Comparative Legal Systems

Legal Systems: A Modern Approach

John Merryman and colleagues have developed a teaching and research approach to comparative law that defines law as a “legal system” rather than simply “legal rules.” In addition to rules, a legal system has certain additional components: legal extension, legal penetration, legal culture, legal structures, legal actors, and legal processes. These are highly interrelated concepts, and each of them is further related to the form and content of the rules of law in the system. Like other social systems, the legal system has boundaries, and its components are interrelated by an internal logic. Legal extension and legal penetration help to define the boundaries of the legal system; the legal culture is its internal logic; legal structures, actors, and processes describe its component parts and the way they function. (Merryman, Clark, and Haley 1994: 51)

Law does not yet dominate in any society to the extent that legal rules regulate all aspects of social life. In every country, people go about their lives in accordance with social convention, peer influence, custom, religion, and negotiated or imposed norms. The line between law and nonlegal matters varies from place to place and depends on disciplinary perspective. For instance, anthropologists can take a very broad view of what is legal, often finding law independent of the state. Comparative research into the range of variation, especially if one identifies law with the state's official legal system, provides important insight into the nature of society, such as its place along a scale of “capitalist” to “socialist.” This dimension is “legal extension.”

The degree to which law actually “penetrates” and controls social life is different from what state officials or tribal leaders intend. Law's grasp is always less than its reach. Many Panamanians, Nigerians, and Indonesians, to illustrate, live relatively free from any substantial contact with the official legal system. It applies with most force to an urban oligarchy and significantly loses power as one looks down the socioeconomic ladder or into small towns and the hinterland. Although the paper legal system may look like that in France, Spain, or England, the actual role of law for many people is minimal.

“Legal culture” includes those historically developed, deeply rooted attitudes that people have about the nature of law, its role in society, and the proper [Page 225]structure and operation of the legal system and activities of legal professionals. How is law or should law be made, organized, taught, and applied? Are lawyers or judges respected, ignored, or disdained? Ideas about law are part of a people's intellectual history; they limit and direct thinking about law and thus profoundly influence the legal system.

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