VOLUME 5 | ISSUE 2 NOVEMBER 2024 ISSN: 2582-7340

VOLUME 5 | ISSUE 2

INTERNATIONAL JOURNAL OF ADVANCED LEGAL RESEARCH

IMPACT OF GLOBALIZATION ON NATIONAL LEGAL SYSTEM

- Kaneez Fatima1

Abstract

This article presents a notable effect of globalization on national legal system leading to harmonization of
laws, focusing on legal globalization and legal systems across different nations. It explores the historical
development of Indian legal system and types of laws in Indian legal system. The Indian legal system
basically governed by the Constitution of India, it elaborates the structure of Indian judicial system and
challenges. As the nation’s interrelation with each other become more and more, there arises a need to
align one nation’s legal system with the global level grade in some areas of broader concern such as
trade and commerce laws, environmental laws, international Labour laws, human rights laws etc. In
these kind of alignments, the international treaties, international organizations and conventions play a
vital part in modifications of own legal system to sync with the global laws. However, not every nation
can change or modify their laws according to the terms of the treaties as there is not much resources,
economic restrains, cultural restrains or political interference which hinders the process of
internationalization of legal system. The people of a developed nations are more likely to accept the
change or modifications in the laws if the law didn’t interfere in their personal or human’s rights, but the
people of developing or least developing nations often rejects the idea of worldwide internationalizing as
they thought that cordiality of laws snatches their cultural beliefs or values of a particular nation and the
citizens can lose their identity and national sovereignty. The wheels move towards wider aspects of
globalizing the laws or judicial systems in various ways to facilitate worldwide cooperation, peace, and
harmony among the countries and the citizens of different nations.

Keywords: Globalization,Legal globalization, legal systems across different jurisdictions, World Trade
Organization, Conference of Parties for climate change.

Introduction

1
LL.M.- Corporate Commercial Law student, Babu Banarasi Das University, Lucknow
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Globalization2 is the term used to define the interconnectedness and interdependence of the global
economies. Its scope is extended to the cultural, ethnic and social lives of the people around the world.
Through internationalization the exchange between trade and commerce, technology, knowledge or
innovation etc. become very easy and approachable throughout the globe. Globalization traces back its
root to the ancient culture where various kinds of trade routes were built for easy convenience and
exchange of goods. Example: Silk road was built across China, Central Asia and the Mediterranean
between 50 BCE to 250 CE.

Around the 18th century when the fire of “Age of revolution” spreads across the various continents and
ideas of ‘Liberty’, ‘Equality’ and ‘Fraternity’ comes to the awareness, the waves of industrialization thus,
globalization comes to the view. Since then, the globalization has affected the numerous aspects and
dimensions of the society, polity, economy, judiciary, administration, environmental etc.

1. National Legal System3

It is a country’s own specific legal framework which is made up of laws, regulations, court system and
through judicial decisions. Each country has its own unique legal system shaped by its history or the
hybrid of different laws like common laws, civil laws, religious laws, customary laws or judicial
decisions. Indian legal system includes legislations from the colonial era and British laws.

1.1. In India4

Indian legal system is the hybrid of common law, religious law, civil law, customary law and judicial
decisions. It also includes legislation from the colonial era and British law.

1.2. Historical Development of Indian Legal System5

It traced its root to the Vedic culture, Bronze age and Indus Valley Civilization. Vedas and Smritis are the
first main known sources of the Hindu law, the procedural stage of law under it was- the plaint, the reply,
the trial and the decision.

During Mughal reign, the Mahakuma- e- Adalat provided justice to the people, Quran, Sunna, Hadis were
the Primary sources of Muslim law. Similarly, Fiqh- e- Firoz Shahi and Fatwa- i- Alamgiri provided for
the judicial proceedings.

2
https://education.nationalgeographic.org
3
https://en.wikipedia.org
4
https://blog.ipleaders.in
5
https://www.ojp.gov
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Furthermore, the East India Company established a Mayor’s court in Madras, Bombay, and Calcutta
under 1726 Charter to govern the judicial system in India. By 1753 charter the Council of Privy was
established (highest court of appeal). The judicial system was separated into Diwani Adalats for civil
cases and Faujdari Adalats for criminal cases.

The Supreme court at Calcutta was established under the Regulating Act, 1773 by Warren Hastings.
Under William Bentinck CPC, 1859, IPC,1860, CrPC, 1861 were published, then Government of India
Act, 1935 was passed by the parliament of the U.K an as “federal” territory. In 1937, federal courts were
established and had the jurisdiction of the appellate, original and advisory.

 Appellate Jurisdiction: civil and criminal cases

 Advisory Jurisdiction: federal court to advise Governor- General in public matters.

Recently, the government of India replaces the IPC, 1860, CrPC, 1973, and Indian Evidence Act, 1872
with BNS,2023, BNSS,2023 and BSA,2023 respectively.

1.3. Types of Indian Legal System6

Indian legal system is governed by the Constitution of India, 1950, provides for following four kinds of
laws:

 Criminal Law: in case of violation of rule of law or crimes, governed by BNS,2023, BNSS,2023
formerly known as IPC,1860, CrPC, 1973. Ex: theft, murder, rape etc.
 Civil Law: deals with matters of disputes between individuals or organization in case of violation
of rights and obligations, governed by CPC,1908. Ex: Defamation, Breach of contract etc.
 Common Law: a law passed by the supreme court and are obligatory upon all the courts and the
individuals.
 Statutory Law: any written law approved by the legislative body i.e., Parliament of Indian and
requires assent from the President.

1.4. Structure of Indian Judicial System7

In the Indian judicial system, the Supreme court is at the topmost position in the hierarchy of the courts
followed by the High courts and District Courts.

6
https://www.ojp.gov
7
https://www.ojp.gov
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 Supreme Court: apex body, formulated under Chapter- IV of Part V of the Indian Constitution,
enshrined in Article 145.
 High Courts: court of highest appeal in each state and union territories. Enshrined in Article 214
of the Indian Constitution.
 District Courts: regulates matters in a particular district by the District judges. Enshrined in the
Chapter- VI of Part VI of the Indian Constitution. Divided into court of District Judge and Court
of Session Judge.

2. Legal Globalization 8

Legal globalization refers to the procedure by which national laws, regulations and legal institutions are
influenced or transformed by the global forces.

The famous French Lawyer Jean Bernard Auby said that, “the globalization of laws is a growing
phenomenon whose equilibrium is difficult to determined and which tends to destabilize the principles
and hierarchies that form the basis of our law.” (Auby, 2017, p.17)9

According to, Romanian Lawyer E. Ciongaru’s view, the internationalization is a phenomenon that
practically extends transmission bridges between states and the internal legal order extends to a new legal
order i.e., the global legal order. (Ciongaru,2014) 10

The methodological approach of S. Schetinin explained that legal globalization includes three aspects:

 Legal Integration: need an integral view of international organizations and states to resolve the
worldwide global problems like organized crimes, environmental protection etc.
 Legal Internationalization: close relation of domestic law with other nations domestic laws.
 Legal Implementation: implementation of set of rules, principles and methods of the legal
internationalization. (Schetinin,2009, pp.18- 19)11

2.1. World Trade Organization 12

World Trade Organization (WTO) is an international organization that plays a pivotal role in governing
the global trade and commerce and related disputes. It mandates the signatory countries a binding rules to

8
https://www.amazoniainvestiga.info
9
Auby J.- B. (2017). Globalization, law and the state. Hart publishing
10
Ciongaru, E. (2014). Influence of globalization on the law systems. AGORA International Journal of Juridical Sciences, 24-
30
11
Schetinin, 2009, pp. 18- 19.
12
https://www.wto.org
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follow in order to promote uniformity and fairness in global buying and selling practices. It regulates the
trade barriers, tariffs, dumping of goods, subsidies etc. the WTO encourages the member countries to
adopt the trade- friendly reforms and align with the international standards impacting the federal legal
system and policies. However, increasing influence of the WTO raises a concern of eroding the national
sovereignty of the nation but despite having concerns the WTO become a powerful driver of legal
globalization.

Example: United States- Import Prohibition of Certain Shrimp and Shrimp Products case

The United States imposed a ban on Shrimp imports from countries that didn’t use turtle safe fishing
methods to protect the environment. India and several countries challenged the ban arguing that it violates
the global buying and selling rules. The WTO resoles the controversy and said that U.S ban on the
imports of Shrimp was discriminatory in nature and didn’t comply neither with the rules of the WTO
trade policies nor with balanced the local policies with global trade obligations.

This case shows how legal internationalization impacted the domestic rules, policies and interests of
whole world.

2.2. Conference of Parties (COP) 13

it is the supreme decision making body under United Nations Framework Convention on Climate Change
(UNFCCC). The aim of COP’s is to deal with the climate change, they meet annually to discuss the issues
related to the environment and track progress of commitments by the member countries to reduce the
greenhouse gases, promoting renewable energy and enhancing climate resilience system. These
agreements create a common aim to achieve climate goals and to encourage the nations to align their
domestic rules and policies according to the agreement terms to foster a unified approach to address the
climate change. For instance, under Paris Agreement the nations are committed to limit the global
temperature rise and achieve net- zero carbon emission target for that many nations have introduced the
new climate change policy and laws to achieve the targets. This enhances the global cooperation and
commitment to address the common major issues concerning worldwide problems.

Example: recently, COP29 held in Baku, Azerbaijan, the theme is “In Solidarity for a Green World”. The
key issues are: energy transition and security, collaborative frameworks, youth voices and
intergenerational collaboration. 14

13
https://unfccc.int/supreme-bodies
14
https://unfccc.int/cop29
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The COP agreements places an additional responsibility on the developed nations to help the developing
nations in adapting to climate change, creating a financial and technological transfer mechanism. The
COP catalyzes the legal internationalization process by promoting the uniform climate related regulations.

3. Legal Systems Across Different Jurisdiction15

Legal system16 is a framework of the rules, procedures and institutions that a community uses to interpret
and enforce their laws which are binding on all legal disputes within its jurisdiction. Each nation has its
own judicial system and have a significant effect on its applications.

Studying the laws of the distinct nations governing the relationship between the states and its subjects is
known as a comparative public law.

3.1. In the U.S.A17

In the U.S.A, there are mainly four types of the legal system-

 Common Law: it is created by judiciary, mostly used by the former British colonies. Focus on
judicial precedent and rule of law.
 Civil Law: it was governed by the Statutes, mainly focuses on the investigation.
 Religious Law: religious sources as a basis for the law such as Islamic legal system uses Shariah
as a basis for the law.
 Customary Law: set of laws based on the traditions, customs (practice) or norms of a local
community, such as Native American tribe’s customary rules governed that particular tribe.

3.2. In Sri Lanka and South Africa

Laws in these nations are governed by the older uncodified civil law of Holland, influenced by both civil
and common law and customary laws.

3.3. In Russia

Legal system in Russia is the civil legal system of Roma law through Byzantine tradition, influenced by
German and Dutch norms. From 1920’s and onwards socialist law gained popularity and since, 1990’s
influenced by continental European civil law.

3.4. In Australia and the U.K

15
https://en.m.wikipedia.org/wiki/list-of-national-legal-systems
16
https://law.cornell.edu/wex/lega-systems
17
https://ijllr.com
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The legal system in these nations are based on English common law with some Roman and modern
continental European influence.

3.5. In France

The judicial system in France is based on the Napoleonic civil code of 1804.

3.6. In People’s Republic of China

In China the legal system was based on German and France civil law and also influences from former
Soviet socialist law of Soviet Union.

3.7. in Pakistan, Bangladesh and Middle East countries

The legal system is based on the Islamic rule i.e., Shariah.

4. Impact of Globalization on National Legal System 18

The functioning of national legal system is continuously being re- shaped by various socio- economic,
political or international related parameters of the global world. They are the impacts of globalization on
national legal system-

 Allocation of location of parties and jurisdiction: cross- border business dealing or trade or family
disputes related litigation needs to assign the actual location of the parties and jurisdiction of a
nation applied to decide a case.
 Internationalization of Legal Education: with the advent of internet, accessing foreign legal
materials, judgements and citations become much easier for judges, practitioners, law students and
makers and educational institutions to interpret and acknowledge the laws of distinct nations on
any issue.
 Easy Interaction: by the way of conferences or legal meetings or seminars across the globe
interacting with practitioners or judges of different nations become easy.
Example: INTERIGHTS (International Centre for the Legal Protection of Human Rights) initiated
by Commonwealth Secretariat to discuss about the laws related to human rights protection.
The first Commonwealth Judicial Colloquium held in Bangalore in February, 1988, attended by
several eminent judges across the globe to discuss about the judicial protection of rights in the
context of changing economic conditions.

18
Judicial protection of rights in the context of changing economic conditions- by Hon’ble Balakrishnan K.G. (Conference
organized by the Supreme Economic Court, Minsk, Belarus- April 15-16, 2010.
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 Harmonization of Laws: on most of the areas, all the nations have to agree on the common law
made by the international organizations such as WTO for trade related process and disputes or
conventions like UNFCCC or treaties or agreements such as Conference of Parties on Climate
change, Kyoto Protocol etc. for environmental protection related. Human rights protection laws
under Universal Declaration of Human Rights.
 Legal Collaboration: collaboration with foreign local associates made accessing legal statutes or
legislation f other nation easy and approachable through internationalization.
 Synch with International Interpretation: like the treaties, conventions and agreements among states
plays a pivotal role in interpreting laws and cases to be in synch with the global laws.
 Interpretation on Grey Areas: with the internationalization of judicial decisions one can easily
access the foreign judgements law and citations to deal with grey areas of the laws.
 Job Opportunities: youth or young professionals seeks out the job opportunities in many foreign
firms or companies.
 Legal Research: scholars and law students now can easily get the material on various cases or
laws from different countries court’s site or other international court’s judgments

5. Challenges

1. Issue of plagiarism or copyright violation.

2. Individual sovereignty of a country may be eroded by appeasement of laws.
3. Difference of opinion and views on any law may disrupt the peace and stability, thinking one’s
own law as a supreme law.
4. Many of the professionals don’t want to collaborate with foreign litigators and sometimes prevents
other litigators too from collaboration.
5. Following treaties or conventions guidelines may prove to be dangerous as the citizens connects
themselves only to the local law of a particular country.

6. Suggestions

1. Software or device can detect the plagiarism or copyrighted content.

2. Clearly defining the local laws of a state and global laws as a separate entity to distinguished.
3. Follow the common law made on some areas and protecting the one’s own law.
4. Legal awareness and benefits of collaborating.
5. Protects and enhances human rights of an individuals.

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7. Conclusion

As the world progresses the internationalization spreads its wings in every dimensions and keep on
evolving with the national legal system. Globalization leads to remoulding, maturing, interpreting and
enforcement of laws all across the globe to establish a harmony and common laws to govern the same
issues by collaborating the nations all across the world. Globalization has promoted the evolution of
national legal systems and laws especially in areas like human rights, environmental protections,
intellectual property related cases etc. The convergence of laws make the resolution of international
disputes easier and ensures a fair practice across the borders.

However, further integration of the global laws into the domestic laws poses a greater challenge including
a clash between global norms and local laws, values, traditions or customs and have a potential to erode
the national sovereignty of a country. Thus, maintaining a balance between national sovereignty or local
laws or beliefs and global judicial obligations or norms is the need of the hour. Adapting to globalization
is crucial to protect the allurement of the citizens and their unique cultural and legal identities.

Globalization introduced amultiple views of judicialreforms but also requires a stand in need of
management to align the changes with each countries local demands.

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