Glenn's Legal Traditions of the World: Some Broader Philosophical Issues

Abstract

This essay forms one contribution to a collaborative survey of Patrick Glenn's LEGAL TRADITIONS OF THE WORLD (2nd ed, 2004). It deals with some of the broader issues whose treatment undergirds the more ambitious aspects of Glenn's work. Three principal issues are dealt with. Since Glenn quite pointedly treats tradition as being located not in the repeated occurrence of behaviour but in the transmission of information, the first issue to be considered is the extent to which an interpretive community can be relied upon to provide a self-sufficient character to legal tradition. Then the issues of incommensurability and multivalence are explored. Glenn's positions against incommensurability, and for multivalence, are crucial in supporting his vision of a 'sustainable diversity in law' based on a full recognition of the role of tradition.

The role of an interpretive community is questioned, with discussion of the work of Wittgenstein, Thomas Kuhn, and Stanley Fish; and comparisons are made with Michael Freeden's exploration of political ideology. Although the problems of incommensurability and multivalency are complex, it is argued that there are certain key practical points that Glenn has elided in his oversimplified portrayal of these topics, in confusing comparability with commensurability, and a multi-faceted approach with a multivalent approach.

Glenn's support for the emphasis given by Martin Krygier to the role of tradition in understanding law, and for Krygier's insistence on paying proper regard to law's social context, is seen to be diminished by an overambitious and unsuccessful attempt to turn tradition into a totalizing force in law. This is also regarded as undermining Glenn's use of tradition to provide a securer foundation for the comparative enterprise.

Keywords: Glenn, tradition, comparative law, interpretive community, Wittgenstein, Fish, incommensurability, multivalency, Krygier