Research Article: 2018 Vol: 21 Issue: 1
Yuliia V Tsurkan-Saifulina, Chernivtsi Institute of Law National University
Valentina V Dudchenko, National University
Legal System, Authority of Law, Legal Family, Social Relations, Development of Law.
Authority of law is quite new phenomenon. Rarely does it become an object of direct study and search of its place in traditional chapters of theory of law. Conventional understanding of the process leads to that there appears possibility of stratification and complex definition of opportunities of distribution of certain legal systems. It supports authority of law in some regions and areas. In case of further development, legal system becomes successful and presupposes the establishment of such systems on neighboring areas. It allows talking about right choice of governance system and place. It is based on a legal family. Spreading from one country, they build not only relative according to legal families blocks but also complex regulation forms of social relations on the basis of coherence of legal fundamentals in society. In this connection, there is need to analyze mechanisms and historical periods of legal family distribution.
When studying approaches to legal system typologization, it is necessary to trace the development of an idea about association of world legal systems in certain legal families according to one or other criteria. The main task of the work is to study analytically basic views on authority of law on the basis of legal system typologization. Some introduced sources are firstly analyzed in national literature (Møller & Skaaning, 2014).
Legal system can be defined as formed under the influence of objective laws of development of certain social community association of legal phenomena, which are tightly connected with each other and with other social systems (Kaniowski, 2013).
Values, which lie in the basis of law system, define its character, peculiarities of functioning, and have social nature. They legitimize public governance, obligatory norms and rules, which function in the society, determine belonging of any individuals to corresponding society (Kataeva et al., 2016; Hirschmann, 2016; Fomicheva et al., 2017).
The issue of interconnection between law system and state is of crucial importance if one wants to understand the nature of legal system, its structure and laws of development. The point of view, according to which functioning of legal system is realized within state system as its subsystem, is considered wrong (Mack, 2002). The concept of legal pluralism gets more support. According to it, law is not defined only in terms of the relation to national legal system or through its direct inclusion in national legal norms. Law can exist in national, supranational and subnational dimensions. As a result, several competitive and interacting legal systems can function within one space (Levine, 2010).
Law requires special institution, which would control obedience to existing rules. Efficient solution to this issue becomes possible with the help of neutral (unbiased) and qualified public governance (Andreopoulos, 2018). According to tradition, performance of this function is the responsibility of state as the representative of society, which has necessary resources for this. In Eastern legal systems this function can be effectively performed not only by government but also by other subjects (communities). This aspect determines one of the main peculiarities of legal systems (Sajó, 2006; Baynova, 2016).
Normativity is an important characteristic of legal system, which is formed by means of repetition of social relations based on equivalence of exchange of activities, which are reflected in mutual rights and duties of their members (Börzel & Risse, 2009). An obligatory feature of normativity is that it relates to others (everyone), is formed and implemented in the public, and therefore, is guaranteed by public institutions. It allows restricting legal system from other social systems, to prove legal character of corresponding law systems: they differ from other systems in that they establish mutual rights and duties of members of social relations and are supported by public government. It is the question of regulation of the most significant social relations by normative means with the aim to ensure proper functioning of society.
Methods of historical analysis, which presuppose factual basis and comprehensive fulfillment of the process of legal system development in state, were used in the work. Using historical method, it becomes possible to trace the genesis of development of legal system sources.
With the help of logic method, the introduced approaches to discovery of nature of legal systems and criteria of their association into legal families are generalized, and basic structural elements of legal system are defined. An important role in the study plays such logical technique as classification that allowed to determine place and role of concrete legal system on legal world map and to forecast ways of further development of both separate legal systems and their association. Alongside with classification, methodological potential of typologization was used, which represents the process of legal systems association based on theoretical model (type). Typology allowed showing comprehensive knowledge of an object and opening up its system-forming connections, significant features and traits of the whole system.
The use of systematic method and appeal to theory of social systems allowed to define features of legal system as a kind of social system, to determine its role and function peculiarities as subsystem of society. Formal-legal method was used during the study of religious texts, which have status of law resources in religious legal systems, and also practices of European court of human rights concerning cases related to freedom of religion or belief etc.
Comparative legal method was used at all the study stages. With its help the analysis of basic world legal families was carried out, what allowed to establish general and distinctive features of legal systems?
Some authors count down the beginning of development of legal system from England of ХVIth century, to be more exact, from 1531, when K. Saint-German pointed to the difference between Roman and English law and to the correlation in their development (Saint, 1604). After seventy years, in the year 1602, V. Fullback described legal world as an object, which came from three legal systems-Anglo-Saxon, continental and canon. And then, in the year 1701, Lord Holt wrote that "principles of our law come from civil law, and therefore, in many aspects they are based on the same principles" (Lane, 1701). This formula reflects self-perception of Europe of Modern time, when except for worlds at both sides of English Channel the influence of Pope was accepted to some certain extent (Bondaletov, 2015). However, the aforementioned division is typollogically right and real for today (Atanelishvili and Silagadze, 2018). This period is characterized by that almost till XIXth century the following peculiarities existed:
1. Nonsystematic research process.
2. Nondeveloped research methodology.
3. Study of law was of theoretical character.
4. National legal systems were underdeveloped.
In 1874 Gumersindo de Azcárate distinguished six groups of legal systems in his work «An Introduction to Comparative Law ("Ensayo de una introduccion al estudio de la legislacion comparada y programa de esta asignatura") (Gumersindo, 1874):
1. Neo-Latin legal systems (France, Spain, Portugal, Italy, Belgium, Latin America).
2. German legal systems (Germany, Holland, Switzerland, England and Ireland, Scotland, USA).
3. Scandinavian legal systems.
4. Slavic legal systems (Russia and other Slavic people).
5. Legal systems of other European Christian civilizations (Greece, Malta, Ionian Islands).
6. Legal systems of other civilizations:
1. Turkey, Egypt, Tunisia.
2. India, China.
In a while, E. Glasson's classification became the leading one, which was introduced in his book "Civil Marriage and Divorce" ("Le Mariage civil et le divorce") (Glasson, 1880). In fact, this work was the basis of private law, and in the first time, it represented the basis of theoretical statements on marriage and divorce processes in European countries. However, not only does the author analyze comparative fundamentals of legal regime, but also strives to legal system classification. He builds it on Roman law and shows the possibility of its distance from other sources of law. The general drawback of the suggested classification lies in that it is limited with the European continent. In particular, the author distinguishes:
1. Legal systems, which were considerably influenced by Roman law (Italy, Spain, Portugal, Romania and Greece).
2. Legal systems protected from Roman law influence (England, Scandinavia and Russia).
3. Legal systems, which combine Roman and German, influence (France, Germany and Switzerland).
Meanwhile, Beviláqua, author of Civil Code of Brazil 1916, developed his own classification based on legal impact on the other continent in Brazil and introduced it 1893 in his work "Lessons of Legislation Compared Under Private Law" ("Lições de legislação comparada sobre o direito privado") (Beviláqua, 1897). Beviláqua's typology is similar to Glasson's, but consists of certain specifications. He distinguished the following legal systems:
1. Legal systems without any influence (England, Scandinavia, USA, Russia).
2. Legal systems considerably influenced by Roman law (Spain, Portugal, Italy, Romania).
3. Legal systems influenced by Roman, German and national laws (France, Germany, Belgium, Holland, Switzerland).
4. Latin American legal systems.
In 1900, Adhémar Esmein (France) combined such criteria as history and general structure in his work "Comparative legal studies and legal education" ("Le droit comparé et l'du droit") and classified legal systems into the following groups (Esmein, 1905):
1. Roman (France, Belgium, Italy, Spain, Portugal, Romania).
2. German (Germany, Scandinavia, Austria, Hungary).
3. Anglo-Saxon (England, USA, English colonies).
The development of legal world map by means of different legal system classifications according to fixed family characteristics, which are expressed in their main mission, shape, structure and functioning model, became task of contemporary law of XXth century that at that time had developed, in order to be a real movement.
The problem of legal system classification was considered as one of the prime topics of comparative researches at the First International Congress of Comparative Law in Paris in 1900. Members of the meeting did not have a clear vision of methods of legal system classification and mostly acted on a hunch; according to their views, there were distinguished French, German, Anglo-American, Slavic and Muslim legal families. At this Congress, demonstrating his own scientific concept, Esmein said that every institute should have been studied, as far as it is possible, from different aspects, which he covered in every of initial legal systems. It would enable to classify law of different nations into several groups, every of which was original legal system. Interestingly, some members of the Congress paid attention to the existence of religious legal systems (Islamic and Judaic laws, in particular), their partial similarity and pointed to their profound opposition to the spirit of Western law.
Another representative of Brazil school of Comparative Law-Candido Louis Maria de Oliveiro in 1903 he suggested more detailed typology, which was developed by Clovis Bevilacqua, having added Greece to the legal systems that were influenced by Roman law, Austria, Hungary, Serbia, Montenegro, French colonies, Bulgaria and Turkey to legal systems influenced by Roman and German laws, and distinguished countries of Latin America as a separate group.
In 1913 Georges Sauser-Hall (Switzerland), taking racial (or ethnographic) approach as a basis, distinguished the following in his work "Functions and Method of Comparative Law" ("Fonction et méthode du droit comparé") (Sauser-Hall, 1913):
1. Law of Aryan and Indo-European people:
2) Iranian, and Persian, Armenian and others in particular.
3) Celtic, and Welsh, Irish, Gaelic in particular.
4) Greco-Latin group, which includes Greek, Roman, Neo-Latin groups.
5) German, or Teutonic group, which includes Scandinavian, Holland and Swiss groups.
6) Anglo-Saxon, which combines English, Anglo-American, New Saxon groups.
7) Slavic, which includes – Russian, Slovenian, Czech, Polish, Bulgarian and others.
2. Law of Semitic people:
3. Law of Mongolian people:
4. Law of barbarians.
This approach was supported in 1919, when in Paris there were distinguished only French, Anglo-American and Muslim legal families. French scientist Henri Levy-Ullman in his work "General observation of private law in foreign countries"("Observation generales sur les communications relatives au droit prive dans les pays etrangers") in 1923 took law sources and legal evolution as a basis (Levy-Ullman, 1923). Based on that, the following systems were distinguished:
1. Continental legal systems (written law).
2. Legal systems of England (common law).
3. Islamic law.
We want to point out that in our study notions "Islamic law" and "Muslim law" is used as identical, but notion Islamic law is preferred. It is worth mentioning that "Islam" is derived from s-l-m. When vowels are added, we get a word "Islam". A term "Muslim" is also based on s-l-m, it means a man, who obeys God's will and is an adherent of Islam. A term "Islam" is usually used to denote religion or certain community and is never used to denote a person, who practises Islam. The use of notions "Islamic community", "Islamic art" are considered correct, "Islamic person” is not. A term "Muslim", by contrast, can be used to denote all people of Islam faith, but not to denote faith itself (term "Muslim religion" is not appropriate).
One of the founders of American Association for the Comparative Study of Law J. Wigmore describes a great number of legal systems of the past and the present in his comparative-historical survey "Panorama of the world's Legal Systems", which was prepared in 1928 for American lawyers (Wigmore, 1936). However, it is hard to say what exactly the author tried to do - to provide classification or just review legal world map: he distinguished Egyptian, Mesopotamian, Hebrew, Chinese, Hindu, Greek, Roman, Japanese, Muslim, Celtic, Slavic (Czech, Polish, Yugoslavian, Russian), German, Maritime, Ecclesiastical, Romanesque, Anglican legal systems. At that time, this three-volume work of 1200 pages became one of the biggest complete works, which characterized basic world legal systems.
In 1934 Enrique Martínez Paz, an Argentinian comparativist, divided all legal systems in the following groups in his work "Intrduction to Comparative Civil Law" ("Introduccion al Estudio del Derecho Civil Comparado") (Paz, 1934):
1. Barbarian law (England, Sweden, Norway).
2. Barbarian-Roman law (Germany, France, Austria).
3. Barbarian-Roman-Canon law (Spain, Portugal, Italy).
4. Roman-Canon-Democratic law (Latin America, Switzerland, Russia).
In 1950, scientists from three countries-Pierre Arminjon (Egypt), Boris Nolde (Russia) and Martin Wolff (Germany)-designed a typology according to "power centres". According to this criterion, the following systems were distinguished:
1. French law.
2. German law.
3. Scandinavian law.
4. English law.
5. Russian law.
6. Islamic law.
7. Hindu law.
In this case, the basis of distinguishing family groups was not an ideological decision, but an approach based on genealogy and history (Kozyrev et al., 2016). The models were distinguished for countries, which are metropoles, and also for dominions, which obligatory take certain fundamentals of legal family for their legislation. Consequently, the structure of metropole legal family is adopted by not only countries under governance but also neighboring countries, which mostly depend on metropole.
In that year a French comparativist R. David, who subsequently became renowned in the whole world, published his work "Treatise on Comparing Civil Law" ("Traité élémentaire de droit civil comparé"), in which taking ideology as the basis of distribution he distinguished the following (Paz, 1934):
1. Western law:
1. French group.
2. Anglo-American group).
2. Socialist law.
3. Islamic law.
4. Hindu law.
5. Chinese law.
In 1934 F. Cañizares suggested another version of this classification, which he considerably simplified and brought to the form of Levy-Ullman's classification (1922): Western (Christian, but not authoritarian), Soviet (atheistic and collectivist) and religious, which comes from religious principles (Canon, Hindu and Muslim), Chinese (with pseudoreligious philosophy, where law is of moral nature) laws.
F. Northrop's typology in his work "The Complexity of Legal and Ethical Experience. Studies in the Methods of Normative Subjects" 1959 is built in classical style (Northrop, 1959) and is based on specificity of the Far East. It consists of the following legal groups:
1. «Intuitive, mediate» (Confucius, Buddhist, Taoist, Neo Aryan Hindu).
2. Corresponding to natural history (classic China, Manu, renowned Indian Aryan conquerors, Muslim Law Codes, Roman law before Stoics).
3. Abstract contractual.
1961, K. Kulcsár suggested classification based on dichotomy: exploitative (self-protection, impact on external behavior only by means of restrictions) and socialist (also building of new society, where focus education completely transforms a person) laws (Kulcsár, 1961). In that year Adolf Schnitzer founded a concept in his work "Comparative Legal Studies" ("Vergleichende Rechtslehre") (Schnitzer, 1961), which was based on history of law. On this basis, the following was distinguished:
1. Law of culture-people of the Mediterranean.
2. Euro-American legal sphere.
3. Religious law containing Jewish, Christian and Islamic laws.
4. Law of African-Asian people.
Consequently, this system was further developed, since there appeared division of Euro-American legal system into Romanesque, German, Slavic and Anglo-American.
Among the influential works of that time, it is necessary to mention Italian lawyer А. Grisoli's "Course of Comparative Private Law" ("Corso di diritto private comparator") (Grisoli, 1962). The basis of vision of legal world map was historical criterion. He distinguished five types of legal systems:
1. System of codified law (Latin and German types of system).
2. Anglo-American system.
3. Religious system (Canon law, Muslim and Hindu laws).
4. Soviet legal system.
In 1962, V. Bose proved in his publications that the only criterion of classification could be nature and measure of "loyalty to authority of law" (Bose, 1962). Therefore, there are two opposite poles and different transient states in law classification: Western (this law is so strong that it is impossible to imagine changes in its basis), transient-Western-oriented (India, Malaysia, Jordan, partially Africa)-partially Western-oriented (Burma, Pakistan and Turkey)-dictatorships according to law (Indonesia, Guinea)-complete chaos (Kongo)-Communist law.
J. Gorla in 1963 developed a division of the world into two parts, which is represented as hegemony of one certain standard by power able to suppress others. The author introduces the typological background of his concept, according to which the opposition between capitalist and socialist laws is completely different from opposition between Roman-German and Anglo-American laws. As he explained, the basis of division into Continental and Anglo-Saxon laws is just formal difference, whereas capitalist and socialist laws differ in sense.
As we can see, among works of that time scientists preferred genetic-historical criteria in legal system classifications. However, as it is reasonably emphasized in literature, despite the fact that law in society can be explained only by its history, often Ancient history, by means of comparison of foreign legal history in particular, in case of failure in differentiation criteria, the mistake can appear in the question about what legal system can be successfully implemented in national legislation. In addition to this, further legislative acts will bear the imprint of the wrong choice. For instance, the French Civil Code of 1837, which functioned on the Polish territory, changed to the Code of Obligations of 1937, which was developed under influence of Swiss law. If we use this information and rely on comparative methodology of Arminjon, Nolde and Wolff, we can confidently refer Polish legal system to French or German laws. However, Poland has not belonged to one of the aforementioned groups; because it’s legal system was built according to socialist principles.
Nevertheless, in the history of comparative law there are examples, when basic criterion of legal system classification is ideological one. Brazilian scientists S. Pereira, taking the mentioned criterion as a basis, in his work "The dimension of Western legal culture" ("Unidade da cultura juridica occidental") 1954 distinguished four legal families (Pereira, 1954):
1. Common law.
2. Roman-Christian legal system.
3. Soviet law.
4. Philosophic-religious family, which includes Muslim, Indian and Chinese legal systems.
Spanish comparativist J. C. Tobeñas introduced in his works similar approach to law classification. In 1957 he published book "Contemporary Legal Systems of the Western World" ("Los sistemas juridicos contenporaneos del mundo occidental"), where he stated that legal systems should be classified according to their functionality (Tobenas, 1957). In particular, he distinguished bigger blocks of differentiation. He suggested studying historical and cultural basics in every legal family. For instance, he considered Roman and Canon law as systems, which can be called historically fundamental, since their principles had been still used in several legal systems. In fact, the whole Western law is built on these principles, which the contemporary legal system cannot reject. Then he distinguished sources of law, which, actually, can be influential, but not completely implemented. He added to these sources English and American laws. He also studied association of systems, which was shaped under the influence of legal systems of Christian states, and where he put all the countries, which were influenced by late Roman and Byzantium laws. Furthermore, he distinguished another group for countries, which were influenced by two or more legal systems, such as legal systems of Scotland, Quebec.
In 1962 R. David's book "Basic modern legal systems" was published ("Les grands systèmes de droit contemporain"), where he introduced a triad of legal families-Roman-German law, common and socialist law, taking as a basis complicated criterion (in fact, group of criteria) – legal technique and notions, legal outlook and ideology (David, 2002). He combined all other legal systems under relative name "Other types of social structure and law", among which he studied Muslim, Hindu and Indian laws, and also legal systems of African and Far East countries. The epoch of complex criteria for legal system classification was coming.
In XXth century, the study of legal families was added with notion of style and impact of not only on documents of another legal system or family but also on general structure of legal framework. K. Zweigert and H. Kötz developed previously constructed typology in their work "An Introduction to Comparative Private Law" ("Einführung in die Rechtsvergleichung auf dem Gebiete des Privatrechts") (Zweigert, 1987). They included sources of legal system, visual legal thinking, and methods of legal system definition and possibility of separate legal system formation into notion of legal style.
Interestingly, in 1998 these authors, K. Zweigert and H. Kötz reduced the aforementioned legal systems to four. These four are "big world legal systems", but they all come from Europe within European Union: Roman, German, Nordic and common legal family. However, critics say that sometimes there is a need to divide legal systems only according to geographic structure.
In 1974, Alan Watson coined the term "legal transplants" in the notion of comparative law, which is fixed nowadays. He considered rules as legal transplants, having in mind not only statutory rules, but also law institutes, legal notions and structures, brought from other legal systems (Watson, 1993). According to A. Watson's concept, the explanation of legal transplants lies in the necessity of authority (Kozyrev, 2015). The scholar referred to that in case of the absence of legislation, which is usually not enough for private law, law-making remains the responsibility of judges and lawyers, who, however, are not authorized to make law. They should substantiate their opinion. It is not enough for them to say: "This is my decision, because the result satisfies me". They should ensure authority of their decision.
In 1982 another R. David's work appeared, where he continued developing his approach to legal systems grouping (Grands Systèmes approach) and distinguished families of Roman-German laws, common law, socialist law, and also philosophical and religious systems (Muslim law, Hindu law, Far East law, African and Madagascar law).
It should be admitted that classifications of legal families, which were suggested by R. David, K. Zweigert and H. Kötz, remain the most popular among scholars of comparative law. It is hard to find textbook on comparative literature, where is no reference to two mentioned approaches to grouping of legal systems into families. However, some scholars fairly point out that these approaches do not correspond to the modern legal world map, and subsequently, cannot meet research requirements in comparative law. We need to look for new approaches.
Surely, both classifications of that time gave a considerable impulse to research of comparative law and were the most widespread in the whole world in late XXth century. Nevertheless, each of them is not perfect. Firstly, such classifications are incomplete, because they do not cover all legal systems. Even R. David said that his trichotomy covered only one fifth of the Earth. Secondly, sometimes legal systems, which have nothing common, or even have opposite features, are associated in one group. We mean grouping within one classification group of religious and traditional legal systems. Thirdly, in these classifications the logic is disrupted, because it is inappropriate to study certain systems, for instance, Muslim law as legal families. They do not include other legal systems.
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