COMPARATIVE INTRODUCTION TO LEGAL SYSTEMS

LESSON 2. LEGAL FAMILIES OF THE WORLD (Part 1)

Prof. Mariona Bosch Serrano

mariona.bosch@udl.cat
 INDEX

2.0 Legal families of the world

2.1 The Romanistic Legal Family.

2.2 The common law.

2.3 The Germanic Legal Family.

2.4 The Scandinavian Legal Family.

2.5 Mixed systems.

2.6 Asian and African Systems of Law.

2.7 Religion-based Systems of Law.

2.0 LEGAL FAMILIES OF THE WORLD

2.0.1 Concepts

Concept of “Legal system”: Legal system is the set of laws, customs, jurisprudence
of positive law that governs a certain community. Because of the number of
legal systems that exist in the world it is almost impossible to study and compare
everyone.

Hence, comparative law reduces them to groups or families taking into account
their affinities and common elements.

Concept of “Legal family”: A legal family is, therefore, a set of legal systems that
share certain characteristics. The term legal system refers to the national law of a
State, while the term family refers to the set of legal systems that go beyond the
borders of a nation.

“Legal system” < “Legal family”

E.i. The American legal system traces its origins to the principles of law and
jurisprudence of English common law.
2.0 LEGAL FAMILIES OF THE WORLD

2.0.1 Concepts

Can we divide the vast number of legal systems into a few large groups (legal
families)? YES. But we must see some considerations:

Ø The division of the world’s legal systems into families, especially the attribution
of a system to a particular family, is susceptible to alteration as a result of
legislation or other events, and therefore can be only temporary.

Ø One’s division of the world into legal families and the inclusion of systems in a
particular family are vulnerable to alteration by historical development and
change. So in the theory of legal families much depends on the period of time
of which one is speaking.
2.0 LEGAL FAMILIES OF THE WORLD

2.0.2 Classification

We are at the macro comparative level. The criteria used to classify legal
systems into legal families (Koetz and Zweigert) are:

a. Historical background and development

b. Predominant and characteristic mode of legal thinking

c. Especially distinctive institutions

d. The kind of legal sources

e. Ideology
2.0 LEGAL FAMILIES OF THE WORLD
2.0 LEGAL FAMILIES OF THE WORLD

2.0.2 Classification: Historical background and development

• The common law was developed in and by the courts, giving judge-made law
considerable weigh. Civil law was formulated, compiled and refined in
universities, later codified and then given statutory force by the legislature.

• Roman law, with its notions of codification, systematization of concepts into

categories, principles and divisions of law, has left its lasting imprint on the
French and German Codes.

• Socialist legal systems were born in Eastern Europe and the former Soviet
Union and followed Marxist-Leninist origins and ideology.

• Germany, Austria and Switzerland took no part to the expansion of the French
Civil Code.

• The development in German-speaking countries in the 19th century of a

formal legal technique with extremely clear-cut concepts.

• Colonialism: i.e. American jurisdictions origin is found in British colonialism.

2.0 LEGAL FAMILIES OF THE WORLD

2.0.2 Classification: Predominant and characteristic mode of legal thinking

• Civil law: use abstract legal norms, have well-articulated system containing
well- defined areas of law, and use to think in juristic constructions.

• Common law: court based approach, seeking pragmatic answers to issues

before the court. The Englishman improvises, never making a decision until he
has to “we’ll cross that bridge when we come to it”. (Maitland). Case-law
proceeding. The doctrine of precedent.

• Recent trends have indicated that the common law and civil law systems
have been coming closer together in their use of case and statutes (i.e. The
United Kingdom Children Act 1989).

• Socialist law: is based and developed on Marxist-Leninist ideas.

2.0 LEGAL FAMILIES OF THE WORLD

2.0.2 Classification: Especially distinctive institutions

• In Common law jurisdictions, the typical legal institutions are agency, trust, tort
principles, consideration and estoppel.

• In the Romanistic family there is a tendency towards formalism and rules

protecting the moral and economic integrity. Institutions as: the direct action,
oblique action and abuse of right.

• The Germanic family: abstract real contract, clausulae generales, the notion
of unjust enrichment...

• Socialist legal systems: different types of ownership, unique notions of the role
and status of contract in a planned economy, the duty to rescue, ...
2.0 LEGAL FAMILIES OF THE WORLD

2.0.2 Classification: Sources of law

• Differences between methods of interpretation, court structures and

procedures.

• The primary source of law in civil law countries: codified or enacted law,
whereas in common law countries it is still predominantly case law.

• Other criteria must also be taken into account (...)

2.0.2 Classification: The ideology

• Religious or political conception of how social or economic life should be
organized.

• Islamic and Hindu law offer examples of this.

• This is not a factor which helps us distinguish between the various “Western”
legal systems; here other criteria must be sought.
2.0 LEGAL FAMILIES OF THE WORLD

2.0.3 A possible classification

1. Civil law:
- Romanistic: France, Italy, Spain, Portugal, South America
- Germanic: Germany, Austria, Switzerland and a few affiliated
systems

2. Common law: England, Australia, New Zealand, USA

1. Scandinavian family (Nordic countries): Sweden, Denmark, Iceland,

Norway, Faroe Islands

2. Far Eastern Systems: Vietnam, Laos, Cambodia

3. Mixed Systems: Scotland, South Africa, Louisiana, Israel, Puerto Rico

1. Islamic Law: Saudi Arabia, Sudan

2.1 THE ROMANISTIC LEGAL FAMILY

2.1.1 History: The Code civil of 1804

It’s the model of the codes of private law of the

Romanistic legal family.

The Code has its bases in the Roman law, but is it

influenced also by costumes and also natural law.

The main purpose was to put social life in order

through a structured and comprehensive plan.

Complete but flexible. The code gives to the courts

room for interpretation.

The Code has been modified by the legislator. For

example: capacity of the married woman, right of
illegitimate children.

Because its flexibility, it was for courts easier to adapt

the Code to the present reality. For this reason,
jurisprudence and doctrine have become more
important, so the Code can be reinterpreted.
2.1 THE ROMANISTIC LEGAL FAMILY

2.1.2 History: The influence of the Code civil

• The French Revolution and its demands: equality to all citizens, secularization of legal family,
emancipated landed property, freedom to economical activities.

• Political situation: Napoleon.

• Flexibility: interests of bourgeoisie but also space to progressive interpretation.

• Military expansion and political influence.

Ø It has influenced Latin people in Europe, Eastern Europe,

Near Nest, Central and South America and some parts of North

America. And it had prolonged influence on law

development in other European countries, especially Germany.

Ø Despite in Germany and Switzerland the influence of the Code has decreased after the
enactment of BGB and the ZGB, the legal systems of Spain, Italy and Portugal are still
romanistic.
2.1 THE ROMANISTIC LEGAL FAMILY

2.1.3 Main features

ü Sources of French law:

1. Primary sources of law: legislation (enacted law statutes, constitutional law,
regulations, the five Napoleonic Codes, general principles of law and custom.)
2. Secondary sources of law: the judge, court decisions (jurisprudence), learned
annotations of academic writers (doctrine), textbooks, commentaries, monographs
by experts...

✓Primary legal methodology: codification.

✓Rigid separation between:

❑ Private law (droit privé): rights and duties of private persons and corporations
❑ Public law (droit public): relations to which the State is a party

✓Legal institutions: abuse of rights, direct action and oblique action.

✓Distinction between ordinary courts and the administrative courts.

2.1 THE ROMANISTIC LEGAL FAMILY

2.1.4 Development of the Law in Spain

▪ Middle Ages: “fueros”, laws particular to different localities.

▪ “Las Siete Partidas” c. 13th : law book influenced by Roman sources.
▪ The law of the Spanish kingdom until 19th century was called “The fuero system”.
▪ In the 19th century: plan to unify Spanish private law:

• Commercial law was codified 1829 and greatly modernized in 1885

(Código de Comercio)
• Código Civil: 1889. This Code, which is still in force, relies heavily on the
French Code, specially in the area of the law of obligations, where most
of the provisions are a simple translation of the French text.

Movement for autonomy: Catalonia, Basque provinces, Navarra, Galicia...

These fueral laws are being codified to a basis for the future creation of a private
law common to the whole of Spain.
2.2 THE COMMON LAW

2.2.1 Introduction

In the common law there is no codification or normative compilation.

Common law has not been influenced by Roman law or codification.

This difference has its explanation in the history of common law.

“The life of the law has not been logic: it has been
experience” (HOLMES; 1881)
2.2 THE COMMON LAW

2.2.1 History

Common law founds its origins in 1066, when William I invaded England
and began a new age in English history.

The next centuries led to the centralization of justice and the unification
of English law.

Middle Ages. The development of Common law is very similar to the

development of Roman law. Dominated by procedural thinking.

Seventeenth century. Englishmen thought Common law as an essential

guarantee for freedom, performed by the Constitution.
2.2 THE COMMON LAW

2.2.2 The spread of the Common law

Colonial power and other circumstances are the reason why the spread
of the Common law was so widespread.

è It has influenced North America, India, Australia, New Zealand, and

large parts of Africa and South-east Asia.
2.2 THE COMMON LAW

2.2.2 The spread of the Common law

2.2 THE COMMON LAW

2.2.3 Main features

Civil lawyer ‘approaches life with Common lawyer, in contrast, ‘is an

fixed ideas, and operates empiricist’ who ‘is not given to
deductively’ abstract rules of law’

Law faculties, scholars and Discussion of actual problems

achademics
Public and private law Conscious rejection to the
dichotomy
Codification Little attempt at doctrinal
organization, law remained in the
hand of practitioners.
Formal structure of the law and the The precedent structure
procedure
2.2 THE COMMON LAW

2.2.3 Main features

The precedent. The notion of precedent was seen as endowing the law
with stability and certainty. Is the precedent all the decision? No, in the
last few years judges have indicated their reservations about
precedent.

Ratio decidendi. Cases do not bind, but ‘their rationes decidendi do’. It
has to be distinguished from any obita dicta (things said by the way),
which are not binding.

Case-based system law. The predominant mode of interpretation: case

law (not codes). No codification (no contained in enacted collections
of authoritative and prima facie exhaustive rules of law).
2.2 THE COMMON LAW

2.2.4 Sources

1. Judicial Precedent or Case Law

2. Legislation or Statutory Law
3. Custom
4. Books of authority
2.2 THE COMMON LAW

2.2.5. Common law and Civil law: Western law

Aproximation
- Less influence of Christian morality
- Individualism, liberalism and personal rights
- House of Lords: “Depart from a previous decision when it appears right to do so”
- Increasing importance of jurisprudence