During my third year of law school, I took two courses that afforded opportunities to reflect and process what I had been learning about critical approaches to law. Both courses were taught by Dr. Richard Stith, a Roman Catholic law professor and legal philosopher well-acquainted with the Western legal tradition. During my third year, I also read an influential book by Harvard law professor Mary Ann Glendon (a Roman Catholic) about American lawyers, judges, and law professors.
In the fall 1997 semester, I took an elective course in comparative law. Stith used the second edition of law professors Mary Ann Glendon, Michael Wallace Gordon, and Christopher Osakwe’s Comparative Legal Traditions: Text, Materials and Cases on the Civil and Common Law Traditions, with Special Reference to French, German, English and European Law, published in 1994. Before embarking on an extended study of the civil law and common law traditions, the editors introduced readers to the comparative study of law and the concept of legal tradition. They expressed their understanding that a tradition is vital, dynamic, and enduring, not frozen and static, and they credited the legal traditions that stem from the European legal culture with fitting this definition. This legal culture, which some identify as the Western legal tradition, has developed from the early Middle Ages to the present day, and it includes the Romano-Germanic civil law tradition, the Anglo-American common law tradition in Great Britain, the United States, and much of the British Commonwealth, and the twentieth-century socialist legal orders of Eastern and Central Europe.
The editors’ treatment of the concept of legal tradition included excerpts from works of legal historians Franz Wieacker and Harold J. Berman, highlighting several prominent elements of the European legal culture also reflected in the Anglo-American common law tradition. One element is personalism. Personalism involves the assignment of primacy to the individual as the subject, the end, and the key conceptual reference point in the idea of law.
A second element is legalism. Legalism is evidenced by the following:
- the development of bodies of law, legal systems, and legal institutions that are distinct from other social rules, systems, and institutions,
- the administration of those systems and institutions by individuals trained in a specialized body of learning,
- decisions about social relationships and conflicts based on general rules of law,
- the relative autonomy of law from politics and morals,
- the ordering of public and private conduct based upon established rules that are rationally comprehensible and part of growing, coherent bodies of law,
- the existence of diverse jurisdictions and legal systems in the same society, and
- the supremacy of law over people, politics, and political authorities.