1. Describe the Relationship between a Legal Tradition and a Legal System
Fourth, Ugo Mattei (1997) proposed a new tripartite classification to reduce the Eurocentrism of previous approaches. His families depend on the dominant model of legal decision-making in a system that can be described as professional law, political law or traditional law. In the family of professional law (including the civil law countries of Western Europe and the common law of Great Britain, Oceania, the United States and Canada), the idea of a law independent of politics and religion prevails. The political legal family includes the former socialist and developing countries (Eastern Europe, sub-Saharan Africa and Latin America), where the concept of autonomous law is not strong enough to prevent politics from crowding out legal norms for important legal decisions. Finally, the traditional legal family consists of legal systems that may have incorporated essential elements of civil law or common law (Asia and North Africa), but in which the dominant culture that controls legal decision-making is rooted in Confucianism, Hinduism or Islam. The term “regulatory tradition”, which differs greatly from the legal tradition, is close to the “legal tradition” and appears mainly in German-language science and science, which are characterized by institutional history and legal dogmatics. Here, however, it is not usually used as a means of capturing the context of legal texts. On the contrary, it refers to the fact that legal discourse as expertise can have resilience and even limited autonomy, which makes it possible and necessary to examine its diachronic development. “Tradition” serves to explain the diachronic development of a legal institution, such as the regulatory framework for the election of bishops23 and the Code of Obligations.24 It combines various elements of historical regulation over a longer period of time and presents them as part of a process of diachronic cultural reproduction. Many of these institutional histories combine “the Roman legal tradition” and the “civil legal tradition” as historical formations. 18 His “Legal Traditions of the World” were followed by two other works: H. Patrick Glenn, On Common Laws (Oxford University Press 2005) and H. Patrick Glenn, The Cosmopolitan State (Oxford Constitutional Theory, Oxford University Press 2013), which build on and develop his idea of the legal tradition.
His look at common laws and the state and its history is also inspiring, despite some possible gaps 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 local and specific laws. Glenn finds them in the great legal traditions, and they represent “lateral traditions”.50 In the Western tradition, for example, the German “common law”, as embodied in the books of law (RechtsbÃ1/4cher) such as the Sachsenspiegel, is customary law in this broader sense, as is the Castilian siete partidas, the French customary law, inter alia. Customary law “contains information, but does not declare any of it as binding or binding” and is a source of information for other customary laws as well as for some laws.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 that laid the foundation for which the modern system of state-centered legal sources emerged. the legal system that later claimed exclusivity.53 However, customary rights did not disappear at the height of legal absolutism. Essential parts of what had gone out of fashion in Europe, such as the ius commune, the common law, the Siete Partidas and parliamentary thought, poured into common laws abroad,54 as well as the same codifications, bills, and works of important authors that circulated in various concentrations around the world. They remained what they were: normative information and persuasion, which were adopted, adapted and integrated into the feedback loop of legal production. From this point of view, nineteenth-century legal thought and codification 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 the nineteenth century the end of customary law.55 Without examining this in more depth, it seems clear that the analytical potential of Glenn`s concept of tradition as normative information is particularly high when it comes to circulation or, more precisely, when global knowledge is created by cultural translation.