Legal Traditions? In Search for Families and Cultures of Law

Since the waning of the world concept offered by classical physics, law is seen as embodied less by material objects any longer than in a specific way of thinking. Consequently, the normativist perspective of legal positivism is also getting replaced by the comprehension of law in context of culture and tradition.In its own context, any of the terms of 'system', 'family' or 'culture' can be applied independently from each other but it is to be noted that 'tradition' is at the same time both a part and a given path of culture. In legal thought, concrete and generalising (abstract) ways of thinking are equally recoursed to, just as types which search for a solution either in the case's terms in its entirety or in the exclusive bounds of the given normative conceptual framework. It is only Western law that has become differentiated out of the rest, when individualism advanced and thinking in term of subjective rights grew into a dominant pattern, contrasted to our primitive (albeit surviving) approach to law which also expects, in addition to external conformity, the realisation of the law's internal ethos based on own initiative. English law, however, has revealed its face only gradually, as it has factual decisions made through an only-processually-arranged laic (jury) process while it has bound the declaration of what the law is to such facts of the cases among which no logical relationship can be established. In Civil Law, the treatment of adjudication as argumentation, and in Common Law, as practical reasoning, led the judicial process into a sphere only smoothly controllable by logic. Jewish and Islamic laws accept contradictory arguments from the outset. As to Indian and Far-Eastern cultures, they reject even the underlying questionto be raised. This way, in legal problem-solving the assessment of the merits of the caseandthe recourse to a reductive procedure can complement one another on the basis of some compromise. Institutionalisation itself is, as it channels the legal problem-solving to givenpaths, a function of a previously formed idea of order, of a given mentality. Our legaltheorising today is built mostly separatedly either on the classification and interpretation of facts or on the re-conventionalisation of the philosophical generalisation of concepts, with little interaction between the two types of approaches and research attitudes. Therefore, in order to encourage debate and commensurability, it is important that notions of law, at least tacitly assumed to substantiate their choices of subject, are clarified