Philosophy of Society

Philosophy of Law

Customary Legal Family

The Customary Legal Family encompasses a diverse array of legal systems, all founded on local national traditions. Such legal systems persist in regions where history and cultural customs are held in high esteem. These systems are prevalent in Far Eastern countries (China, Japan, Mongolia, Korea, Malaysia, Indonesia, Burma), in most African nations, and among the tribes of Australia and Oceania. In every context where traditional legal systems exist, they are intricately intertwined with other systems. For instance, in Japan, traditional law is interwoven with Romano-Germanic law. While Roman law forms the foundation of all Romano-Germanic legal systems and judicial precedent underpins Anglo-Saxon systems, traditional legal family systems lack a common foundation: Chinese law is based on principles distinct from those of Malagasy law. The only commonality among them is that all systems within the traditional legal family are rooted in local legal traditions.

The following characteristics are observed in all legal systems of the traditional family:

• Local and national customs are the primary sources of law.
• Established, written, and codified laws, especially those contradicting customary practices, are viewed unfavorably. Customary law is predominantly transmitted orally, and experts in legal traditions are highly esteemed.
• State regulation is minimal. The enforcement of such laws is mainly managed by the community itself, without the use of state coercive measures.
• The legal infrastructure in these systems is underdeveloped. Judges are not professional lawyers but rather priests or leaders.