Major Legal Traditions

Case law is not immune to the growing importance of tradition, and not only in the form of religious laws, as already mentioned. In the context of the «globalization» of the social sciences and humanities8 with its multiple consequences, there is a constant stream of books and textbook chapters that summarize the legal tradition of a field or present certain aspects of it. The «Hindu and Chinese legal traditions», for example, are sometimes reconstructed in what European observers would call «essentialist», in search of a «Hindu way» and «Chinese», just as Europeans have a long history of creating and affirming identities and drawing borders. The intensity of these othering practices fluctuates, with notable peaks in the 1930s, 50s and 80s, since the second half of the last century in terms of European legal integration and more recently in times of crisis. Which of these four types of rule enforcement predominates in a legal institution is influenced by the political system and legal tradition in which it operates. Common law systems appear to leave judges more room for creative interpretations of rules than Western European courts, which are more closely linked to legal texts and treaties (Damaska 1986). Nevertheless, judicial policy is conducted in civil courts such as the France (Lasser 1995), and common law judges in the United Kingdom tend to feel more closely tied to existing precedents than their counterparts in the United States – partly because American legal education encourages a more political way of arguing the law, and partly because the fragmentation of legislative power in the United States makes judges less likely to The «derogations» » of the legislature do as a judge. in parliamentary systems (Atiyah and Summers 1987, Damaska 1990). The Länder also offer creditors various legal protections. The rules govern whether creditors can immediately repossess assets if the debtor goes bankrupt, or must wait to see whether they can subordinate creditors` claims to those of other interests, give management more or less control in bankruptcy, etc. La Porta et al.

compiled an index of creditors` rights and again found large differences between countries, with common law countries offering the greatest protection. Glenn`s analysis convincingly shows, in my opinion, that there are no pure traditions and that hybridity is the rule. However, since hybridity is inherent in all legal traditions, I would also argue that hybridity cannot be used as an argument against claims such as Indigenous peoples, which are based on a normative history that, after all, is «never pure.» Glenn also points out that since legal traditions are constantly being reproduced and (re)interpreted, it all depends on the choices we make in the present. Thus, the authority we attribute to normative information, its persuasive character, comes from today, not from the past. It depends on how we evaluate the past today. However, our tradition imposes limits on these choices, preferences and options. In teaching and research on comparative law in the United States, scholars refer to considerations of geography, history, and legal culture as secondary criteria to legal traditions. This broadens the focus on the German and French examples by drawing attention to the Mediterranean, European, Latin American and East Asian legal systems (Merryman et al. 1994). Even in the late twentieth century, the tripartite division of David`s family, including socialist law and other categories for East Asia and sub-Saharan Africa, still seemed to have considerable validity for certain research topics, such as the role and importance of advocacy in society (Clark 1999). Although there are many differences in the specific rules, there are two very broad approaches to litigation associated with the two dominant legal traditions: common law systems and civil law systems. The first is based on a model of adversity of the parties, with the arbitrator acting as an arbitrator; The parties and their representatives primarily control the course and process of the dispute, whereby the arbitrator receives what is offered and renders a decision based on what the parties submit.

The latter is based on a model variously called «inquisitorial» or «investigator», the primary responsibility for verifying and requesting information resting with the arbitrator. In the common law system, the formal decision usually focuses on an event called a trial, where both parties bring their evidence and witnesses to the arbitrator for submission. In the civil law system, formal proceedings are more episodic, with the arbitrator deciding what additional evidence he or she wants to see based on what happens during a particular session. A second major difference between the two traditions is the relative balance between oral and written trials, with common law proceedings having a stronger oral component, while civil law countries emphasize written documents. Developments in recent years have brought the two systems closer together, with more efforts in civilian systems to reduce the episodic nature of decision-making procedures and reduce the burden or production of written documents, while common law systems have evolved towards greater reliance on written documents. Glenn`s view of the legal tradition as normative information is not without conceptual weaknesses. It tends to be essentialist, it underestimates the need for translation in different contexts, it is not sensitive to the importance of institutions, and it does not provide clear criteria for distinguishing between what is part of a legal tradition and what is not once normative information is integrated into the intense and inevitable process of interaction and the resulting hybridity. However, despite these caveats, it seems applicable at the global level, if we take seriously its widespread use of «legal» as «normative», it tries not to be Eurocentric and it claims to promote sustainable diversity in law. In addition, it situates law and the state in contemporary information theory and addresses the fundamental issues of the legal world today and perhaps tomorrow – the response of our legal systems to the growing demands for diversity. The history of law and comparative law have good reason to jointly explore the analytical potential of its concept of legal tradition and the possible modifications of its scientific practice.

His vision of «common laws» and the state and its history is also inspiring, despite some possible flaws in the details. In his book On Common Laws, Glenn develops a concept of common law that goes far beyond its specific articulations in concrete legal historical formations such as the ius commune of continental Europe and the common law of the Anglo-Saxon world. These common laws are relational and arise in constant dialogical tension with particular local laws. Glenn finds them in the great legal traditions, and they constitute «lateral traditions».50 In the Western tradition, for example, the German «common law,» as embodied in the law books (Rechtsbã1/4cher), like the Sachsenspiegel, is the common law in this broader sense, as are the Castilian Siete Partidas, the French customary law and others. Common laws «contain information, but do not declare any of it binding or binding» and are sources of information for other common statutes as well as for some statutes.51 They are based on a different understanding of authority and are part of a cooperative or «conciliatory» legal paradigm.52 Historically, they have been essential to the process from which the modern state-centred system of law sources emerged. the legal system, which later claimed exclusivity.53 At the height of legal absolutism, however, common laws did not disappear. Essential parts of what had gone out of fashion in Europe, such as ius commune, common law, Siete Partidas, and pandecctist thought, were reflected in general overseas laws,54 just as the same important codifications, bills, and authors circulated in varying concentrations around the world. They remained what they were: normative information and persuasiveness adopted, adapted and integrated into the feedback loop of legal production. From this point of view, nineteenth-century legal thinking and codifications embodied the monopolization of norms in one part of the world and became part of new common laws in other areas, which is one of the reasons why it seems Eurocentric to declare in the nineteenth century the end of common laws.55 Without examining this further, it seems clear that the analytical potential of Glenn`s concept of tradition as normative information is particularly high when it circulates or, more precisely, when global knowledge is created by cultural translation.