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PATRICIA A. ADLER
PETER ADLERCOURT SYSTEMS AND LAW
Most sociological discussions of law begin with
Weber’s definition in which a specific staff is
charged with avenging norm violation or ensuring
compliance (Economy and Society 1968, p. 34). We-
ber’s goal was to distinguish law from morality and
convention, by which a whole community may act
to impose sanctions. He also developed his now
classic typology of formal legal systems (those
limited only to legal as opposed to those legal
systems he called ‘‘substantive,’’ based on relig-
ious, economic, or moral criteria) and rational
(those legal systems based on rules as opposed to
those involving use of oracles, oaths, and ordeals,
for example). Although he was careful to call these
distinctions ‘‘ideal-types,’’ that caution has not
stopped persons from offering specific examples
that are actually mixed types, as in speaking of
‘‘khadi justice’’ (a term, unfortunately, used by
Weber himself) as a prime example of substantively
irrational decision making in which a Moslem
khadi sits under a palm tree and dispenses justice
according to his personal feelings or inspiration.
As Rosen (1989, ch. 1) shows, in actual cases he
observed, the khadi does not exclude any evidence
but relies on witnesses, notaries, documents, and
any relevant evidence as well as testimony from
interested parties. His goal, as in Islamic law gener-
ally, is to ‘‘put people back in the position of being
able to negotiate their own permissible relation-
ships.. .’’ (p. 17; see Nader 1969; Starr 1992). He
follows a careful procedure, although the conduct
of persons in his court may appear to Westerners
to be more informal and more disorderly than that
allowed in a typical Western court.
While anthropological studies of tribal socie-
ties have been shown to exhibit the whole panoply
of Weberian categories (cf. Gluckman 1954;
Bohannan 1957, 1967; Howell 1954; Kuper and
Kuper 1965), even the classic moot (eg. Gibbs
1963; Gulliver 1969), while classifiable as substantively
irrational since it subjects disputes to discussion by
a whole village of involved or even merely curious
onlookers, still follows definite procedures and is
guided by a mediator or authorized persons. See
also Stone (1979) on miners’ meetings in the gold
rush Yukon; MacLachland (1974) on the tribunal
of the Acordada in eighteenth-century Mexico;
and the People’s Courts in postrevolutionary Rus-
sia (Feifer 1964). The goal of the moot, as Gibbs
notes, is not solely legal but is at least what he calls
therapeutic since the end sought is restoration of
relationships and harmony. It turns out that goal is
quite consonant with what we find in formally
rational systems in the Western world. In any case,
bases of all legal systems include: first, a reason-
able certainty and predictability on which persons
can depend, which, in practice, means no retroac-
tive laws (as Fuller 1969 notes); second, fairness,
which comes down to treating like cases alike; and
third, justice should not only be done but be seen
to be done, which means that there are no secret
decisions, and decisions are in accord with gener-
ally agreed values, assuming they exist. These simi-
larities are more important than the many varia-
tions in detail that can be found in different legal
systems (cf. Pospisil 1958).In what follows, we shall focus on the two main
systems of law, common law and Civil law, which are
found widely in much of the world. In so doing, we
can give only passing reference to such systems as
Islamic, Jewish, or Tibetan law, or to the many
subtle differences found in tribal law. To further
complicate matters, many national legal systems
are blends of other systems, especially as the result
of conquest (as is the case in Japan, which took
over a German code but then had common-law
features of public law grafted onto it after its
occupation by the United States in the 1940s). In
modern society, legal systems have become identi-
fied with the nation-state so that Canadian law
differs from American law, as does Scotch from
French law. Nevertheless, many can be said to
share one of the two traditions we are considering.
Although the two systems have been converging in
many respects, each is distinctive in outlook as well
as in court organization and the kinds of legal
careers likely to be found.