Comparative legal Systems

Major legal systems in the world today - René David 1978 2nd edition

David, in 1950, identified five legal families (Western systems, Socialist systems, Islamic law, Hindu law and Chinese law), however in 1988 he finally defined three legal families:

• Romano-Germanic family
• Common law family
• Socialist family
• Other systems: Jewish law, Hindu law, Far East law, African and Malagasy law

He based this classification on two criteria: legal technique (conception of the law, sources of the law, methods and vocabulary) and ideology (philosophical, political and economic principles).

Romano-Germanic family

Countries in which legal science has developed on the basis of Roman ius civile, so the rule is conceived as a rule of conduct linked to justice and morality. It was primarily private law, so universities have developed a juridical science common and adapted to the modern world on the basis of the compilations of the Emperor Justinian. Then through colonization, European nations exported their laws; some countries had voluntarily recepted their system, however, they had their own characteristics (Africa and America).

Common law family

This includes the law of England and those laws modeled on it; it was formed primarily by judges who had to resolve individual disputes, so the legal rule has to provide a solution not a general rule of conduct for the future. The origins are linked to royal power, so when the peace of the kingdom was threatened, this means that is a public law. Thanks to colonization, it has expanded, so we find common law in England and Ireland, then in certain Muslim countries and India, but here it was adapted because of the coexistence with tradition; whereas USA and Canada had a largely autonomous place.

Family of socialist laws

In countries formerly belonging to the Romano-Germanic family and that preserved some characteristics, belonging to the Union of Soviet Socialist Republics (since 1917 Revolution); the legal rule is a general rule of conduct and the divisions of law and terminology are the same. The originality is the revolutionary nature of the laws, because the ambition was to overturn society and create a new social order, and in particular, law had to create a new economic structure (public law), so the legislator had to express popular will.

Other systems

Contemporary states have taken over a number of Western ideas to preserve their independence or because it was useful in their internal development; in these countries, law is recognized as being of eminent value or the notion of law is rejected and social relations are governed by other extra-legal means.

• Muslim, Hindu and Jewish law: Central is the concept of natural law, indeed law is not just a body of rules to be observed, but more a model of ideal behavior, so it's linked to religion and less importance have local customs and decrees of the sovereign; moreover, law is not necessarily applied by courts because justice is not a fundamental principle.
• Far East law: The value of law is put into question, indeed it is seen as an instrument of arbitrary action, not a symbol of justice and contribute to social disorder; conciliation is a greater value and mediation must be used to dissolve conflicts (legal codes are rejected in China, in Japan the influence of Europe is not used by people).
• Black Africa and Malagasy Republic: Similar to the conception in the Far East, so cohesion and restoration of harmony prevail over individualism; the population lives according to traditional ways which exclude the Western conception of law.

The legal families of the world - Zweigert and Koetz

Some works mentioned: Eorsi who used as criteria the relationship between law-economics, so he distinguishes the capitalist systems and the socialist systems. Sauser-Hall based his distinction on race and origin (Hindu, Anglosas, Celtic, German).

The most appreciated attempt is the one of Arminjon/Nolde/Wolff who divided the families and groups, each of which constitutes an original system of law, so comparative law must start with a survey of the historical sources, the general structure and particular characteristics of each one, so must be grouped in accordance to substance and not extrinsic factors (race or geography). They found seven legal families: French, German, Scandinavian, English, Russian, Islamic, Hindu.

It’s always difficult to identify or classify legal families or is highly relative and some are the main reasons:

• Many theories consider just private law, but a system can be put in one family for private law purposes and in another for constitutional law, so much depends on the considered area of the law.
• Much depends on the period considered, comparatists largely ignore sudden legislative changes because theirs is critical comparison, however, the division can be only temporary (Japan is now nearer the Western family) (Africa: law contributed to social change and even political and economic development, but due to colonization by England, France, and Belgium we can find European models - in particular in the law of obligations, commercial and criminal law - and lawyers from different states of Africa can sometimes understand better the laws of their colonizers).
• Another objection is to consider less historical development, content of the law or techniques and more if countries have the same legal culture, their citizens the same attitude to law or expectations of it, so comparative sociology, ethnology or political science can give different criteria and groupings.

To reach the best division the comparatist must, not look for a single criterion, find the legal styles (distinctive elements) to put legal systems into groups, the factors of the style of a legal system:

1. Historical development → Subsequent events may obliterate the stylistic significance of common origins, in particular, the first is the great movement of reception begun by the French Civil Code (not in Germany, Austria, and Switzerland), the second is the development of a formal legal technique from the German-speaking countries, that is characterized by clear-cut concepts.
2. Mode of legal thinking → Germanic and Romanistic families use abstract legal norms to have a system containing well-defined areas of law, so lawyers operate with ideas, whereas Common law comes from the courts so jurists are judges and lawyers think with pictures; these different mentalities are caused by the different historical developments; the struggle of law is another element, it means the goal is peace but one must struggle to achieve it and to fight for his rights, but it’s not the same in the Far East, indeed it’s a secondary means of achieving social order, whereas harmony and obeying voluntarily to principles of behavior are the first means.
3. Legal institutions → Because of their distinctiveness they led to a characteristic legal style of a system.
4. Sources of law → Legal systems recognize and the methods of interpreting them in connection with the court machinery and rules of procedures, the opposition is between statutory and case law systems.
5. Ideology → It's a religious or political conception of how social or economic life should be organized, in particular for Hindu, Islamic, and socialist systems, but not for the Western ones.

So ideology is not important in the West, but more prominent in religious systems; sources of the law are important to distinguish Islamic-Hindu and Common-Continent families, but not to distinguish Germanic-Nordic-Romanistic families. There are some HYBRID systems which are difficult to put in one family, for some areas they are of a group but not for the other, so they can be just similar to one.

Form-substance: The way that a legal system uses terms and language (form) is different from others but the content (substance) can be the same. So Legal Families don’t exist they are for explanatory purposes; it depends on the point of view adopted and the aspects of the matter which interests the writer.

Comparative law - Uwe Kischel

The socialist legal family has largely disappeared after the end of the Eastern Bloc, the countries of this family before communism weren’t members of the civilian context, because they share specific characteristics that set them apart, so it’s better to consider them TRANSFORMATION STATES. The hypothesis after communism are three:

1. In the first years - return to civil law family
2. After two decades - there were still problems linked to communism
3. Now - three sub-groups with different paths

The ideology of Marxism-Leninism was replaced by democracy, the rule of law, and market economies, but it was necessary to write new constitutions to adapt private law to the new economic model; but some already existed and some were created by combining and adapting foreign and international models:

• Romania → Maintained formally, during communism, its 1864 Civil Code and 1889 Commercial Code; took EU provisions on consumer protection, capital markets, competitions, and product liability law (comparative approach); laws on security interests in personal property were based on American and Canadian models (comparative approach).
• Poland → Used its 1964 Civil Code created under communism.
• Russia → Based its Civil Code on the rules of the UN Convention on the International Sales of Goods and the Principles of International Commercial Contracts (comparative approach).
• Croatia → Relied for private law on the Austrian, also incorporating German and Swiss law.

Major legal systems in the world today - René David 1985 3rd edition

First edition 1968

Second edition 1978

Third edition 1985

History of English law

The law of England wasn’t renewed by Roman law or by means of codification, it developed autonomously and was limitedly influenced by the European continent. There are four periods in its history:

Anglo-Saxon period ( ...-1066)

The beginning of the history of English law dates from the end of the Roman occupation when different Germanic tribes divided England and converted to Christianity. Laws were reduced to writing shortly after the conversion and regulated only very limited aspects of social relationships; the law in force was still made up of strictly local customs.

Formation of the common law (1066-1485)

The Norman conquest, with William I who proclaimed the maintenance in force of Anglo-Saxon law, but brought a strong and centralized administrative organization. Feudalism was very different from other countries, so the conqueror felt the need to band around their sovereign in order to maintain the conquest and defend their land, so to stop over-powerful vassals they distributed the land to supporters, but no baron was able to challenge his power; Quia Emptores is the statute which prohibited any subinfeudation, so nobles were subordinate to the king directly, in the Domesday Book many manor estates and homes were inventoried.

‘Comune ley’ (=common law), as distinct from local customs, is the law common to all England, did not exist in 1066 and was created by the royal courts of justice (Courts of Westminster); indeed the assemblies of freemen (County), applied only local custom, then were replaced by new feudal courts doing the same. After the conquest disputes were brought before the various courts and the king exercised just high justice, cases in which the kingdom was threatened; the Curia Regis was a court for only the most important personalities and disputes, then some parts became autonomous bodies. These courts intervened in three types of cases: royal finances - Court of Exchequer, matters respecting the ownership and possession of land - Court of Common Pleas and serious criminal matters affecting the peace of the kingdom - Court of King’s Bench; soon the division disappeared. All other disputes were settled by the Hundred or County Court, feudal courts, ecclesiastical courts, commercial or municipal courts. Only the royal courts could summon witnesses and enforce judgments, and only the king, apart from the church, could require the swearing of an oath; so by the end of the Middle Ages were in fact the only courts of justice, but became ordinary courts of general jurisdiction after 1875, until then they were special courts.

To press a claim before the king’s courts was a favor which the royal authority might or not grant, so the person had to address his request to the Chancellor asking him to deliver a writ, which would enable the royal courts to be seized, just upon complaint or petition, of the matter upon the payment of fees to the chancery. There was a list of established situations where the writs were granted automatically, Brevia de cursu, and slowly grew. The Statute of Westminster II of 1285 authorized the chancellor to deliver writs in consimili casu, so if there was similarity to others for with the delivery of the writ was already established. Each writs had a fixed procedure. In any given procedure the plaintiff and the defendant had to be styled by specific wording, any mistake would be fatal to the proceeding; the most followed was the one of the writ of trespass. So remedies precede rights, opposite to the continent in which rights were the basis, so in common law selecting the right form of action or writ to convince the court that it had jurisdiction in the matter was the first and most important thing to do. Procedure had a single purpose, the formulation of questions of fact to be put to the jury. Glanvill and Bracton works gave analyses of the different types of writs in the court of Westminster; the chronicles the Year Books inform us of the state of the law between 1290 and 1536.

The royal courts justified their intervention because of the interest of the crown and kingdom, so other courts declined and with them every idea of private law disappeared in England. The public law of English law comes from the writ, because it was an order given by the king commanding his officers to order the defendant to act according to the law by satisfying the claim of the plaintiff; if he refused to obey the plaintiff could proceed against him and his disobedience was of an order of the administration. Because of their limited jurisdiction to special cases, the royal courts, as independent branches of the curia regis, were firstly all political than judicial organs because they had to resolve problems involving the interests of the king and kingdom, so many elements derived from different local customs, then synthesized in a coherent whole, but there were even some elements from Roman law. However Common law was constructed decision by decision, a work of reason whose basis is the general immemorial custom of the realm, explained and applied by the judges. The rigour of procedures and the need to conform to the traditional framework were the reasons preventing the reception of Roman legal concepts; moreover this forced even a process of anglicisation. These procedures could only be learned through practice.

Growth of equity (1485-1832)

Two were the dangers linked to these formalist procedures, that caused the emersion of the rival equity:

• Not developing with sufficient freedom to meet the needs of the period
• Becoming paralysed by the conservatism of the legal world at the time

Due to the many obstacles in a number of cases no just solutions could be found, so the disappointed party sought another way of obtaining redress: a direct appeal to the king, the appeal normally passed through the chancellor, who had the responsibility of guiding his conscience and, if appropriate, would transmit the request to the king for judgment in his council (exceptional).

During the Wars of the Roses, it was difficult for the king to be the judge in his council, so the chancellor became more autonomous, so his decision, in the beginning made on the basis of the equity of the case, became systematized with the application of equitable doctrines. With the absolutism of the Tudors royal prerogative was at the basis and after 1529 the chancellor became independent (favored by the sovereigns and political consideration), so the petitions were addressed to him as a real judge and he would examine them in observation of a written procedure inspired by Canon law; the substantive principles, taken from Roman and Canon law, which gave more satisfaction to the Renaissance ideas of social good and justice. This caused a dispute between common law and equity, so Chancery, so in 1616 James I pronounced in favor of the Chancery. The chancellor, as a legal or political figure, was no longer seen as judging on the basis of morality alone and tended to act more and more as a true judge; then was admitted the control by the House of Lords over Chancery’s decisions.

This is the reason for the dual structure of English law, there’s on one side the Common law rules and the rules of equity, which complement and correct Common law (today is an integral part of English law, if they need remedial measures there is the Parliament).

During the 18th century, very important was the absorption of the law merchant of Common law, because until that time it was considered a distinct and international body of law.