The Traditionality of Statutes*

Abstract

Abstract. The author begins by sketching the characteristics or elements of every tradition. Some reasons are then suggested for the propensity of so many authors to contrast statutes with other, allegedly more traditional kinds of law. However, it is argued that statutes are deeply embedded, along with customary and judge‐made law, in the highly traditional practices of law and that this matters much more than is commonly suspected. The thesis being defended here is not merely that law includes traditions along with rules, principles, maxims, and so on, but rather that legal systems should be understood as traditions, albeit highly complex ones. Not only are ancient legal systems (the Talmudic, for example) held to be traditional; modem legal positive orders are viewed as being traditional too. Finally, the concept of “communities of interpretation” is applied to the contemporary posited statutes which are believed by many to be a distinguishing feature of modem legal systems.