Term Paper

Anastazija Ristovska

The Impact of Society on Domestic and International Law

and the Impact of Law on Society: Max Webers Spiral Definition

Abstract
We hypothesize that the definition of the effect of society on law formation and the
effect of formal law on society is a spiral and not a circular definition. Society reinforces law
and law reinforces society, thus both climbing up the social and legal scales of perfection as a
Ravenclaw staircase. We examine the ways society and law shape one another through the
lenses of the great man model, conflict model, cultural, structural and process models, looking
into detailed case-studies that fit into the characteristics of these five models.
Keywords: domestic law, international law, sociology of law, society and law

Table of Contents

Title Page_________________________________________________________________1
Abstract__________________________________________________________________2
Table of Contents__________________________________________________________3
Methodology______________________________________________________________5
Introduction______________________________________________________________5
The Interactions between Society and Domestic & International Law___________________6
General Theories___________________________________________________________7
Discussion of the Great Man Model____________________________________________8
Conflict, Cultural, Structural & Process Model____________________________________9
Societys Impact on the Abolishment of the Fellow-Servant Rule_____________________10
Which Model Do We Fit it Under_____________________________________________10
Social Controversies and Law Making__________________________________________11
Crossing Boundaries_______________________________________________________13
Legal Pluralism and Colonialism______________________________________________13
How South Africas Legal Pluralism Shaped It into The
Independent Sovereign Country It Is today______________________________________14
Minorities and Legal Pluralism________________________________________________16

The Impact of International Social and Legal Differences On The

Social Functioning and Structure of Legal Institutions______________________________17
The Case of Chinese Culture in Corporate Law___________________________________18
Lawyers as Social Players____________________________________________________19
Social Structure and the Lawyers Labor market___________________________________20
Social Perceptions and Misperceptions_________________________________________ 21
Societys Impact on Legal Educational Background across Continents _________________22
Max Webers Definition: Circular, or Spiral? _____________________________________23
Society Is Blurring the Boundaries of Legal Culture________________________________24
How Society Shapes Continental and Precedential Law_____________________________25
Corporate Lawyers Use Precedential Law to Predict Cases__________________________28
Perceived v. Unperceived Injurious Experiences__________________________________29
The Transformation of Social Issues into
Political Issues That Dictate Precedential Law____________________________________30
The Social Background of Healthcare Legislature: A Class Conflict____________________31
From China to the U.S.: the Social Setting of Corporate Law on Wall Street_____________32
Conclusion_______________________________________________________________34
References_______________________________________________________________35

Methodology
This paper will seek to answer questions such as, do particular types of societies
institutionalize different types of legal systems, whether the shape of society influence the legal
system pattern, or is it the other way around, and is there any significant correlation between
economical and societal phenomena and the various forms of rationalities that constitute
modern legal thought, as either one of these of the latter being the dependent or independent
variable in the thesis. The research will be qualitative in nature and will only form a hypothesis
through investigating pattern, focusing on the journey towards the conclusion rather than
primarily on the conclusion itself.

Introduction
Max Weber, the foundational scholar of most sociological legal thought, distinguishes
between law-making and law-finding versus formal law, as two phenomena the former of
which is substantially irrational, and the latter of which is primarily rational. The basis for this
distinction, as substantiated by Weber, is the idea that once law if formed in a definite form
that can be readily enforced, it becomes the guiding principle that shapes society, whereas the
law-making process is to a degree the reverse process of law-enforcement upon society, i.e. it is
the stage of the legal process where social rules form the basis upon which law-formation
draws moral, ethical, emotional, and political guidelines as the criteria for forming its decisions
that get translated into legal rules and laws. Once there are analytically derived legal
propositions, these get systematized and integrated so that they form a featureless logical
system of rules that besets all conceivable legal scenarios and is adequate for classifying and
settling them.

The Interactions between Society and Domestic & International Law

Weber tended to view legal fact situations and the scholarship thereof as highly
conceptual and its rules comprised of definitions rather than individual case-by-case
particularities, trivialities and aliases. Perhaps that is where a slight difference can be noticed
between German and British legal scholarship German scholarship was on the most part
theoretical and focusing on abstract terms, where is it was often the case that in British legal
thought is highly empirical. By empirical it is implied that most rules and laws, in their written
theory, will almost always hold in their fresh history records or background literature the cases
that contributed most to the law-making process that helped form the particular laws.
Especially in the last couple of decades in the United States law-making has been highly
empirical in some of its aspects, particularly corporate law-making and dispute settling, where
the cases which reach litigation in court are always borderline cases and almost always require
additional law-making in order to resolve the conflict. The reason behind this empirical courtsettling law-enforcement is the predictability of the outcome of most disputes. Lawyers hired
by large corporations are very well acquainted with the laws and legal norms surrounding every
issue that reaches their desk and can advise the corporation on what step to take: whether to
offer the accusing party a negotiated deal outside of court in those cases where it is almost
certain that the prosecutor is going to win the case in order to avoid high litigation costs and
potential high penalties from the court rulings or, on the other hand, to allow the accuser to
take the company to court with the confidence that they will win the case. In borderline cases
it is nearly impossible to predict the judges decision prior to litigating and hearing the final
ruling, which also implies that it is equally hard for the judge and jury to go through a process
of law-making in order to be able to resolve the case in the most morally and ethically upright
aspect possible. This is the same reason why many cases proceed from one court to another,
sometimes reaching the Supreme Court which is the court that doesnt serve the purpose of

mere dispute settling, but is rather a law-forming judicial organ that makes new laws by solving
borderline cases of nationwide or federal importance.
This pattern of thinking leads us to question to what degree laymen, i.e. people not
professionally involved in the legal field, can abandon their legalistic anchorage and rely on
abstractionism and the importance and omnipresence of empirical jurisprudence, without
viewing it as Khadi justice. Law has become a specialists domain with many technical elements
that can only be properly understood and interpreted by professionals educated and trained in
the field, whereas for the interpretation of the actions of legal professionals by the laymen, this
can be left to the coincidence of misunderstandings legal ignorance with not much that can be
done to improve the impression other than perhaps piling up the layman with law textbooks.

General Theories
Keeping in mind that the vast majority of society is comprised of laymen who are
neither legal professionals nor legal scholars, and defining society as a multitude of laymen,
ascribing public opinion to society in general can also mean that what we are discussing is
laymen opinion very little affected by formal legal education of even legal propaganda.
Therefore it should already be clear from this former definition why it is a hard task to be
examining any relationship or correlation between social change and legal change. We
nevertheless devote the next several paragraphs of our discussion to the contriving through
which changes in society are allowed to or manage to influence or cause legal change. The five
basic approaches to examining the social-legal change correlation are: great man (e.g.
Aristotle, Cicero, Marx, Darwin, Hobbes, etc.) model, conflict model, cultural, structural, and
process models.

Discussion of the Great Man Model

The contrivance of the great man model of society affecting legal thought narrows
down to one individual arousing an entire society, and thus bringing about a change, or
improvement, for that matter, in legal thought. Therefore this is simply an individual thinker
bringing about a legal change through use of his or her own charisma and social influence.
The exact path through which the thoughts of this one thinker generates legal rules is
as follows: an individual thinker of particular genius or originality comes up with a certain idea
of legal application, an idea which he shares with his friends or philosophical followers, who
also happen to be influential in society or academia. The followers accept the idea and spread
the word by preaching it to others. If they happen to be in the social circles of an academic
environment, soon an entire school of thought accepts this idea. In modern times this is done
through journals and publications, thus the accessibility and influence of the thoughts of great
men happen worldwide in all relevant departments in most academic institutions, without
geographic restrictions as in the time of Aristotle, Marx, and others. In pre-modern times, even
in the first half of the 20th century, the pattern that followed was, once the followers spread the
idea, and entire school accepts the creed. The next level the creed is preached to must be the
general public, either directly by the school of thought, or through the intermediary of a person
of eminence. An example of a person of eminence, who promulgated the idea of a great man,
is Lenin, who adopted the scientific socialist theoretical creeds of Marx and Engels as the
official ideology of the Communist party of the USSR. Through his party and position of
power as the ruler of the USSR he spread the ideology to the vast general public, finally passing
it down to legislators and implementing it as formal law that even reached immediate
enforcement with almost no time-lag. Generally, once the creed has reached the general public
there appears a time lag during which the new ideology awaits the perfect moment created
through a catalytic event which will necessitate the legislators attention on the ideologys
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subject, their adoption thereof as well as their seeing the creed through until it has reached
novel legal rules.

Conflict, Cultural, Structural & Process Model

The conflict models are based on the hegemonism of the dominant class. They
extenuate the idea that legal rules stem from the neutral public consensus and rather reinforce
the concept of law reflecting the power struggle in society wherein some will inevitably
dominate others. This proposition holds true in times of peace and order, however in times of
social distress, which is the time when the dominant class has the lowest chances of retaining
their charge over the social and legal order, they have very few opportunities to model it
through their own prism in ways they find most suitable. The cultural model has a simplistic
approach of defining law as merely a sum of traditions, customs, habits, and values. The social
structural model studies how social and economic structures shape legal systems and is the
product of the view that social consensus breeds legal order. Neglecting diversity and
fundamental conflicts in societies, this model assumes perfect equilibrium and underestimates
change as an issue. Law is very often thus viewed as the reflex of a uniform economic system.
In the processual model, however, change underlies the very definition of law, where even
though some societies seem to lag behind others in legal development, this is only temporary
since all societies are in the process of law forming, even those that have already very
developed legal systems, and they are all going to continue changing until an equilibrium is
reached. The processual nature of law is mostly based off of dispute resolution and problem
solving.

Societys Impact on the Abolishment of the Fellow-Servant Rule

Friedman and Ladinsky (1967) have conducted a cross-cultural borrowing study of
compensations in industrial incidents and the social change and law formation that takes place
in the process. The fellow-servant rule is a common-law rule governing job-related injuries that
places a legal obstacle on the path of employees seeking to recover damage from employers in
cases when workplace injury was caused by the negligence of a coworker who is just another
employee. As seamless and harmless this rule may seem on the surface, it has far-fetching
ramifications. It can be interpreted in court as meaning that an employee cannot ascribe legal
fault to an employer unless an injury was caused by the employers personal misconduct. This
rule is exactly what it seems to be an instrument that could be used to absolve employers
from all guilt in any industrial incident. Effected and maintained as a rule throughout the
industrial revolution, it wasnt until labor developed a consolidated voice (through labor
parties, for e.g.) that the fellow-servant rule was decried as infamous and a calculated appliance
for exploitation. In empirical law the two leading cases that originated the fellow-servant rule
in Europe and the United States were Priestley v. Fowler (1837) and Farwell v. Boston
Worcester Railroad Corp. (1842). The rules negative ramifications on workers welfare were
ameliorated or completely abolished through tort systems such as the Federal Employers
Liability Act of 1908, and the Workmens Compensation Statutes adopted on a state-by-state
level between 1910 and 1920, with Mississippi being the last state to ratify a Union
compensation law in 1948.

Which Model Do We Fit it Under

From a sociological point of view the appearance and abolishment of the fellowservant rule fits into a complex blend of the conflict model and the processual model of

examining the correlation between social change and legal change. It also represents a perfect
demonstration of a cultural time lag, where it took decades of maladjustments to arrive at the
final implementation of laws that protect workers rights. It is a cross-cultural borrowing
phenomenon since it is thought to have originally originated from Switzerland, from where it
was adopted in Germany, and from these two countries it spread to most of Europe in just
twenty years till 1900, reaching the U.S. in the following decade and being fully implemented in
the Union not more than a decade later as already stated. It however does not represent an act
of cultural dominance of any of these countries over one another in the sense that, the
compensation laws spread cross boundaries because they were successful legal resolutions,
thus countries adopted them voluntarily, not because certain countries had an influence of
power over other and enforced the compensation laws. The later can be true with similar social
issue legal conflicts in some countries with cultural lags behind others where the entire modern
international community attempts to superimpose their own optimal legal rules upon the
domestic laws of a country in an attempt to change or amend rules for the benefit of a
threatened powerless vulnerable minority.

Social Controversies and Law Making

Often times it is not required that a workmens blue-collar movement or an equivalent
of a labor party in other areas such as environmental safety, healthcare, etc. in order for change
to be brought about in a countrys laws. The Pure Food and Drugs Act of 1906 is one such
example. Prior to the Act there was no quality control of food that was being sold over the
counter in the United States. As agitation was rising over the disputable quality of food, food
quality regulation laws were being passed in some states, but it took something on the order of
a public scandal in order to bring about the federal (national)-level Pure Food and Drugs Act.

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It really took a great man model scenario, or more precisely, a great literature socialist man
called Upton Sinclair, who published The Jungle, a story containing vivid details about the food
and meat packing plants conditions where tubercular pork and old sausage rejected in Europe
was pumped with chemicals and made fit for sale and home consumption. The lack of
sanitation during meat production described in The Jungle is despicable, involving rats racing all
over the meat stored in rooms with dripping ceilings. The work hazards were described as
fortuitous in that there were not more men slain than cattle: knife wounds on beef-boners
often crippled their thumbs, burned off fingers were common among acid-treated wool
pluckers, and open lard vats near the level of the floor allowed for workmen to occasionally fall
into the vats and suffer death, and not even a proper burial theyd be overlooked for days
and when theyd be fished out their meat had decayed so much in the lard that there were but
bones left, and the rest was sold as Durhams Pure Leaf Lard.
The book facts were confirmed by a team of two investigators sent out by Theodore
Roosevelt to whom a copy of The Jungle has been sent. They examined the conditions in
Packingtown and their report confirmed the veracity of Sinclairs findings laid out in The Jungle.
The passing of the Pure Food and Drugs Act into Law in 1906 and a series of consumer
protection laws that ensued eventually led to the creation of the Food and Drug
Administration. The U.S. Bureau of Chemistry was appointed to inspect products and refer
violators that attempt traffic in adulterated food and drug products to prosecutors. Sinclairs
socialist propaganda in The Jungle according to him had a very little impact instead it triggered
the establishment of a safer meat industry. In his own words, I aimed at the publics heart,
and by accident I hit it in the stomach. His book is probably the reason why we see accurate
labeling of food and a list of active ingredients placed on the label of every food and drug
products packing.

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Crossing Boundaries
If in the United States food quality regulation laws were new and only introduced in
the first half of the 20th century, they might have already been present in other countries,
perhaps not in the form of legal rules, but in the form of a general society rule. Even today
there are differences between food laws in the U.S. and Europe, with genetically engineered
(genetically modified) food (GMO) being legal in the U.S. but illegal in most European
countries. Society dictates the proper slaughtering of animals and handling and packing of their
meat in Jewish and Muslim countries that eat only kosher and halal. Therefore the social rules
in these countries have affected the law-forming process and have resulted in efficient food
quality control law regulations. It is perhaps thus redundant to be discussing a potential crossboundary spontaneous adaptation and ramification of the Pure Food and Drugs Act. However
there are other laws that have emerged primarily on the European continent and have been
later adopted in the United States that have found their novel application in countries that have
not come up with similar legal rules. This leads us to the topic of legal pluralism. Engle (1988)
defines legal pluralism as a situation in which two or more legal systems coexist in the same
social field.

Legal Pluralism and Colonialism

A typical example of legal pluralism is the creation of a legal system by colonizers in
indigenous societies where an earlier, perhaps more primitive, form of law has existed and onto
which the new form of law characteristic for the urban industrial colonizing societies is
superimposed. The legal systems in many countries that have gained independence in the past
two centuries are just a result of indigenous law being shaped by conquests, colonization, and
migrations that have been going on for centuries. Even though the Europeans were the first

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external influence to superimpose their legal system unto indigenous laws in Third World
societies, other examples are Japanese occupation forces, Chinese trading communities, and
Islamic missionaries. Ancient examples involve the colonizing powers of Alexander the Great
who introduced an early form of Aristotelian European law to the Middle East.
Chanock (1985) has stated that the law was the cutting edge of colonialism.
Regardless of what the means were through which indigenous peoples maintained social order
without European law, it was colonial formal rational law that paved the way for the ease with
which these societies transitioned from subordinated colonized nations to independent
countries with sophisticated legal systems capable of being on par with modern First World
countries when it came to international organization such as United Nations and World Bank
participation. In other words, legal pluralism helped create global uniformity, at the same time
making sure most legal practices that were considered repugnant by European standards would
be eradicated. Thus colonizers in Africa, such as the British and the French, would allow for
customary law to be intertwined together with the superimposed European law, for so long as
the customary law would be subject to change and could be cleared of those elements that
seemed incompatible with justice, equity, and moral uprightness.

How South Africas Legal Pluralism Shaped It Into The

Independent Sovereign Country It Is today
In this discussion of legal pluralism we seek to examine the changes that happen
through interactions between societies, and not necessarily within an individual society,
regardless of whether the final effect was positive or negative, and regardless what the final,
sometimes even transcendent results were. Therefore, regardless of how well-intentioned
European missionaries were who were sent to South Africa, their introduction of new

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dimensions to the concepts of time, space, occupation, and individualism over decades
reshaped the consciousness of Africans in the regions where these missionaries were most
present and prepared the way for colonial conquests and the imposition of colonial law. Later
on, this colonial law allowed for the changeover from subdued colonial peoples to independent
sovereign nations. One recent example is South Africa, where former Dutch settlements and
British colonialism are the reason why the primary sources of modern South African law are
Roman-Dutch mercantile law and English Common law.
It should not be concluded that foreign law was enforced upon African and Asian
societies insomuch as law should not be viewed as merely a set of legal rules intended for
exercising coercive power, but is rather a system of ethical reason and moral thought intended
to help coordinate a society in such a way that certain forms of ethically upright relations will
come to seem natural and almost taken for granted, and that these morally correct rules and
subsequent relations will shape institutions through being inscribed on them, whereas coercion
will only be necessary for segments or individuals of society that still need to get accustomed to
the legal rules or that have still not found them natural and intuitive. At the same time,
elements of law can be considered as elements of social form, but there are other elements of
social form that are just as integral to society as elements of law are. Some examples include
science, technology, engineering, medicine, and entertainment. There is a mutual reciprocal
relationship between elements of law and elements of technology, in such a way that
technology is incorporated into elements of law, whereas elements of law regulate and
reinforce technology, forming a positively supportive relationship.

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Minorities and Legal Pluralism

An important element of social form that has an impact on many legal aspects other
than food manufacturing, as already mentioned, is religion. There are several sub-regions of the
Muslim world, with Islamic Societies of Soviet Central Asia being rather set apart and not wellconnected to the rest of the Arab, Persian, and Turkish Islamic Societies. In spite of the
revolutionary changes brought about by new laws on the status of women in Islamic Soviet
Central Asian societies, the situation has not noticed an immediate sudden change in Turkey in
1926. In 1926 the Revolution in Turkish society shed away Islamic Ottoman law and adopted
the Swiss civil code. This is just another example of a European code of law being brought to a
Middle-Eastern country of a religion different than the dominant European Protestant and
Catholic denominations of modern era. Insomuch as the Swiss civil code allowed for an
elevated and emancipated new status of women, there was not an immediate upheaval in the
emancipation status of women, but rather a gradual change over several decades, with eastern
villages lagging decades behind western cities in terms of shedding customs incompatible with
the new civil code of law.
The status of minorities that still practice customs that are incompatible with newly
adopted and even traditional codes of law in some countries leads to the idea that legal
pluralism is necessary within individual societies as well, and in spite of our starting definition
that legal pluralism will only be viewed as occurring between two societies, were going to
briefly address legal pluralism that occurs within a single society, usually defining society to be
an entire nation-state. Therefore legal pluralism can occur when national laws are adjusted to
incorporate rules that accommodate for the customs of minorities, whether these are religious
minorities, immigrant groups, ethnic minorities, cultural minorities, social networks, or
professional institutions. In this case the dominant group (the majority)s relation to the
subordinate group is analogous to the colonizers relationship to the colonized entity,
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respectively. In this case it is necessary that the sovereign commands and enforces differing
elements of law for different sub-groups of the population in one society. All these population
sub-groups, however, are equally dependent on the well-functioning of the overall state legal
system and not just its separate elements intended towards subordinate groups.

The Impact of International Social and Legal Differences On The

Social Functioning and Structure of Legal Institutions
Zooming out again from the local and individual-society level to the international scene
of law-making and law diffusion across boundaries, we are faced with two questions: who
regulates international law and, in an era when manufacturing, technology, science, and
business cross boundaries and there are many international firms and corporations, who is in
charge of regulating formal legal relations between international corporations and domestic
firms, as well as between international corporations and state laws of individual countries.
Those responsible for the legal relations between all of these aforementioned entities are
international law firms and local law firms. By international law firms is meant those that cross
boundaries and span countries and continents, whereas local law firms are the domestic law
firms in individual countries. Usually local law firms operate in the language of the country
they have originated from and operate in, whereas international law firms most of the time
have personnel skilled in English. Apart from the obvious language discrepancy that hinders
the most efficient collaboration from occurring between international law firms and domestic
law firms, there are also the discrepancies between the law systems, laws, and legal operating
procedures in which personnel from different countries have been educated and trained.

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The Case of Chinese Culture in Corporate Law

The case study examined in our paper is Chinas Corporate Law Market as an example
of the boundary blurring effects of the globalization of law, industry, and corporate business.
Because of the fact that formal legal government regulation of transnational law practice in
many countries is not clearly defined and contains so many elements of ambiguity that it is left
up to the international law firms to render their own interpretation and the applications
thereof, it has often been the case that foreign and local law firms are given many degrees of
freedom to amend the two aforementioned obstacles that have often hindered their optimal
functioning, namely, the local language issue as well as vast legal systems differences among
countries and continents. To resolve this, foreign firms have made every effort to receive local
expertise, most often by employing local legal professionals that have received crosscontinental education. Even though there are many similar cases to that of China, such as most
European countries, and especially India, in the case of India, which was a British colony till
recently and thus has a substantial English-speaking portion of the population, especially native
British colonizers that are still living in the country, many of which are in the legal profession,
the case of international law firms boundary blurring cannot be exemplified to the stark
contrast provided between the West and East as in the case of the U.S. and China. In Europe
the reasons are obvious the majority of the population of most European countries speak
English as their second language, most of the time being bilingual, especially the younger
generations, and the European Union plays a huge role in the process of cross-boundary
corporate firms regulation and foreign investment, interfering and intermingling with the
established procedures of international law firms.
Therefore we have chosen the case of China, where Western colonizing influence has
been absent; in fact China has never been anyones colony, unlike most Asian countries. There
have been attempts of Japanese invasions, but this is not considered Western influence.
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Therefore Chinas legal system has not undergone the process of legal pluralism law-formation
through the superimposition of a West-European civil law code, such as the Swiss civil code,
the British common law, and the Roman-Dutch mercantile law. Its laws were formed entirely
based on the customs and traditions of Chinese society as mostly shaped by Confucian culture.
And this is the very reason why Chinese laws most of the time differ in many ways from the
laws that foreign American and European firms are used to operate under. With an industrial
country of more than one billion people that has hundreds of international firms and
corporation conducting business and investing within its boundaries as China is, international
law firms as well as domestic law firms have had more than the usual number of incentives to
conquer the challenges and obstacles of language differences and legal system differences.
Many methods and shortcuts have been developed to conquer these challenges and increase
proficiency.
Lawyers as Social Players
We will start out examining these methods and shortcuts by analyzing the type of
lawyers available to both domestic and foreign law firms. There are four main types: 1) White
Americans or Europeans that have completed all of their education in the United States and
Europe, 2) Chinese lawyers that have been born in the U.S. (Chinese-American) and have
completed all of their education in the U.S. in English, and have no or almost no knowledge of
Mandarin Chinese nor a working-proficiency level knowledge of Mandarin, 3) Chinese lawyers
that have been born in China (China natives) but have completed their undergraduate and law
school education in the U.S. and are therefore bilingual in Chinese and English, and finally, 4)
China natives that have lived all their lives in China and completed all of their education in
China, thus having no or almost no legal English knowledge or working proficiency. From
these categories the former three are typically present in the early formation of an international
law firm that has an interest of working in China. The fourth category is typically employed in
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local (domestic) Chinese law firms. Collaboration between domestic and foreign law firms is
indispensable in the corporate world functioning, i.e. ones cannot function without the others.

Social Structure and the Lawyers Labor market

The methods developed by domestic law firms to increase collaboration with foreign
corporations and foreign law firms include developing techniques of magnifying professional
expertise beyond the limits of their jurisdiction as a means of attracting clients and expanding
business. In previous decades it was mostly the case that native Chinese lawyers would seek to
transfer from local to international firms using the opportunity that foreign firms were in need
of their local expertise, and were offering better salaries. Nowadays localized expertise is
preferred in both domestic and foreign firms, and thus personnel flow has become bilateral.
Very often corporate lawyers would transfer from local to global law firms in China on a
several-year contract, and when the contract expires they would return to local firms, having
contributed their localized expertise to the global firm, and having enriched their career with a
magnified global professional expertise that they are then able to implement in local firms, This
continual bilateral flow of lawyers has resulted in eroding the differences between the work
style and service quality of global and local firms, i.e. their expertise and professionalism is
converging quickly. Even though a technical knowledge of local law of the books is essential
for localized expertise, this is not sufficient for the global legal profession what is also needed
is a day-to-day local legal practice that will develop a culturally sensitive expertise that grows as
a result of experience, trial and error, and local networking capabilities.

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Social Perceptions and Misperceptions

Discrepancies are created between global and local firms also because of the
perceptions individual lawyers in global firms have concerning lawyers in local firms. Global
law firms lawyers display a sense of superiority pertaining the work style of lawyers in local
firms, describing native Chinese lawyers as not professional enough, lacking creative thinking,
not being proactive enough, working only passively, and only being able to interpret the law,
but lacking the capabilities to do that which is most essential in corporate law solve business
problems for the clients. However, global firms lawyers do acknowledge that their local firm
colleagues possess the know-how-to in dealing with the Chinese bureaucratic system,
government institutions and agencies, regulatory commissions, and all the unpredictable logic
of the bureaucracies, i.e. all the subtle skills and shrewdness needed to successfully operate
under the complexity of the conditions of Chinese law and the bureaucratic workings of the
Chinese government. Often times this involves unpredictable and fluctuating schedule of
meetings and shifting deadlines, a lot of procrastinating, lack of schedule of government
agencies, and a load of necessity for patience. These phenomena are in fact very common in
most Communist countries. Therefore the fact needs not be underestimated that Chinese local
lawyers seeming less standard and professional work style in American or Western sense is a
result of their indispensable adaptation to the social and political context of Chinese society.
There are other pros of working in Chinese local firms that are not generally offered by
global firms. In global firms, prior to sending a memo to a client, it undergoes several rounds
of reviews and inspection, in order to remove all potential negligence, including translational
negligence. In Chinese firms associates send memos to clients directly without any reviews by
the managing partner. The social environment is such that, unless there is a grave case of
negligence, Chinese clients would almost never take legal actions against the law firm. In
addition to this social custom, native Chinese clients do not usually have a highly
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professionalized in-house counsel to review law firm memos. These review counsels do exist in
foreign firms nonetheless.

Societys Impact on Legal Educational Background across Continents

What U.S. legal educational system differs in from some European and Asian countries
in is the length and type of education conferred upon law graduates. In the U.S. at the age of
18 a student begins with their undergraduate education, being considered not mature enough
yet for law school, and they get to go to law school only once they have completed their
undergraduate education. This total of seven to eight years after high school before one can
become a lawyer is oftentimes beneficent since it allows lawyers to become specialists in areas
such as political science, natural sciences, economy, or engineering prior to going to law
school. That opens more degrees of freedom for them to be in legal managerial positions in
technical companies in the fields of their major, or in government companies that rely heavily
on political science expertise. Minors or majors such as Asian studies and business help
Chinese-Americans, who intend to go to law school and practice corporate law in global firms
in China, get better prepared for their future workplace environment.
The pros of obtaining law education in Europe and Asia, on the other hand, lie in the
shorter period needed to get a law degree of only 4 years immediately after high school
graduation. Additionally, associates in local Chinese law firms get immediately exposed to
clients and government agencies as soon as they get out of law school. They thus mature in the
firm much faster than their global firm clients who are still behind their desks writing memos,
doing due diligence, and performing routine legal research even years after theyve emerged out
of law school. Local firm associates fly all around, go on business trips, manage meetings,

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attend wine parties, and are in touch with executives and high-level managers in corporations,
companies, and investment banks - they deal with people on daily basis.

Max Webers Definition: Circular, or Spiral?

The functioning of domestic and foreign law firms in the Chinese corporate law
market exemplify perhaps not a direct mode through which social changes and social
circumstances affect legal changes, but rather the mode through which social circumstances
affect the application and practice of law. The topic of this study is the impact of society on
domestic and international law, and as we looked already indo Webers definition of all things
legal, he distinguished between law formation and law making v. formal law, the application of
formal law and the enforcement thereof. So far in this study, before mentioning Chinas
corporate market, we have looked into the manner in which society, social processes, and
social changes affected law formation and law making, mostly in the not-so-passive and more
proactive ways, whereas by looking into Chinas corporate market we are examining an
example of how passive social circumstances gradually affect the application of formal law and
the manner formal law helps organize society. Weber gave a circular definition in which social
circumstances, customs, traditions, and changes affected law formation; however once formal
law was formed it was now formal law that affected society or at least helped better organize
and coordinate it. Plainly stated, society shapes law and law shapes society. It is the details of
how both of these seemingly reversible processes reinforce and improve each other on the
daily process that make this a spiral definition instead of a merely circular one.
The spiral character of the interactions and competitiveness between local and foreign
law firms in China has been induced through the same force that started off the mass
formation of these law firms in the first place the foreign investment industrial corporate

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boom in China in the 80s and 90s due to lower labor expenses and differing tax policies in
China compared to the countries the corporate firms emerged from but were less willing to
invest in. The competitiveness between these two types of law firms consists primarily in the
effort to provide a brand service in assisting and managing legal relations between foreign
corporations and the Chinese government and legal relations among foreign corporations and
domestic companies. The boundary-blurring occurs when foreign firms brand themselves as
qualified in Chinese law and measure up to this claim by gaining real expertise in Chinese law
not by studying Chinese law textbooks, but by employing more native Chinese lawyers. This
process occurred spontaneously, with foreign firms not having that strategy in their initial plans
when entering the Chinese corporate playground.

Society Is Blurring the Boundaries of Legal Culture

However, domestic law firms did have the deliberate intentions of attracting legal
experts from abroad, so therefore the positive pay-off of their efforts contributed to bilateral
boundary-blurring of the practice of formal law on the global scene. In some local firms up to
half associates have either had years of foreign education and foreign work experience, or hold
at least one foreign degree. The importance of localized expertise to the business of foreign
firms induced the recruitment of experienced lawyers from local firms, however on one crucial
condition: excellent English language skills. The emphasis of English is stressed from the first
interview of the job candidate where the foreign firm employees, all of whom speak mostly or
only English, make the candidates bilingual skills (or the lack thereof) the primary criterion for
hiring. It must be emphasized that in many foreign firms virtually almost everyone is female
because female lawyers have better language skills. However, hired local-expertise native
Chinese lawyers are never the powerful group in the organization primarily due to the fact that

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global law firms do not offer partnership track. This is also the reason why they attract very
few if any promising senior associates.
They mostly attract middle-level associates. When a middle-level associate enters a
global firm, they leave a vacancy elsewhere, i.e. there is a position they used to occupy in a local
firm where they had developed most of their expertise and have received most of their
training, that they are now going to use to get higher, often twice as higher, salary in a global
firm but they still take away all of their expertise and capability to work away from the local
firm. The middle-level associate position vacating results in two deficiencies in local firms
they most often find themselves understaffed, and they substantially decrease investment in
employee training, seeing that the long-term pay-off of such training is lost to global firms. As
they are dealing with a market niche, the labor force of particular expertise level is limited.
What still keeps local firms in business re two facts: they are the ground site where globally
trained partners constantly interact with state agencies and local clients, and they are the
construction sites of localized expertise.
Even though global and local law firms exponentially develop nuanced resemblances
between each other as a direct product of the struggle to overcome cultural boundaries and
build bridges, the cultural bulk substance will most likely never disappear and will remain the
like of two river banks that communicate to one another on the condition a bridge is
constructed.

How Society Shapes Continental and Precedential Law

The example of Chinas corporate law market represents one spiral version of a mix
between the processual and structural models as society having effect on the application of
formal law. It is form of a reverse outlook of the application of the five models we have
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described, the great man, conflict, cultural, structural and process models. Going back to
their original application, we will be looking into the ways in which continental and
precedential laws relate to these five models, and where can we recognize these legal systems in
the case studies we have presented. Continental law is also referred to as Civil law and is largely
based on the Corpus Juris Civilis i.e. Justinians Code. The contrast between civil law and
common law is in that civil law has its code principles codified in a referable system of formal
law that is the primary source of legal decision making, whereas common law is more akin to
precedential law which, even though building upon the core principles of civil law, has an
intellectual framework constructed of decision law based on prior court decisions. Civil law has
been therefore formed by society in a largely through the ways of the cultural and structural
models in spite of using Justinian as the great man for channeling societys effect on civil law
formation.
The opposite view can be that the cultural and structural models do not hold true in
this case and only the great man model applies due to the fact that Justinian used Biblical
Orthodox principles on which he based his entire Corpus Juris Civilis, and it is disputable to
what extent these principles that are an epitome of moral perfection could have been drawn
from the ways of a society under the sanguine manners of the Roman empire. When placed in
contrast to the structural and legal organization of southern Europe at that time and especially
under the Roman Empire, Justinians Civil law code looks too utopian and idealistic to have
been drawn from the regular practices and structure of the society in his time period.
Therefore we classify the process of formation of Civil law under the great man model, with
the great man being Justinian through his ideology outlined in Corpus Juris Civilis.
Precedential law, on the other hand, should be definitely classified under the processual
model (or process model) for the simple reason that it is being continually spirally changed and
upgraded, and that it does not belong to any of the other four models. The formation of
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precedential law cannot be viewed as being formed by any great man since there are many
judges and juries that participate in solving critical cases in court, the decisions of these many
judges later being incorporated into the upgrades of case law. It does not belong under the
conflict model since the majority of precedential law does not result from the class struggle of
the elites and subordinate members of society. It results from the conflicts either between
individuals or between elements of society that appear miniature when compared to entire
class groups. The cultural model may be a very mild fit for the explanation behind societys
influence on precedential law in that individual judges and juries opinions and decisions are
the representation of the overall culture and tradition of the society. While this may be true in
countries such as those in the Scandinavian region, Great Britain, Japan, or China, in other
countries where diversity dominates the scene such as the United States the cultural models
potential explanation for the link between society and precedential law is simply neither a
sufficient not good explanation.
The structural model is one that definitely does not fit into the imagery since it is the
most passive of all models and the formation of precedential law is an everlasting process of
changes. The only model that remains therefore is the process model. The way the relationship
between society and precedential law evolves spirally reinforcing one another with every
consecutive court decision as part of the process of building a legal system first upon the core
foundations of civil law and then upon cases of judges decisions over the decades, each more
insightful than the former, is best understood on a timeline depiction of court cases set in
juxtaposition to companies and corporations legal struggle with clients and customers with
damage claims.

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Corporate Lawyers Use Precedential Law to Predict Cases

If we contrast a corporate damage claim case that was for example brought to court in
1950 in the U.S. to a corporate damage claim case taken to court in 2010, there will exist many
differences between the social urgings, social processes, and the corporate social environment
that caused the two supposed cases to be brought to court. In 1950 there was a smaller volume
of precedential law on either of these two cases, and therefore, once the case was brought to
court the judge had to rely more on civil law than on case law in making the decision. The
lawyers representing both sides, and especially the ones representing the corporate side, had
less experience in dealing with precedential law and had a decreased access to literature than do
corporate attorneys in 2010. Therefore they were less likely to predict the judges decision prior
to hearing the final verdict. If the case could be resolved in the lower courts then the decisions
associated with it entered precedential law. If the decision was too hard to be made by a judge
of a lower court such as small claims courts, municipal courts or justices of peace, they would
proceed to any of the next levels, and depending on whether at some level the case is resolved
or not appealing to the US Supreme Court: juvenile court, probate court, domestic relations,
civil court, criminal court, then general jurisdiction trial courts, state appellate courts, state
supreme courts, and appeal to the US Supreme Court. The decision of the judge at any of
these courts becomes part of precedential law.
Many years later, in 2010, a hypothetical case arises in which a customer has
experienced a real or perceived damage from a product or service offered by a company or
corporation. The damaged customer threatens to sue the corporation in a court of law and
begins the process of doing so by hiring an attorney as his prosecutor. The corporation lawyers
at this point begin a civil law and precedential law analysis in which they attempt their best to
predict the decision of such a litigation based on case law. If it is obvious from case law that
the corporation will win the case, they advise the corporation to allow the supposedly damaged
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customer to take the case to court, in confidence they will win the case. If, however, it is
obvious based on case law that the customer will lose the case, they advise them to try and
offer a monetary settlement to the customer outside the court, avoiding litigation at all costs,
since the court decision is likely to be much more severe than a monetary settlement cost
outside of court. If the corporate lawyers cannot make a prediction on the judges decision,
chances are the judge himself as well as the jury will have a very hard time making the decision
based on civil and case law. In other words, the judge and jury will have the assignment of
precedential law formation under the process model. Since the piece of precedential law about
to be written by the judge is not yet available in 2010 legal literature until after the case verdict
is issued, the corporate lawyers have no material yet based on which to predict the courts
decision.

Perceived v. Unperceived Injurious Experiences

Based on this analogy, therefore, it can be inferred that the vast majority of cases
judges resolve on a daily basis do not involve the application of civil law, but rather the process
of precedential law formation. If law is being formed daily through dispute processing and
dispute transformation, then scrutiny is needed in observing the social cultural background of
these decisions. While we leave that for future studies, we will devote special brief scrutiny to
the other mostly neglected and unobvious negative issue in the example of corporate v.
customer dispute settling: unperceived injurious experiences that either remain unperceived
(most of the time), or once they are perceived never take on the form of grievances, and never
turn into disputes that enter formal legal institutions. It is obvious that, in order for disputes to
enter legal institutions and find countermeasures, the unperceived injurious experience upon
which the dispute in court is going to be based needs to be transformed into a perceived

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injurious experience (Felstiner et. al, 1981). The key to distinguishing injurious experiences
from non-injurious experiences is what the definition of an injury is. An injurious experience
most broadly can be defined as an experience that is disvalued by the person experiencing it.
Once this condition is satisfied, than the experience ought to be transformed from
unperceived to perceived, and needs to be blamed on the inflictor. However, in order for the
injurious experience to reach court and enter the legal system, the degree, type, and severity of
the injury must be examined. Often times, since Western society functions largely on the basis
of constant precedential law formation, it is never clear what is the lowest level at which an
injury can qualify for a legal dispute. Another workmen example is that of shipyard workers
who had an unperceived injurious experience of having trouble breathing after a decade of
installing insulation. When they finally perceived that this was an injurious experience, they
began blaming it on their employees, and claimed compensation and workplace safety
protection in court.

The Transformation of Social Issues into

Political Issues That Dictate Precedential Law
A social issue of this scope could be easily transformed into a political issue before
even reaching a court and especially after reaching a court, when an injurious experience is of
such nature and grievance that it evokes negative and accusatory feelings in the wide social
network. The grievance and the injurious experience is not only no longer unperceived, but it
then becomes a political issue perceived by the general public and shapes public opinion. The
scope of disputing becomes much broader, with not only the prosecutor standing on the side
of the injured party, but also most of the public cheering for them more or less silently while
theyre litigating in court. Very often this becomes an example of social change inducing legal

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change under the conflict model, where the injured party, as for instance the asbestosisaffected shipyard workers, belongs to a different (lower) class subordinated to the elite class
(e.g. ship owners, or ship construction companies executives). A perfectly healthy social order
will emerge once the legal institutions will provide a system where grievances of injurious
experiences will face minimal or no barriers to emerging, first of all, then face lowest obstacles
or threats in blaming the inflictor of damage, and face minimal obstacles to court settling and
eventual restitution.

The Social Background of Healthcare Legislature: A Class Conflict

When it comes to law forming as a result of a conflict between the elite and lower
class, the modern day example to mention would be the Health Care Reforms introduced by
President Obamas administration. Even though on the surface appearing as appropriately
described as the great man model of societys influence on law forming, this is not the case
since the popular nickname of these laws, Obamacare, is not supported by historical facts that
Obama was the first in history to propose these social healthcare laws they were already
present in most of Europe. He was not the first one to introduce them to the Democrat Party
either the Democrat Party has long awaited the enforcement of a welfare state, particularly in
the realm of healthcare. Obamacare is in fact the result of a struggle between two classes, the
elites in majority represented and having their interests protected by the Republican Party, and
the lower classes, represented and shielded by the Democrat Party. The social struggle causing
legal change i.e. Obamacare is thus best described under the conflict model, and the forces
that stirred society under Obama towards the gradual transformation of the U.S. into a welfare
state are collectively called the legal culture of the classes they are the ideas, attitudes, values,
and beliefs people or certain classes of people in one nation have about the legal system.

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Legal culture emerges out of general culture the moment the public realizes that the
changes in their own values and attitudes can only be accommodated by society through
changing that which permeates society at every angle molding it, which is the legal system, and
once having realized this circumstance, the public sets up a series of demands that will exert
legal order in some particular direction. Inertia and entropy will allow for these demands to
move in the welfare state direction unless controlled for. Welfare state demands under the
initiative of the Democrat Party have increased the size of government, and have found their
ultimate channel to realization in Obamas two incumbent terms. Social conflict games
between the two parties (again a conflict model example between the elites and the
representatives of the lower classes) occurred towards the end of 2013 when a federal
government shutdown caused a million-employee furlough for two weeks. The shutdown was
uncalled for and was the result of social games in which the Republican Party was attempting
to force the President into repealing most of Obamacare.

From China to the U.S.: the Social Setting of

Corporate Law on Wall Street
The conflicts and never-ending competition between law school graduates do not stop
at a countrys lawmaking capital. Analogous to Chinas corporate market, Wall Street lawyers
face difficulties that involve social issues, however these are, at least by Wall Street and Main
Street lawyers themselves, perceived as much more dire than mere language discrepancies or
cultural setting differences. There are big and prestigious firms, with discriminatory entry
barriers, that provide lawyers with a bearable level of hard work without burning them out,
bestowing financial satisfaction, and prosperity even with lost partnership opportunities.
However, lawyers who do not have the benefits of working in big firms were often left as solo

31

practitioners in a constant struggle to survive hunting for job and short-term services they can
perform for clients. Often time this hunt for business met competition in other lawyers, and
that is when a Darwinian survival-of-the-fittest scenario hit in, even to a degree where solopractitioner lawyers on Main Street perceived those on Wall Street as everything ranging from
foreign to hostile but definitely not colleagues.
Even though there is no hostility among lawyers in prestigious firms they tend to
behave individualistically, and the pros are that they tend to have almost no concerns about the
inherent difficulties of being employees focusing on the satisfaction of the content of the work
they do rather than worrying about the organizational aspects of coordination with other
lawyer employees, not succumbing to the employees potential status or self-perception of
being a wage laborer, having as the most pronounced commonality among themselves of the
shared sense of professional status and professional independence. Therefore, unlike the
existence of labor unions among regular labor-wage employees, there is no such phenomenon
among lawyers who tend not to have joint politics or common consciousness.
The competitive nature of Wall Street and Main Street lawyers practice is best
perceived in the latest format of business and clients bidding: large matters are put out on a
form of legal tenders or bids, with applicants (lawyers) required to present a detailed
conscientious plan of how they would proceed to fulfill the assignment and at what price. It is
an example how lawyers status is threatened depreciation. There has been an obvious loss of
autonomy in dealing with both government and private client entities. It is an example not of
how law regulates relations among citizens of society, but of how society regulates and affects
relations among the practitioners of law, who are a subgroup and a minority of the society at
large, they are a form of a society themselves, the relations among whom need to be regulated
based on certain principles the same principles of formal law grounded in ethical and moral
standards that control the rest of society however the Darwinian struggle to survive has
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blurred the boundaries of what is ethically permissible and recommendable among the ones
who are supposed to be best familiar with these rules.

Conclusion
We have found substantial real-life evidence that Max Webers circular definition of the
relationship between society and law as constantly affecting each other is in fact a spiral one,
where this interaction can either elevate a society and its legal order, or more rarely, degrade
both. We have inspected the relationship from every corner, ranging from lawmaking to
societys effect on law practitioners, as well as social orders impact on those in charge of
writing law in the case of judges and precedential law. The mutual effects between society and
law cannot be perceived in one dimension as on a tug of war rope, but rather need to be seen
in several parallel universes of theories each one in three dimensions, or in one single but
multidimensional hyperspace.

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