Comparative Law – Continental Law Prof. Giorgio F. COLOMBO

Legal Families: Partitions and Problems Lesson n.4

Legal Families In Comparative law, scholars usually divide the various legal systems of the world in groups, called “legal families”. This partition has several purposes, mainly: making easier to study legal system, as coherent groups are easily understandable; finding common traits, features, history; identifying original models and derivate models.

Traditional Families Many scholars of Comparative law tried to create groupings of legal families, using different parameters and criteria, with different results. Some famous examples are: Arminjon, Nolde, Wolff (1950): 7 families David (1964): 4 families Zweigert & Kötz (1977): 6 families

Arminjon, Nolde, Wolff Arminjon, Nolde, Wolff, used the following criteria: Originality  to what extent a system expresses an original model Derivation (historical origin)  common historical origin of different legal system Common elements  sources of law, training of lawyers, etc. They identified the following families: French German Scandinavian English Russian Islamic Hindu

David David used the following criteria: Ideology  whether political, philosophical, religious, etc. Legal technique  how laws and rules are formulated, codified, interpreted, applied. He identified the following families: Romanistic-German Common Law Socialist “Other systems” (Jewish, Hindu, Far Eastern, African, Malagasy)

Zweigert & Kötz Zweigert and Kötz used the following criteria: Historical background Legal thinking  e.g. abstract norms, decisions Institutions  estoppel, trust, juristic act, etc. Sources of law  constitutions, codes, judgments Ideology  political, economic, philosophical They identified the following families: Romanistic Germanic Anglo-American Nordic Far Eastern Religious

An Example  Germanic Family The “Germanic” family (Z&K) is centered on German Law. It includes several different countries: Germany Austria Switzerland (but the Swiss Code is much simpler than the German Code) Turkey Greece  why? (1832, Treaty Of London, Grecian Independence. Otto von Wittelsbach is appointed king of Greece)

The case of Turkey inside the Germanic Family Turkey and the influence of the Swiss Code A very peculiar case of legal transplant: the Turkish ministry of Justice had studied in Switzerland Conflicts between traditional law and State law in the period 1926 – 1929

The case of Japan outside the German Family Japan and the influence of the German System Why is not Japan in the “German” Family? “Far Eastern” Legal Family “Importing” legal systems: which way is the best?

An Old Approach? As it may be noticed, although those divisions are still studied today, they are quite old (1950, 1964, 1977). Two fundamental questions: 1) Were they accurate in the first place? 2) Are those categories still fit for contemporary world?

1) Conceptual problems These approached are marked by two conceptual problems, one underestimating differences, the other overestimating them. Another problem relates to State law and religious rules. “Eurocentrism” (or “Westerncentrism”) “Legal Orientalism” Religious rules vs. State rules

Eurocentrism Basically any categorization tried so far is centered on Continental Europe and UK-USA. This was legitimate by the fact that most legal system of the world now have adopted a model deriving either from the Continental Europe (mostly France and Germany) or UK- USA Common Law.

Eurocentrism However, this fails to give proper attention to local peculiarities and to the law in action. In terms of “weight” given to non-Western systems (e.g. 211 pages vs. 37, Z&K).

Legal Orientalism In the attempt to find peculiar features of legal systems, sometimes their characteristics are overemphasized. e.g. China and Japan  a common cultural heritage (Confucianism) is still used today to make the part of a single legal family.

Japan in the dawn of comparative law Advocay for broader cultural understanding (based on old cultural misunderstaing?) Legal Cultures, Legal Paradigm and Legal Doctrine: Towards a New Model for comparative Law, 1998, 506 (Van Hoecke, Warrington): «Conflicts are preferably not brought to the court but solved through reconciliation. If there is a trial, each party has to make reciprocal concessions, so that it can, eventually, be terminated amicably» (References: 80’s German Scholars after Kawashima and Noda; early Taniguchi)

(...) (Örücü, 2003) “Extraordinary Place” (Tamm, 2011 – “Confucian Systems”) “And you must understand the impact in China still from traditional Chinese thinking. The Chinese like poetry and calligraphy and painting and money-basically they do like these activities better than law and lawyers. I think that is still true even if on the surface it may appear different” Who in the world prefer lawyers to money? (with the possible exception of lawyers!)

Religious rules vs. State rules These categorizations deal with system of norms coming from religion: Hindu law, Islamic law, Jewish law. When dealing with this (or these) families, scholars also deal with the countries where such religious belief are widespread.

Religious rules vs. State rules However, one should be really careful, as: Hindu law (religious) ≠ Indian law (the laws of the Federal Republic of India) Islamic law (religious) ≠ law of Islamic countries (in which there is some legislative reference to Islamic law) ≠ law of countries in which the majority of people is Muslim.

«Islamic» Law? Sharī‘a Purely religious body of law Different schools Countries which adopt Sharī‘a as part of their legal system E.g. Saudi Arabia; Iran, Afghanistan Countries in which the majority of people is Muslim E.g. Senegal

«Islamic» Law?

Legal Families: Mattei’s «Triangle»

Menski’s «Kite»

Menski’s «Tertahedron»

2) New Approaches to Legal Families Converging legal systems/Legal Globalization Are they really converging? Which parameters should be the basis of categorization? Technically: criminal law? Public law? Culturally: importance of legal cultures. Tools from anthropology, sociology. Is the “Socialist” family dead? How to deal with re-Islamization?