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

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”

• 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

• We’ll look at some of the main ones, but first, what types of legal systems are there?

Legal systems of the world• Civil Law • Common Law• Religious Law• 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.html• Wikipedia’s List of National Legal Systems here:https://www.cia.gov/library/publications/the-world-factbook/fields/2100.html

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 The Napoleonic Code

Common law• Common law is also called ‘case law’ or ‘precedent’ 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 doesn’t mean that there is no law made by legislative processes – 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• 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.

• About one third of the world’s population lives in common law legal jurisdictions

• 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," 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. • 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 recognised 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 revitalised; 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”• A lot of the research compares some of the more well-known

mixed/hybrid systems. For example, eg Scotland and Louisiana• There s

Classifying legal systems • Classifying the world’s legal systems has been one of the main

topics of comparative law scholars • We will look at some of the main scholars who have

attempted to classify the world’s legal systems:• Glasson, 1880• David, 1950• Arminjon, Nolde and Wolff, 1950• Zweigert and Kotz, 1969

• These are not the only ones, just some of the main ones• We will then look at an article by Mariana Pargendler on the

overall idea of trying to classify the law

Classifying legal systems II• Glasson, 1880, classified only European systems• His main work was a book called “Civil Marriage and Divorce”,

a comparative study of legislation• He had three categories:1. Jurisdictions strongly influenced by Roman law• Spain, Portugal, Italy, Romania

2. Jurisdictions immune from Roman law• England, Russia, Scandinavian countries

3. Jurisdictions which combined Roman and Germanic influence• France, GermanyHis classification did not look beyond Europe

Classifying legal systems II• Rene David, French comparativist – 1962:• David proposed the classification of legal systems according to the

ideology behind each one• He selected five families (in 1950 he made the following

classification):• Western laws• Soviet law• Muslim law• Hindu law• Chinese lawNOTES:It’s interesting to note that he grouped all Western legal systems together (although he did have sub categories of Roman/Germanic and Anglo-Saxon). He did not make a common law/civil law distinctionHe argued that Western legal systems are different from the others because of 1) liberal democracy 2) capitalist economy and 3)Christian religion

Classifying legal systems III• Arminjon, Nolde and Wolff, 1950• A team of Egyptian, Russian and German scholars brought out a

book in the same year as Rene David with a different classification• The had 7 different ‘parent tree systems’1. French2. German3. Scandinavian4. English5. Russian6. Islamic 7. HinduNOTES:Again, no difference drawn between civil and common law

Classifying legal systems III• Zweigert and Kotz, German comparativists, 1969A different method, they said that five criteria should be used to order the legal families1. Historical background2. The way of thinking3. Different institutions4. Sources of law5. Dominant ideologyUsing that criteria they came up with six legal families:6. Roman family7. German family8. Common law family9. Nordic family10. Family of laws of the Far East (China dna Japan)11. Religious family (Muslim and Hindu law)

Redefining• Note that Rene David re-visited his taxonomy in the 1960s• In 1962, David’s new classification divided the world into:• Roman-Germanic• Common Law• Socialist• Muslim-Hindu-Jewish• Far-Eastlegal traditions

• You can see that he replaced a monolithic view of the Western legal traditions with a distinction between continental Europe and common law legal system: this was new for him

• In 1969, Zweigert and Kotz also revised their categories

Classifying legal systems• Pargendler – recent scholarship in this area• She surveys the history of classification• Pargendler notes that classification of legal systems is a twentieth century

phenomenon (in the nineteenth century the discipline was called ‘comparative legislation’ which says a lot about the practical rather than theoretical focus)

• She notes Zweigert and Kotz’ point that classification will change over time• VV Palmer is also active in this area - • Where to from here? Is there anything else to be said/written in this area?• Perhaps legal classifications should be abandoned altogether• Or perhaps (see Palmer at 376) all systems will become viewed as mixed

systems. Eg. English common law is even being called a ‘mixed system’ now because English law has absorbed around 20 EU directives affecting areas of private law

• Kotz, in 2003, called for the establishment of European law as a ‘mixed jurisdiction’

Further reading• Palmer, V.V. “Mixed Legal Systems” in Bussani and Mattei

Commparative Law (Oxford University Press, 2012)

• Pargendler, M ‘The Rise and Decline of Legal Families’ 60 American Journal of Comparative Law 1043

• See the “further reading” at the end of Palmer (above)