Diverse societies join in principle

Legal Traditions of the World
May 11, 2001

Globalisation is having a major impact on law world-wide. The demands of the global market economy have persuaded most states to radically reform their legal systems, and today lawyers - both academic and practising - are beginning to consider the likely outcome of this process. Some wonder whether the recently enacted legal rules will take root in environments where the prevailing legal culture is often hostile to market principles. Others question whether it is morally or politically acceptable to import laws that undermine the legal structures of the importing states. Issues such as these have prompted a lively debate and have brought about renewed interest in comparative law.

Traditional works on comparative law do not, however, shed much light on this issue. First, they are largely descriptive, concentrating mainly on what academic lawyers describe as "black-letter law". Second, those that attempt to do more than describe often rely on a functional methodology that assumes there are universally valid solutions to legal problems, regardless of time and place. And third, most works on comparative law concentrate almost exclusively on the civil and common law systems, thus ignoring other legal traditions.

Legal Traditions of the World has none of the weaknesses of such standard works on comparative law. It does not focus exclusively on the narrow technical aspects of the law; it is firmly based in social theory and history and its scope is truly comprehensive. Patrick Glenn's book consists of ten chapters, of which seven are devoted to a detailed study of legal traditions: indigenous, Talmudic, Islamic, Hindu, Asian, civil and common law. Each, in turn, is divided into four sections: the nature of each tradition, its underlying justification, its concept of change, and its relationship to other traditions.

These "legal chapters", as the author calls them, are a major contribution to comparative legal scholarship. They contain a wealth of legal and historical material, made accessible to the non-specialist. Lawyers, who by training tend to be insular and parochial, will also benefit from reading these chapters. They will be surprised to learn that a rights-based legal culture is not the only way of securing respect for human dignity. They will also learn about the place and scope of non-adversarial methods of conflict resolution in non-western legal traditions. These chapters should be required reading for the army of western-trained lawyers who roam the world advising governments on legal reform.

Glenn's objective, however, is not merely to provide a nut-shell guide to the main legal traditions of the world. In the first two chapters and in the concluding chapter, he offers a conceptual framework that explains the relationship of tradition to society. He does not regard tradition as a dead weight that lingers on and impedes change. It is transmitted information, a process by which the past is captured and communicated to the present. Tradition is thus a dynamic force present in contemporary social struggles and constantly changing.

Those who associate law with concrete legal systems will undoubtedly wonder how this dynamic view of tradition can be reconciled with the concept of law, which in contemporary society is generally regarded as a stabilising and conservative force. This question does not arise in Glenn's analytical framework because his concept of legal tradition is not derived from the legal system of any specific state. Legal traditions, which are both dynamic and stable, pre-date the modern state system and will probably outlive it.

The stability of legal traditions does not stem from the fact that they are "legal", but from their capacity to change and adapt to internal and external challenges. Legal traditions are complex mechanisms capable of holding together mutually inconsistent sub-traditions through a continuous process of reconciliation. Legal traditions are thus rich and diverse. This diversity is, according to Glenn, self-sustainable because legal traditions have the capacity to reconcile conflicting demands. Thus, any attempt by the adherents of one tradition to seek to dominate or eliminate other legal traditions is bound to fail. He believes, however, that diversity should be positively pursued as the disappearance of any one legal tradition would be a loss to all others. Legal traditions are part of a single whole and, as such, mutually interdependent. While Glenn's conceptual framework is perhaps unnecessarily complicated, his views on the relationship of tradition to society are thought-provoking and stimulating.

The manuscript of this book was awarded the grand prize of the International Academy of Comparative Law. I hope that this well-deserved award encourages comparative lawyers firmly to embrace social theory and history. Legal Traditions of the World is, undoubtedly, one of the most interesting and erudite books on comparative law published in recent years.

Julio Faundez is professor of law, University of Warwick.

Legal Traditions of the World

Author - H. Patrick Glenn
ISBN - 0 19 876575 4
Publisher - Oxford University Press
Price - £19.99
Pages - 371

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