1. Cje Lecture III THE LEGAL FAMILIES OF THE WORLD Criminal Law I
Karolina Kremens, LL.M., Ph.D.
Wojciech Jasiński, Ph.D.
Department of Criminal Procedure
Faculty of Law, Administration and Economics
University of Wrocław

2. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
OVERVIEW
can we divide the vast number of legal systems into a few large groups (legal families)?
how do we decide what these groups should be?
if we decide what the groups should be – how do we decide whether a particular legal system belongs to one group rather than the other?

3. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
In what kind of groups you can divide legal systems of our world?
What kind of criteria would you choose?

4. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
Adhemar Esmein’s concept
Adhemar Esmein (French lawyer, 19th century)
5 groups:
1. Romanistic
2. Germanistic
3. Anglo-Saxon
4. Slav
5. Islamic

5. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
Adhemar Esmein’s concept
‘we must classify the laws of different countries, enacted or customary, by dividing them into a small number of families or groups, each of which constitutes an original system of law and the teaching of comparative law, if it is to be scientific, must start with a survey of the historical sources, the general structure and particular characteristics of each of these systems’

6. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
Adhemar Esmein’s concept
good division for Esmein’s time (the end of 19th century and beginning of 20th century)
Esmein’s criteria:
sources of law
race
at that time developed Marxist theory with seperate concepts of criteria but will be disregarded

7. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
Arminjon’s, Nolde’s, Wolff’s concept
Pierre Arminjon, Baron Boris Nolde, Martin Wolff
1950 – ‘Traite de Droit Compare’ (Treatise on Comparative Law)
proposed the term ‘families’ instead of ‘groups’
systems should be studied, irrespective of external factors such as geography or race

8. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
Arminjon’s, Nolde’s, Wolff’s concept
7 families:
1. French
2. German
3. Scandinavian
4. English
5. Russian
6. Islamic
7. Hindu

9. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
Rene David
Rene David, French lawyer
1985 – ‘Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law’
two division criteria:
ideology (religion, philosophy, political, economical or social structure)
legal technique

10. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
Rene David
5 families
1. Western
2. Socialist (Soviet)
3. Islamic
4. Hindu
5. Chinese

11. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
Rene David
3 families (changed his view)
1. Romanistic-German
2. Common Law
3. Socialist
group of ‘other’ systems: Jewish, Hindu, Far East, African, Malaysian

12. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
Zweigert’s and Koetz’ concept
Konrad Zweigert and Hein Koetz, German lawyers
1998 – An introduction to comparative law
criteria:
the historical background
the characteristic way of thought
the different institutions
the recognized sources of law
the dominant ideology

13. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
Zweigert’s and Koetz’ concept
6 families
1. Roman family
2. German family
3. Common law family
4. Nordic family
5. Family of the laws of the Far East (China, Japan)
6. Religious family (Muslim and Hindu)

14. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
ISSUES IN STUDIES OF LEGAL FAMILIES
HISTORICAL DEVELOPMENT
common law
Germanic law (Germany, Austira and Switzerland)
French law (France, Spain, Portugal, South America)
why the Germanic and French law evolved differently? – no impact of French post-revolution legislation on Germany

15. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
ISSUES IN STUDIES OF LEGAL FAMILIES
DISTINCTIVE MODE OF LEGAL THINKING
approach to law:
common law – case law, development from decision to decision
continental law – abstract legal norms, well-articulated system containing well-defined areas of law
great jurists:
common law – judges
continental law - professors

16. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
ISSUES IN STUDIES OF LEGAL FAMILIES
DISTINCTIVE MODE OF LEGAL THINKING
facing problems:
common law – predict how the judge would deal with the problem
continental law – ask what solution the rule provides
where the law comes from:
common law – from the court
continental law – from the study

17. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
ISSUES IN STUDIES OF LEGAL FAMILIES
DISTINCTIVE MODE OF LEGAL THINKING
legal thinking:
common law – concrete, in terms of cases, the relationship of parties, ‘rights and duties’
continental law – abstract thinking in terms of institutions
the system:
common law – the way is feeled gradually from case to case
continental law – complete and free from gaps

18. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
ISSUES IN STUDIES OF LEGAL FAMILIES
DISTINCTIVE MODE OF LEGAL THINKING
systematics:
common law – sceptical of every generalization
continental law – inherent element of law
distinctive model of legal thinking corresponds with differences in mentality which are the result of historical dev
common law – improvising, experience
continental law – regulating, systematizing

19. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
ISSUES IN STUDIES OF LEGAL FAMILIES
DISTINCTIVE MODE OF LEGAL THINKING
these differences are not conclusive
common law – in many areas the case-approach does not exist and the law is carefully structured by statutory law
continental law – some rules don’t exist and must be interpreted by the trial chambers

20. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
ISSUES IN STUDIES OF LEGAL FAMILIES
SOURCES OF LAW
statutory and case-law systems
precedents
differences are enormously exaggerated
many case-law countries have highly developed statutory law
the distinctive method of legal thinking is more important

21. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
ISSUES IN STUDIES OF LEGAL FAMILIES
IDEOLOGY
important when making distinction between legal families
ideology – religions or political conception of how social or economic life should be organized
examples:
Islamic law
Hindu law
historical ‘socialist legal systems’

22. THE LEGAL FAMILIES OF THE WORLD
Lecture III
THE LEGAL FAMILIES OF THE WORLD
ISSUES IN STUDIES OF LEGAL FAMILIES
HYBRID SYSTEMS
Louisiana
Quebec
Scotland
South Africa
Israel
China
Philippines