Question

Comparison of legal traditions and legal systems which helps in creating norms

Answer 1

legal history and comparative law. The increasing interest in global perspectives on law and history, the dialectics inherent in globalisation as such, as well as some tendencies of ‘de-’ and ‘re-tradionalisation’, often enhanced by law, have made legal traditions even more topical. But what does ‘legal tradition’ mean? In this article, I review some characteristic usages of the term by classical authors from both legal history and comparative law, like JH Merryman and Harold J Berman, with special emphasis on the work of Canadian comparative law scholar HP Glenn. Beyond its grounding in contemporary information theory and evidence of an impressive command of legal-historical scholarship, his concept of legal tradition as normative information bears analytical potential for legal historians and should be read as an invitation to dialogue between comparative law and comparative legal history.Legal tradition’ is used widely and variously, especially in the English-language publications that increasingly monopolise academic publishing.2020 For a didactic overview and a list of possible criteria, see John Warren Head, Great Legal Traditions: Civil Law, Common Law, and Chinese Law in Historical and Operational Perspective (Carolina Academic Press 2011) 5ff.View all notes Many, if not most, scholars invoke John Henry Merryman's The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America, which was first published in 1969. Unchanged for nearly half a century, ‘legal tradition’ is defined in the current third edition (2007, co-authored with Rogelio Pérez-Perdomo) as

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 the legal system, and about the way law is or should be made, applied, studied, perfected, and taught.2121 John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America (Stanford University Press 1969) 2. The same in John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America (2 edn, Stanford University Press 1985) and John Henry Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America (3 edn, Stanford University Press 2007).View all notes

In other words: legal traditions are understood as the historical underpinnings of modern law. To know them is important, because ‘the legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legal system into cultural perspective’.2222 Merryman 1st, 2nd, 3rd eds 2.View all notes

Diverging considerably from legal tradition, the term ‘tradition of regulation’ (Regelungstradition) is proximate to ‘legal tradition’ and appears predominantly in German-language scholarship and studies influenced by institutional history and legal dogmatic. Here, however, it is not usually employed as a means to grasp the context of legal texts. On the contrary, it refers to the fact that legal discourse, as specialised knowledge, can display resilience and even limited autonomy, which renders a study of its diachronic evolution possible and necessary. ‘Tradition’ serves to explain the diachronic evolution of a legal institution, like the regulatory framework for electing bishops2323 Andreas Thier, Hierarchie und Autonomie: Regelungstraditionen der Bischofsbestellung in der Geschichte des kirchlichen Wahlrechts bis 1140 (Klostermann 2011).View all notes and the law of obligations.