The Triangle of Culture, Inference, and Litigation System

Abstract:     
This paper considers the relationship among the inferential style characterizing a society, its litigation system, and other aspects of its culture. Differences between common law and Continental systems of litigation are associated with a stronger individualistic tendency in Anglo-American society than in Continental societies. William Twining's model of the 'rationalist' tradition in Anglo-American adjudication and evidence scholarship, as modified by an overlay of individual rights, tracks important differences between the common law system, on the one hand, and Asian litigation systems, particularly East Asian systems, on the other, and between Western and Asian styles of thinking. The paper speculates that one reason the jury system has taken root in the Anglo-American system is that Anglo-American culture is more likely to generate among its people habits and customs of deliberation that will make them willing and effective jurors.

Accepted Paper Series