Where does a legal system derive its ‘cultural’ values from? And how significant are

each of these sources?

Legal culture may include elements of family obligations to bail out family members in

trouble (From the Indonesia Corporate law paper). This practice is not, and may never be

codified in substance, hence Friedman’s caution that:

Structure and substance are real components of a legal system, but they are at best a

blueprint or a design, not a working machine. The trouble with...structure and substance

was that they were static; they were like a still photograph of the legal system...The

picture lacked both motion and truth...and is like an enchanted courtroom, petrified,

immobile, under some odd, eternal spell.

The reason for the lack of description of legal culture is then explained by the fact that it is

extremely difficult to make precise statements about it. I concur with Friedman that legal

culture is often hard to pin point or describe in textual terms due to the various cultural

contextual backgrounds that must first be elaborated upon in detail before a foreigner will

start to appreciate the new environment for which he/she is operating within. Personally, I

find learning legal culture analogous to a golfer trying to improve his/her putting. We could

teach the golfer putting stroke technique and where to aim, but ultimately, to become a good

putter, the golfer will have to develop a ‘feel’ as to how hard to hit the putt or how to putt

well under immense pressure. This is no easy feat because green speeds and undulations will

always vary. Therefore, akin to a golfer learning from mistakes and trial by error, a good

sense of Asian legal culture may only be truly developed through engagement and experience

in the region.

In addition, I would contend that cultural values are shaped by a combination of both absolute

traditional customary practices as well as political and economical forces. At times, it is hard

to divorce custom from these forces. For example, traditional Jewish and Chinese cultures

revolve around traders operating family businesses and perhaps this could explain the strong

emphasis on relentlessly pursuing material wealth (which is a bit different from the typical

Australian attitude of enjoying life and leading a balanced lifestyle) and maintaining close

familial ties. This is arguably, and interestingly evidenced during Chinese New Year

celebrations whereby ‘Hong Bao’ or red packets filled with money are distributed to family

members and close friends with the word ‘Fu’ (prosperity) printed on it to symbolize

monetary wealth or ‘Wan Shui’, which directly translates to longevity but in Chinese context

infers a retention of power/status (to someone who already is in power, usually a senior

official in the past). To the objective person, this would stand in stark contrast with the spirit

of giving over Christmas! However, I did not raise this point to question the moral merits of

different cultures, but to simply highlight the interdependent nature of certain elements of

Asian values culture with economics and politics.

What are the values of my own legal system? In Malaysia, national security and unity

amongst the major racial groups is given utmost priority in order to maintain political

stability. As a result, the Internal Security Act (ISA) implemented during the 1960’s to stem

the Communist tide is still operational today even though communist threat is now well and

truly behind us. The ISA is similar to anti-terrorism legislation and contains broad police

powers which include indefinite detention without trial.

While the ISA, prima facie, appears primarily politically motivated to maintain political

power by restraining freedom of speech/expression, I would argue that there are cultural

values at play as well. Constraining freedom of expression may have cultural connotations

because traditional Asian values routinely favor social harmony and as such public sentiment

may regard the silent suffering of a few as the lesser of two evils? There are other unique

features of Malaysian legal system such as concurrent existence of Islamic Shariah law

abreast of the common law to cater for the Muslim majority. Shariah law only applies to

Muslims. For example, if a Malay woman is ‘caught’ having premarital sexual relations with

a Chinese man, she will be duly charged for committing ‘khalwat’ under the Shariah Law

while the Chinese man is absolved from guilt. There are also Islamic banking laws which do

not recognize the concept of accruing interest from loans to Muslims. As such, it is clear that

cultural/religious values do influence legal culture to some extent. For the above reasons, I

would disagree with Lo and Volpp’s contention that material and political factors matter

more in determining legal phenomenon, at least in my home country.