Law and Legal Systems
LAW AND LEGAL SYSTEMS
The term law is surprisingly difficult to define. Perhaps the best-known definition within the sociology of law community is that of Max Weber: "An order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation, will be applied by a staff of people holding themselves specially ready for that purpose" (1954, p. 5). Similar definitions include Donald Black's terse statement: "Law is governmental social control" (1976, p. 2). While these types of definitions have sometimes been attacked as employing a Westernized conception, appropriate for developed states but inappropriate for other societies, Hoebel advances a similar definition of law in all societies: "The really fundamental sine qua non of law in any society—primitive or civilized—is the legitimate use of physical coercion by a socially authorized agent" (1954, p. 26).
Definitions such as these are more interesting for what they exclude than for what they include. Weber and Hoebel each attempt to draw a line where the boundary between law and something else is fuzziest. By including the term legitimate, Hoebel's definition is intended to distinguish law from the brute exercise of force. The leader of a criminal gang who forces people to give him money may be doing many things, but he is not enforcing the law. He is not a socially authorized agent, and his use of force is not legitimate. Legitimacy itself is a slippery concept, and disagreements about when it is present give rise to questions such as whether the Nazis governed under the rule of law.
The inclusion of coercion and specialized agents of enforcement in both Weber's and Hoebel's definitions is meant to distinguish law from customs or norms, the breach of which either is not sanctioned or is sanctioned only by members of the group against which the breach occurred. The internal rules (norms and customs) governing a family's life or an organization's life are not law unless they are reinstitutionalized, that is, unless they are "restated in such a way that they can be applied by an institution designed (or at very least, utilized) specifically for that purpose" (Bohannan 1965, p. 36). Some have rejected such definitions and argued that law consists of the regularized conduct and patterns of behavior in a community or society (Ehrlich 1936: Malinowski 1926). They fear that if the study of law is restricted to legal rules enforced by specialized legal staffs, it will exclude much of what legal anthropologists and legal sociologists may find interesting. Regularized conduct definitions in turn suffer from their inability to offer a clear boundary between legal norms and other norms in the society. However, they do capture the idea that there is law-stuff everywhere. Families and organizations do generate rules and do coerce or induce compliance. These groups constitute what Moore (1973) calls "semi-autonomous fields." Not only are the rules of these organizations interesting in their own right, the interaction of these rules and the state rules we call law helps to shape the fundamental choice between avoidance and compliance that is faced by all to whom rules are addressed.
The boundary maintenance functions of definitions such as those of Weber, Hoebel, and Bohannan undoubtedly have their place, but law's empire is so large that the border skirmishes occurring out on its frontiers have limited influence on our shared understanding of the words law and legal system. Wherever it occurs, law is a body of rules that speak to how people should behave in society (substantive law) and how the legal system itself should proceed (adjective law). The volume and complexity of rules may be expected to parallel the size and complexity of the society of which they are a part. But broad categories of substantive law—tort law, property law, criminal law—apparently exist in all legal orders, as do the fundamentals of adjective law—procedure and evidence. The various definitions of "law" exist in an uneasy tension (Tamanaha 1997). This tension can serve us well if we follow Griffiths's advice (1984) and view "legalness" as a variable rather than thinking of "law" as a special, definable phenomenon. The complex body of substantive and adjective rules at different levels comprise a legal system.
The comparative study of law might trace its roots to Aristotle's comparison of Greek city-state constitutions. A more recent example is Montesquieu, who, in The Spirit of the Laws ( 1962), attempted to explain legal diversity in terms of various factors in the social setting. Interspersed between these efforts were comparisons of canon law with Roman law in Europe and with the common law in England. Despite these precursors, the modern study of comparative legal systems has become a topic of sustained academic interest only during the last 100 to 150 years.
The history of comparative law is set forth in a number of works, including Zweigert and Kotz (1987) and David and Brierley (1985). The present essay discusses a small part of this history, focusing on what Zweigert and Kotz call scientific or theoretical comparative law rather than legislative comparative law, in which foreign laws are examined and invoked in the process of drafting new nation-state laws.
Early theoretical efforts, exemplified by Maine's Ancient Law ( 1963), adopted evolutionary theories of legal development. In Maine's famous formulation, legal systems, following changes in social arrangements, move from status, wherein one's rights and duties are determined by one's social niche (the law of feudalism), to contract, wherein ones rights and duties are determined by oneself and the contracts one enters into (eventually the law of capitalism).
A second well-known developmental theory of changes in legal systems is that of Durkheim ( 1964). A societal movement from mechanical to organic solidarity is accompanied by a movement from repressive law (law that punishes those who violate a shared moral understanding) to restitutive law (law that attempts to facilitate cooperation and to return people to a status quo ante when rule violations occur).
From the sociological point of view, perhaps the most important contributor to the early development of comparative law was that preeminent lawyer-social scientist, Max Weber. Weber's contribution was in three parts. First, he developed the device of an ideal type, a stylized construct that represents the perfect example of a phenomenon. The ideal type acts as a yardstick against which we might measure actual legal systems. Second, using ideal types, he provided a typology of legal systems classified by the formality and the rationality of their decision-making processes. Ideally, legal systems could be thought of as formal or substantive, rational or irrational. A legal system is formal to the extent that the norms it applies are intrinsic to the system itself. Substantive law, as the term was used earlier, should not be confused with the substantive dimension of Weber's typology. A legal system is substantive in Weber's sense to the extent that the source of the norms it applies is extrinsic to the legal system. For example, a legal system would be substantive if a court resolved disputes by reference to a religious rather than a legal code.
A legal system is rational if it yields results that are predictable from the facts of cases; that is, if case outcomes are determined by the reasoned analysis of action in light of a given set of norms. A legal system is irrational when outcomes are not predictable in this way. Basically, a legal system is rational to the extent that similar cases are decided similarly.
A formally irrational system exists when the legal order produces results unconstrained by reason. Classic examples are judgments following consultation with an oracle or trial by ordeal. Substantive irrationality exists when lawmakers and finders do not resort to some dominant general norms but, instead, act arbitrarily or decide upon the basis of an emotional evaluation of a particular case. Weber apparently had in mind the justice dispensed by the Khadi, a Moslem judge who, at least as Weber saw him, sat in the marketplace and rendered judgment by making a free and idiosyncratic evaluation of the particular merits of each case.
A substantively rational legal system exists when lawmakers and finders follow a consistent set of principles derived from some source other than the legal system itself. Again, Weber thought that Moslem law tended toward this type insofar as it tried to implement the thoughts and commands of the Prophet.
Western legal systems, especially those of civil law countries such as France and Germany, most nearly approximate the formally rational ideal, a legal system where the generality of legal rules is high and where the legal rules are highly differentiated from other social norms.
The relationship between formal and substantive law is obviously more complex than can be reflected in these four Weberian types. For example, legal systems may be procedurally quite formal while incorporating substantive norms rooted in nonlegal institutions. Moreover, rational systems may incorporate potentially irrational components, as when the final judgment in a case is left to a lay jury. Nevertheless, as ideal types Weber's categories help to locate idealized Western law in a wider universe of possible legal systems.
The importance of Weber's categories, like those of Maine, resides in large part in his efforts to link types of rationality with different types of societies and different ways of organizing legal systems. Weber associated an irrational legal order with domination by a charismatic leader. Formal rationality, on the other hand, accompanies the rise of the bureaucratic style of organization. Weber regarded logically formal rationality as the most "advanced" kind of legal ordering and as particularly hospitable to the growth of the capitalist state.
Weber's third contribution to comparative legal studies was his insight that the nature of a society's legal system is shaped by the kinds of individuals who dominate it. On the European continent, in the absence of a powerful central court, domination fell into the hands of the university law faculties who strove, through the promulgation and interpretation of authoritative texts, to create and understand the legal system as a general and autonomous set of rules. The common law in England, on the other hand, grew under the tutelage of a small elite judiciary and an accompanying centralized bar, more concerned with pronouncing rules for the settlement of disputes than with developing generalized rules of law (Weber 1954). In time, the differences in the legal systems created by these different sets of legal actors helped to spur interest in comparative legal systems.
Overall, Weber's contribution was part of a general movement away from comparing the legal codes of various societies and toward a comparison of the legal solutions that "are given to the same actual problems by the legal systems of different countries seen as a complete whole" (Zweigert and Kotz 1987, p. 60, quoting Ernst Rabel). From this perspective, legal systems confront similar problems, and if we examine the whole system we will uncover fundamental differences and similarities in their various solutions. The effort to uncover these similarities and differences has taken several different paths.
Macrocomparisons. One path has involved attempts to develop macrocomparisons of entire legal systems. This effort has resulted in a number of taxonomies of legal systems in which the laws of nations are grouped by what are commonly called "legal families." The criteria for classification and the ultimate categories of family types have varied from scholar to scholar. Among the factors that have been used are historical tradition, the sources of law, the conceptual structure of law, and the social objectives of law. Socialist writers have traditionally focused on the relationship of law to underlying economic relations and a society's history of class conflict (Szabo and Peteri 1977; Eorsi 1979), although more recent efforts paint a more complex picture that threatens some of the presumed differences between socialist and "capitalist" law (Sypnowich 1990). David (1950) and David and Brier ley (1985) base their classification on ideology (resulting from philosophical, political, and economic factors) and legal technique. Zweigert and Kotz (1987, p. 69) base their classification on a multiple set of criteria they call the "style" of law. Legal style includes: historical background and development, predominant modes of thought in legal matters (contrasting the use of abstract legal norms in civil law versus the narrow, reasoning by analogy typical of the common law), distinctive concepts (such as the trust in the common law and the abuse of right in civil law), the source of law (statutory or case law), and ideology (e.g., the ideology of socialist and Western legal families).
Given the wide variety of criteria used by various scholars, perhaps it is surprising that the resulting "families" tend to be quite similar. To provide but one example, Zweigert and Kotz (1987) divide the world into the following eight families: (1) Romanistic family (e.g., France); (2) Germanic family (e.g., Germany); (3) Nordic family (e.g., Sweden); (4) common law family (e.g., England); (5) socialist family (e.g., Soviet Union); (6) Far Eastern family (e.g., China); (7) Islamic systems; and (8) Hindu law. While some taxonomies may have fewer civil law divisions, this set of categories shares with many others a Eurocentric emphasis and a resulting inability to fit non-European legal systems easily into the taxonomy (see Ehrmann 1976; David and Brierley 1985), although the rise of non-Western societies such as Japan should help to redress this imbalance in time (see Institute of Comparative Law, Waseda University 1988).
The Eurocentric and Western emphasis is not simply a matter of greater particularity in describing differences between the legal traditions of Europe. It is also reflected in the concepts used to make distinctions. The categories of the various typologies are based primarily on a comparison of private law rather than on public or constitutional law and on substantive law rather than on adjective law. A different focus may lead to different family configurations. For example, American and German constitutional law are in some ways more similar to each other than to French or English constitutional law. The focus on private substantive law has the additional result that it overemphasizes legal doctrine while underemphasizing the degree to which legal systems are a product of the surrounding society. The consequence is to under-state similarities in Western legal arrangements that may be captured by the idea of a legal culture.
One alternative designed to avoid this tendency is found in Merryman's concept of legal traditions (1969). Legal traditions are:
a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught. The legal tradition relates the legal system to the culture of which it is a partial expression. (Merryman 1969, p. 2)
From this perspective the Western legal tradition may be usefully compared to and contrasted with legal systems in other cultures (Barton et al. 1983).
A second alternative to the "legal families" approach is taxonomies that are not based on differences in substantive law. One recent example, closer to the Weberian heritage, is that of Damaska (1986). Like Weber, Damaska uses two dimensions to develop ideal-typical legal orders. The first dimension divides legal orders into activist and reactive systems of justice. Activist states attempt to use law to manage society, whereas reactive states attempt only to provide a legal framework for social interaction. At the heart of the image of law of the activist state is the state decree, spelling out programs, assigning tasks, and distributing welfare to citizens. At the heart of the reactive state are devices facilitating agreement, contracts, and pacts. While it might be thought that this dimension is designed primarily to distinguish capitalist and socialist legal orders, Damaska observes that not all types of socialist models follow the state socialism that has dominated the Soviet Union and eastern Europe. Yugoslavian self-management concepts speak to this reactive tradition in socialism. Likewise, capitalist societies exhibit considerable differences in their commitment to an activist state.
Damaska's second dimension divides legal orders into hierarchical and coordinate systems of judicial organization. In the hierarchical ideal officials are professionals who are arranged in a strict hierarchy and who employ special, technical standards of decision making. The coordinate ideal describes a more amorphous machine in which legal functionaries are amateurs who are arranged in relationships of relatively equal authority and who do justice based on prevailing ethical, political, or religious norms. Weber's vision of the Moslem Khadi applying substantive (religious) law would appear to describe this type of legal order.
There are other strong parallels between Damaska's and Weber's ideal types. Their categories are less obviously Eurocentric and, more important, employ a set of concepts that facilitate an understanding of ways in which the relationship between the state and society is mediated through law. Both analyses are inclined toward a functional approach. Rather than beginning with individual legal histories and doctrines and grouping them into families, this approach begins with a set of problems—how to mediate the relationship of the state and society and how to organize the structure of legal actors—and arranges legal systems according to how they address these problems.
Damaska's distinction between the hierarchical and coordinate ideal and Weber's distinction between formal and substantive rationality direct our attention to a central issue concerning law—the degree to which different legal systems are autonomous. Formalist theories of law posit a self-contained enterprise separate from the rest of society (Kelsen 1967), while most Marxist theories view law solely as an instrument of domination (Spitzer 1983).
More recent theoretical discussions of autonomy include those of the Critical Legal Studies Movement, Niklas Luhmann (1985), and Pierre Bourdieu (1987). Critical Legal Studies focuses on law's indeterminacy and on the role of social forces and power relations as the actual determinants of legal outcomes (Kelman 1987). Luhmann's theory, to the contrary, views the legal system as autopoietic. An autopoietic system, like a living organism, produces and reproduces its own elements by the interaction of its elements (Teubner 1988). Bourdieu offers a complex view of the autonomy of the "juridical field." Legal system autonomy is the result of the constant resistance of the law to other forms of social practice. One way this is accomplished is by requiring those who wish to have their disputes resolved in court to surrender their ordinary understandings and experiences. Actions and actors brought into the legal system are dealt with only after they and their dispute are translated into a set of legal categories (e.g., debtor—unsecured creditor; lessor—lessee;). Western courts tend to treat as irrelevant and inappropriate those accounts that attempt to introduce the details of litigants' social lives (Conley and O'Barr 1990).
Interest in the question of legal autonomy has been reinvigorated by the collapse of socialist regimes in central and eastern Europe. The legal systems in the formerly communist societies of central and eastern Europe enjoyed relatively less autonomy than their Western counterparts. For example, judges were sometimes told how to decide politically sensitive cases. Because the directive usually came via telephone, the practice acquired the pithy name "telephone law." In the last decade much attention has been devoted to the question of how to establish the rule of law—that is, greater legal system autonomy—in Russia and eastern Europe (Hendley 1996). One would be wrong, however, to conclude that legal systems in capitalist societies enjoy complete autonomy. The intrusion of politics into the legal systems of these societies is more subtle but nevertheless substantial (Jacob et al. 1996). What is different is the way judicial field is structured: for example, the relative independence of the judiciary and the organization of the legal profession. These structures, as Bourdieu notes, make it easier for the legal system to resist penetration. Indeed, intrusion is not a one-way street. The "centrality of law" thesis argues that the legal system increasingly penetrates into other areas of modern society (Hunt 1993). Modern states have "more" law, larger state bureaucratic legal institutions, and growing numbers of legal professionals. Moreover, legal forms are exported to other spheres of life, as when the workplace becomes infused with due process requirements.
It should be clear by now that legal autonomy is a multifaceted phenomenon. Systems differ in their degree of judicial independence and judicial formalism, the extent to which their laws are status neutral, and whether those forced into the legal arena enjoy equal legal competence (Lempert 1987). One of the strengths of Weber's and Damaska's typologies is that they suggest dimensions along which legal system autonomy may vary. For example, systems that reflect Damaska's hierarchical ideal will be more likely to exhibit some of the features of greater autonomy.
Microcomparisons. Microcomparisons of legal systems are concerned with the details of specific legal rules and institutions rather than with entire legal systems (Rheinstein 1968). The functional approach is even more pronounced at this level. Scholars often begin with a specific social problem and seek to discover the various ways in which legal systems solve it, or they begin with a specific legal institution and examine how it operates in various systems. For example, Shapiro (1981) makes a comparative analysis of the court as an institution in common law, civil law, imperial Chinese, and Islamic legal systems.
The most valuable work done at this level has been that of legal anthropologists. By examining the dispute-processing activities of African, Latin American, and Asian legal tribunals, they have provided new insights into the connection between a society's social relationships and the way in which it processes disputes. Ethnographies by Gluckman (1967), Gulliver (1963), Nader (1969), and others exposed a general pattern wherein tribunals confronted with disputes among individuals who are in multiplex and enduring relationships are more likely to widen the range of relevant evidence and to search for outcomes that allow flexibility, compromise, and integration. Tribunals confronted with disputes among individuals who are in one-dimensional and episodic relationships are more likely to narrow the range of relevant evidence and to provide binary outcomes in which one side clearly wins and the other loses.
Legal ethnographies have also supported the earlier observation based on macrocomparisons that the organization of courts and judges plays a role in determining styles of dispute processing. Fallers (1969), for instance, found that the Soga, a society in many ways very similar to the Barotse studied by Gluckman, tended to craft decisions that were narrower and that resulted in "legalistic" rulings. His explanation was that the "judiciary" in the two societies differed in at least one key respect. The Soga courts were more purely "judicial" bodies without administrative and executive functions. A specialized legal staff was more likely to issue narrower opinions. Moreover, because binary outcomes result in a judgment to be enforced against a losing party, the availability of a coercive judicial apparatus may facilitate this type of dispute resolution (Lempert and Sanders 1986).
Perhaps because of the seminal work by Llewellyn and Hoebel (1941) on the Cheyenne, the work of legal anthropologists, more than most macro approaches to the study of legal systems, builds on the sociological jurisprudence and the legal realist traditions (Pound 1911–1912; Oliphant 1928; Llewellyn 1930; Arnold 1935). It is concerned with the law in action, with the actual experience of the legal staff and the disputants (Merry 1990). As a consequence, legal anthropology has had a substantial influence on the sociological study of disputing and what has come to be called alternative dispute resolution in Western societies (Greenhouse 1986; Abel 1981). Postmodern legal anthropology has grown increasingly preoccupied with the problem that confronts all comparativist work—understanding the effect of the observers' own backgrounds on the ways in which we distinguish legal systems (Comaroff and Comaroff 1992). Undoubtedly, however, the ethnographic tradition has provided rich detail to our understanding of the differences among legal systems.
Recently, anthropologists have come to appreciate the degree to which African and other consensual legal systems are themselves partly the outgrowth of colonial experience and of the distribution of power in society (Starr and Collier 1989). This observation underlines a more general point that has been noted by macro and micro scholars alike. Nearly all existing legal systems are, to a greater or lesser extent, externally imposed, and therefore all legal systems are layered (Watson 1974). In many societies layering occurs because of the existence of a federal system creating an internal hierarchy of rules, some of which are imposed from above. Layered legal systems also occur when nations such as Turkey (the Swiss code) or Japan (the German code) shop abroad and adopt the laws of another nation as the basic framework for substantial parts of their own legal system. In some situations the imposition is done wholesale and involuntarily, as when colonial powers impose a legal system. The result can be considerable social dislocation (Burman and Harrell-Bond 1979). In time, multiple layers may exist, as in Japan, where indigenous law has been overlaid by both the adopted German code and American constitutional law concepts imposed after World War II (Haley 1991).
In each of these situations a society's legal system is unlikely to fit easily within any of the legal families. For instance, a society may borrow another's substantive and adjective law for commercial law purposes but retain the existing law of domestic relations. Frequently, such societies are said to have a "dual legal system." However, to the degree that this phrase describes a situation in which two equal systems stand side by side and rarely interact, it fails to capture the rich variety of hierarchical structures in layered systems. An important task for the students of legal systems is to understand the process by which individuals and groups use law at different levels and in so doing transform both.
At the uppermost layer of legal systems are legal arrangements that are multinational or transnational in scope. Within the European Economic Community, following the Treaty of Rome in 1957 and the Single European Act in 1987, the adoption or imposition of a multinational regime is proceeding rapidly. The process requires the harmonization of a large body of law including corporate, intellectual property, environmental, tax, products liability, banking, transportation, product regulation (e.g., food and pharmaceuticals), and antitrust law. Member states must conform their national laws to comply with community directives, inevitably leading to the homogenization of European law. This process, along with the substantial alterations in property and contract law accompanying the economic changes in the Soviet Union and eastern Europe, suggests that the differences among legal systems of European origin will diminish over the next few decades, especially differences among laws governing commercial and economic transactions.
Indeed, the existence of a global economic order promotes some similarities in all laws governing economic transactions. Islamic law has been compelled to create a number of legal devices and fictions designed to avoid direct confrontation will several teachings of the Koran, such as the prohibition against charging interest that would make participation in a modern economic order difficult (David and Brierley 1985, p. 469). The emerging global economy has also created a new layer if transnational legal actors who at once attempt to export their nationalist version of law and to create a set of transnational institutional arrangements that sometimes complement and sometimes are in opposition to national legal structures. For example, Dezalay and Garth (1996) describe the emergence of a cadre of international commercial arbitrators and their creation of a international legal field with its own networks, hierachical relationships, expertise, and rules.
A number of additional global issues also create pressures toward the creation of transnational legal arrangements. These include transnational crime; ethnic and racial conflict; world population and migration patterns; labor flows; and, perhaps most significant, environmental regulation. Common legal structures created to address these issues and demands that nation-state legal systems enact and enforce appropriate compliance mechanisms may lead to the rebirth of the ideal of international legal unification that was popular at the beginning of the century. As can be seen in the European example, such unification inevitably involves some imposition of law.
Because pressures to build a more complex body of transnational law coincide with the diminution of differences in Western legal systems, over the next few decades one of the most interesting issues in the study of legal systems will involve movements toward and resistance to a transnational legal order premised on the hegemony of Western legal systems and Western legal concepts. The ongoing task of comparative law is to understand the processes of borrowing, imposition, and resistance, both among nations and between levels of legal systems.
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