Doin' the Transsystemic: Legal Systems and Legal Traditions

By Glenn, H. Patrick | McGill Law Journal, December 2005 | Go to article overview

Doin' the Transsystemic: Legal Systems and Legal Traditions


Glenn, H. Patrick, McGill Law Journal


Transsystemic legal teaching is a challenge to the western bias against conceiving of law as anything other than that which is positively enacted by the state. A more convincing explanation for the normativity of law is provided by refocusing inquiry on legal traditions. By examining the traditions that form the foundations of particular legal systems, it is possible to gain a fuller understanding of the interrelationship of the laws of the world and to move beyond the theoretical constraints of traditional legal positivism.

L'enseignement transsystemique du droit est un defi au penchant occidental qui tend a ne pas considerer comme du droit tout ce qui n'est pas formellement promulgue par l'Etat. On peut toutefois decouvrir des explications plus convaincantes a la normativite du droit si l'on interroge plutot les traditions juridiques. Examiner les traditions a la base d'un systeme juridique specifique permet de mieux saisir les correlations entre les divers droits du monde et de passer outre les contraintes theoriques du positivisme juridique traditionnel.

Introduction

I.  The Normativity of Legal Systems and Legal Traditions
    A. Systems, Traditions, and "Descriptive Sociology"
    B. The Existence of a Legal System
    C. An Obligation to Obey the Law?

II. The Relations between the Laws of the World
    A. General and Particular Jurisprudence
    B. Relations of Conflict and Relations of Conciliation

Conclusion

Introduction

The Faculty of Law of McGill University has recently embarked on a programme of legal education in which students study simultaneously, in the same classroom, civil and common law subjects. It is commonly, though unofficially, referred to as "transsystemic" legal education. (1) The word says a great deal about how the concept of system has impressed itself on legal education in the last two centuries, but what can it possibly mean? If law is found exclusively within legal systems, how can it be found, and taught (as the prefix "trans" indicates) "across", "through", "beyond", and even "on the farther side of" those same systems? (2) The question raises fundamental issues about the conceptualization of law and about how one should think, and teach, the laws of the world and their relations to one another. It also raises a fundamental challenge to the idea of law conceived in terms of legal systems, probably the most pervasive concept of western legal thought for the last two centuries, now used more or less indiscriminately to describe laws of all provenances and types.

The notion of system comes from the Greek sustema, as assemblage or ensemble, but came into the mainstream of western intellectual life with the development of taxonomic biology in the eighteenth century, using systems as units of analysis. (3) It received great impetus in the twentieth century with the development of informational systems theory, (4) but in law had already come into accepted use by the eighteenth century, (5) such that the French codifiers of 1804 felt it necessary to vigorously disclaim ("Un systeme! Nous n'en avons point ...") any systemic intentions. (6) It has obviously been closely linked to the development of exclusivist state authority (hence the disingenuous French disclaimer) and is thus a product of its times. With what is today described, however, as the decline of the state, (7) the notion of a legal system may also suffer a corresponding decline.

Recent critiques of legal philosophers suggest that, beyond the traditional challenges offered by other ways of thinking about law, the decline of the idea of a legal system is already under way. In spite of the sophisticated character of systemic legal thought, and the genuine analytical progress which it has brought about, it has been described as not "fecond" or adequate for the legal enterprise. (8) Its research programme has been described as "stagnant"; (9) its central concern with the concept of law has been said to be one that "really does not matter all that much"; (10) the debate on the nature of legal positivism, and hence of legal systems, has been said to involve "an increasingly narrow and arcane debate, with less and less at stake. …

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