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TRANSITIONAL LEGAL SYSTEMS

Transitional legal systems are found in advanced agrarian and early industrial societies, in which the economic, educational, and political subsystems are increasingly differentiated from kinship relationships. As a result of this increased complexity, the legal subsystem also becomes more complex and extensive, as evidenced by a clear-cut differentiation in basic legal elements—laws, courts, enforcement agencies, and legislative structures. In the transitional stage, most of the features of the modern legal system are present, but not to the same degree. Law becomes more differentiated from tradition, customs, and religious dogma. The distinction between public law and private law (see Chapter 1) becomes more pronounced, and criminal law also becomes distinguishable from torts. There is, similarly, a clearer differentiation between procedural and substantive laws (Friedman, 1975).

The increased differentiation of laws is reflected in the increased complexity of the courts. Accompanying this differentiation is the emergence of at least five distinct types of statuses: judge, representative or lawyer, litigant, court officials and administrators, and jurors. The roles ofjudges and lawyers become institutionalized, requiring specialized training. In transitional legal systems, written records of court proceedings become more common, contributing to the emergence of a variety of administrative roles, which, in turn, leads to the initial bureaucratization of the court.

With the development of clearly differentiated, stable, and autonomous courts, legal development in transitional societies further accelerates for at least two reasons (Turner, 1972). First, laws enacted by the growing legislative body of the polity can be applied systematically to specific circumstances by professionals and experts. Second, where political legislation of laws is absent, an established court can enact laws that incorporate the society prior decisions when disputes had developed. Because these new laws thus presumably reflect a consensus of how these disputes should have been decided, the laws are thought to be especially appropriate for the society in which they are enacted.

Initially, new courts in transitional societies are localized and characterized by local norms and values. In time, the need for a more uniform legal system leads to a more codified system of laws that apply to courts regardless of their particular location.

Traditional legal systems also see the emergence of explicit police roles and also of legislative structures. This results in what political scientists call a separation of powers, or a clear differentiation of legislative statuses from judicial (courts) and enforcement (police) statuses. One effect of this development is that legislating new laws or abolishing old ones is no longer a matter of a simple decree from a society’s leader.

 
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