Legal institutions as comparators of legal cultures
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Oñati Socio-Legal Series 12(6) : 1647-1673 (2022)
The institutional theory of law provides the conceptual foundations both for a sociologically sound and theoretically coherent socio-legal theory of law and for comparative research into legal cultures. By conceiving law as institutional normative order the institutional theory can accommodate for the rich historical and cultural diversity in the forms of law. This article analyses the three components of the institutional theory, i.e. norms, order and institutions, and gives a brief account of the types of norms that institutions bring together, their sociological dimension and the typologies of legal institutions. The notion of order is enhanced by the institutional theory to account both for claims to practical operation of the law and for the existence of conflicts, calling for institutional approaches to dispute resolution. This opening to “order and dispute” raises the question of justice and fairness of the norms and of the mechanisms of dispute resolution. Comparison of legal cultures needs to identify the legal fields that are being compared, with a view to producing a workable set of legal culture comparators for comparative purposes. These comparators would need further spelling out to deliver measurable indicators.