7 - Legal Systems as Legal Traditions

Summary

Whereas comparative law scholarship has traditionally focused on Westphalian legal systems, Patrick Glenn famously argued that the legal tradition offers a descriptively and normatively superior analytic focus point. Descriptively, the legal tradition model would better account for law’s prominent epistemic dimension. Normatively, it would steer clear of Western centrism and attendant validation of colonialism. This chapter aims to diffuse the apparent opposition between legal system and legal tradition by offering an account of the legal system as (intellectually self-determined) tradition that is nonetheless consistent with the Westphalian conception. In particular, it is contended that an internal investigation of the kind advocated by Glenn (and others) yields an overall picture of legal systems as very much shaped like bee swarms. The relevant characteristic of bee swarms for present purposes is their projecting elusive, fuzzy edges around a comparatively well-defined centre of gravity, namely, their respective queen bees. I argue that legal systems, as internally delineated epistemic communities, likewise boast a well-defined institutional grounding (Part I) encircled by fluid edges (Part II).