COMPARATIVE LAWSlideshow #2 – Classifying the law, legal familiesLLMKiLAW Spring 2013Dr Myra Williamson

Essential questionsKeep 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_legal_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 KotzWe should look at ‘important’ or ‘essential’ differentiating qualities:

1. Historical Background and development2. Predominant and characteristic mode of thought in legal

matters3. Especially distinctive institutions4. The kind of legal sources it acknowledges and the way it

handles them5. 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 classifications1. Latin Group (France, Belgium, Italy, Spain, Portugal, Romania and the

Latin American countries)2. Germanic Group (Germany, Scandinavian countries, Austria, Hungary)3. Anglo-Saxon Group (UK, US, British colonies and dominions)4. Slavic group 5. 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. Hindu2. Celtic3. Anglo-Saxon4. Hebraic5. Egyptian6. Germanic7. 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 law2. Legal systems of English-language countries which follow the

common law3. 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. French2. German3. Scandinavian4. English5. Russian6. Islamic7. HinduSee 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 laws2. Common Law3. Socialist Law4. 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. 1. Romanistic Legal Family2. Germanic Legal Family3. Anglo-American Legal Family4. Nordic (ie. Scandinavian Legal Family)5. Far-Eastern Legal Family6. Islamic law7. 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 herehttps://www.cia.gov/library/publications/the-world-factbook/fields/2100.htmlCIA 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-world-factbook/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 - IICivil 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/hammurabi.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 - imagesCode 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, Anglo-Saxons, 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_common_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

2. New Zealand – customary title to the seabed and foreshore; the indigenous Maori people often claim customary fishing rights

3. 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. Civil law2. Common law3. 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?