MODERN LEGAL SYSTEMS
In modern legal systems, we find all the legal components of transitional systems, but in greater and more elaborate arrangements. As Turner (1972:225) notes, “Laws in modern legal systems are extensive networks of local and national statutes, private and public codes, crimes and torts, common and civil laws, and procedural and substantive rules.”
A distinctive feature of modern legal systems is the rise and proliferation of administrative law (see Chapter 1). Another aspect is the increasing number of statutory laws compared to what is typical of transitional societies. Legislation becomes a more acceptable method of adjusting law to social conditions. There are also clear hierarchies of laws, ranging from constitutional codes that govern a whole society to regional and local codes that have more limited application geographically.
Courts in modern legal systems have an important role in mediating and mitigating conflict, disputes, deviance, and problems. The roles of lawyers and judges become highly professionalized, with licensing requirements and formal sanctions. The various administrative statuses—clerks, bailiffs, and public prosecutors—specialize, proliferate, and become heavily bureaucratized. The jurisdictions of courts are specified with clearly delineated appeal procedures. Especially in common law nations, cases unresolved in lower courts can be argued in higher courts that have the power to reverse lower court decisions.
In modern legal systems, laws are enforced and court decisions are carried out by clearly differentiated and organized police forces, which are organized at the local, state, and federal levels. Each force possesses its own internal organization, which becomes increasingly bureaucratized at the higher levels. In addition to police forces, regulatory agencies (such as the U.S. Food and Drug Administration, the Federal Trade Commission, or the Federal Aviation Administration) regularly enforce and oversee compliance with laws. Administrative agencies, as will be discussed in Chapters 4 and 5, also make and interpret laws in the context of their own mandates.
Inherent in modern legal systems is the notion of modern law. Marc Galanter (1977) in a classic and influential article, “The Modernization of Law,” listed several features that characterize the legal systems of modern societies. One feature is that rules “are uniform and unvarying in their application” (1977:1047): The same rules and regulations are applicable to everyone. Modern law is also transactional, with rights and duties stemming from transactions between parties on a roughly equal footing. In another feature, modern legal norms are universalistic; that is, their application is predictable, uniform, and impersonal. Further, the system, to be uniform and predictable, operates on the basis of written rules and has a regular chain of command. The system is rational in the Weberian sense, and “rules are valued for their instrumental utility in producing consciously chosen ends, rather than for their formal qualities” (1977:1048). Such a system is run by full-time professionals (judges and attorneys) whose “qualifications come from mastery of the techniques of the legal system itself, not from possession of special gifts or talents or from eminence in some other area of life” (1977:1048). The legal system is also amenable: It can be changed if necessary. Law in modern societies is also political: It is inexorably tied to the state, which has a monopoly on law. Finally, legislative, judicial, and executive functions are clearly separated in modern law.
Thus far, we have identified some of the dynamics involved in the development of modern legal systems. Let us now consider some of the theories accounting for those developments.