wiped out warfare, and stripped from the chiefs their whole base of their power. The chiefs whole basis of power under this system was the fact the Germans recognized them as powerful.
Things changed however under the British system. The British saw themselves as more advanced, and thus wanted to civilize the Africans, and help them to create a better system. What they created was a system of duality, where they used traditional law for minor infractions, and British law for the serious crimes. This again takes the power out of the traditional cultural ways of solving disputes, and places it in the colonizers. The Germans took over economically, and the British, while still taking over economically they changed the whole cultural system as well. The British sought to understand the true customary laws of the Africans, and to write them down as a means of reference for settling disputes, a practice which for centuries was never done, yet the locals always managed to solve disputes. They implemented a system of modern British laws, including imposing a statute of limitations on cases. This contradicted with the customary way the Africans dealt with things in the law. The British also wanted to systemize the law, emphasize the rule of the law, and impose their own decisions on local problems. The British also formed a duel court system, one for whites and another for Africans, as an attempt at allowing the locals to retain some form of their historical past.
Overall, the British system was na ve and morally based, not the way the Africans traditionally operated. Their system, of viewing everything as static and unchanging was too radical for the indigenous people to comprehend. Their whole existence has been based on the cultural laws of their people, and the implementation of those laws as elders, or chiefs saw fit. The local laws were multidimensional and could be seen in different context by the natives at different times, with the British wanting to write everything down and operate from this system of written law, the system changed and the ability of the customary law to change with the times change to.
Another example of a colonizing situation was in New Guinea, where it was recently colonized by Europeans. As was the case with the Africans, New Guinea was a farming community, and thus, viewed land as an important commodity. They have a traditional system of “Big Man” government, no chiefs just several big men who represent the power and authority in the area. They emphasized self-help, and negotiation in their resolving conflicts, but also used the threat of fighting, and the actual fights themselves as a means of resolution. New Guinea differs from Africa in that the Europeans attempted to be less intrusive into their way of life. They patrolled the areas where the people lived, erasing the system of contacts that had been developed among the people. They tried not to be heavy handed but at the same time ruined the connections made between the people that was essential for their resolving disputes. Warfare was looked down upon, and thus the traditional way of resolving disputes was radically erased from the land. Even though the Europeans were trying to be fair and let the traditional system work, they didn’t understand it. They didn’t realize that these conflicts and connections were crucial to the traditional system and was needed for it to be able to operate. These two examples show the problems that colonizers have with trying to impose modernization on a society as remote and backwards as these. They have existed for centuries by their own terms, why should they change now.
Legal systems change for reasons other than a dominating colonizing power forcing them to. In China for example, there has long been a history of mediation as a means of settling disputes. This history of mediation was based on the Confucianism, an ideology that emphasizes harmony and respect for one another, along with a hierarchy in all the cosmos, meaning that it emphasized people respecting and getting along with one another, even when settling disputes. It also emphasized that certain people were indeed higher in stature than others were. Mediation under this system placed a strong emphasis on the ritual, and ceremony of settling disputes. Each party in the process has a particular role, and each party is expected to perform in that role. This concept was based on the Li, or the philosophical principle that called for respect and social form. This type of mediation allowed people to save face, and not to publicly admit to wrongdoing. Once the conflict was settled, the issues surrounding the original debate were never discussed again and the party’s left happy with the sense of community restored. This traditional system worked well to preserve the community of the in the traditional sense of the Chinese culture.
When communism came into power this system of mediation was preserved, however, slightly altered. It became known as “comrades court,” which involved many people with anyone having the ability to mediate. This was a very tight association between social mediation and political ideology. It was an extreme form of exclusive mediation, as Greenhouse would have categorized it. It consisted of the political ideology being very influential, and no longer just trying to deal with the interests of the parties involved. Its goal was to educate the population in the beliefs of the government, and resolve the conflicts as quickly and efficiently as possible. Like the old system the face to face part of the process was still in use, however, one didn’t know who would end up getting involved in the mediation process, and often the people feared that the government would get involved and punish them severely, possibly even by death. For this reason many people were afraid of the system and opted not to use it as readily as they had the traditional. With the opening up of China to outside influences, the system has lightly changed as well, although it is nowhere near, where it was before communism. It is still used as the first means of resolving conflicts, however, the vast majority of these cases are being dealt with on the localized level, causing many to feel more at ease with the situation. These local mediation communities are still under heavy control of the communist party, as the “judges” are often placed there by the party itself. Disputes since the rise of communism have been classified into two categories, those involving ordinary citizens, and those involving crimes against the state. It is where the crime is directed against the state that the process of mediation is pretty much thrown out and the accused is severely punished, prompting the fear of the public.
Within both systems, mediation plays a major role, as does the bias against the use of law as a means of resolving disputes. This has led to the widespread acceptance of the mediation system under communist regime even though it differs from the traditional form of mediation. A major difference between the two systems is the way they each look at the conflict itself. In the traditional early period, conflict was seen as unavoidable, and they worked to ensure there wouldn’t be future conflicts. In the communist period, they tend to see conflict as important and productive and don’t attempt to appease all the parties involved in a dispute upon settling it. The major difference however, as it is in most other aspects of Chinese life, is the involvement of the state. In traditional times the state was never involved, maybe occasionally, nowadays the state plays a major role, often squashing any of the traditional characteristics of the system. The state wants its influence to be recognized, its voice to be heard, where as in the past it used to be the voice of the people that was most important, and led to the resolutions lasting and everyone being satisfied by them. The process now, while it may be inexpensive and not involving the courts, is very intrusive into peoples lives, and imposes political values on the people who bring their cases to mediation. Is it better then the traditional sense? I don’t know if it is or not, it is very similar, but much like the rest of China the government sought more control in the everyday affairs of the people, and that is what is happening.
A similar situation occurred in India, where there existed a complex system of conflict resolution, but upon the government wanting to modernize the country, most was thrown out. India is also another country that has been colonized, and draws a lot of its government from the British. However, once colonization ended for them, the newly free government had to decide whether or not to revert to the traditional practices of the Jati, or attempt to bring Indian law into the 21st century. Many of the hierarchy of society at the time India was granted freedom were legal professionals from the British days. They wanted to implement a British style of legal system, mainly for their own material gains, as they would be the ones who would be called on as lawyers, and judges. Many people within India opposed this system, seeing it as the culture of the oppressor. They sought to eradicate this system from their country completely. However, as the years of colonization passed the British system gradually became fused with features of the local tradition, especially the local courts system. It became less of an oppressive system and more of a working one. Today the British system has become domesticated to the Indian ways of doing things and a hybrid system has developed. It no longer seems so alien to so many Indians. This example is similar to the Chinese example as the governments of each country are trying to deal with change. In China when the communists took over they only wanted to slightly alter the existing system of mediation, while in India when the British left, the new government only wanted to slightly change the existing system. In both cases, little change was made, only enough to take into consideration the new ideologies of the new government. There is however, a strong backlash against the British system in terms of how it deals with marriage law, but I am choosing not to discuss this issue because it is abstract from the points that I am trying to make.
Legal systems also change as they are deemed to be unresponsive, and to out of touch, a is the case in many of the industrialized societies of today. Two examples exist of how changes in the way police are conducting their trade has led to improvements within the society, Japan, and Santa Ana California. The Japanese have made their police much more visible, and readily available to the public, when compared to the typical American city. This has led to them being much more accepted by the Japanese public than the American police are by our public. They have, for a long time now, abandoned the motorized form of policing in a car, and have instead opted for foot patrols. This brings the actual officer out onto the street, and gets him more involved in the affairs of the people, enabling him to be better capable of stopping trouble before it starts. The whole emphasis on the way the Japanese police has been placed in their continuing efforts to integrate with the community. A system of Kuban’s has been developed as a place in the community where a small number of officers are stationed. There are several Koban through out Japan, as they are the basis for the policing process. These Koban have various connections with various community groups and organization, further placing the public behind the police. Similarly, in Santa Anna California, a new system has been adopted to better integrate the police force with the people they are trying to serve. During the racially tensed 1960’s the police department in the city became very out of touch with the needs of the people in Santa Anna. Police officers began to see themselves as the only form of law, and began to enact their own brand of justice. Public opinion of the department went down, as did the relationship between the department and the public. The city therefore hired a new chief whom implemented several new community oriented policies all aimed at trying to restore the trust of the public. He divided the city into four grids’ and flooded each with police officers, in an attempt to make the police more accessible to the public, and their concerns. He also hired several new citizens to act as officers, without the official tag of being police officers. They handled many of the mundane tasks of police work, which freed up more officers to be out in the public, exposing themselves, and attempting to prevent crime. Due to the large foreign speaking population, he also hired several citizens who could speak the languages of the people, thus making the department more accessible to those who previously have been closed out due to language barriers. Buildings were set up as a neighborhood control center for the police, but also lent it to many community functions. These buildings, which were very similar to the Koban in Japan, were an attempt to invite the public in and welcome them into the police world. As in Japan, the public was welcomed in and encouraged to make complaints, give information about possible criminal activity, or just sit down and get to know the officers. All of this was done in an attempt to win over the public, and make them feel more comfortable with the police department. It is very similar to the way the Japanese system is set up in that they both work from the grassroots level, using the human resources approach rather than an authoritative system, and the strong desire to integrate with the community, and make them feel more comfortable with the police.
As I have demonstrated, changes have taken place in legal systems around the world, some for the better and some not. However, they all end up, in one way or another to reflect the belief that traditional methods are best. Without any inclusion of traditional methods law itself wouldn’t be able to be applied to masses of people.
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