EVOLUTION OF LEGAL SYSTEMS
Formal codified law emerges when a society becomes so large and complex that regulatory mechanisms and methods of dispute settlement can no longer depend on informal customs and social, religious, or moral sanctions (Zifcak, 2005). Formal and institutionalized regulatory mechanisms come into being when other control devices are no longer effective. As a society becomes larger and more complex, so, too, does its legal system.
Historically, legal development and industrialization, urbanization, modernization, and, most recently, globalization are closely intertwined (Grossi, 2010). In a small, isolated, and homogeneous society with little division of labor and a high degree of solidarity, informal sanctions are sufficient to keep most behavior in line with the norms. An ideal example is the community on Tristan da Cunha, an isolated island in the middle of the South Atlantic Ocean. A few hundred people live there, growing potatoes and catching fish. When social scientists visited the island in the 1930s, they were amazed to see how law abiding these people were, even though they had nothing resembling law as we know it. There was no serious crime on the island that anyone could recall, no police, courts, jails, or judges. There was no need for such controls. People in the community relied on informal mechanisms of social control such as shaming and open disapproval, which can be effective and severe in their own way. Such forms of control work in small, homogeneous, face-to-face communities (Friedman, 1998, 2002).
But, in a modern, heterogeneous, and complex society with a high division of labor, formal norms and sanctions are necessary to control behavior so that society can continue to function in an orderly and predictable fashion. The presence of some kind of law and a legal system as we know it today is essential to the maintenance of social order (Kritzer, 2002). Although modernization in a sense forces the development of law in this manner, the specifics of how this happens vary from society to society as a result of unique conditions, such as geographical location, historical events, conquest, and prevailing political and social forces.
Thus, it is not surprising that Pound (1959:366), among others, finds it “convenient to think of . . . stages of legal development in systems which have come to maturity.” The law and society literature suggests that the more complex the society, the more differentiated the legal system (Schwartz and Miller, 1975). Underlying this proposition is the notion that legal development reflects demands from society’s economic, political, educational, and religious institutions. Based on the complexity and magnitude of the interplay among these institutions and between these institutions and the law, several types of legal systems may be identified in the course of societal development. There is practically no limit to the variability of legal systems, and many scholars have developed typologies to capture this diversity (e.g. Diamond, 1971; Mundy, 2002; Pottage and Mundy, 2004). These typologies seldom correspond fully to the real world, but they are essential in an analytical discussion dealing with the types of legal systems. Drawing on these typologies, we discuss legal evolution with respect to three types of legal systems: traditional legal systems, transitional legal systems, and modern legal systems. The term “primitive” was once used to label traditional legal systems so that they were called primitive legal systems (Rouland, 1994), but because “primitive” has negative connotations, we will follow contemporary standards in calling these traditional systems rather than primitive systems.