Legal families

Outline Legal formants Legal traditions vs legal systems Which legal families? Criteria of classification Common law and civil law Hybrid or mixed legal systems Socialist law: Still a valid category? Islamic legal family

Legal formants (R. Sacco) Legislation (codified rules) Case law Scholarship (Customary law)

Legal tradition vs legal system (Merryman) ‘A set of deeply rooted historically conditioned attitudes about the nature of law, the role of law in the society, the political ideology, and the operation and organisation of a legal system’ Legal system: ‘An operating set of legal institutions, procedures and rules’ The legal tradition is the cultural dimension of a legal system

Legal families: classifications 1900: First international Congress of Comparative Law Esmein (1905): Romanistic, Germanic, Anglo-Saxon, Slavic, and Islamic David (1978): Romano-Germanic (civil) law, common law, socialist law, philosophical or religious law

Pros and cons of selecting legal families Allows macro-comparison among ‘similar’ systems Explanatory function Most legal systems possess features that are predominantly identified with one or more of the three major legal families Based on Western legal prototypes (biased classification) Focused on private law Does not encompass all possible legal systems of the world

Criteria to define legal families Historical development Mode of legal thinking Sources of law

Common law v. civil law: Historical development Battle of Hastings (1066). Normans conquered England Unitary (feudal) system “King could do no wrong” Commoners: securing freedoms from an absolutist system (writs) Justice administered by clerics, by itinerant judges and by the King Based on Roman law, in particular on the Corpus iuris civilis or Iustinianeum (527-565)  Civil Codes (codification in Universities and by Parliaments) French Napoleonic Code of 1804 and German civil code of 1900

Common law v. civil law: Mode of legal thinking Court-based From case to case Parties and litigation in courts (Codified) rule-based From general principle to general principle Existing enacted rules that plan and systematise everyday life. Litigation as extrema ratio

Common law v. civil law: Sources of law Customary law Case law and precedents (stare decisis doctrine). HoL 1966 Equity: principles of justice Appeal to the King against unfair decisions of King’s judges. Developed 300-400 years after the ‘birth’ of common law Legislation, to consolidate or clarify existing law, intended to build on existing case-law Legislation (written and codified rules) Scholarship (German tradition) Customary law The judge as the ‘bouche de la loi’

Common law v. civil law: Jurisdictions England and Wales USA Australia and New Zealand Canada India and Pakistan Continental Europe Central and Eastern European countries Turkey Japan Latin America

Common law v. civil law or convergence? In common law jurisdictions legislation has become increasingly important In civil law jurisdictions the role of judges and the importance of case law have changed Explanations: European Union, international organisations and treaty-making Pluralistic societies

Hybrid or Mixed legal systems Legal systems that show features of both civil law and common law families (usually because of the colonial past) Examples: Scotland, Louisiana, Quebec, Israel, South Africa, Greece, Puerto Rico, Philippines

Socialist legal family: Still a valid category? Roots in ancient Roman law Marxist-Leninist ideals Marginalisation of the judiciary Law as an instrument of State policy (protection of individuals neglected) Supremacy of the State machinery, i.e. Russian Communist Party, over any other organisation After the end of the cold war and constitutional transitions, very limited explanatory power of legal reality

Islamic legal family (brief overview) Extremely fragmented reality Sources (Shari‘a): Koran (as the word of God) Sunnah (traditions or known practices of the Prophet most of them codified in the Hadith) Consensus of the Muslim community or of the jurists (Ijma) Analogy used by judges (Qiyas)