Legal traditions and economic performance: theory and evidence

Abstract

A legal tradition. .. is not a set of rules of law. .. rather it is a set of deeply rooted, historically conditioned attitudes about. .. the proper organization and operation of a legal system. The legal tradition relates the legal system to the culture of which it is a partial expression. (Merryman, 1969, p. 2) 1. Introduction: A Primer on Legal Traditions The law and the economy are profoundly influenced, in much of the world, by either the civil or the common law legal tradition. A legal tradition or origin is a bundle of well-defined institutions governing either the creation of the law or the procedural style of dispute adjudication, and sharing a common "historical background, [a common] characteristic mode of thought in legal matters [and a common] ideology" (Zweigert and Kötz, 1998, p. 68). Common law originated in thirteenth century England, and has been transplanted through colonization to England's ex-colonies. 1 Civil law has its roots in Roman law, and has been imported through the Napoleonic codes to Italy, Belgium, the Netherlands, Spain and Portugal. These last four powers, along with France, spread it to the Near East, Latin America, Northern Africa and Indochina. Structurally the two traditions operate in different ways: while common law accords a key role to precedents and allows more procedural discretion to lower adjudicating courts, civil law relies on legal codes and bright-line adjudication rules (Zweigert and Kötz, 1998). Building on the wide differences between the French civil law and the English common law, 2 Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert Vishny (or LLSV) proposed, in two influential papers (LLSV, 1997 and 1998), the idea that the exogenous transplantation process brought not only 144 * I am grateful to Toke Aidt, Giuseppe Dari-Mattiacci, and Francesco Parisi for valuable discussions on earlier drafts. 1 These are the United States, Canada, Australia, and many countries in Africa and Asia. 2 While the Austrian and Russian empires designed legal systems that were quite similar to the French, Germany, Switzerland and the Scandinavian countries embraced judge-made law along with bright-line adjudication rules (David et al., 1995). However, this variation is of little relevance because Scandinavian countries did not have colonies and Germany had a strong influence only on China, Japan, Korea and Taiwan.

Do legal origins affect cross-country incarceration rates?

“…Similarly, Spamann (2010) finds "no systematic difference in the complexity, formalism, duration, or cost of procedure in courts of first instance (149)." Guerriero (2011) argues legal origins are proxies for the weakness of democracy and cultural heterogeneity but agrees that institutional forms related to economic performance are slow changing and historically shaped. We do not believe these criticisms are of concern for our analysis as our investigation depends only upon the slow changing and historically embedded nature of institutional differences.…”

17. Institutions for Infrastructure in Developing Countries: What we know . . . and the lot we still need to know

“…The main criticism stems from the excessive dichotomization in the modelling of the legal institutions. Guerriero (2011aGuerriero ( , 2011bGuerriero ( , 2015Guerriero ( , 2016 has recently produced infrastructure specific evidence documenting the relevance of the endogeneity of the legal system in environments with weak political institutions. He shows that it impacts the trade-offs between the flexibility of judges (or regulators) in common law and the rigidity of decisions under civil law.…”

The punitive consequences of organizational structures in England, France and the United States

“…Some contest the causal influence of legal origins(Graff, 2008;Helland and Klick, 2011). Others question the exogenous nature of legal origins as colonial strategies differed across common and civil law traditions (Dari-Mattiacci andGuerriero, 2011). Similarly, Spamann (2010: 149) finds "no systematic difference in the complexity, formalism, duration, or cost of procedure in courts of first instance.…”

“…Similarly, Spamann (2010: 149) finds "no systematic difference in the complexity, formalism, duration, or cost of procedure in courts of first instance. "Guerriero (2011) argues that legal origins are proxies for the weakness of democracy and cultural heterogeneity, but agrees that institutional forms related to economic performance are slow changing and historically shaped. See also Pistor and Deakin (2012) for a thorough survey.at https://www.cambridge.org/core/terms.…”