A Collision of Law and Culture
Having spent a good share of my life in cultures very different from American culture, and having studied most of the legal systems in the world, I never cease to be amazed at how culture shapes legal systems.
My first wife Betty and I lived six years in Central Asia, among a people very different from us. At the outset, we thought our own ways of thinking and our own culture were superior. Boy, were we wrong!
The photo above is when we spent two weeks at high altitude (2,800 meters) in the summer pastures of the Kyrgyz Republic. In a word, we learned much more than we taught. I was able to help a new country build a new legal system, one that tried to introduce basic democratic structures while at the same time taking into serious account the local culture and “how the people think.” Well, the system is far from perfect, but Kyrgyzstan is far more democratic than any other of the former Soviet Republics (aside from the three Baltic states.
The Kyrgyz culture emphasizes family and community over the individual. It emphasizes personal relationships over watching the clock. An event starts not at the published time but when all the right people arrive. It took us a long time to adjust to that, but we did. When we moved from the capital city to a remote regional center high in the mountains not far from the Chinese border (as the crow flies), we were met by local officials who waited at the roadside for over three hours (as we were later than advertised. Not a problem! We were instantly welcomed and treated to the finest hospitality in the world.
After 9/11, local police kept vigil over our house, while intercepting vehicles filled with terrorists and weapons at the entrance to our city. Their concept of hospitality included keeping us safe, giving us the best of what they had, and treating us as well as their own family. Late one night, we were doing health care visits to villages quite distant from our home, and found ourselves in need of a place to stay, just before midnight. We rang the doorbell at the exterior gate of a large house. After about five minutes, a man appeared and asked what we wanted. We explained our situation. He led us into a darkened house, turned on the lights, woke up all the occupants, sat us down in the main room, and before we knew it, the ladies in the house were preparing a meal for us. We shared a wonderful meal, talked for two hours over many cups of tea, and then were given the bedroom of the head of the household. We awoke early the next morning to see all members of the household waiting for us to join them for breakfast. We ate, we prayed with and for them, humbly shared our faith (in response to their questions), gave them some needed medicines, and left with hugs and tears as we continued our journey. I thought to myself, if this had happened in many parts of my own country, we might have been shot—like the Japanese exchange student shot in Louisiana while trick or treating on Halloween.
In the Kyrgyz culture, and in the Koran that these culturally muslim people revered, a stranger stopping by your house could be an angel of God who could bless the hosts. The New Testament Book of Hebrews contains this same teaching, but, sadly, it has not made much of an impact on our culture.
Most disputes in the Kyrgyz and Central Asian cultures are not resolved with lawyers and civil litigation, but rather by informal negotiations and often in rural areas by councils of elders called “Aksakals.” They are men over sixty with life experience, wisdom and good reputation. In the local language, “ak” means white, and “sakal” means beard. I was honored to be treated as one, even though I had no beard. Community harmony, and restoration of losses is all important. Very different from my own country!
Most Americans would be surprised to learn that the British stopped using juries in all but a handful of civil cases almost a century ago. They figured out that trained judges could better assess fault and quantify money damages in cases seeking money for some type of civil wrong. But we still have the right of trial by jury in most civil cases, as if it is one of the essential elements of our freedom. Add to this the fact that we are one of the very few countries in the world that allow lawyers to invest in litigation under the contingent fee system, and we wonder why our medicines and health care are so expensive, why the fear of prohibitively high damage awards make communities and citizens risk averse across an entire spectrum of beneficial activities. In our minds, no case is too small for court. Lawyers advertise on television, in ways that were illegal when I went to law school 55 years ago. We were supposed to be officers of the court, dignified, and not viewed as engaged in commercial business.
Should we be surprised that courts in urban areas are flooded with cases, insurance companies settle and pay claims that only have merit if seen through the eyes and perhaps tears of untrained jurors, and even in our criminal jurisprudence, most cases are resolved through plea bargaining (another practice almost unheard of in most of the world).
Culturally, we are focused on our individual rights much more than our responsibilities. We want the law to protect us, but we don’t trust judges to apply the law strictly when our own interests are threatened. An example should prove the point. If someone breaks into my home while I am at a meeting and rapes my wife, and I come home after the fact but see him fleeing my house, chase him down the street and shoot him to death, I am technically guilty of manslaughter, a grade of homicide. But when I am brought to court, my jury will likely ignore the judge’s instructions and acquit me (it’s a practice known as “jury nullification”), because they will think, if they were in my shoes, they would not want to be convicted. In most other countries, the judge (or a panel of judges) would convict me according to the law, but my sentence would be lenient in light of the extreme circumstances.
Our British legal ancestors have a rule in civil cases that the losing party pays the costs and the winning party’s attorney fees. You know that would never fly in our culture. Another example, a judge in a British criminal case will tell the jury that if the defendant remains silent, they can infer that he has something material to hide. I could go on and on. As long as lawyers dominate our legislative bodies, most of this will not change until there is a total breakdown of our legal system or we radically shift from a democratic republic to an oligarchy (leaving our two plus centuries old Constitution as a historical relic).
Thanks for listening. More to come.
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