Do ‘Legal Systems’ Exist?

The Concept of Law and Comparative Law

Mark Van Hoecke (Ghent University)

1. Legal Monism vs Legal Pluralism

It has become a triviality to contend that all kinds of developments over the last few decades have
weakened the traditional conception of law, which used to be almost exclusively linked to State law. 1
Furthermore, there is nothing novel about stipulating that this is challenging comparative law. We are
faced with a situation where theory did not follow practice and where legal reality is still moulded in a
theoretical framework developed on the basis of a different reality. Both in legal theory and in
comparative law, legal scholars have problems in adapting their conception of ‘law’ or ‘legal system’
to a changing world.
When we look at the concept of law which was underlying the approaches of comparatists half a
century ago, there is no doubt that the State legal system of the centralised western nation State was
the model.
Some associations for comparative law had been, even earlier and not accidentally, called ‘association
of comparative legislation’2.
Today, everybody agrees that comparing legal systems does not stop at legislation, but has to include
the way in which rules are applied in practice. Actually, the so-called ‘functional method’ is assuming
a bottom-up approach, looking first at concrete cases and how they are solved in the different legal
systems, rather than a top-down inquiry starting from the valid general legal rules in each of the
systems involved.
Some authors have assumed that problems are the same in any society and that, often, the solutions
offered are eventually the same too. Only the way to reach those solutions would be different. This has
been called the praesumptio similitudinis3. However, this assumption has been heavily criticised and
sometimes even replaced by its opposite.4 All kinds of historical, economical, sociological, doctrinal or
other differences may, indeed, lead to diverging perceptions of problems and diverging solutions. In
1
Among the abundant literature I just mention : William Twining, ‘Globalisation and Comparative Law’, in: E
Örücü and D Nelken, Comparative Law. A Handbook, Oxford: Hart Publishing, 2007, 69-89
2
In France the Société de Législation Comparé, which published, as from 1869, a Bulletin de la Société de
Législation Comparée (in 1949 merged with the Revue internationale de droit comparé). In England the Society
for Comparative Legislation has been founded in 1896, publishing the Journal of Comparative Legislation and
International Law (nowadays The Comparative and International Law Quarterly). In Germany, the Kritische
Zeitschrift für Gesetzgebung und Rechtssetzung des Auslandes had already been published as from 1829 (until
1850)
3
Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law, transl. T.Weir, 3rd ed., 1998, Oxford
University Press, 40
4
See the discussion in Ralf Michaels, ‘The Functional Method of Comparative Law’, chapter 10 in M.Reimann
& R.Zimmermann (eds.), The Oxford Handbook of Comparative Law, OUP 2008, at pp.369-372
 2

order to detect and to explain the causes of such differences, one needs at least some investigation into
the context of the law. When comparing neighbouring countries, the impact of such differences may be
limited, and in some cases even irrelevant, but when substantially diverging legal traditions are at
stake, the context will become more important than the written law.
For Japan, for instance, Zentaro Kitagawa has noted:
“This ‘functional method’,..., raises the question of how to deal with traditional, especially non-Western
and semi- or unofficial, norms. On the one hand, an approach to comparative law based on the Western
legal tradition would tend to regard such norms as extra-legal or even simple matters of fact. On the
other hand, a functional approach, looking at what problem a rule helps to solve, must not disregard
traditional norms lest it completely misunderstand non-Western legal traditions. After all, even where
traditional legal systems received Western laws, perhaps even codifying them in Western form,
indigenous, non-Western norms usually continue to function in practice. Thus, comparison according to
the functional method must extend to these traditional norms which vary from country to country.” 5

From this quotation, which points to a conclusion often repeated in legal anthropological writings, it
appears that it is not only about putting law in context, but also, and even more prominently, about the
demarcation of what counts as a ‘legal system’. In domestic doctrinal legal writing, scholars tend to
take a narrow, positivistic position on this point, both normatively and epistemologically. Normatively,
as they tend to cut loose the official rules from their societal context, with just some rare exceptions, as
if the legal system were (almost) a closed system like mathematics. This is called legal positivism and
has been quite dominant in the course of the last few centuries. This has remained the case until today.
Epistemologically, within one and the same doctrinal legal system, scholars share, largely
unconsciously, a common background of knowledge about their society, its history, economy, politics,
generally accepted values, etc. Unconsciously, they are already interpreting and understanding the law
within its context, at least in the way they perceive this context. When comparing with foreign law,
they mostly lack this knowledge of the law’s context, but they also lack any methodology or research
skills for carrying out any research linking law to its context. Hence, a positivistic approach, cutting
loose law from its context, has also been dominating in most of comparative research. Moreover, it has
reinforced the image of the legal system as a pure set of valid legal rules issued by public authorities.
This is the image offered in legal education, in legal practice, most notably in decisions of higher
courts, and in legal scholarship. It proves to be quite difficult for lawyers to think otherwise. 6 Recent
developments in the direction of a new legal pluralism, such as Europeanization through both EU-law
and European Human Rights law, the regionalisation of some nation States, including regional
parliaments with exclusive competences, the acceptance, and sometimes recognition, of person-bound
non-State legal systems in matters of religion, immigrant cultures, or sports, have confused the
traditional positivist lawyer even more. The borders and even identities of legal systems have become
quite vague.
5
Zentaro Kitagawa, ‘The Modern History of Comparative Law in East Asia’, in: M.Reimann & R.Zimmermann
(eds.) The Oxford Handbook of Comparative Law, OUP 2008, 245
6
Even if Zweigert and Kötz have very explicitly emphasised the importance of locating law in context when
carrying out comparative research, they never did it themselves.
 3

In comparative legal writing, some authors have argued in favour of a broader approach, such as
‘Comparative Law as Comparative Jurisprudence’. However, here it becomes even less clear what
‘legal systems’ are, how they should be demarcated and what exactly could and should be compared. 7
Catherine Valcke made a commendable attempt to redefine ‘legal systems’ from the perspective of
‘law as jurisprudence’. She is linking the rules of the legal systems to their underlying ideas 8, trying in
this way to offer a middle-way between strict positivism and traditional natural law (which she calls
‘naturalism’)9. It is quite doubtful whether this could be an adequate answer to the problem.
Underlying ideas are only part of the relevant context for understanding and comparing legal systems.
Moreover, Valcke seems to approach them in a rather idealistic, philosophical way, not in the form of
currently dominant world views in the relevant society, which are eventually determining the way
legal rules are understood and interpreted. Anyway, this discussion shows the extent to which the
definition and demarcation of ‘legal systems’ seems to be an eternal problem for legal scholarship,
which has often been illustrated by a quotation from Immanuel Kant “Noch suchen die Juristen eine
Definition zu ihrem Begriff von Recht.”10

2. Common General Principles

One way out of this problem would be to identify common general principles underlying all legal
systems or, at least the most relevant ones to one’s own legal system. Not in the sense of a
metaphysical or rationalist form of natural law, but in an empirical sense. Human rights, for instance
are not only laid down in the European Convention on Human Rights, but also in the national
constitutions of its member-States, or, in the case of the UK, in a Bill of Rights, and in international
treaties to which those States are a party. Moreover, they have also been accepted by the European
Union. However, this doesn’t prevent such principles to be interpreted and applied differently in those
legal orders. A common international court, such as the European Court of Human Rights, may limit
such divergences, but there are not many such courts in the world today.

At the 1900 Paris Conference on comparative law, Raymond Saleilles took the position that one had to
look for common principles to be found in all legal systems in the world so as to reconstruct a kind of

7
Most notably William Ewald in his paper ‘Comparative Jurisprudence (1): What Was It Like to Try a Rat?’,
143 U.Pa.L.Rec. 1994-95, 1898, criticised on this point by Catherine Valcke, ‘Comparative Law as Comparative
Jurisprudence – The Comparability of Legal Systems’, 52 Am.J.Comp.L. 2004, 713-740, at p.718
8
O.c. p.732, referring to Kant and Hegel
9
« As ‘systems’ in their own right, the systems of law as jurisprudence indeed are more than just the
juxtaposition of the synthetic and organic legal systems of naturalism and positivism. They are the
amalgamation, the seamless fusion of these two systems into a third.” (o.c., 733)
10
Immanuel Kant, Kritik der reinen Vernunft, 1st ed. 1781, Abschnitt ‘Die Disziplin der reinen Vernunft im
dogmatischen Gebrauche‘ (Gutenberg e-book http://search.ugent.be/meercat/x/all-view?
q=Kritik+der+reinen+Vernunft&start=4&filter=&sort=&rec=gutenberg:erg-000006342
 4

empirical ‘natural law’.11 Such a view was rather popular among legal scholars by the end of
nineteenth century. This ambition was clearly influenced by the successful developments in natural
sciences, on the one hand, and by the decline of legal doctrine (in continental Europe 12) after the
enactment of the grand national (civil) codes, together with the decline of the belief in a universally-
applicable metaphysical system of natural law, on the other. 13

In general, during most of the twentieth century, the world was used to living with grand ideologies,
which claimed absolute truth. Until 1989, this included mainly communism (or State lead socialism,
with a planned economy) and capitalism (or liberal democracy based on a free market economy). After
the economic and political changes in most States that claimed to be ‘communist’, and sometimes still
do notwithstanding dramatic changes, we moved to a (short) period of openness, increased mobility
and international contacts, accepting some ideological pluralism. Today, however, we face a revival of
(religious and nationalist) fundamentalism in many countries with extremist political parties and
terrorist action groups. Nevertheless, there still exist strong mutual influences through globalisation.
Examples are the Arab revolutions, the westernisation of China, the relative acceptance of the culture
of non-European immigrants in Europe, the creation of the International Penal Court, the existence of
one world-wide economic market.14

According to Edouard Lambert comparative law should be comparative legal history, explaining the
advent, development and disappearance of legal institutions. 15 He also regarded comparative law as
comparative legislation16: the creation of an international common law, containing rules which would
fit the needs of societies “at the same level of civilisation”. Already from the beginning of the
discipline of comparative law, comparatists seem to have been optimists and globalists, emphasising

11
Harold C. Gutteridge, Comparative Law. An Introduction to the Comparative Method of Legal Study &
Research, Cambridge University Press, 1946, 5
12
In the Common Law countries legal scholarship hardly existed in the nineteenth century.
13
Eg Myres S. McDougal started his article on comparative law in 1952 with the following quote : « The method
of natural science rests always on the comparison of observed phenomena, and the aim of such comparison is by
a careful examination of diversities to discover underlying uniformities. Applied to human societies the
comparative method used as an instrument for inductive inference will enable us to discover the universal,
essential, characters which belong to all human societies, past, present, and future. The progressive achievement
of knowledge of this kind must be the aim of all who believe that a veritable science of human society is possible
and desirable.” (Radcliffe-Brown, Preface in Fortes & Evans-Pritchard, African Political Systems, xi (1940)
(Myres S.McDougal, ‘The Comparative Study of Law for Policy Purposes: Value Clarification as an Instrument
of Democratic World Order’, 61 Yale Law Journal 1952, 915). See also: M.Van Hoecke, What is Legal Theory?,
Leuven: Acco, 1985, 28-29
14
It is interesting to note how this (optimistic) perspective of globalisation was already clearly present after the
Second World War (see Myres S.McDougal, o.c., l.c. and the references in his footnote 1)
15
E.Lambert, ‘Fonctions du droit civil comparé’ 1903 La fonction du droit comparé, Paris, 1903
16
In France, a Société de législation comparée has been created as early as 1869, and continued working until
today. It makes France the country with, by far, the longest tradition of gathering information on foreign
legislation in a systematic way. However, the first comparative law journal, the Kritische Zeitschrift für
Gesetzgebung und Rechtssetzung des Auslandes, which also focused, in its title, on comparative legislation,
appeared in Germany as from 1829 (discontinued in 1850). In 1894 a ‘Society of Comparative Legislation’ was
founded in Great Britain (now the ‘British Institute of International and Comparative Law’).
 5

the similarities among legal systems and the unification of law 17. They look for common rules and
principles, which are already present in those legal systems or could be created through harmonisation.
Again, divergences in history, economy, culture, tradition and the like are neglected or considered
irrelevant for law. Of course, globalisation diminishes such divergences, but does not put an end to
them.

Especially after the Second World War, comparative law took a political role. “Improving mutual
understanding among the nations” was a major aim when, in 1949, UNESCO created an International
Committee for Comparative Law, which would later on become the International Association of Legal
Science, a non-governmental international association related to Unesco 18. Here, mutual
understanding, accepting the differences, was the focus rather than harmonisation.

It can hardly be denied that in some areas a kind of ‘global law’ is rapidly developing: human rights,
international criminal law, transport law, business contract law, intellectual property law or, more
broadly a lex mercatoria. However, often it is more about sharing a common vocabulary than about
sharing a common world view. What some will consider to be clearly (unacceptable) ‘torture’ by
officials will be seen by others as (acceptable) ‘harsh methods of investigation’. This will allow all of
them to accept prohibition of torture as being a fundamental right of any person, including the worst
criminal, whereas the practice of public authorities may still largely diverge. Even if different world
views may lead to diverging interpretations of common rules, apparently technical legal concepts and
rules carry with them inevitably some idea of ordering society, of solving conflicts. Eventually,
common rules and concepts will also influence, and to some extent harmonise, diverging world views.
After a long history of dictatorship and military coups, western conceptions of democracy, rule of law
and human rights seem now firmly rooted in the dominant world views in most Latin American
countries. The Pinochet regime in Chile eventually collapsed because it had to hide dictatorship behind
a facade of democracy, which in its turn became more than a facade and escaped control by the
dictator. In this way, globalisation of western concepts seems to have influenced the world views in
other countries too: it has become increasingly difficult to present one’s own political regime as being
not democratic, not respecting human rights or the rule of law. Even if in practice one is not following
the rules and values related to those concepts, one will still deny that this is the case.

3. Common Legal Scholarship

17
David S.Clark, ‘Development of Comparative Law in the United States’ chapter 5 in: M.Reimann &
R.Zimmermann (eds.) The Oxford Handbook of Comparative Law, OUP 2008, 200-201, referring to the three-
volume work Evolution of Law edited by John H.Wigmore and Albert Kocourek between 1915 and 1918
18
Art.3 of its Constitution. Also Léontin-Jean Constantinesco, in 1972, has emphasised this role of comparative
law for a better understanding among peoples (Traité de droit compare, Tome 1 Introduction au droit compare,
Paris: LGDJ, 1972, p.47).
 6

In the period immediately following the Second World War, while harmonisation or unification of law
was less of a focus, the aim was to bring about some kind of unification of legal science:
“It is for Unesco to take the suitable steps, to create contacts between jurists throughout the world, both
in the interest of international peace and in that of legal science properly so-called, which, to be worthy
of the name, should be universal. Thanks to Unesco, legal thought should cease to be confined to its
national compartments, …”19
The idea of ‘science’ being general and, hence, needs to transcend national borders of legal doctrine,
was also expressed by Hessel Yntema when presenting the newly founded American Journal of
Comparative Law in 1952:
“…the study of law in the United States is to be conducted in a scientific and not merely a dogmatic
manner. It seems plain enough in reference to the physical and also other social sciences (except
perhaps to the Soviets) that a nationalized science, e.g., a Dutch physics or a Swiss sociology, would be
an absurdity. The same is true of law. Legal science, as Ihering and every other responsible scholar who
has expressed himself on the matter has declared, is necessary general; a local or national science of law
is a contradictio in adjecto. This is only to say that, under modern conditions where the existing laws
are almost entirely national, comparative law is an essential function of legal science.” 20

At the political level it was assumed that improving the knowledge of foreign legal systems would
advance international peace, whereas in the scholarly area unification of legal scholarship at world
level was the ambitious aim.
Here, we are faced with an important development: legal rules may diverge according to place and
time, but legal scholarship should be universal, at least transcend the borders of one single legal
system. Up to now, this distinction between positive law and legal scholarship has hardly been made in
the course of history, although it seems to be a key to reach a true scientific level for legal scholarship.
If comparative law would take the form of comparative legal doctrine, the questions related to the
demarcation and identity of legal systems would become much less important.

In the discussions on harmonisation of law in Europe during the last few decades, the presence of a
common Roman (private) law scholarship in Europe before the nineteenth century codifications has
often been underlined. Positive law and legal scholarship were quite different things during Middle
Ages and until those codifications. At universities only Roman law was studied. In legal practice,
customary law and local legislation were applied. During that period, Roman law acted as a
framework for interpreting those other laws, which eventually led to some harmonisation and to
national codifications. So, at least it is difficult to deny that such double track approach to law is
possible, with greater distance between local rules and legal practice, on the one hand, and a more

19
René David, ‘What Unesco might do in the field of Comparative Law’ (UNESCO/Cons.Jur./1/1947)
http://unesdoc.unesco.org/images/0014/001435/143585eb.pdf
20
Hessel E. Yntema, ‘The American Journal of Comparative Law’, 1 Am.J.Comp.L 1952, 11-23, at 12-13
 7

international legal scholarship on the other. Moreover, such an approach may not only be possible but
also desirable. This discussion, however, is beyond the scope of the present paper.

4. Conceptions of ‘Law’: Theory and Practice of Comparative Law

At the first Unesco Conference on comparative law, held in Paris in 1949, it was noted that
considerable misunderstandings and tensions were caused by the philosophical, sociological,
economic and political contexts.21 Notwithstanding the awareness of a need for comparing law in
context, the actual initiatives taken during and after this Conference were again limited to offering
descriptive overviews of national laws. When recommending to draft “manuals for the study of foreign
law in various forms” only typical doctrinal work in the context of State law was mentioned. 22

In order to narrow down the work to “manageable proportions” it was decided to focus first on
“common and civil law only, excluding the Slav, Oriental, and Islamic worlds.” 23 It is interesting to
note that Africa was not even mentioned24. As we were still in the period of colonialism, very few
African States were independent in 1949 and obviously non-State law didn’t belong to the study object
of comparative law. Not because of the ‘manageable proportions’ of the research, but simply because
the underlying concept of ‘law’ didn’t offer any space for non-State law. Moreover, civil law was
largely narrowed down to French law, as only French and English were proposed as working
languages. The obvious explanation is that the Germans just had lost the World War and were not in a

21
John N.Hazard, ‘A World Organisation for Comparative Law’, 2 Journal of Legal Education, 1949-1950, 80-
86, at p.81, adding, a bit further: “Nevertheless, in spite of the feeling of reservation as to the competency of the
legal profession to undertake a broad field of study going beyond the technicalities of the law, the committee
finally recommended and the conference adopted a declaration that its members had found themselves “to be of
one mind as to the importance of research, publication and teaching in comparative law as an integral component
of any program designed to further international understanding and peace.” (p.81)
22
“Manuals for the study of foreign law were recommended in various forms; (1) studies indicating the working
materials lawyers use, such as collections of laws, court reports, text books; (2) dictionaries of the abbreviations
used in the law books of various countries; (3) introductions to the history and sources of law in the various
countries; (4) manuals for students providing material explaining to them on one or another question how the
laws are published, what is the court procedure, how decisions are rendered, and how text writers exercice
influence in criticizing court decisions and statutes in force; (5) annuals, such as those published by New York
University, informing the lawyer of developments in the principal fields of law during the preceding year in the
country concerned; (6) translations of fundamental legal texts.” (J.Hazard, o.c., 84)
23
John N. Hazard, o.c., 82
24
Also Yntema, in 1952, was not mentioning Africa among the regions in the world for which the newly founded
American Journal of Comparative Law should follow the developments. He listed: “the British Empire, Western
Europe, Central Europe, Scandinavia, Russia ands its satellites, Latin America, the Near East and the Far East”,
in other words all parts of the world outside Africa (and the U.S.). (o.c., p.19)
 8

position to claim anything whatsoever.25 From a scientific point of view, however, this was quite
problematic.

More than twenty years later, the ambitions expressed at the 1949 Paris Conference materialised more
or less in the shape of The International Encyclopedia of Comparative Law. Again, the purely
descriptive overviews of the laws of States contrast with the “expressly scientific purpose” 26 of the
project. No law in context, no law outside the States, no comparison based on some developed
scientific methodology. Moreover the ‘Country and Western tradition’, following the wording
introduced by Willam Twining, continued in this project too, as the majority of the authors were from
Europe and North America27, even if considerable efforts were made to include as many State legal
systems as possible.

More than sixty years later, one may doubt whether any of those objectives have been realised. The
proposed political aim was probably in the first place a rhetoric argument for convincing the
politicians who would decide on the creation of the International Committee (or ‘Centre’, as proposed
by René David28) of Comparative Law. As for the scholarly objective, not much seems to have been
done in the course of the following decades in terms of law in context or developing an international
legal scholarship or an adequate methodology for comparing legal systems. Legal scholarship is as
national and positivistic today as it was back in 1949.

Many initiatives have been taken for harmonising or unifying national legislations, mainly within the
European Union (both through EU law and through all kind of academic initiatives). Indirectly, this
may lead to harmonised scholarship (common concepts, common principles, common methodology),
but hardly anything in this area can be traced in the many publications related to the harmonisation of
law. Law in the books has been harmonised to some extent, but not the law in action, neither at the
level of the adjudication of law, nor at the level of legal doctrine. National legal systems are largely
keeping their identity as ‘legal system’ on their own by keeping legal doctrine national. Case law

25
Also in the following years, when the European Communities were founded, only French was the working
language in the European institutions, not German, Italian or Dutch, the main languages in four out of the six
member States (including Belgium where only 40% of the population speaks French, whereas in the fifth
country, Luxemburg, French is not the main language of the citizens either).
26
When commenting on this Encyclopedia, in 1972, Ulrich Drobnig emphasised this ‘scientific purpose’ by
contrast to the Encyclopedia not being designed “to serve as a handbook in which practitioners would find the
solution to any legal issue arising under the law of some country of the world”. (U.Drobnig, ‘The International
Encyclopedia Of Comparative Law: Efforts Toward A Worldwide Comparison Of Law’, 5 Cornell International
Law Journal 1972, 113-129, at 114). Unfortunately, it is not because the Encyclopedia is not purely practically
oriented that it becomes ‘scientific’/
27
“However, the national reports for volume one have been written by local authors whenever feasible” adds
Drobnig (o.c., 116, footnote 4). Moreover, in footnote 5 he notes “Few libraries located outside the continents of
Europe and North America would contain the material necessary to conduct a worldwide legal study.”
28
René David, ‘What Unesco might do in the field of Comparative Law’ (UNESCO/Cons.Jur./1/1947)
http://unesdoc.unesco.org/images/0014/001435/143585eb.pdf
 9

shows many attempts to narrow down European rules by interpreting them in view of the national
tradition, so as to avoid as much as possible changes to that tradition 29.

Similarly, comparative law over the last century has been struggling constantly with a lack of theory
and of methodology30. Today, it gets completely lost in the morass of legal pluralism. What Myres
McDougal wrote almost sixty years ago is even more valid today:
“It may be questioned, however, whether our traditional conceptions and techniques of comparative
study are adequate to meet such contemporary need. Despite many exhortations over a period of years,
contributions important to understanding and cooperation are relatively few and little important work is
presently being done in our law schools or elsewhere. Almost any sampling of current literature and
comment reveals sharp discontent with the effects being achieved. In typical summary Dean Wigmore
some twenty years ago characterized the “literature of comparative law” as being “marked frequently by
the barren dissection of verbal tests” and most recently Professor von Mehren in singling out one book
for especial praise, offers contrast with “the glib, overly general and painfully superficial treatments
which have so often passed current as comparative law”.”31
Comparatists such as McDougal are well aware of the fact that only a social science approach may
offer the necessary external point of view, which is required for any non-monist approach to law 32.
This means that a scientific study of law’s context is an integral part of any comparative research,
because it is a necessary part of identifying the foreign ‘legal system’ and understanding its rules.

5. Do Legal Systems Exist?

Following the rise of the centralised nation States in the 18 th and 19th centuries33, theories on law and
on the characteristics of legal systems have developed, which fitted very well with the political reality
in those days. In the Western world, and most notably in Continental Europe, no law was presumed to
exist outside the State: customary law was only valid if recognised by the State. Meanwhile and until
195034, international law was strictly limited to contracts between States, to treaties without any direct
link to the citizen of those States. There was no space whatsoever for any form of legal pluralism, in
the sense of accepting a pluralism of legal orders within the territory of the State, as used to be the

29
See, eg : Paolisa Nebbia, ‘Unfair Terms in Consumer Contracts : An Anglo-Italian Comparison’ in : M.Van
Hoecke & F.Ost (eds.), The Harmonisation of European Private Law, Oxford: Hart Publishing 2000, 179-188
30
Many scholars have complained about it. For a more thorough analysis on this point, see: Mathias Reimann,
‘The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century’, 50 American
Journal of Comparative Law 2002, 671-700
31
Myres S.McDougal, o.c., 918-919
32
O.c., 919 ff.
33
This development had, in its turn, partly been advanced by theories such as the ones developed by Hobbes and
Macchiavelli.
34
The creation of the European Court of Human Rights was, for the first time, awarding rights to citizen to sue a
State before that court.
 10

case all over Europe before the French Revolution. In Europe, the political developments of both
regionalisation and Europeanization have created a complex network of different legal systems,
equally valid within the same territory35. Whereas sociological developments, mainly immigration,
have led to competition and conflicts between State law and other legal systems, such as Islamic law.
Legal theory, however, has not followed yet. Slowly, the belief in the monopoly of State law and the
exclusivity of State legal doctrine are abandoned by some legal scholars, but no alternative theory has
as yet been elaborated.

‘Legal systems’ are a kind of continental European nineteenth century invention, theorised in the
twentieth century, most notably by authors such as Hans Kelsen. Any conception of ‘legal system’ has
been alien to all legal cultures world wide most of the time. The rational approach to law is a typical
western product of Modern Times and has been criticised by Asian and African lawyers because it
implies cutting law loose from nature, from ancestors and from other less rational elements. 36 Most
Islamic lawyers have problems with the strict separation of law and religion as it developed in the
West, partly under the influence of Enlightenment and the French Revolution. Neatly structured,
closed legal systems became the ideal, especially following the nineteenth century codifications in
continental Europe. Whereas in earlier centuries the focus was on legal argumentation in the context of
solving concrete cases, as from now the emphasis was on a hierarchically structured set of rules,
enacted or accepted by the State. Hence, legal reasoning became mainly a top-down activity instead of
a bottom-up approach. In this way, rules and their interpretation where determined by the legal system,
not by a balancing of societal interests in view of generally accepted values. ‘Legal systems’ were born
and could start to live on their own, as autopoietic systems, independently from their historical,
political, economical and social environment. It should be obvious that such ‘legal systems’ are, today,
much more a construction through interpretation by lawyers (judges and scholars) than some
‘objective’ reality. Of course, all disciplines construct ‘reality’ to some extent. They offer theories
through which we may order and understand reality. They allow us to derive hypotheses from those
theories. These hypotheses are tested and this leads to a confirmation or falsification of those theories.
The implicit theories underlying the traditional positivistic and nationalistic conceptions of ‘law’ and
of ‘legal systems’ are, however, never tested. It is beyond doubt that they could never withstand such
scientific tests.

35
In the city of Brussels no less than six legal orders share legislative powers in their respective fields of
competence: the Council of Europe (European Convention on Human Rights), the European Union, the Belgian
federal legislation, the Brussels Capital legislation (for territorial matters, eg public transport), the Flemish
Community (for ‘person bound’ matters involving Flemish people, eg education), the French Community (for
‘person bound’ matters related to francophone people). The four last ones have exclusive competences in their
fields, without any hierarchical relationship among them.
36
See for quotes and references: M.Van Hoecke, ‘Western and Non-Western Legal Cultures’, in: W.Krawietz &
C. Varga (eds.), On Different Legal Cultures, Premodern and Modern States, and the Transition to the Rule of
Law in Western and Eastern Europe, Sonderheft Ungarn, Rechtstheorie, 2002, 197-217
 11

Increasingly, one may hardly speak of one single ‘French’ or ‘German’ or ‘Swiss’ ‘legal system’.
There are rather different ‘legal systems’ within that territory: public law and private law, governed by
different supreme courts, but also subdivisions, such as labour law or criminal law, which often
became quite autonomous entities, governed by diverging principles when compared to other areas of
the law. For instance, administrative law has in many, if not all, European countries more in common
across the borders than they each have with civil law in their own country. In addition, we are faced
with a growing interference of transnational, mainly European, law. Confronting this situation with
traditional theory of the State and of legal systems we have to conclude that there are no longer legal
systems in the traditional sense within the European Union. Taking into account the hierarchical
position and actual impact of European law (both EU and human rights law) national legal systems
can hardly claim to be still independent ‘legal systems’ on their own, as they are largely governed, and
sometimes corrected by Brussels, Luxemburg and Strasbourg. On the other hand, neither the European
Union nor the Council of Europe could claim to be the new ‘legal system’ replacing the national ones.
This is so for two reasons. First, because of limited competences in the area of law (economic law or
human rights law respectively) and secondly, because of the subsidiarity principle within the EU,
which forbids to regulate matters at European level if this could be done as well, or even better, by
domestic legislation.

In the tradition of comparative law, ‘legal systems’ have mostly been equated with ‘national systems
of private law’. Indeed, in the French and German tradition the civil codes, offered a nicely ordered
system. However, they have largely been weakened over the years by new legislation undermining the
coherence of the code’s system and in any case they only covered (parts of) private law.

Legal systems define themselves. There is no uniform definition or common criteria for such a
definition. In the western positivist tradition, there is a clear-cut distinction between legal rules,
derived from the recognised ‘legal sources’, on the one hand, and all kinds of extra legal rules (foreign
legal systems, religious rules, fashion, rules of sports associations, moral rules, economic rules, etc.),
on the other. In non-western legal cultures this is far less the case. In the Islamic world, law is directly
linked to religion. In East Asia, legal norms are linked to, and partly determined by, what Kitagawa
called ‘traditional norms’ or broader ‘law formation principles’, which are some underlying tacit rules
through which legal rules are interpreted, broadened or narrowed down, if not completely blocked. 37

In (analytical) legal theory it has been claimed that a theory of legal systems
“is general in that it claims to be true of all legal systems.”38

37
Zentaro Kitagawa, ‘Comparative Law in East Asia’ in M. Reimann & R.Zimmermann (eds.) The Oxford
Handbook of Comparative Law, OUP 2006, 237-260, at 245-247
38
Joseph Raz, The Concept of a Legal System. An Introduction to the Theory of Legal System, Oxford: Clarendon
Press, 2nd ed., 1980, 1
 12

Joseph Raz demarcated four problems to which a complete theory of legal system should offer a
solution:
(1) the problem of existence (what are the criteria for the existence of a legal system?);
(2) the problem of identity (what are the criteria which determine the system to which a given law
belongs? Which laws form a given system);
(3) the problem of structure (is there a structure common to all legal systems?)
(4) the problem of content (are there any laws which in one form or another recur in all legal systems
or in types of system?)
According to Raz, every theory of legal system must provide a solution to the first two problems, but
may give a negative answer to the last two questions. 39
Whereas globalisation may increasingly facilitate a positive answer to problem (4) (common content),
the pluralisation of law makes it increasingly difficult to solve the problem of identity (2), and also the
problem of structure (3) and the problem of existence (1).

6. Conclusion

Legal scholarship is in need of a thorough reconsideration on a new definition of ‘law’ and of ‘legal
system’, but also of ‘legal scholarship’ itself.
Concepts of law should go beyond positivistic sets of rules and include the law’s context. Theories will
have to be developed about the relationship of legal rules with other rules. In the past, ‘natural law’, be
it metaphysical or rational, structured the relationship between law and morals in the western tradition.
In the Islamic world, this link is structured by the role of the Quran in the interpretation of law. At
world level today, a common world view posited in the form of human rights is increasingly
developing and acting as a moral framework and touchstone for national or local law.
In commercial law, over the last few decades, the ideology of market liberalism is at world level
largely determining the lex mercatoria, not only international business law, but also national business
law, even in countries such as China, which claim to be based on a different ideology.
However, even if moral values and economic views may rapidly globalise, local historical,
sociological and economic conditions are still largely diverging all over the world. Local traditions and
culturally determined world-views may lead to quite different interpretations and applications of
otherwise largely globalised moral values and economic views. Problems of poverty, corruption, social
exclusion of certain groups, discrimination, and the like, cannot be solved by law, or at least not by
law alone. There is no external criterion to determine the superiority of one (legal) culture compared to
another one. Hence, the acceptance of a pluralist approach to law is inevitable. 40
39
O.c., 1-2
40
Within some limits, of course: western legal systems may, eg, consider some practices, such as circumcision of
young girls, slavery or aggression against homosexuals, to be unacceptable within their territory and act
 13

Legal academics will also have to reflect on the object and methodology of legal scholarship 41: should
it be national or international, or both? Should it continue along the lines of traditional, positivistic
legal doctrine or should it become a kind of social science focusing more on the law’s context and the
law in action than on the law in the books? Should legal doctrine mainly remain an argumentative and
interpretive discipline or should empirical research be at the core of this discipline? The development
of sub-disciplines such as ‘European private law’ shows a tendency to make legal scholarship more
transnational, even if the aim of such Europeanization is closely linked to creating a set of rules in
some area of law at a European level, just broadening geographically and keeping the traditional (lack
of) methodology. Creating a European legal doctrine, relatively independent from the valid law in each
of the European States would indeed be an important step to segregate legal scholarship from positive
law, to deconstruct ‘legal systems’ in their strong nationalist and positivist version. As such, a
European perspective is also strongly linked to comparative research, which implies that the law in
context approach cannot be avoided and that history, economy, sociology, psychology, politics, and the
like will become an important part of such a renewed legal scholarship.

accordingly.
41
This kind of identity crisis has been present ever since nineteenth century (see my ‘Identity Crisis in the Legal
Sciences’ in M.Mahlmann (ed.) Gesellschaft und Gerechtigkeit. Festschrift Hubert Rottleuthner, Baden-Baden
Nomos Verlag 2011) and has affected not only legal doctrine and comparative law, but also legal philosophy and
legal theory (see eg S.Coyle & G.Pavlakos (eds.) Jurisprudence or Legal Science?, Oxford: Hart Publishing
2005, most notably the Introduction by the editors (pp.1-13) and the last article in the book: Philip Leith & John
Morison, ‘Can Jurisprudence Without Empiricism Ever be a Science? (pp.147-167)