This essay argues that to understand much that is most central to and characteristic of the nature and behaviour of law, one needs to supplement the time-free conceptual staples of modern jurosprudence with an understanding of the nature and behaviour of traditions in social life. The article is concerned with three elements of such an understanding. First, it suggests that traditionality is to be found in almost all legal systems, not as a peripheral but as a central feature of them. (...) Second, it questions the post-Enlightenment antinomy between tradition and change. Third, it argues that in at least two important senses of tradition, the traditionality of law is inescapable. (shrink)

The "tragedy of organization" -- The ideal and the real -- Organizations and ideals -- Institutional leadership -- Pathos and politics -- Jurisprudential sociology -- The rule of law : expansion -- The rule of law : transformation -- Values, conflict, development -- Morality and modernity -- Communitarian liberalism.

Maria Márkus took special interest in the concept of civil society that was revived by East European dissidents and incorporated it into her account of the fundamental ideals of modernity. Modern societies were civil to the extent that they possessed a ‘public sphere’ that incorporated structures and mechanisms of action and communication able to form, articulate and press the interests and needs of the society on public agencies; and to defend them, if the state ignores or seeks to override them. (...) This article discusses the relationships in her thought between civility, civil society and decency. She sees the first as a condition for the second, but not a part of it, while decency is both an accomplishment and attribute of a civil society in good shape. For her, a decent society is the ideal to strive for, a civil society the way to get there, civility a necessary step toward civil society, and therefore too for a decent one, but not a huge step. This article suggests that civility deserves more than the lukewarm approval Maria bestowed upon it. In particular, the piece tries in some measure to bridge the gap she saw between civility, on the one hand, which she appreciated in a kind of ‘two cheers’ way, and civil and decent societies, on the other, which received her full three-cheers. (shrink)

The author begins by sketching the characteristics or elements of every tradition. Some reasons are then suggested for the propensity of so many authors to contrast statutes with other, allegedly more traditional kinds of law. However, it is argued that statutes are deeply embedded, along with customary and judge‐made law, in the highly traditional practices of law and that this matters much more than is commonly suspected. The thesis being defended here is not merely that law includes traditions along with (...) rules, principles, maxims, and so on, but rather that legal systems should be understood as traditions, albeit highly complex ones. Not only are ancient legal systems (the Talmudic, for example) held to be traditional; modem legal positive orders are viewed as being traditional too. Finally, the concept of “communities of interpretation” is applied to the contemporary posited statutes which are believed by many to be a distinguishing feature of modem legal systems. (shrink)