МІСТА: ІНСТИТУТИ ТА ПРАВОВА ТРАДИЦІЯ

The article explores how urban institutions are formed and why their inclusive character depends fundamentally on the underlying legal tradition rather than on formal legal transplants. Building on the “law matters” hypothesis, it argues that Western legal tradition has enabled the emergence of inclusive urban institutions with communitarian, participatory, secular and constitutional features, while mere borrowing of institutional forms into communities shaped by other traditions typically fails or produces opposite effects. The author first shows that formally similar legal institutions can have different, even contradictory meanings across jurisdictions, and that this cannot be explained by language or by belonging to the same “legal family,” as illustrated by the structural similarity yet deep institutional divergence between the civil codes of the PRC and France. Rights and values are presented as mutually constitutive, so neither urban nor national institutions can be treated as neutral tools that can be moved between communities without regard to the legal tradition that generated them. On this basis, the article distinguishes legal tradition from legal system, adopting Merryman’s concept of legal tradition as a historically rooted set of views about the nature and role of law, and uses it to explain why open‑access and limited‑access social orders correlate with different traditions and institutional complexes. Western legal tradition, shaped by revolutionary but tradition‑anchored transformations such as the Glorious Revolution and the English Bill of Rights, is shown to have produced inclusive institutions characterized by the rule of law, protection of property rights, impersonal relations, and broad access to organizational forms. A key thesis is that these inclusive “open access” orders emerged first at the urban level: city law based on written charters, separation of municipal powers, judicial guarantees of civic rights, and robust guild and corporate institutions created the template later generalized into the nation state. Urban law enabled a qualitatively different, identity‑based organic growth of cities, secured private‑law freedoms (especially in relation to immovable property), and supplied the institutional repertoire that national states later adopted to administer and finance war and mass taxation. The article then traces how modern national states concentrated political power in capitals while preserving and transforming the underlying Western legal tradition, so that modernizing institutions outside this tradition often become dysfunctional, imitative, or even serve to legitimize authoritarianism. It concludes that legal tradition, rooted in the long biosocial history of communities united by a common fate, determines the institutional framework of both urban and national orders, and that attempts at institutional import unconnected to a shared legal tradition cannot by themselves shift a society from limited‑access to open‑access orders.