Classification Of Legal Systems Research Paper

1. The History Of Legal System Classifications

The task of classifying legal systems has been tied to the development of comparative law as a practical and scholarly discipline. More recently, the differentiation of the behavioral and social sciences into discrete subjects has added diverse perspectives on the nature of law and legal systems.

1.1 Classical Classifications

Classical Greeks made the earliest recorded efforts explicitly classifying legal systems as a result of their philosophical speculation based on the comparative study of law. For instance, Plato (429–348 BC) in his Laws discussed the rules of several Greek and other poleis in formulating his ideal code and legal institutions for Magnesia. Aristotle (384–322 BC) examined many legal structures in his Politics before settling on the three preferred categories of kingship, aristocracy, and constitutional government (politeia) with their deviant siblings tyranny, oligarchy, and democracy.

In Rome, jurists’ interest in foreign law was more practical, particularly with the creation of the office of praetor peregrinus in 242 BC. This praetor supervised jurisdiction over disputes involving non-Romans. It was here that the mixture of a less formalistic Roman ius Civile, Greek law, and other foreign legal norms led to an internationalized ius gentium. Roman jurists did not have a philosophical interest in studying and classifying foreign legal systems, since they believed in the superiority of their own law. An exception that makes the point was the fourth-century Collatio legum Mosaicarum et Romanarum, in which excerpts from Roman jurists were paired with the laws of Moses to improve the stature of Christianity (Zweigert and Kotz 1996, p. 48).

1.2 Early Modern Classifications

In the early modern era some natural law jurists such as Hugo Grotius (1583–1645), Samuel Pufendorf (1632–1694), and Baron Charles Louis de Montesquieu (1689–1755) used the comparative law method to provide empirical backing for natural law principles. Others such as William Blackstone (1723–1780) had the additional objective of providing prestige for their national law: Blackstone’s four-volume Commentaries on the Laws of England (1765–1769) (Blackstone 2001) emphasized the similarities in English common law, Roman law, and natural law.

Montesquieu’s extensive speculation about the relation of law to natural and social forces and explicit classification of legal systems emphasized the distinct manners (moeurs) of a particular people in a particular era. His Lettres Persanes (1721) (Montesquieu 1964), published anonymously, used the device of two Persians traveling in Europe who satirized the customs of French and European society. They pointed to the abuses and cruelties of criminal justice systems and argued for a rational theory of punishment adjusted to the settled sensibilities of the people. Letter 80 could have been written to critique the turn-of-the-millennium criminal sentencing and prison policy of the USA:

[O]bedience to the laws of a state does not correspond with the greater or lesser degrees of cruelty in punishment. In countries where penalties are moderate, they are as much feared as those in which they are tyrannical and dreadful … . Our imagination adapts itself to the customs of the country in which we live (Montesquieu 1964, p. 136).

Montesquieu’s relativist view of humans’ ability to achieve justice was further developed in De l’esprit des lois (1748) (Montesquieu 1989), which drew upon causative factors such as climate, soil, population size, a people’s morals and customs, religion, and commerce. He classified governments along with the appropriate principle for their constitutive societies. Thus democracy required civic virtue; aristocracy, moderation against the people; monarchy, honor for the law and intermediate institutions; and despotism, fear to maintain order. He found different mechanisms for lawmaking and adjudication in the first three types of legal system, but pointed out that law was not necessary for despotism.

1.3 Nineteenthand Twentieth-Century Classifications

This set the stage for much more elaborate classifications of local and national legal systems beginning with nineteenth-century evolutionary theorists. Law in these schemes was part of the larger social system that changed over time. For instance, Sir Henry Maine (1822–1888), interested in the striking parallels between the development of English common law and classical Roman law, posited in Ancient Law (1861) (Maine 1977) stages of social development common to different peoples that could be correlated with particular instruments of legal growth. Legal systems could be characterized by whether social change was primarily dealt with by legal fictions, equity or natural law, or conscious creative legislation.

Max Weber (1864–1920) (Weber 1968) used many of the same historical sources as legal evolutionists, but in Wirtschaft und Gesellschaft (1922) constructed ideal types to facilitate the comparison of actual social and legal systems in trying to explain the rise of industrial capitalism. His four-cell typology for law-making and law application considered the rationality or irrationality of legal thought, as well as whether the legal norms and decision making were highly differentiated from religion, ideology, or emotion. He argued that the category of formal (autonomous) rationality with a consistent body of general legal norms provided the predictability facilitating modern capitalism.

In an effort to make US lawyers and political scientists less parochial, John Henry Wigmore in 1928 published the three volume A Panorama of the World ’s Legal Systems (Wigmore 1928). He covered 16 historic and contemporary legal systems by the pictorial method, using between 20 and 50 pictures accompanied by text for each legal system to enliven its justice buildings, principal legal actors, and characteristic legal materials. Organized historically, these systems included the Egyptian, Mesopotamian, Chinese, Hindu, Hebrew, Greek, maritime, Roman, Celtic, Germanic, canon, Japanese, Mohammedan (Islam), Slavic, Romanesque (civil law), and Anglican.

2. Legal System Classifications By Disciplines Related To Law

Drawing on these earlier studies and with a common concern for the relationship between law and society, anthropologists, sociologists, and political scientists generally believe that formal legal rules should be deemphasized when classifying legal systems.

2.1 Legal Anthropology

Anthropologists have also observed that some societies operate without government but nevertheless have social order and law-like institutions. In modern nations there may be distinct societies, so that it becomes appropriate to speak of legal pluralism. Classification of legal systems then depends on the characteristics of different societies or their subgroups. Leopold Pospısil (1974, pp. 106–26), for example, described this situation as a patterned mosaic of subgroups that belong to certain identifiable types with different memberships. Each subgroup owes its existence to a legal system that regulates the behavior of its members. These legal systems then form a hierarchy reflecting the degree of inclusiveness of the corresponding subgroups, and can be categorized by legal level such as the family, lineage, community, state, or nation. People are simultaneously members of several subgroups of different inclusiveness, which may lead to contradictory legal loyalties.

2.2 Legal Sociology

Lawrence Friedman (1977, pp. 78–86), a legal sociologist, argued that legal systems can be classified according to their internal legal culture, which includes the attitudes and values of judges, lawyers, and other legal actors toward a task such as lawmaking or adjudication that relies on reasoning or some other basis of legitimacy. He considered two variables. First, when a legal system requires reasoning to be premised on legal propositions it is a closed system; when propositions may be nonlegal the system is open. Second, some systems regard legal propositions as fixed and timeless; others accept change as normal.

Using these two variables, Friedman derived four types of reasoning associated with law. First, some systems such as those based on sacred law are closed and reject the idea of change. What change does occur must be based on legal fictions. Second, a legal science system such as that in Germany is closed, but it permits change by simply adding legal rules or deriving new legal principles. Third, traditional or customary law systems do not accept explicit change but are open to new norms based on shifting behavioral patterns. Fourth, a system permitting change by looking outside the stock of legal propositions includes what Weber called substantive rationality. This could be revolutionary legality such as that in socialist Russia, or welfare legality that looks to ethical imperatives or utilitarian principles.

2.3 Political Science

The 1950s comparative politics revolution shifted that field from one that tended to emphasize public law and to describe the legal institutions of foreign governments to the explanation of political behavior in structural and functional terms. Gabriel Almond and Bingham Powell (1978), for instance, used the developmental variables of cultural secularization and structural differentiation, together with the low or high level of political subsystem autonomy associated with interest groups and political parties, to classify political systems. Modern systems could be premobilized, mobilizing, or penetrative, and within each of these categories either authoritarian or democratic.

3. Current Classifications In Comparative Law

A useful classification of legal systems should make the criteria of division clear and allow scholars to assimilate, simplify, and comprehend the great wealth of legal detail existing in individual systems. The dominant approach to classifying national legal systems in contemporary comparative law is to identify families, styles, or traditions. Beyond the aim of simplification, this idea could permit one to understand more clearly pluralistic legal systems with an official, dominant legal tradition, but including indigenous communities with their own law or communities lacking a sovereign political organization that use canon law, Muslim law, Hindu law, or Jewish law.

3.1 The Influence Of Rene David

Comparative lawyers have disagreed about the criteria to use for classification but the results have been surprisingly similar, differing primarily in the number of categories emerging. Rene David, in Traite elementaire de droit Civil compare (1950), used two criteria that were further refined in his 1964 Les grands systemes de droit contemporains (David and Brierley 1985). He believed that the primary criterion should be the legal system’s ideology, its ‘philosophical, political or economic principles,’ the ‘social objectives to be achieved,’ and ‘the place of law itself within the social order.’ A secondary criterion should be a system’s legal technique, ‘the law’s conceptual structure or … the theory of sources of the law.’ On the basis of these guides, David found three prominent legal families: Romano-Germanic, common law, and socialist law. Some elements from one or more of these families have influenced all national legal systems. In addition, there are lesser legal systems, such as those for religious law (Muslim and Hindu) and for East Asia and sub-Saharan Africa (David and Brierley 1985, pp. 20–31).

This typology controlled the organization of the International Encyclopedia of Comparative Law’s volume two (1984), entitled ‘The Legal Systems of the World: Their Comparison and Unification,’ of which Rene David was the chief editor (David 1984). The only variation from David’s earlier formulation occurred in Chap. 1, where Romano-Germanic (civil) law and common law were combined into the Western conception of law (see Clark 1990).

3.2 Legal Traditions David Argued That It

David argued that it

is a superficial and indeed false view to see law as being composed of the totality of [legal] rules … [T ]he juridical phenomenon which they represent … constitutes a system: it has a vocabulary used to express concepts, its rules are arranged into categories, it has techniques for expressing rules and interpreting them, it is linked to a view of the social order itself which determines the way in which the law is applied and shapes the very function of law in that society (David and Brierley 1985, p. 19).

John Henry Merryman in 1969 proposed a similar idea of legal traditions, of which three were most influential in the modern world: civil law, common law, and socialist law:

A legal tradition … is not a set of rules … . Rather it is a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught. The legal tradition relates the legal system to the culture of which it is a partial expression (Merryman 1985, pp. 1–2).

In teaching and research on comparative law in the USA, scholars have invoked considerations of geography, history, and legal culture as secondary criteria to legal traditions. This enlarges on the concentration on German and French examples by adding attention to Mediterranean European, Latin American, and East Asian legal systems (Merryman et al. 1994). Even at the end of the twentieth century David’s tripartite division of families, including socialist law and other categories for East Asia and sub-Saharan Africa, still seemed to hold substantial validity for some research topics, such as the role and importance of the legal profession in society (Clark 1999).

3.3 Legal Styles

About the time of David’s revised formulation of legal families Konrad Zweigert (1961) wrote about his theory of Rechtskreisen. It looked at the styles (Stile) of legal systems to divide them into legal spheres or families. He critiqued earlier attempts at classification as too one-dimensional, turning primarily on one criterion. Zweigert, as updated by Hein Kotz, found five factors to be crucial to classify the style of a legal system or family: (a) historical background and development; (b) predominant mode of legal thought; (c) distinctive legal doctrine or institutions; (d) sources of law; and (e) ideology. Using these factors, Zweigert and Kotz settled on eight categories: Romanistic family, Germanic family, Nordic family, common law family, Peoples Republic of China (replacing the earlier socialist family), Japan, Islamic law, and Hindu law (Zweigert and Kotz 1996, pp. 62–73).

3.4 Critique Of Current Classifications

There are a number of problems with these classification schemes, which their proponents often recognize. First, a classification is intended for a specific purpose, which may make it unsuitable for another purpose. Thus Zweigert and Kotz intended their divisions to serve as chapters in their comparative law treatise for students and jurists. An African legal family was omitted because it is still in the process of emerging (1996, pp. 65–6).

In addition, almost all comparative law classifications are based on a private law emphasis, which weakens their utility for public law comparisons. For instance, a study of the judicial review of legislation as an aspect of constitutionalism could put England and France in one category, but Germany and the USA in another, confounding the civil law–common law dichotomy. Mirjan Damaska (1986) rejected the usual classification of legal families in his comparative study of procedure and the administration of justice. He formed a Weberian four-cell model that considered the structure of state authority on one axis (hierarchy or coordinate) and the type of proceeding on the other (conflict solving or policy implementing). Illustrations include the active judge in continental European civil procedure in the conflict-solving hierarchy cell, English and USA’s civil and criminal procedure in the conflict-solving coordinate cell, Soviet civil and criminal procedure in the policy-implementing hierarchy cell, and USA’s public interest litigation in the policy implementing coordinate cell.

Second, no matter how logical a classification, there will always be hybrid legal systems that do not fit easily within one category or another. Well-known hybrids in legal family classifications include, for example, Scotland, Louisiana, Puerto Rico, Quebec, Israel, South Africa, Sri Lanka, and the Philippines that share civil law and common law elements; the People’s Republic of China with East Asian and socialist elements; India with Hindu and Islamic law for family and inheritance matters but common law for obligations and commercial issues; and Arabian countries with Islamic law for family and inheritance issues but French-influenced law for the commercial sector (Schlesinger et al. 1998, pp. 291–304, Zweigert and Kotz 1996, pp. 64, 72–3).

Third, related to the problem of hybrid systems is the situation of legal pluralism, associated with the personality principle for choice of law, where an official, dominant legal tradition coexists with an indigenous or religious community that de facto regulates itself according to its own norms (Merryman et al. 1994, pp. 656–703).

Fourth, Ugo Mattei (1997) suggested a new tripartite classification to reduce the Eurocentricism of earlier approaches. His families depend on the dominant pattern of legal decision-making in a system, which can be characterized as professional law, political law, or traditional law. In the professional law family (including west European civil law nations and the common law United Kingdom, Oceania, United States, and Canada), the idea of law autonomous from politics and religion predominates. The political law family includes ex-socialist and developing countries (eastern Europe, sub-Saharan Africa, and Latin America) in which the notion of autonomous law is not strong enough to prevent politics from supplanting legal rules for important legal decisions. Finally, the traditional law family consists of those legal systems that may have absorbed substantial elements from the civil law or common law (Asia and northern Africa), but in which the dominant culture controlling legal decision-making is rooted in Confucianism, Hinduism, or Islam.

4. Convergence Or Divergence Of Legal Traditions

John Merryman et al. (1994, pp. 16–25) identified three strategies of convergence that could bring the civil law and common law traditions closer together. First, programs for the unification of law are gaining support. These include the Hague Conference on Private International Law, the International Institute for the Unification of Private Law (UNIDROIT), and the United Nations Commission on International Trade Law (UNCITRAL). Within Europe, working groups of jurists from both common law and civil law countries are drafting rules with the hope to return to a kind of Roman-canonic jus commune.

A second strategy is legal transplantation, which can follow military conquest or occur by conscious choice. Developing countries often select legal rules and institutions as evidence of modernization. Japan in the late nineteenth century provides an interesting example of explicit legal Europeanization. Countries interested in law reform may also look abroad for inspiration.

Third, the tendency for countries with similar social and economic conditions to develop similar legal systems is part of what may be called natural convergence. This similarity is encouraged by greater international communication, travel, and business. In response to the notion that focusing on convergence of the civil law and common law is too Eurocentric, one could respond that developing nations and East Asian countries have themselves been consciously involved in a process of convergence by supporting rules and institutions associated with either of these two worldwide legal traditions.

Although the beginning of the twenty-first century seems to be characterized by an overarching process of globalization in political, economic, and social life, there are in fact two opposing forces in international society. One is the universalizing force expressed in the increased importance of the United Nations, the World Trade Organization, and regional supranational legal systems such as the European Union and NAFTA.

Besides universalizing pressures there are particularizing forces within some nations that reflect elements of diversity such as religion, ethnicity, language, and social class. Everywhere there are movements for political decentralization, economic privatization, and social recognition that seem to complicate the legal universe. Examples include the Scottish and Welsh in the UK, the Basques and Catalans in Spain, the Kosovars in Yugoslavia, and the Quebecois in Canada. Thus while it is true that the principal legal traditions are converging, they are also at the same time on some levels diverging.

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