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Domestic Legal Traditions and State’ Human Rights Essay (Article)


It is the obligation of every state to adhere to the human rights standard. But each country has its way of doing things. Some of the states see the need for modernizing their systems. The paper would discuss domestic legal traditions versus the states’ human rights.

One of the greatest similarities is that most of the countries have almost the same laws. Some of them have a legal structure that supervises and administers the human rights standards (Mitchell, Ring & Spellman 2013). The structures have the same source.

Countries that have domesticated the common law have greater independence of human rights. Common law is like a superior legal system and a standard for the provision of fundamental human rights. The practice of the common law started in England and spread to other nations.

Most of the countries have a free and fair legal system, better economic freedoms, and better investor protections (Mitchell, Ring & Spellman 2013). They also have wonderfully developed capital markets. It is in the spirit of fairness that they practice freedom.

The countries have a well structured political system that adheres to the rule of law. The leaders provide democratic leadership. They also practice multiparty politics. Such kind of leadership resonates well with the practice of opening up the democratic space.

The state needs to invest in legal education to open up democratic space. They need to allow students to acquire legal knowledge. The countries have more lawyers and qualifying judges because of the open space for education (Rehman & Breau 2007). When there are more lawyers, the state becomes more lenient on its citizens. They help to reduce state oppression.

There are many differences between the domestic legal traditions and the human rights practices of all the regions of the world. Governments need to put in place strong institutions and practice the laws they make. Some domestic legal traditions are in place because of religion.

Islamic law does not require judges to write down the court’s decision. Islamic law has four primary sources. They include the Koran, Sunna, judicial consensus, and analogical reasoning. Islam makes the Koran the main source of law. If the Koran does not give clarification on a particular matter, the judges consult the Sunna. The Sunna is the compilation of the sayings of the holy prophet Mohammed. Then the judges have to arrive at a consensus.

The Islamic judicial system serves the leadership of the country (Rehman & Breau 2007). Therefore, the subjects are at the mercy of the administration. Unlike the human rights practices in all the regions of the world, the person who goes to Islamic courts for judgment is at the mercies of judges. There is a high possibility of unfairness in the rulings. The legal process does not also have precedence to follow. Islamic law makes the individual part of the state and the Islamic community. Therefore, there are rules for individual rights. The individual has only one obligation, and that is to obey the religious law and practices and the state.

The civil law system makes the state supreme, and the individual must obey the system and its laws (Kurasawa 2007). The civil law only protects the state and its interests. Human rights practices require the law to protect individual rights from the state. The Roman Empire used the law for expansion and administration purposes. The empire only used such laws to protect their interests. The law required people to conform to the will of the ruling regime.

Some colonial masters ruled their colonies using harsh colonial statutes. The subjects had to respect and honor their leaders. The law protected the rulers against the individuals. When these countries attained their independence, they maintained the same law. They saw no need to give the citizens any rights. Some colonies used an indirect rule where they gave a few local chiefs power to administer the locals. The Chiefs had to wield power over their subjects for them to serve their masters.

Other colonial countries directly ruled their subjects (Mitchell, Ring & Spellman 2013). Most of these countries have constantly had human rights problems. They do not accept any opposing views. They also do not give people freedom. Governments that have the rights of individuals in their constitution have also made it difficult for the citizens to enjoy them. The subjects cannot get their rights through the judicial system because the judiciary is at the mercy of the rulers.

The common law promotes the strengthening of the rights of the individuals. The individuals can mobilize support to defeat the government’s dictatorship in matters that concern the human rights (Kurasawa 2007). Islamic and civil laws do not allow such freedom. In fact, it is treason in such countries to rebel against the governing authorities.

Human rights practices are involved more in creating healthy social relationships. They propagate the rights of the individual from the state (Kurasawa 2007). In such countries, there is the doctrine of precedence. Such precedence is not in the civil and Islamic laws. Judges in the common law have to refer to past solved matters so that they do not make new rulings. The system promotes consistency in the legal process. It removes biases. And if an individual feels that the process may not have been fair to some extent, he or she may appeal. The appellate judges have the powers reexamine a matter and even reverse the lower courts’ decisions. Islamic and civil law procedures do not allow such action. The judgment is always final whether it was fair or unfair.

The common law gives judges more freedom to determine the matters before them. It has the adversarial trial system where the opposing sides can argue to resolve an issue. The modern civil law limits the independence of the judges and judgments. Islamic law has the highest repression levels because the legal structure has links with the state and the Islamic religion. The extent to which some countries promote human rights practices is untenable. The judges are not independent of the state. The law may also not provide enough checks on the executives concerning human rights. In some authoritarian states, the judges have independence but only serve the current regime or in fear of the same.

Some countries have military regimes. Previous experience with repression, internal and external conflicts can cause the ruling regime to abscond human rights privileges. States that have experienced dictatorial colonial rule may not have changed the system when they obtained independence. Other leaders deny human rights because of their corrupt dealings (Rehman and Breau, 2007). Others do it because of the resources curse. They have many resources and would like to have them for selfish gains.

Governments need to improve human rights by strengthening the independence of the judiciary. The international community can ratify treaties and push for individual states to domesticate them. The nations should not just make the rules but also enforce them. A stable legal system can ensure common law adherents. The civil law countries should promote human rights practices. The international courts and human rights regimes need to help the countries that had colonial governments.

References

Anthonissen, C & Blommaert, J 2007, Discourse and human rights violations, John Benjamins Pub, Philadelphia. Web.

Mitchell, S, Ring, J & Spellman, M 2013, ‘Domestic legal traditions and states’ human rights practices’, Journal of Peace Research, vol. 50, no. 2, pp. 189-202. Web.

Rehman, J & Breau, S 2007, Religion, human rights and international law, Martinus Nijhoff Publishers, Leiden. Web.

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"Domestic Legal Traditions and State' Human Rights." IvyPanda, 8 July 2020, ivypanda.com/essays/domestic-legal-traditions-and-state-human-rights/.

1. IvyPanda. "Domestic Legal Traditions and State' Human Rights." July 8, 2020. https://ivypanda.com/essays/domestic-legal-traditions-and-state-human-rights/.


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IvyPanda. "Domestic Legal Traditions and State' Human Rights." July 8, 2020. https://ivypanda.com/essays/domestic-legal-traditions-and-state-human-rights/.

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IvyPanda. 2020. "Domestic Legal Traditions and State' Human Rights." July 8, 2020. https://ivypanda.com/essays/domestic-legal-traditions-and-state-human-rights/.

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IvyPanda. (2020) 'Domestic Legal Traditions and State' Human Rights'. 8 July.

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