TRADITIONAL LEGAL SYSTEMS
Traditional legal systems are typically found in hunting and gathering and simple agrarian societies. Laws in these societies are not written or codified; instead, they are permeated by customs, tradition, religious dogmas, and values. In effect, the laws of traditional societies are simply their unwritten norms. The functions of law in traditional societies are essentially the same as those in more advanced societies (Rouland, 1994). As such, law in traditional societies helps to coordinate interaction, settle disputes, deter or sanction deviance, and regularize social interaction.
In traditional societies, there are no well-developed political subsystems, and the polity is composed of kin leaders, councils of elders or chiefs, and various religious leaders. Legislatures as we know them do not formally exist in traditional societies. In such societies, judges and political leaders (elders and the like) are one and the same, and chiefs or elders can enact both substantive and procedural laws. Because there are no written laws, a traditional society’s leader(s) can strike, rescind, or change old laws more easily than the modern legislator; if such action appears reasonable, little resistance is offered. Removing old laws from the books in modern societies is rarely that easy.
Many traditional societies have the equivalent of modern courts, which in traditional societies are temporarily assembled and then dissolved as disputes arise and are settled. Although they are provisional, traditional courts comprise at least two clearly differentiated roles: that of the judges, who hear evidence and make decisions in accordance with laws, and that of litigants, who have to abide by the judges’ decision. Occasionally, a third role can be identified in such courts, that of a representative lawyer who pleads the case for a litigant. As the legal system develops, these roles become more clearly differentiated.
In traditional societies, however, these three procedures are sufficient to maintain a high degree of societal integration and coordination.