COMPARATIVE LAW
Slideshow #2 – Classifying the law, legal families
LLM
KiLAW Spring 2013
Dr Myra Williamson
Essential questions
Keep these questions in the back of your mind during
the next couple of classes:
• What are ‘legal families’?
• What criteria are used to sort legal systems into
legal families?
• What’s the history behind them?
• Why do scholars seem interested in them?
• Which classification is ‘best’?
• Are classifications still useful these days?
• Are they different these days?
• Will they change in the future?
Readings
• See the readings in your CM at 116 (extract
from the book by Zweigert and Kotz) and 122
(article by Mariana Pargendler)
• Later, see the CIA World Factbook starting at
CM 155 – it has some definitions and then
lists all states according to how it thinks they
should be classified
• Other classifications are available on the
internet
Some classifications of the world’s legal
systems available online
• Wikipedia
http://en.wikipedia.org/wiki/List_of_national_lega
l_systems
• JuriGlobe – World Legal Systems Research Project
at the University of Ottawa
http://www.juriglobe.ca/eng/
• Legal Information Institute at the University of
Cornell
http://www.law.cornell.edu/wex/legal_systems
Classifying the law
• One of the key area of discussion in the discipline of Comparative
Law is the classification of the world’s legal systems
• Some scholars group legal systems into groups with similar
characteristics and refer to them as “legal families”
“The theory of ‘legal families’ seeks to provide the answer to several
distinct questions in comparative law. Can we divide the vast
number of legal systems into just a few large groups (legal families)?
How do we decide what these groups should be? And, supposing we
know what the groups should be, how do we decide whether a
particular legal system belongs to one group or another?”
- Zweigert and Kotz, p 63, in CM 116-117
Zweigert and Kotz
We should look at ‘important’ or ‘essential’ differentiating
qualities:
1. Historical Background and development
2. Predominant and characteristic mode of thought in legal
matters
3. Especially distinctive institutions
4. The kind of legal sources it acknowledges and the way it
handles them
5. Its ideology
• See CM 68 ff.
Why classify?
• “…so as to arrange the mass of legal systems into a
comprehensive order…If one or two legal systems prove
representative of each of these large groups, then the
comparatist can…concentrate on those systems…”
Zweigert and Kotz, CM 117
• “The practice has been to study legal systems that best
represent large groups and then make generalisations based
on concepts such as originality, derivation and common
elements…”
Esin Orucu in Comparative Law – A Handbook at 169
Taxonomy?
Since the beginning of comparative law (sometimes taken as
1900 when the Paris Congress was held) different scholars have
come up with different ways of classifying the law - or different
taxonomies
• “Taxonomy” means grouping of organisms or the study of
classification
• Scholars often discuss the different ways of classifying legal
systems – who’s system is best/most accurate/new ways of
classifying
• Let’s look at some of the main ones…
Early attempts
• Glasson (1880): only classified legal systems of Europe and
Russia (ignored the rest of the world)
• Bevilaqau (1893): similar to Glasson but again heavily
influenced by Europe, Russia and Americas
• For a list of classifications see Pargendler at CM 136-140
Adhemar Esmein (1905)
• Law Professor at the University of Paris
• “ Sensible classifications were essential for advancing sensible
comparisons”
• Pargendler at CM 130
• “…we must classify the laws of different countries, enacted or
customary, by dividing them into a small number of families or
groups, each of which constitutes and original system of
law…”
• Look at the historical formation, general structure, distinctive
traits
Esmein’s classifications
1.
2.
3.
4.
5.
Latin Group (France, Belgium, Italy, Spain, Portugal, Romania and
the Latin American countries)
Germanic Group (Germany, Scandinavian countries, Austria,
Hungary)
Anglo-Saxon Group (UK, US, British colonies and dominions)
Slavic group
Muslim law
• His approach “was soon criticized and rapidly forgotten” even
though if you change “Slavic” to “Socialist” and you combine the
Latin and Germanic groups, it looks like the classifications that
would become popular in the 20th century
• He didn’t point out that the Latin and Germanic were both from the
“civil law” tradition
• He didn’t make the (now) common distinction between the common
law and the civil law
Georges Sauser-Hall - 1913
• New approach – based on race!
1. Hindu
2. Celtic
3. Anglo-Saxon
4. Hebraic
5. Egyptian
6. Germanic
7. Graeco-Latin
Henry Levy-Ullmann - 1923
• Three great systems based on sources of law:
1. Legal systems of continental countries which are based on
written sources of law
2. Legal systems of English-language countries which follow
the common law
3. Legal systems of Islamic countries
This was the first time that the common law/civil law distinction
was made by a legal comparativist
Arminjon/Nolde/Wolff - 1950
• Trio of Egyptian, Russian and German scholars published an important
comparative law treatise in 1950
• We should group according to the substance and without any reference to
geography or race
• Seven different legal families:
1. French
2. German
3. Scandinavian
4. English
5. Russian
6. Islamic
7. Hindu
See CM 117 and 134
NOTE: just like David’s classification that also came out in 1950 (see next
slide) they did not make a common law/civil law distinction
Rene David - 1962
• David: we should use ideology and legal technique to classify
• Three large families:
1. Romano-Germanic laws
2. Common Law
3. Socialist Law
4. Others (incl Jewish law, law of the Far East, African)
See CM 117 and in Pargendler’s article at CM 133
(Compare with his earlier work – in 1950 he published a different
classification with 5 families, namely, 1) Western Law 2) Socialist Law
3) Islamic law 4) Hindu Law 5) Chinese Law. As you can see, in 1950
he did not think there was a need to divide them along common
law/civil law lines)
Zweigert and Kotz – 1969
1.
2.
3.
4.
5.
6.
7.
1. Romanistic Legal Family
Germanic Legal Family
Anglo-American Legal Family
Nordic (ie. Scandinavian Legal Family)
Far-Eastern Legal Family
Islamic law
Hindu Law
Basis for classification: ‘styles’ – using history, mode of thought,
distinctive institutions, legal sources and ideology
Some comments
• Bias: The European scholars seemed to have some bias in favour of
their own systems, giving status to their own country as having
unique characteristics (see CM 135)
• Temporary: Both David and Zweigert and Kotz admitted that their
classifications were somewhat arbitrary and only good for the time
they were written – legislation and other events could easily change
them
• Continuing: new classifications continue to be offered – this field is
still developing, new ideas and new classifications are being argued
for (for some, see CM
• Obsolete: some say that the whole idea is obsolete (see CM 124 and
fn 7): the argument is that with the rise of the European Union and
the pressure for legal convergence, legal family distinctions are
“increasingly outmoded”
• Civil law/common law: this distinction is relatively recent – it did
not exist in the early classifications
• Some argue that all systems are mixed (see Esin Orucu below)
Legal systems of the world
•
•
•
•
•
•
Civil Law
Common Law
Religious Law (Islamic, Hindu, Jewish etc)
Customary Law
Mixed Law
There are several websites where you can see a list of the world’s legal
systems with classifications:
• CIA World FactBook here
https://www.cia.gov/library/publications/the-worldfactbook/fields/2100.html
CIA states that there are 5:
1) Civil 2) Common 3) Customary 4) Mixed/pluralistic 5) Religious
2) Plus international
• Wikipedia’s List of National Legal Systems here:
https://www.cia.gov/library/publications/the-worldfactbook/fields/2100.html
LET’S TAKE A LOOK AT SOME OF THE
MAIN LEGAL FAMILIES
Civil Law
•
•
•
•
The most widespread type of legal system in the world
Applied in various forms in approximately 150 countries.
Also referred to as European continental law
Derived mainly from the Roman Corpus Juris Civilus, (Body of Civil
Law), a collection of laws and legal interpretations compiled under
the East Roman (Byzantine) Emperor Justinian I A.D. 528 and 565.
• The major feature of civil law systems is that the laws are organized
into systematic written codes.
• In civil law the sources recognized as authoritative are principally
legislation - especially codifications in constitutions or statutes
enacted by governments - and secondarily, custom.
• The civil law systems in some countries are based on more than one
code.
Civil Law - II
Civil law jurisdictions date back thousands of years
• For example, the Code of Hammurabi - 1760 B.C.
• 282 Articles
• http://public.wsu.edu/~brians/world_civ/worldcivreader/world_civ_reader_1/ha
mmurabi.html
• In modern times, the Napoleonic Code (1804) has been a major source of many
civil legal systems
• The Napoleonic Code wasn’t the first code in Europe but it was the first modern
pan-European code that has affected a large part of the world
• Civil law originated in Europe (the Napoleonic Code was based on Justinian’s 6th
century codification of Roman law) but it spread throughout Asia, Latin America
and Africa via colonial expansion
• Although there are major differences between them, there are some similarities
across most civil legal systems:
•
•
•
•
Case law is secondary in importance to statutory law
Precedent is not as important as in common law systems
The court process is inquisitorial (rather than adversarial)
Judge are specially-trained; their role is more limited to applying the law rather
than creating law
• Juries are not usually used
Civil law - images
Code of Hammurabi – 282 laws
(c.1750 BC)
The Napoleonic Code – French
Civil Code (1804)
Common law
• Common law is also called ‘case law’ because it is based on the
decisions (cases) of the courts
• A ‘common law legal system’ is a legal system that gives great weight to
judicial decisions
• It DOES NOT mean that there is no law made by the legislature – that
also occurs
• Synonymous with "English common law," which is the system of
England and Wales in the UK, and is also in force in approximately 80
countries that were formerly part of or influenced by the former British
Empire.
• English common law reflects Biblical influences as well as remnants of
law systems imposed by early conquerors including the Romans, AngloSaxons, and Normans.
• Some legal scholars attribute the formation of the English common law
system to King Henry II (r.1154-1189).
• Until the time of his reign, laws customary among England's various
manorial and ecclesiastical (church) jurisdictions were administered
locally. Henry II established the king's court and designated that laws
were "common" to the entire English realm.
Common law - II
• About one third of the world’s population lives in common law legal
jurisdictions – about 80 countries
• The foundation of English common law is "legal precedent" referred to as stare decisis, meaning "to stand by things decided.”
• In the English common law system, court judges are bound in their
decisions in large part by the rules and other doctrines developed and supplemented over time - by the judges of earlier English
courts.
• See graphic “Common law legal systems in the world today:
http://en.wikipedia.org/wiki/Common_law#Alternatives_to_commo
n_law_systems
Customary law
• A type of legal system that serves as the basis of, or has influenced,
the present-day laws in approximately 40 countries - mostly in
Africa, but some in the Pacific islands, Europe, and the Near East.
• Customary law is also referred to as "primitive law," "unwritten law,"
"indigenous law,” “chthonic law” and "folk law"
• Note: “customary law” is different from “customary international
law”
• There is no single history of customary law such as that found in
Roman civil law, English common law, Islamic law, or the Napoleonic
Civil Code.
• The earliest systems of law in human society were customary, and
usually developed in small agrarian and hunter-gatherer
communities, based upon the customs of a community.
Customary law continued…
• Common attributes of customary legal systems are that they
are seldom written down, they embody an organized set of
rules regulating social relations, and they are agreed upon by
members of the community
• Although such law systems include sanctions for law
infractions, resolution tends to be reconciliatory rather than
punitive. A number of African states practiced customary law
many centuries prior to colonial influences. Following
colonization, such laws were written down and incorporated
to varying extents into the legal systems imposed by their
colonial powers.
Customary law - II
• Examples of customary law:
1. Canada – aboriginal law is now recognized in the Canadian
constitution
1. New Zealand – customary title to the seabed and foreshore;
the indigenous Maori people often claim customary fishing
rights
1. Kazakhstan – the ‘aqsaqal’ courts have been revitalized;
village courts that deal with family, torts and property law
matters; village elders involved act as judges or advisors; old
system, based on tribal practices
Mixed legal systems
• There a number of legal systems in the world which have
elements of more than one type - they are not purely
“common law” or purely “civil law” systems
• These are sometimes called “mixed” or “hybrid” legal systems
• For example, some legal systems are a mixture of civil and
common law – this is the ‘classic’ mixed legal system
• This is a relatively ‘new’ area - 50 years ago, these mixed
systems were virtually ignored
• These days, this is an area that is attracting more scholarly
attention (see for example chapter 17 in Bussani and Mattei)
• It is possible to argue that all or most legal systems are a
mixture to some degree
Mixed systems - II
• How should we define a ‘mixed system’?
• Is is “common law/civil law”? This is the classic meaning of a mixed
system. There are about 20 such legal systems in the world
including:
•
•
•
•
•
•
•
•
Botswana
Cyprus
Louisiana (the state in the US)
Malta
Quebec (in Canada)
Scotland (in the UK)
South Africa
Thailand
• Or does it mean “common law/customary law” or “common
law/Islamic law” or any other combination or 2 or more legal
systems?
Mixed systems - III
• Today, mixed jurisdiction studies are flourishing
• V V Palmer is writing a lot in this area – he argues that ‘mixed
systems’ are a “third legal family”
• VV Palmer:
1.
2.
3.
Civil law
Common law
Mixed
• Sometimes called “mixed” other times “hybrid”
• What do you think about this new classification?
Criticism of ‘mixed systems’ as
a third legal family
• Esin Orucu at p171: “…not all ‘mixes’ can be pooled together
and not all the existing members of such a family would have
the same or similar ingredients. It would be extremely difficult
to place, for example, Quebec and Algeria – both mixed
systems – into one family.”
• Orucu also says that ALL SYSTEMS ARE MIXED SYSTEMS:
• “The conclusion, then, is that all legal systems are mixed.
There are no exceptions. Only the ways of mixing and the
character of the ensuing mixtures are different”
• - Esin Orucu in Comparative Law – a Handbook at 177
Some questions to ponder…
• What do you know about ‘legal families’ that you didn’t know
at the beginning of this week?
• What is the purpose of ‘legal families’? Are they still useful or
is this out of date and obsolete?
• Which classification do you find most accurate and why?
• Do you agree with Esin Orucu that all systems are mixed
systems?
• How would you classify Kuwait: what type of legal system is it?
How do you account for different classifications?
• What’s your view on the whole topic?