LEGAL SYSTEMS AND LEGAL TRADITIONS

A basic distinction is made in comparative law between legal systems and legal traditions. A legal system consists of the set of legal institutions, procedures, and rules that govern the operation of the criminal justice system. A legal tradition is a set of deeply rooted, historically conditioned attitudes about the nature and role of law, about the organization and operation of a legal system, and about how the law is or should be made, applied, studied, perfected, and taught (Merryman, 1985). The criteria that are generally used when classifying which legal tradition a legal system belongs to are its sources of law, the historical background and development of the system, its characteristic mode of thought, and its distinctive institutions, such as the roles of judges and lawyers.

The most common legal traditions are the common law legal tradition, the civil law legal tradition, the Islamic legal tradition, and the indigenous legal tradition. One major legal tradition that is not dealt in this chapter is the socialist legal tradition, which is based on the civil law legal tradition but is politicized law that recognizes the dominance of the Communist Party. It was at one time widespread, primarily in Eastern Europe and the USSR. Today, its influence can be seen for example in aspects of law in China, Cuba, Vietnam, and North Korea.