Legalcultures

Reflections on legal culture permeate each of the chapters. To understand legal institutions, rules, processes, sources of law and the professions instinctively requires cultural contextualisation - social, economic, historical and political.

[I]t is the legal culture which determines when, why, and where people use law, legal institutions, or legal process: and when they use other institutions, or do nothing. In other words, cultural factors are an essential ingredient in turning a static structure and a static collection of norms into a body of living law. Adding the legal culture to the picture is like winding up a clock or plugging in a machine. It sets everything in motion.^[26]

What people in a country think about law, lawyers and the legal order and their attitudes, opinions and expectations with regard to the legal system are explored in this section. One recurring theme is the extent to which traditional commu­nitarian attitudes and negativity to litigation as a dispute resolution process, and also to those individuals who resort to litigation in the courts, has contin­ued in today's modernised legal systems. Measures of litigiousness in a society are seen as a way to determine whether the old traditional paradigm has been supplanted by a newer more individualistic and rights-based one.

In noting that Koreans are often portrayed as litigation-adverse, Youngjoon Kwon employs current data to challenge the view that Korea's Confucian harmony-based heritage still favours disputes being settled by mediation over court adjudications. He shows that not only are Koreans bringing more and more cases to court (more than one in eight Koreans have been involved in litigation) but they tend to exhaust all appeal avenues by taking their case right up to the Supreme Court. This, he argues, reflects the waning influence of Confucianism in Korea in line with almost a century of modernisation of Korea's legal system. Mentioned also are other tangible signs of Confucianism's decline, including amendments to the Civil Code, which removed traditional patriarchal provisions, and notable Constitutional Court decisions which rejected Confucian principles as not in conformity with the protection of individual rights' provisions in the Constitution. Although this is the direction, remnants of traditional moral norms, such as filial piety, have survived, especially in aspects of family law, and Korean courts, including the Supreme Court, do consider and apply some of these tra­ditional concepts that resonate with Korean traditional practices and Confucius' philosophy.

Similarly in Taiwan, another nation where Confucian teachings once held sway, the traditional view that litigation leads to inauspicious results is also challenged by Chang-fa Lo. Current data indicates a high number of disputes do come to court, which dispels as a myth anylingering cultural reluctance to litigate. Ironically, the large number of disputes being litigated has led to the growth of alternative processes, such as arbitration, as a way to reduce the number of cases going to court.

On the other hand, legal culture in Vietnam is still to a large extent informed by traditional attitudes, with law coming from 4000 years of feudal rule based on respect for the King and for authority, which was sustained during French colonial rule. Social connections and administrative authorities were used to address grievances and problems. The idea of law as a vehicle for the recognition of individual rights and liberties, and the concepts contained in the rule of law, have only surfaced since the late 1980s in the Doi Moi (Renovation) period. Traditional practice and accompanying negative attitudes to using legal forums and professionals, Dang Xuan Hop sees in the continued deep reluctance to seek redress in the courts a pervasive distrust of law, the judiciary and the legal system in general. However, changes are occurring incrementally, as the number oflawyers and firms increase and people have successful outcomes from the court process, in addition to state agencies starting to take law seriously in their own departments.

In the chapter on Japan, the authors note that the character of Japanese legal culture has been perhaps the most debated issue in the research literature on Japanese legal institutions. The debate has centred on Japan's legal conscious­ness, namely answering the question of why Japan's litigation rate is low, espe­cially when compared to societies such as the United States. The authors, Kent Anderson and Trevor Ryan, show the answer is not straightforward as they take the reader through the four major schools of thoughtwhich have responded to the question, noting a recent trend to acknowledge the correctness of each of these schools as the circumstances of the dispute will dictate which theory accords with the experience.

Benny Tai, in his chapter on Hong Kong, explores the challenges in maintain­ing its inherited British common law system in not only an ethnic Chinese society but particularly one that has been transferred to a larger entity with a different legal culture - the socialistlegal order of China. He explores whether the common law's legal culture has been sufficiently entrenched in Hong Kong's legal con­sciousness to survive under the new constitutional order. He draws on academic studies over a 30-year period to examine the attitudes and values of Hong Kong people to cardinal tenets of the common law and finds the Chinese population did want the common law legal system to remain in Hong Kong and that in formal and procedural aspects the common law culture is well established. However, on principles of inborn rights and judicial independence his research revealed more divergence. It also showed that the level of education correlated with acceptance of the common law culture; the higher the level of education, the higher the acceptance.

The degree of public confidence in the judicial process is a second recurring theme. For the Philippines, public confidence in the judicial system is a major concern, withreports of widespread corruptionwithin the system and allegations of rampant bribery. Elizabeth Aguiling-Pangalangan writes that this distrust may be aggravated by the use of English rather than Filipino as the official language within the courts where it may seem to favour the better educated and those with higher incomes. Another country where corruption mitigates against the efficacy of courts and judicial independence is Indonesia. Although Gary Bell reflects on a possible common traditional cultural trait of not being a �law-minding' society (in comparison to Western societies well accustomed to law, legal procedure and courts) he also cautions against generalisation.

Tsun Hang Tey also reflects on confidence in the judiciary in Malaysia. He delves into some landmark events in Malaysia's recent history, including the instructive �1988 Saga' where three judges of the highest court were removed from office, the Anwar Ibrahim trials and the Lingam-tape scandal, to highlight the damage caused to the reputation of the judiciary and its impact on pub­lic confidence in the judicial system. He focuses on the notion of the rule of law in Malaysia, as one that while embedded in the Federal Constitution (with some exceptions) and in the nation's five pillars, has, over the last 30 years increasing been undermined by executive dominance and interference. The out­come has been that judicial independence and integrity have been undermined and that public confidence may be at its lowest ebb. While this can be con­trasted with Brunei where confidence in the independence of the courts, both common law and Syariah courts, remains quite high, unrestrained executive dominance has meant Bruneians are disenfranchised, autocratic rule prevails, and basic freedoms going to freedom of speech, association and religion are curtailed. The national ideology draws on traditional tenets and norms of �Malay Islamic Monarchy' (MIB) including the practice of shura (consultation) and the inherent reciprocal relationships between ruler and subjects, to claim Brunei's system is more just and benevolent in comparison with democratic concepts of representative and responsible government.

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