Envisioning A Global Legal Culture

Abstract

This paper envisions a global legal culture. This global legal culture will interact with the national legal cultures and will fundamentally change legal practice, even ostensibly local legal practice. Thus, there is a practical imperative in contemplating this evolving legal culture for all lawyers and legal scholars. US lawyers and US legal scholars face a special urgency because we are so far behind others in recognizing the practical importance of understanding the world's legal cultures. This paper hopes to initiate reflections on the blending of legal cultures in the world arena. The paper suggests two plausible vehicles for the creation of this legal culture: The World Trade Organization's Dispute Settlement Bodies, globalizing commercial legal cultures, and the United Nations' International Court of Justice, globalizing rights. These two tribunals not only suggest plausible global adjudicative systems, if not the final versions, but already provide some real world experience. The paper relies more directly on the experience of two more developed centralizing court systems, the US federal judiciary and the European system comprising the European Union's European Court of Justice (ECJ) and European Court of Human Rights. The European tribunals offer a recent and particularly valuable experience in the merging of national laws into a larger legal culture. In addition, the ECJ demonstrates the progression of open market adjudication into adjudication of nearly all of society's issues. The paper posits a blending of civil law thinking with common law thinking in evolving a global legal culture. This approach is more than transatlantic chauvism: these two legal models have migrated around the world, for good and bad reasons, so that they cover about 70% of the world's population. Because the paper anticipates a large portion of common law readers, it begins the analysis with a treatment of foundational aspects of civil law thinking and how that thinking might translate in the design of the global legal culture. Then the paper focuses on envisioning a global legal culture bringing together common law thinking, particularly the US version, and that of the civil law. The paper attempts to identify the tensions and to suggest possible resolution of these tensions. It notes the additional complication of merging the judicial philosophies of parliamentary and presidential governmental types. Again and with emphasis, the attention to the civil law and common law models support only a potential first generation of a global legal culture. Other legal cultures surely will have impact and the creative capacity of future generations will eventually be crucial. In the end, the paper merely hopes to offer a first stage framework, seeking to lay the groundwork for and encourage thinking about the dimensions of an emerging global legal culture.