Prof.

Ratno Lukito
THE CLASSIFICATION OF LEGAL SYSTEM INTO LEGAL
FAMILY
LEGAL TRADITION, LEGAL SYSTEM & LEGAL FAMILY

 A legal tradition has been defined as a set of “deeply

rooted historically conditioned attitudes about the nature
of law, the role of law in the society and the political
ideology, the organization and operation of a legal
system” (Merryman, 1985)
 ‘[A] legal system is an operating set of legal institutions,
procedures and rules ... a legal tradition puts the legal
system into cultural perspective’. Hence, Merryman
makes a clear distinction between a legal system and a
legal tradition.
 David and Brierley prefer to talk of the three main legal families
(that is, civil law, common law and socialist law) described as
eponymous models, ‘certain laws which can be considered
typical and representative of a family which groups a number of
laws’.
 Zweigert and Kotz (1977) also adopt the language of legal
families, but emphasize, at great length, the pitfalls and
problems that may be encountered in arriving at some sort of
consensus among the comparatists, as to the set of criteria that
should be employed, in order to classify the various legal
systems into legal families, or according to their particular legal
tradition.
CLASSIFICATIONS
 In 1905, Esmein suggested a classification of legal systems into
five families of law: Romanistic, Germanic, Anglo-Saxon,
Slavic and Islamic.
 In 1977, Zweigert and Kotz divided legal families into eight
groups: Romanistic, Germanic, Nordic, Common Law Family,
Socialist, Far Eastern Systems, Islamic Systems and Hindu Law.
 In 1978, David and Brierley adopted a classificatory system
based on ideology and legal technique, so that law families
could be classified into Romano-Germanic, Common Law,
Socialistic, Islamic, Hindu and Jewish, Far East and Black
African.
COUNTRIES OF LEGAL FAMILIES
 Countries that are usually classified as common law jurisdictions are England
and Wales, Australia, Nigeria, Kenya, Zambia, the United States of America,
New Zealand, Canada, and various parts of the Far East, such as Singapore,
Malaysia and Hong Kong.
 Civil law countries include France, Germany, Italy, Switzerland, Austria, Latin
American countries, Turkey, various Arab States, North Africa and Madagascar.
 Socialist systems of law included Bulgaria, Yugoslavia and Cuba and, until
recently, the former USSR, which has since disintegrated and is now comprised
of 11 independent States who agreed to form the world’s second
commonwealth (initially known as the Commonwealth of Independent States
(CIS)) and now wish to be called the Russian Federation, and four of the
former soviet republics, who have declared their independence and remain
outside the CIS.
 Examples of hybrid or mixed jurisdictions are the Seychelles, South Africa,
Louisiana, the Philippines, Greece, Quebec in Canada and Puerto Rico.
PROBLEMS
 The notion of legal families is not free from criticism
and has been variously interpreted. Indeed, there is no
consensus among commentators as to whether it is
purely heuristic (David), basic and scientific (Knapp),
or theoretically and descriptively useless (Friedmann).
 Even where the concept has been used, there has not
been any consensus as to the criteria for classification,
for example, Zweigert and Kotz prefer ‘juristic style’,
while Glasson and Sarfatti focus on a system’s
historical origins as a distinguishing or identifying
feature.
 Nevertheless, the question that should be answered
with regard to classification is: What is the purpose of
the classification? It has been seen that factual,
ideological, and historical characteristics may all be
synthesized so as to enable a valid blueprint for
comparison. By utilizing the ‘predominance principle’,
we move closer to a clearer classification of the various
systems. It needs to be remembered, of course, that
political, economic, social and moral factors all exert
considerable influence on the profile of a legal system,
CRITERIA OF LEGAL SYSTEMS
 Various criteria have been suggested as a means of
determining the classification of a particular system,
ranging from:
 race and language (SauserHall),
 culture (Schnitzer),
 ‘substance’ (substantive content of laws) (Arminjon, Nolde and
Wolff),
 ideology, philosophy, conceptions of justice and legal technique
(David),
 historical origins (Glasson and Sarfatti) and
 juristic style (Zweigert and Kotz).
 Juristic style, classification may be ascertained
from:
 the historical background and development of the
system;
 its characteristic (typical) mode of thought;
 its distinctive institutions;
 the types of legal sources it acknowledges and its
treatment of these;
 its ideology.
PERKEMBANGAN HISTORIS
 It is widely accepted that the English common law development
was fairly clear cut, wherein a large body of rules founded on
unwritten customary law evolved and developed throughout the
centuries with pragmatism, strong monarchs, an unwritten
constitution and centralized courts being its typical features.
 On the other hand, non-common law systems have had a more
chequered history and this has caused writers to label civil law
systems ‘Romano-Germanic’ (David and Brierley). This reflects
both the Roman law origins, strong influence of the French Civil
Code and the subsequent influence of the German Civil Code.
 It was Roman law, with its notions of codification, systematization of
concepts into categories, principles and divisions of law, which has left
its lasting imprint on the French and German Codes. This was in stark
contrast to common law adoption of substantive law principles which
developed in an ad hoc fashion, in response to the need to resolve
disputes, whose development was largely dependent on disputants
bringing their case to the courts.
 There was no common law legislative tradition which sought to reform
or redress the law by means of the legislature, unlike the civil law. The
significant historical fact, therefore, is that common law was developed
in and by the courts, giving judge made law considerable ‘weight’,
whereas civil law was formulated, compiled and refined in the
universities, later codified and then given statutory force by the
legislature.
 Eastern Europe and the former Soviet Union, of course,
have traditionally been labelled ‘socialist’ legal systems,
reflecting their Marxist-Leninist origins and ideology. It
should be reiterated at this point that, in the light of the
unification of East and West Germany in 1990, the
continuing decline of Communist regimes in eastern
regimes and the disintegration of the former Soviet Union
in 1991, partly replaced by the new Russian
Commonwealth of Independent States (comprising 11 of
the former Soviet republics), the whole notion of ‘socialist
law’ is now called into question.
 Outside Europe, the fact that a given jurisdiction was not dominated
by a particular code, or not evolved through centralized courts, has, in
many cases, nothing to do with its legal history and legal evolution.
The historical explanation for Far Eastern, Antipodean and American
jurisdictions is found in British, French and Dutch colonialism. In the
first instance, British, French and Dutch control of places like
Malaysia and India, Africa and Indonesia meant that predominantly
common law or civil law was ‘received’ in these areas. However, in
view of the diversity and uncertainty of local customary laws,
codifications of laws were introduced into places like India and, to a
lesser extent, in the Far East, so as to clarify, unify, modernize and
adapt the foreign law to local conditions. Hence, the really significant
historical development was the occurrence of colonialism which,
ultimately, produced a plurality of laws.
MODE OF LEGAL THINKING
 As a generalisation, civil law, or Germanic and Romanistic legal
families, tend to think in abstract, conceptual and symmetrical terms.
Civil law, derived from universities and Roman law, is rule based and
constantly seeks solutions to a problem before the court. It also thinks
in terms of institutions, whereas the English common law is typical
for its concrete, court based approach, seeking pragmatic answers to
issues before the court. Where civil law proceeds from general
principle to general principle, common law proceeds from case to
case. Where cases have formed the primary source of the common
law, statutes and codified law have been the civil law counterparts.
While common lawyers think in terms of the parties and their
particular legal relationship, civil lawyers think in terms of the
existing enacted rules, codified or statutory, which may be applied to
a given situation.
 The civil law penchant for planning, systematising and
regulating everyday matters as comprehensively as possible. In
contrast, the classic common law characteristic is to improvise,
examining cases for possible precedents, which may or may
not be ‘binding’ on the court currently hearing a case, and only
deciding to legislate in any sort of organised and
comprehensive fashion if the particular area of law happens to
be confused, obscure or reveals a ‘gap’ in the law. Even when
ostensibly comprehensive statutes are passed, the preceding
case law is often relevant as a guide to interpretation since the
enactment of the statute, is, generally, seen as a consolidation
(and possibly clarification) of existing law.
 The common law statute, therefore, seeks generally to
build or improve on existing case law, whereas the civil
law equivalent has traditionally sought to enunciate
universally applicable principles, clearly set out for
either the citizen (as in the French Code), or the
specialist (as in the German Code). It frequently sets out
to establish new laws, and to do so explicitly.
 Of course, recent trends have indicated that the common
law and civil law systems have been coming closer
together in their use of cases and statutes.
 The United Kingdom Children Act 1989, which came into
force in October 1991, while incidentally consolidating
and integrating certain existing case derived rules and
statutes, was enacted predominantly to effect ‘the most
comprehensive and far reaching reform of English child
care law ever introduced’ into the United Kingdom in the
20th century. On the other hand, civil law systems,
particularly France and Germany, have begun to rely more
and more on cases where, for example, the enacted or
codified law has been found deficient in any way.
 Socialist law, as developed and based on Marxist-Leninist
ideas, has also relied on codification from early times, and on
statutory rules to the exclusion of case law and with no
doctrine of precedent as such. It had its roots in ancient
Roman law and, thus, uses civil law legal terminology and
civil law classifications and conceptualisations. However, its
unique feature was that it simply viewed law as an
instrument of State Policy, and merely as a vehicle for
carrying out Marxist/Leninist ideals. Law was to be used for
the purpose of implementing the State Plan in accordance
with Marxist philosophy.
 In contrast to civil law and common law, it has
traditionally seen law as created by the State and
subordinate to the State. Clearly, therefore, so
called socialist countries have, in many respects,
been easily discernible and readily classifiable
since, in the former Soviet Union, for example,
the supremacy of the State machinery (the
Russian Communist Party and the politburo) over
any other organisation was manifest.
DISTINCTIVE LEGAL INSTITUTIONS
 In common law jurisdictions, the typical legal institutions are
the trust, agency, tort principles, consideration and estoppel. In
the Romanistic family, however, there is a strong tendency
towards formalism and ‘rules protecting the moral and
economic integrity of the legitimate family against outsiders’
(Zweigert and Kotz). There is also the direct action, oblique
action, and abuse of right, to name but a few unique legal
institutions. The Germanic family has institutions such as the
abstract real contract, clausulae generales, the concept of the
legal act, the notion of unjust enrichment, the doctrine of the
collapse of the foundations of a transaction and liability based
on culpa in contrahendo.
 Typical institutions in socialist legal systems included different
types of ownership, unique notions of the role and status of
contract in a planned economy, and the ‘duty to rescue’. As
parts of the former Soviet Union, which, since 1992, wishes
generally to be called the Russian Federation, but which
formerly called itself the Commonwealth of Independent States
(CIS), lurches towards some form of capitalist economy and
attempts to introduce social democracy, recent edicts passed
suggest that there will be radical changes in ownership and the
notion of contract and property for private persons and new
entities created in the nature of Western style private companies.
 It is quite conceivable that Western commercial and legal notions
will co-exist with more antiquated traditions rooted in civil law,
but supported by a quasi military government operating as a
‘benevolent dictatorship’ on the lines of certain Latin American
countries. On the other hand, a predominantly social democracy,
utilizing civil law codifications, might yet emerge with the threat
of military force being used simply to preserve order, peace and
security. Changes paving the way for an independent judiciary
have already been implemented so that legal conceptions dealing
with commercial and private enterprise will also change. On
balance, therefore, the second criterion appears to be defensible
and a positive aid to classification.
SOURCE OF LAW
 it is still true to say that, at the present time, the primary source of law in
civil law countries, such as France and Germany, is still predominantly
codified or enacted law, whereas, in common law countries, it is still
predominantly case law. Exceptions to this general proposition clearly exist
but, in this case, the exceptions certainly prove the rule. Moreover, it is also
true to say that while common law and civil law courts use both cases and
statutes as sources of law, their approaches to these sources, methods and
techniques of abstraction diverge sufficiently to warrant differentiation. In
short, common law and civil law jurisdictions both handle cases and
statutes, but they do so in different ways.
 Civil law countries, like France and Germany, also have written
constitutions, unlike the United Kingdom. However, the English common
law based United States adopted a written constitution, which has played a
fundamental part in the development of citizen’s rights and responsibilities,
in a similar manner to France and Germany.
IDEOLOGY OF A LEGAL SYSTEM
 This is interpreted by Zweigert and Kotz as meaning ‘political or economic
doctrines or religious belief’.
 It is widely recognised that the legal ideologies of Anglo-Saxon, Germanic,
Romanistic and Nordic families are similar in all important respects.
 Equally, countries like China, Mongolia, North Vietnam, North Korea, and,
until recently, Russia and many countries in Eastern Europe, have adopted a
communist theory of law based on Marxist/Leninist philosophy, which warrants
placing them in a separate category or legal family.
 Religious legal systems, such as Hindu and Muslim systems, also justify
separate categorization in view of their uniqueness.
 However, it is not so easy to classify the legal families of the West since their
ideologies are so similar. They may be more readily classifiable according to
their history, mode of legal thinking, and distinctive institutions. Sources of law
are a distinguishing feature of Hindu and Islamic law and also help to separate
the European continental from the Anglo-Saxon type of legal family.
 As a consequence of recent momentous events in Eastern European
and Russian jurisdictions, it has become extremely difficult to say
what the eventual ideologies of these countries seeking
independence will be. The better view would appear to be that some
form of social democracy will emerge, although this will arguably
be of a species still steeped in civil law legal approaches, and
heavily dependent on State policy and enacted law. Hence, enacted
law will continue to enjoy primacy, and only economic growth,
followed by political maturity and experience, will lead to the
emergence of a greater reliance on cases. In the case of ‘mixed
jurisdictions’ or ‘hybrid’ systems of law, where civil law and
common law co-exist, with or without local customary law, it will
be even harder to apply the above named criteria.