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Lesson 2 private law, Apuntes de Derecho Comparado

Universitat de Lleida (UdL)Derecho Comparado

Apuntes tema 2 de comparative law 1o derecho

Tipo: Apuntes

2018/2019

Subido el 21/10/2019

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LESSON 2: LEGAL FAMILIES OF THE WORLD.
2.0. LEGAL FAMILIES OF THE WORLD.
•Concept of “Legal system”: Legal system is the set of laws, customs, jurisprudence of
positive law that governs a certain community. Because of the number of legal systems
that exist in the world it is almost impossible to study and compare everyone.
Hence, comparative law reduces them to groups or families taking into account their affinities
and common elements.
•Concept of “Legal family”: A legal family is, therefore, a set of legal systems that share
certain characteristics. The term legal system refers to the national law of a State,
while the term family refers to the set of legal systems that go beyond the borders of a
nation.
'' LEGAL SYSTEM '' < '' LEGAL FAMILY ''.
E.i. The American legal system traces its origins to the principles of law and jurisprudence of
English common law.
•Can we divide the vast number of legal systems into a few large groups (legal
families)? YES. But we must see some considerations:
–The division of the world’s legal systems into families, especially the attribution of a
system to a particular family, is susceptible to alteration as a result of legislation or
other events, and therefore can be only temporary.
–One’s division of the world into legal families and the inclusion of systems in a
particular family is vulnerable to alteration by historical development and change.
So in the theory of legal families much depends on the period of time of which one
is speaking.
•We are at the macro comparative level . The criteria used to classify legal systems
into legal families (Koetz and Zweigert) are:
A. HISTORICAL BACKGROUND AND DEVELOPMENT.
B. PREDOMINANT AND CHARACTERISTIC MODE OF LEGAL THINKING.
C. ESPECIALLY DISTINCTIVE INSTITUTIONS.
D. THE KIND OF LEGAL SOURCES.
E. IDEOLOGY.
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LESSON 2: LEGAL FAMILIES OF THE WORLD.

2.0. LEGAL FAMILIES OF THE WORLD.

  • Concept of “ Legal system ”: Legal system is the set of laws, customs, jurisprudence of positive law that governs a certain community. Because of the number of legal systems that exist in the world it is almost impossible to study and compare everyone. Hence, comparative law reduces them to groups or families taking into account their affinities and common elements.
  • Concept of “ Legal family ”: A legal family is, therefore, a set of legal systems that share certain characteristics. The term legal system refers to the national law of a State, while the term family refers to the set of legal systems that go beyond the borders of a nation. '' LEGAL SYSTEM '' < '' LEGAL FAMILY ''. E.i. The American legal system traces its origins to the principles of law and jurisprudence of English common law.
  • Can we divide the vast number of legal systems into a few large groups (legal families)? YES. But we must see some considerations:
  • The division of the world’s legal systems into families, especially the attribution of a system to a particular family, is susceptible to alteration as a result of legislation or other events, and therefore can be only temporary.
  • One’s division of the world into legal families and the inclusion of systems in a particular family is vulnerable to alteration by historical development and change. So in the theory of legal families much depends on the period of time of which one is speaking.
  • We are at the macro comparative level. The criteria used to classify legal systems into legal families (Koetz and Zweigert) are: A. HISTORICAL BACKGROUND AND DEVELOPMENT. B. PREDOMINANT AND CHARACTERISTIC MODE OF LEGAL THINKING. C. ESPECIALLY DISTINCTIVE INSTITUTIONS. D. THE KIND OF LEGAL SOURCES. E. IDEOLOGY.

A. HISTORICAL BACKGROUND AND DEVELOPMENT:

  • The COMMON LAW was developed in and by the courts, giving judge-made law considerable weigh. CIVIL LAW was formulated, compiled and refined in universities, later codified and then given statutory force by the legislature.
  • ROMAN LAW , with its notions of codification, systematisation of concepts into categories, principles and divisions of law, has left its lasting imprint on the French and German Codes.
  • SOCIALIST LEGAL SYSTEMS were born in Eastern Europe and the former Soviet Union and followed Marxist-Leninist origins and ideology.
  • Germany, Austria and Switzerland took no part to the expansion of the FRENCH CIVIL CODE.
  • The development in GERMAN-SPEAKING countries in the 19th century of a formal legal technique with extremely clear-cut concepts.
  • COLONIALISM: i.e. American jurisdictions origin is found in British colonialism. B. PREDOMINANT AND CHARACTERISTIC MODE OF LEGAL THINKING.
  • CIVIL LAW : use abstract legal norms, have well-articulated system containing welldefined areas of law, and use to think in juristic constructions.
  • COMMON LAW : court based approach, seeking pragmatic answers to issues before the court. The Englishman improvises, never making a decision until he has to “we’ll cross that bridge when we come to it”. (Maitland). Case-law proceeding. The doctrine of precedent.
  • Recent trends have indicated that the common law and civil law systems have been coming closer together in their use of case and statutes (i.e. The United Kingdom Children Act 1989).
  • SOCIALIST LAW : is based and developed on Marxist-Leninist ideas. C. ESPECIALLY DISTINCTIVE INSTITUTIONS:
  • In COMMON LAW jurisdictions, the typical legal institutions are agency, trust, tort principles, consideration and estoppel.
  • In the ROMANISTIC family there is a tendency towards formalism and rules protecting the moral and economic integrity. Institutions as: the direct action, oblique action and abuse of right.
  • The GERMANIC family: abstract real contract, clausulae generales, the notion of

Origins Roman Law. Medieval England, after the Norman conquest the King's courts began to apply the common customs. Developed in Continental Europe. England. Influenced by Napoleonic Code. – Main classification French Law / German Law. Depending on the country (differences between USA and England). Style Codified, systemized and structured without setting out the details. More specific and detailed rules. Main source Codifed law. Judge – made case law. Doctrine Provide all practitioners including the courts, with a guideline for handling and deciding of specific future cases by developing basic rules and principles. Finding the differences and similarities in decided cases and to extract specific rules from decides cases. Legal thinking Anticipating and solving of problems prior their apparence. Wait, see and react to the problems when they appear. Kind of rules / function of judge Abstract Rule. The function of the legislature to make laws and the courts apply these laws. Judge creates Law by precedents. COMMON LAW CIVIL LAW SOCIALIS LAW ISLAMIC LAW Other Names Anglo – American, judge – made law. Continental, Roman. Comunist. Religious. Sources of Law Judicial interpretation and legislation. Code Maxist – Leninism. Sacred religious document. Lawyers Control courtroom. Judges dominate trials. Party members. Secondary role. Judge's qualicifactions Former practicing lawyers. Career bureaucrats. Party members. Religious as well as legal training. Degree of judicial independence High. Insulated from regime. Courts are an extension of the state. Very limited. Juries Often available at trial level. Mixed tribunals in serious cases. Often used at lowest level. Not allowed. Policy – making Courts share in Courts have Courts are Courts and other

role balancing power. equal but separate power. subordinate to the legislature. governmental branches are subordinate to the Shari'a. Examples Australia, England, Canada, India. France, Germany, Israel, Japan, Mexico. China, Rusia. Saudi Arabia, Nigeria. 2.1. THE ROMANISTIC LEGAL FAMILY.

  • Concept of “civil law”: the entire system of law that currently applies to most Western European countries, Latin America, countries if the Near East, large parts of Africa, Indonesia and Japan.
  • Origins of civil law: Roman law (ius civile).
  • Classification of civil law:
    • Romanistic
    • Germanic.
  • Importance of LAW and the codification → A Code is an authoritativ, comprehensive and systematic collection of general clauses and legal principles divided into Books or Parts dealing in a logical fashion with the law relating thereto. 2.1 THE ROMANISTIC LEGAL FAMILY. The origin of Romanistic family : French Law “ The law is not a restricted domain. It is not the business of judges and practitioners alone, because the law is not limited to litigation. The law is seen as a method of social organisation, always changing, and is thus of primary interest to statesmen and in fact to all citizens.” David, R. French Law: Its Structure, Sources and Methodology.
  • The French conception of law comprises: ...all the rules devised to establish the structures of society and to regulate people’s conduct , and these include many which cannot give rise to an action in the courts but are none the less basic to the organisation of the State. CODE CIVIL OF FRANCE (1804):
  • Code Civil France : T he heart of private law in France and the great model for the codes of private law of the whole Romanistic legal family.
  • Revolutionary Code: The Code was generated by the spirit of the French Revolution which sought to eradicate the feudal institutions of the past and to implant in their place
  • Movement for autonomy: Catalonia, Basque provinces, Navarra, Galicia… These fueral laws are being codified to a basis for the future creation of a private law common to the whole of Spain. 2.2. THE GERMANIC LEGAL FAMILY. The origin of Germanic family : Germany
  • In the Middle Ages in Germany there were no central political and judicial organs to lay the foundations of common German private law. No central administrative bodies, no staff of royal officials, no effective royal jurisdiction.
  • The weakness of imperial power in Germany, the absence of a strong system of imperial justice, and the non-existence of an influential class of imperial jurists made it easier for the reception of Roman law.
  • Importance of rationalism movement: the law of reason. SAVIGNY and PANDECTISM :
  • “German Historical School of Law” : Savigny (1779-1861): Law as a historically determined product of civilization. Law as a product of the formative reason. All true law is customary law, developed and captured.
  • The people’s representatives: the lawyers.
  • Legislation inorganic and unscientific, was no the right way to create a common German law. What was needed was a absorption and cultivation of the legal material which they had and make it grow.
  • The Pandectist School (directed by Savigny).
  • Aim: the dogmatic and systematic study of Roman material. One only had to apply logical or “scientific” method in order to reach the solution of any legal problem.
  • To study all historical sources that had shaped German legal history. THE GERMAN CIVIL CODE (1900): BGB
  • In language, method, structure and concepts the BGB is the child of German Pandectist School: abstraction, precision and logical symmetry.
  • It is not addressed to the citizens at all, it is addressed to the professional lawyers. (In France, Austria, and Switzerland, ordinary citizens may have the feeling of closeness to their Code: in Germany not even the lawyers does.)
  • Five books: 1. Book 1 - General Part (common institutions to the whole of private law). 2. Book 2 - Law of Obligations. 3. Book 3 – Law of Property. 4. Book 4 – Family Law.

5. Book 5 – Law of Succession. Main features of Germanic Law :

  • German Law thinks in terms of general principles , rather than in pragmatic terms, conceptualising problems, rather than working from case to case.
  • Codify laws in a comprehensive, authoritative and precise manner – distinguish it from the common law approach.
  • Case law → for interpretation.
  • Now, Constitution as the apex of laws having priority over all other law. MAIN DIFFERENCES BETWEEN FRENCH AND GERMAN SYSTEMS: 2.3. THE COMMON LAW. The English Common Law system:
  • Origin: England (not Britain) Middle Ages. It was successfully transplanted form England to many countries (colonization): Australia, South East Asia, India, Hong Kong, North America, …
  • Case-based system law. The predominant mode of interpretation: case law (not codes). No codification (no contained in enacted collections of authoritative and prima facie exhaustive rules of law).
  • Typical institutions such: trust, tort law, estoppel and agency.
  • Improvisatory and pragmatic legal style.
  • No substantive or structural public/private law distinction.

increased public law sector and decreased private law sector.

  • Main features: 1. Disappearance of private property and social classes. 2. Law is subordinated to the creation of a new economic order. 3. Pseudo-religious character. 4. Prerogative instead of normative. 5. Low respect for privacy, extensive control of the party over private life.
  • Countries: Soviet Union, Cuba, Vietnam, … 2.6. MIXED SYSTEMS.
  • Jurisdictions in which is more than one system co-existing with one another: combination of civil law, common law and/or others.
  • Some examples: 1. Quebec → Canadian province with French origin. Civil code from European favor but judicial system based in common law. 2. Scotland → no civil code but law based in Roman law. 3. Lousiana → Civil Code inspired in French and Spanish one but based in common law (USA). 4. Israel → courts based in common law but with religious influence. 2.7. ASIAN SYSTEMS OF LAW. · Eastern systems of law (Chinese and Japanese)
  • Contemporarily usually a mixture:
  • of western law and traditional customary law (Japan);
  • of western law and socialist law ( China ).
  • More focused on harmony than justice, reconciliation than adjudication.
  • Less litigatory than in the so called Western world.
  • Chinese conception of law:
  • Confusionism - Belief of a cosmic order of the universe.
  • Chinese Codes of the Han dynasty: administrative and criminal law matters.
  • Attempt to Western ideas à period of Europeanization (1929): some codification and legislation.
  • Chinese judges have been prepared to ignore the Codes and formalistic laws if they conflicted with more humane Chinese customs. 2.8. RELIGION – BASED SYSTEMS OF LAW. · ISLAMIC LAW: SHARIAH
  • It is derived from the religious precepts of Islam, particularly the Quran and the Hadith. The term Sharīah refers to God's immutable divine law and is contrasted with Figh, which refers to its human scholarly interpretations.
  • No clear separation of legal, religious or moral standards.
  • Four sources: 1. The Koran : collection of the utterances of the prophet Muhammad. 2. Sunnah: the sum total of the inspired practice of the prophet. 3. Ijma: juridical consensus by entire islamic community, lawmen and lawyers. 4. Qiyas: analogical reasoning, the application to new and similare cases the rules established.
  • It is in principle immutable, for it is the law revealed by God.
  • Different legal schools developed methodologies for deriving sharia rulings from scriptural sources. · HINDU LAW:
  • Republic of India, Pakistan, Burma, Singapore and Malaysia, East Coast of Africa…
  • Hindu law applies regardless of nationality or domicile to all persons who are hindus (according to ethnicity and religion).
  • It embraces a great variety of cults and rituals.
  • In Hinduism, law is discussed as a subset of Dharma which signifies behaviours that are considered in accord with rta, the order that makes life and universe possible.
  • Relates mainly to personal laws. (E.i. marriage from different casts.)