Legal Systems

Features of Legal Systems

Legal systems are constituted by interrelated institutions, norms, and actors dedicated to the application of law and, in common law systems, also to its generation. Interrelatedness means that changes in one part of the system affect other parts. In the United States, for example, sentencing guidelines, developed over the past few decades and meant do standardize judicial decision making, also affect prosecutorial strategies, as prosecutors use newly predictable penalties to pressure defendants to confess and to deliver information in exchange for reduced charges. Yet, legal systems are only loosely coupled—mitigating effects of events in one part of the system on others. Legal systems are further relatively (and variably) autonomous toward their environments, including the political, economic, and ethical systems that surround them. Max Weber's classic arguments distinguish between formal rational law, characterized by a high level of autonomy, and substantive rational law, in which political and ethical rationales affect legal decision making. Niklas Luhmann specifies, in his classic systems theory of law, that legal systems are normatively closed but cognitively open. Relative autonomy of law is secured by its distinct role in the division of government powers, specifically its relative separation from the legislative and executive branches of government. Further, different legal systems are interrelated. Each nationstate is thought to have at least one legal system, and many entail a multitude, depending on the degree of decentralization. In federal republics, each state (and municipality) may produce its own law and possibly administer the implementation of federal law. Yet, local laws and their enforcement are typically linked back to national legal standards through appeals options and constitutional challenges. In addition, national legal systems are composed of different specialized systems of private and public law, each with its specific set of procedural and substantive norms and possibly its own court system.

Finally, legal systems become interconnected with an emergent global legal system. Many legal proceedings within states are now subject to international law. In addition, the post-World War II era witnessed the creation of international legal institutions such as the World Court, the European Court of Human Rights, or, most recently, the International Criminal Court (ICC). In the case of the ICC, the relationship is one of complementarity, meaning that the global institution can only act if national systems fail to do so. Yet, the potential of intervention by global institutions often motivates national legal systems to act when they might not have done so in the absence of such threat to national sovereignty.

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