Unwritten legal systems, also known as customary, ethnic or indigenous law, are not just a thing of the past. In many societies, they are part of a complex legal constellation. They govern areas as diverse as land rights, water and forest rights, kinship and inheritance, but also political offices. These systems have undergone and are still subject to strong changes under the influence of state legal systems and due to economic and political changes. They have been the subject of fierce political and scientific controversy. For indigenous peoples, customary law is an important source of identity. The Constitution provides an example of the structural coupling between the legal and political systems (Luhmann, 2004, chap. 10). When constitutions emerged in the eighteenth century, they helped to recombine functionally differentiated political and legal systems. From an autopoietic point of view, the constitutions were adopted in response to problems of self-reference, paradoxes and asymmetries in the legal and political systems of the respective countries. In the political system, constitutions are the mechanisms of self-constraining sovereign power. In the legal system, the latter has the power to determine the constitutionality of positive law.
The argument behind deterrence strategies is threefold: that fear of possible future sanctions leads to compliance with the law; whereas risk calculations are partly influenced both by the expected probability of sanctions and by judgments on their severity; and that the focus is (and should be) on the power of authorities and judicial institutions to shape behaviour by threatening to impose (or sanction) negative sanctions for violations of the rules. This way of looking at the relationship between judicial authorities and citizens is called the “deterrent model” or “social control”. It is this pattern of human behavior that (for better or worse) currently dominates law and order. Different legal systems around the world approach the range of legal and ageing issues in very different ways. In recent years, there has been a growing interest in examining and comparing these different legal approaches using comparative law methods. Comparative law can be a powerful tool to better understand one`s own legal system and values, as well as to recognize that there are other legal options. Social law is the field of law based on principles and various norms, the main objective of which is to protect, monitor and establish the behaviour and attitudes of individuals and to ensure equality within social classes. Religious legal systems are, for the purposes of the moment, a multitude of customary legal systems, the peculiarity of which is their derivation from religious belief systems. In Africa, the main systems of religious law are varieties of Islamic law. In many communities, particularly in North Africa and the Sahel, the dominant law is Sharia law, which has sometimes been modified under the influence of other local customary norms (see Islamic law). The concept of the Constitution provided the solution for both systems because it separated the political and legal systems, but provided for their structural coupling.
The legal system referred to the political system by recognizing that the constitution was derived from the political will of the people, and the political system referred to the legal system by giving it the power to determine the constitutionality of positive law. The legal system is part of modern functionally differentiated society (other functional systems include economic, political and religious systems). Each system within society develops separately along its own trajectory, with its own internal structures and processes determining its development. Private legal systems are non-governmental means of conforming to the norms or rules of a social order. They encompass the many forms of social control that are part of group or organizational life, but are not formally part of state law. Private legal systems are pervasive; More people are governed directly by them than by state law. Private legal systems have been analysed from the perspective of legal pluralism, but research has questioned this approach as insufficient to explain the intertwined relationship between formal law and private legal systems, suggesting that they each exist in a mutually constitutive relationship. Legal systems generally seek to improve legal compliance by using threats and sanctions to prevent people from engaging in criminal behaviour (Nagin, 1998). In public and political discourse, answers to the question – why do people break the law? – generally revolve around the idea that crimes occur when the criminal justice system does not offer a sufficient likelihood of punishment or when insufficiently severe penalties are imposed. .