Are History and Geography the Only Factors that Determine a Country’s Laws?

October 11, 2009

The statement that history and geography are the sole determinants of a country’s laws on its first reading already reveals an inherent flaw, namely its exclusive nature. While the determining force of the factors of geography and history is self-evident and will not be negated in this essay, it will be shown that they cannot be treated as the sole sources of the shaping of a country’s laws. That abstract philosophical speculation has a pivotal role in law-making and the growth of law will be illustrated by use of a number of examples.

The guides for behaviour in society, as a need arising out of the association of human beings, are the outcome of a society’s experiences. These experiences are undoubtedly determined geographically and historically. However, “the thought and actions of its members will inform the basic postulates of a society and shape the principles . . . which govern the social order.”[1] At the forefront of a society’s laws, along with historical and geographical facts, lie the general ideas about justice and human nature.     These general ideas may be viewed as themselves geographically and historically influenced. Nevertheless, philosophical discourse has a history of its own and has always, directly or indirectly, directed legal thinking.[2] If one views the history of philosophy as a more or less linear progression, then it becomes apparent how different schools of thought gave rise to different theories of law and justice.

Let us take the example of Marxism. Marx’s dialectical materialism in a sense developed, whether positively or negatively, from Hegel’s dialectical idealism. This radical shift in ontology was followed by the change in the view of the relationship between the individual and the state. The teleological nature of Marxism, namely the withering away of the state and its laws as the eventual outcome of Communism, gave legitimacy to the system of laws established in Communist states.[3] The “dictatorship of the proletariat” was taken as the necessary transitional period in which the existing state power and its legal apparatus could be legitimately used against the bourgeoisie and proponents of capitalism.

The laws that were thus applied in Communist states had as their final aim the non-necessity of the state and its laws. This was not an aim that these states adopted due to only geographical and historical circumstances. The theory behind their system of laws relied on potentiality and was thus purely future-oriented. Furthermore, as a political system, Communism was adopted in countries such as China and Cuba, and not in Western Europe where it had been conceived.

Perhaps such an example of revolutionary law-making is not representative of the evolution of law in the majority of states. Yet, it illustrates the potential outcome of philosophical speculation concerning the problem of justice. The adoption of certain laws depends on a number of factors, which range from social facts to the influence of intellectual movements. This was the case with the revival of Roman law in Europe. While one of the reasons for its successful implementation had been that it suited more the interests of medieval emperors, it was also enforced by the Renaissance intellectual movement, as part of a larger revival of Roman and Greek culture.[4]

We can also look to the sources of law to see how law is shaped by many different factors apart from geography and history. The sources of law include on the one side custom and judicial precedents, but also legislation and codification. Some law systems give more importance to one over the other.[5] Custom, shaped by social facts, even when contradicting legislation, has the power to exert great influence on judicial decisions. This is evident in the fact that “the strength of a custom of justified vendetta still surfaces in jury trials in Corsica and Sicily.”[6] Nevertheless, custom is itself not solely shaped by experience but also entails ideas of morality. Thus, any “legal system does not need merely to . . . align particular doctrines with particular opinions or social practices    . . . . A legal system must be regarded as morally appropriate for and by the people it governs.”[7]

In the shaping of specific laws, factors such as geography may play the leading role. Examples of such instances are immigration laws. A country which is geographically proximate to regions from which influxes of illegal immigrants are frequent may find it necessary to impose stricter border control and visa regime. However, even such instances are closely tied to other factors such as the political and economic conditions of a given country.

The determining factors of a country’s laws actually exceed the limits of geography, history and abstract philosophical speculation. Countries change their laws due to a wide range of forces, both external and internal. A country such as Serbia is currently in the process of changing its legislation in order to harmonise its laws with those of the European Union. This is possible in the first place because geographically Serbia is part of the European continent and the people of this country see themselves as historically belonging it. However, due to the economic and political instability the road to European integration is seen by the leaders of this country as the only possible solution. Moreover, although the idea of peace, freedom and protection of human rights is overwhelmingly appealing to the population, it is also the case that the reason the country is changing its laws to reflect those of the European Union is because it is one of the conditions for membership.[8]

As a conclusion, the argument that geography and history are the determining forces of a country’s laws is found to be insufficient on a number of grounds. While the role of these two factors is evident in their primacy in the shaping of specific laws, even in such cases they cannot be separated from other factors such as economy, politics, religion, and constant attempts to better the legal system according to philosophical ideas of what the concept of justice entails.

[1] Henry W. Ehrmann, Comparative Legal Cultures, (Prentice-Hall Inc., Englewood Cliffs 1979) 7.
[2] Benjamin N. Cardozo, The Growth of the Law (Greenwood Press, Westport 1975) 25.
[3] Julius Stone, Social Dimensions of Law and Justice (Stevens & Sons Limited, London 1966) 496.
[4] Ibid., 90.
[5] Comparative Legal Cultures, 21.
[6] Ibid., 43.
[7] Donald Horowitz, ‘The Quran and the Common Law: Islamic Law Reform and the Theory of Legal Change’, American Journal of Comparative Law no. 42, 569.

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