Private Legal Systems

Characteristics of Private Law

It was common in the past to distinguish between primitive law and the law of civilized societies. The problem of that characterization was that “primitive” carried connotations of inferiority and of a historical evolution from rudimentary societies to those on a higher level of development. At least since Eugen Ehrlich (1862–1922), scholars have recognized that, parallel to the law of the state, informal legal systems may coincide with written official law. These informal systems may support the law of the state, or they may contradict it. Ehrlich, who was a law professor at the University of Czernowitz (now Chernovtsy, Ukraine, in the [Page 1183]Bukowina), noticed that the local rural population adhered to its traditional law of family relations regardless of what the law of the Habsburg Empire mandated. In effect, this meant that the local private law, supported by tradition, prevailed over the law of the state.

Earlier, Friedrich Carl von Savigny (1779–1861) had suggested that language shares characteristics with private law. Both base themselves on an identifiable system of rules that, as with any norm, may result in informal but effective sanctions in case of violation. Language as a system encompasses both private law and the written law of the state.

Unwritten legal traditions may merge into the law of the state by way of interpretation of phrases in statutes and court opinions and in the construction of the meaning of policies behind written articulations. This amounts to an invitation to those who apply the written laws to use unwritten legal traditions. Thus, the written law of the state cannot operate without resort to the underlying structure of unwritten private law. On the other hand, Lynn LoPucki showed that private law may sometimes contradict the law of the state and, in these instances, may have an ability to prevail. In ordinary legal proceedings before the courts and other agencies of the state, officials are not likely to acknowledge this contradiction. According to the prevailing viewpoint, the very existence of private law as effective in competition with the law of the state is hard to accept. Lawyers assume state law is supreme. To recognize private law in the sense described here may be incongruous, unless lawyers conceive private law as delegated state power or as mere custom.

...