Culture determines a society’s legal structure and system. It defines the rules within the established social structure and the transformations the legal system may take to determine socially acceptable behaviour. Three main legal system structures are believed to exist and are known as Traditional legal systems, Transitional legal systems and Modern legal systems.
Traditional Legal Systems
Traditional legal systems are void of man-made laws in a traditional society. As a result, they are based on ancient cultural beliefs, spirituality and/or religious doctrines, cultural values, and ancient customs and traditions. The law that dominates a traditional legal system is that of a Supreme Being or Creator. This legal system avoids man-made amendments to laws that may result from a focus on personal and political agendas.
There are no written laws or codified laws in a traditional legal system. Instead, the laws are based on thousands of years of traditions, ancient doctrines, wisdom, and knowledge that is passed on from generation to generation without alterations. Leaders can often be identified and selected from an early age due to their natural tendencies and personality traits backed by their actions as proof or evidence.
In many traditional societies, the power of the leadership involves kin leaders, chiefs, a council of Elders and other individuals in a position of spiritual leadership and respect. These members of the culture also serve as political leaders and judges to determine the outcomes of events that violate the code of ethics and socially acceptable behaviour within a culture.
Throughout history, various types of religious leaders were also viewed as divine royalty who served as judges, such as the biblical King Solomon from the Old Testament in the Bible. The requirement for procedural courts and the policing of individuals within a traditional society occur only when the need arises in order to determine the outcome of an offense that has taken place within the society. When there is a punishment determined for a violation committed, the punishment must fit the crime. This is believed to create justice and balances the social equilibrium that is reflective with critical thinking and appropriate action pending the circumstances of the alleged crimes committed against a society.
As a result, in a traditional legal structure there are no professional careers specializing in particular areas of the law. When the need arises for a type of legal procedure or hearing due to an event potentially requiring disciplinary action, the role is filled by the spiritual leadership with political influence. This involves substantive and procedural laws.
Substantive laws consist of the duties and rights of the members within the culture. This type of law also determines the forbidding of certain actions with a social agreement about everyone’s obligations that determine the moral compass and acceptable conduct within the culture. Substantive laws determine what is morally and ethically acceptable or unacceptable, the right or wrong conduct within the socially cohesive group.
Procedural laws focus on enforcing and defending the established acceptable conduct within a society. This includes the moral integrity, societal obligations and duties that determine the rights of individuals in the culture. It also determines the way the collective group in the culture will proceed in accomplishing the obligations determined for the functioning of the society. This includes the code of ethics in which the society functions smoothly.
Transitional Legal Systems
The transitional legal system and laws evolved when the advancement of agriculture urbanization began in the late 1700’s and early 1800’s in England. This time period is known as the early and late Romantic era due to the writers of the day advocating for the continued belief in the supernatural, signs in nature and a more spiritual base for their moral guidance on what was right and what was wrong within the realms of human existence.
The early Romantic era brought the construction of railways and trains, which made transportation much more efficient. However, in Britain, the controversy of the destruction of the natural world, the forests and nature were hotly debated with the rise of the industrial revolution bring machinery on the scene. Authors and writers at the time advocated for the conservation of both nature and the supernatural, such as William Blake and Mary Shelley who wrote the infamous Frankenstein. The trains also contained traveling libraries.
Due to the advancement in transportation during the early 1800’s, many rural people started to migrate to urban areas, such as London, searching for work and a permanent residency in a city setting.
Transitional law is a more complex system of law that evolved, thus its name. This was also at a time when land ownership and organized religion sprouted a more complex legal system with the advancing development of formal education. The more complex legal system emerged with the development of man-made laws, strict hierarchies, rules and regulations, urbanization and land ownership.
During the time of transitional law, the court system became more complex with professionals specializing in various areas to establish a more complex legal and court system. The establishment involves judges, defense lawyers, prosecutors, court administrators, officials, policing services and the meticulous documenting of court proceedings.
In transitional law eras within societies, government creates the laws while implementing the services of police forces. As a result, the inequalities of power, prestige and wealth emerge in this form of law as politics and influence develop and increase. Litigants also present their cases before juries, if they were allowed to under the law that prohibited groups like Indigenous people from securing a lawyer.
In Canada, the Indian Act banned First Nations and other Indigenous people from hiring lawyers to defend themselves between 1927 to 1951. It remained difficult for Indigenous people throughout the 60’s to secure legal representation, as is the power of culture.
The complexity of transitional law includes various areas of specialization emerging in the branches of public law, private law, criminal law, and tort law. A distinction between public and private law emerged. Public law addressed the relationship between the government and members of the public, while also dealing with the structure of the government. Transitional law defines what the duties and powers of government officials are. Private law is often used by corporations, professionals and small businesses as it assists with non-political regulations and relations.
Criminal law and Tort law also emerged as distinct areas. Criminal law deals with the public, communities and the government while tort law handles private legal disputes, such as in lawsuits.
Modern Legal Systems
In our modern legal system, administrative law rose to define procedures. The hierarchies of laws branch out and are composed of local, regional and constitutional laws. The court systems can become tricky and confusing as federal and provincial governments have legal jurisdiction over different areas of court. For instance, the Court of King’s bench is a federal court with federally appointed judges.
In local laws, the small demographic can make their own rules to an extent, such as dog by-laws where dog tags are required in town. In a regional or provincial law, residents must obey the rules, such as speed limits that are set for safety. In constitutional law, governments at various levels cannot tax each other.
Within the modern legal systems, the concept and impression that is promoted to the public is that the courts and legal arena are impartial, rational, reasonable and impersonal. However, what lies beneath the presentation is another matter at times depending on the cultural beliefs of the ruling bodies. Every Friday, Sheila Wanite Bautz addresses various Sociological issues in laymen’s terms. Sheila has dual Honour BAs with Majors in Sociology and English through the University of Saskatchewan. In Sociology, she specialized in Indigenous history, law, addictions and criminology.
