The Doctrine of Legal Families
The theory of legal families represents an attempt to place legal systems into larger groups according to specific criteria. The term "legal family" is used by various sub-disciplines within the legal sciences, such as comparative law,1 legal methodology2 and the history of law,3 (as well as other disciplines such as legal anthropology) but not always in identical fashion. Terms such as "legal styles" and "legal cultures" are also used;4 the latter is used more frequently in other disciplines such as sociology, ethnology or the political sciences.
Addressing the question of the classification of global legal matter is still a relatively recent undertaking – at least by Western legal sciences. Indeed, the division into legal systems is difficult to date. With notable exceptions, such as copyright law or patent law, which very early followed (and still follow) an international orientation, European jurisprudence concentrated on Western legal systems until the end of the 19th century. The German "universal jurist"5 Josef Kohler (1849–1919) did undertake a comparison of all the legal systems of the world with which he was familiar,6 but did not classify them into legal systems.
One classification was that made by the French scholar of comparative legal studies Adhémar Esmein (1848–1913). Writing at the beginning of the 20th century, he put forward a division into the Romance, Germanic, Anglo-Saxon, Slavic and Islamic legal sytems: "Il faut classer législations (ou coutumes) des différents peuples, en les ramenant à un petit nombre de familles ou de groupes, dont chacun représente un système de droit original … ".7
His writings make constant reference to the "civilisation occidentale" and similar expressions. His taxonomy located the Latin-American legal system firmly in the Romance legal family ("groupe latin") and classified Scandinavian law as one branch of the "groupe germanique". In a further step, he even identified a fifth grouping, standing somewhat apart from the other families: "le droit musulman", which was mainly of interest to him in regard to the Islamic populations of the European colonies.8 Thus, until the mid-twentieth century, scholarship in this area remained firmly Eurocentric, conceiving of extra-European legal systems as only "colonial" branches of the European centre and worthy of consideration only for reasons of legal practicality.
The concept of a separate Slavic legal system as proposed by Esmein9 was discarded very quickly, displaced as it was by the "political" designations "Russian," "Socialist" or "Marxist". Already Pierre Arminjon (1869-1960) contradicted Esmein in developing his "système russe" or "soviétique".10 Writing of the "Russian" or "East European" legal family, Wieacker underlines that "infolge der Errichtung einer sozialistischen Rechtsordnung" there was the "Eindruck der Distanz von den westlichen Rechtsordnungen".11 The countries of South-East Europe on the other hand were subject to the influence of Ottoman and Byzantine secular law and Orthodox canon law until well into the modern period.12 The 19th century saw a swing to emulation of the continental legal systems (Code civil, the German historical school etc.). This applied to the majority of the Slavic nations – at least in regard to private law – which first developed into independent states only in the 19th century.
A Widened Perspective: The Incorporation of Extra-European Legal Systems
Traditionally, comparative legal scholars and legal historians concentrated on studying continental European and Anglo-American law, confining their occasional extra-European excursions to those areas influenced by these two systems (such as Latin America, China and Japan). Only for a few decades, and following the onset of globalization, have legal studies begun to incorporate other non-European legal systems as a subject of independent study. This widened perspective is reflected in the increasingly nuanced division of legal systems sometimes undertaken even by the same author.13
Thus, legal families which had been subject to intensive research, but from a colonial perspective, were now also being incorporated into this more wide-ranging legal history approach. For example, in a reversal of perspective, consideration of the Latin American legal sphere, long functioning merely as an example for the extra-European influence of Romance law, now addresses the question of the influence the colonial periphery had on Europe. Of particular interest and no less profit, the study of the relationship between colonial law and the legal system of the metropole, of missionary law as well as of the legal repercussions of the colonial experience in Europe has led not only to new findings but to the generation of fresh perspectives on these legal families. Examples of this shift in interest were the new approach taken to legal documents in the Spanish and Portuguese colonial archives or papal records regarding Latin America.
Although a European approach to legal history ("European legal history" etc.) initially represented a welcome expansion of the previously narrowly-focussed national approach, the adjunct "European" is just as restrictive, confining its scholars to a narrowly euro-centric position. With the rise of the current globalized approaches – "transnational history", "Atlantic history" and "imperial history"14 – this perspective should be viewed not as the only legitimate vehicle of inquiry but rather as supplementing older fields of research.15
Widened Perspectives of Inquiry in Regard to Legal Materials
The doctrine of legal families was first developed for use with private law, following the various projects of civil law codification and assessing their impact and reception.16 Such attempts at bundling and classification were then applied to other areas of law (criminal law, public law etc.), although it should be noted that a country's individual legal areas can be allocated to different legal systems (private law, public law). Attributions can even vary within a single area of law such as the differentiation common in private law between family and inheritance law on the one hand (which can be influenced by religious elements) and property law (real estate law and the law of obligations) on the other. Zweigert and Kötz speak of "materiebezogener Relativität" ("material-related relativity"). 17
Period-Related Division and the General Critique of the Doctrine of Legal Systems
This division into various legal systems is not a fixed constant, but is better understood as a flexible taxonomy within which different criteria exercise a leading influence at different times. It is even possible for legal orders to "move" between legal systems. The classification into various legal systems is also subject to the principle of "zeitliche Relativität" ("temporal relativity").18 If the initial development of this division was influenced by the systematic thought prevalent at the time, the results of such period-specific considerations no longer reflect the changes in the understanding of this issue. In this vein, the claim that there existed "rights of the civilized peoples" assumes an apologetic character:
Digression: The Rights of the "civilized peoples", the "nations civilisées" or "naçoes cultas do mundo civilisado"
The positing of a legal community of the "pays civilisés" is a common assumption in the European legal history of the 19th and early 20th centuries. Many of the founding fathers of comparative legal studies such as Josef Anton Mittermaier (1787–1867) and Josef Kohler – as well as the authors of a number of international treaties – shared such a conception of the unity of the Kulturnationen and the corresponding international standard of good legislation as a part of the contemporary legal "Wertungswissen".19 We will confine ourselves to the mention of two examples:
The ascription of moral-ethical qualities to specific positions in legal-political debates exceeding the level of pragmatic positivism, often resulted in an (unconscious) demarcation from distant non-Western legal systems. For instance, the attitude towards capital punishment within a society or legal system was often taken as a measure of the level of social or political development. This also points to the strong belief in progress anchored within the fabric of 19th century European thought: "Nicht gleichgültig dürfte auch das Zeugnis der Geschichte aufgenommen werden, daß bei jedem Volke die Art der Auffassung der Todesstrafe von dem Grade der Gesittung abhängt, und daß, sobald das Volk auf eine höhere Stufe der Bildung gelangt (...), auch die Todesstrafe aus dem Gesetzbuch verschwindet ..." 20
Especially the area of intellectual property rights (a genuine international legal matter) often saw the demarcation of the "estados civilisados", "tous les peoples civilises" in legal considerations. "Le principe de la reconnaissance internationale de la propriété des œuvres littéraires et artistiques en faveur de leurs auteurs doit prendre place dans la législation de tous les peuples civilisés",21 as the 1858 Brussels international copyright congress expressed it.22 The draft of a Portuguese copyright law presented in 1839 also takes a similar approach,23 taking pains to point out that the individual European states were seeking to establish a general, internationally valid law ("estabelecer um direito commum e internacional").24 This declaration postulated the existence of a "grande alliança de todos os estados civilisados" (great alliance of all civilized states").25 When the community of civilized nations, the alliance of Kulturnationen etc. was addressed in this way, this was always associated with legal-political consequences. The nations who sought to be classified as "civilized" and who wanted to participate in international treaties made particular efforts to live up to these legal standards.26
Twentieth century hopes centred on the search for a unified European law and legislation and thus took great interest in comparative law and legal taxonomy. A further indicator for the temporal nature of the theory of legal systems is the fact that the (political) conditions for the delimitation of particular legal systems have disappeared almost entirely. A current example is the almost entirely defunct Marxist legal family. However, despite its disappearance in the wake of the upheaval of 1989/1990, it continues to attract considerable academic interest.27
Despite recent questioning of the value of the doctrine of legal families,28 the topic has retained a certain degree of acceptance as a tool of systematization. It should be borne in mind that the various criteria of classification have altered in their relative importance, with new measures rendering others obsolete. Thinking in terms of legal families has acquired the status of an auxiliary function, serving as a tool to further understanding the matter of "law".
The Criteria of Classification
The range of taxonomic criteria applied by the various approaches to grouping the total mass of global law is very great. The main factors include: language, geography/territory, socio-political elements and religious factors (especially as regards the significance of religion for the legal system as a whole or the legal actions of the individuals).
Language formed the basis of some of the earliest attempts to establish fixed legal systems, (for example that undertaken by Adhémar Esmein) yet served only as the (exterior) starting point for establishing further degrees of relation. The correlation between language and legal system is obvious in regard to the division into a Romance, a Germanic, an Anglo-Saxon and a Slavic group.
Apart from the immediately obvious geographical connection, a Far-Eastern or (South)-East Asian legal system consisting primarily of Japan and China but also Korea was regarded to be constituted by a disposition to out-of-court settlements, because of its origins in the shared Confucian tradition. However, such a consideration has been subject to considerable qualification in recent times. Despite their close geographical vicinity, the various legal systems are all embedded in highly differing political systems – a Communist regime of long-standing in China and a monarchical Japan subject to a variety of Western influences in the early twentieth century – and as such are increasingly being held apart by comparative legal scholars. A further matter of intense discussion is whether it is possible to locate the multiplicity of legal orders in sub-Saharan Africa, which have been a topic of study in the fields of comparative legal studies, legal sociology and legal ethnology for some time now, within a single "African" legal system.29 This controversy is fuelled by the presence of considerable divergence between the various nations which would be part of this putative family in terms of indigenous rights, the influence of religion and the relationship to the former colonial legal systems.
The best example of a legal system determined by a shared political system is or rather was the Socialist/Marxist legal system enforced by its supreme power – the Soviet Union.
Religion was first recognized as a factor active in shaping and distinguishing legal systems in relation to Islam (for example, Josef Kohler speaks of "Islamic" law). The widening perspective adopted by comparative legal studies and the resulting examination of extra-European legal orders not (or only to a limited degree) subject to influence from Western jurisprudence saw the incorporation of Hindu law into this analysis. Zweigert/Kötz deal with Islamic law and Hindu law under the term "religiöse Rechte" (religious law).30
The Source of Law
A significant criteria in establishing distinct legal systems – for example when considering the differences between the continental European and Anglo-American legal systems (civil law – common law) – is the dominance of Statutory law/Codification on the one hand and case law (precedents) on the other. It is the difference between two legal mindsets – the establishment of abstract normative standards through legislation and academia on the one hand and a decision-based procedure, i.e. a case law approach based on long-established judicial precedent on the other.
Legal History and the Doctrine of Legal Families
An examination of the historiography of the "doctrine of legal families" and its internal scholarly motivation reveals a re-orientation of the approach following the 1950s, towards the adoption of a European viewpoint and an investigation of the common European developments in this field, especially in the development of private law. In essence, the development of this perspective represents the precondition for the application and continuation of the doctrine of legal systems within the study of legal history. Europeanization initiatives were taken both by representatives of the Germanists including Hans Thieme (1906–2000) and Erich Molitor (1886–1963) and of Romanists such as Erich Genzmer (1893–1970), Paul Koschaker (1879–1951), Franz Wieacker (1908–1994) and Helmut Coing (1912–2000). Writing in his 1947 work "Europa und das römische Recht" ("Europe and the Roman Law"), Paul Koschaker formulated a comprehensive research project that connects investigating the European position of the Roman law with an attempt at a "Soziologie des Juristenrechts … aus einer vergleichenden Betrachtung des römischen, anglo-amerikanischen und französischen Juristenrechts" ("[a] sociology of jurisprudential law … from a comparison of Roman, Anglo-American and French academic jurisprudential law").31 In the course of European integration and the associated process of legal standardization within the EU, the terms "European legal area" and others are predominantly used in terms of their legal-practical aspects as representing the goal of a unified legal order within this community of states.
Two aspects of the history of the division into legal systems are now to be considered: firstly, the content and/or structure based connections of legal orders (legal family/system) and secondly, the spatial expansion and interrelationship between legal orders (legal family/legal sphere). As will become clear, these considerations can overlap.
Legal Family – Legal System
After close consideration of these and many other criteria, in their consideration of European legal development, legal historians have established two (sometimes three) large legal families: the Romance and the Germanic families (with the occasional reference to the Scandinavian tributary) which stand in opposition to the Anglo-American (Anglo-Saxon) and the Southern European legal families. Thinking in these conceptual boundaries began in the eighteenth century and was established on a lasting footing during the period of the "Nation states". The Romance family is generally seen to include France, Italy, Spain, Portugal, the Benelux states and the Romanic parts of Switzerland. The German family is made up of Germany, Austria (and many of the successor states of the Habsburg monarchy) and German-speaking Switzerland but also the 19th century Baltic states.32 The acceptance of a classification exactly in this form is not universal: in his history of private law, Hans Schlosser included the German-speaking legal family in a Central-European legal family.33 Moreover, a general consensus identifies a close relationship between the Romance and German legal families based upon their common origin in the reception of Roman-Cannon law (ius commune). In contrast, despite its independent development, Scandinavian law is closer to the Romance-Germanic legal family than the Anglo-Saxon model.
The concept of a legal family implies a certain relationship, origin and influence of a legal order on another; in such cases, comparative legal scholars speak of "mother and daughter systems".34
An excellent example of such a legal family is the group of laws with a common and direct origin in the wave of French legal codification at the beginning of the 19th century, especially the Code civil of 1804.35 The European zone of influence of the Napoleonic codification were the Romanic countries, subject to the varying influence of the cinq codes (the five codes introduced by Napoleon). The extra-European influence of this French legal innovation is also considerable: the validity of the Code civil in the former French colonies (at least for French citizens) was a matter of course. Indeed, the introduction of the code in the North American state of Louisiana (1808) and the Canadian province of Québec (1886) introduced long-standing "codificatory" enclaves within the predominantly common law system. Moreover, the French code served as the direct or indirect model for civil legislation in Latin America. The codification programmes of many South American states in the 19th century were subject to the influence of the French model, either directly, or via the Spanish or Portuguese Código civil, both of which followed the methods and content of the French statutes. In Santo Domingo, the Code civil introduced by the Haitian colonial overlords in 1825 is in principle still valid. Other states such as Argentina, Bolivia, Mexico, Peru and Venezuela more or less followed the French model,36 supplementing it with a number of innovations. The imitation and adaptation of the French statutes by other South American states extended the influence of French civil law, thus enabling us to identify a number of further "filiations." The French model also exerted a certain influence in Egypt, Syria and, most strongly, in Lebanon.37 Following the disappearance of the Soviet/Socialist legal system, the French system is second only to the Anglo-Saxon legal system in terms of the extent of its influence.
Legal Families as the Filiation of Municipal Law
One further aspect of the doctrine of legal families, which can only be touched upon within the scope of this article, is its association with late medieval and early-modern municipal law. For medievalists, the term "legal family" is associated primarily with the legal families of municipal law, investigating "mother towns" and "daughter towns" within the context of their legal relationship. The terms "Lübeck law"38 Baltic or "Magdeburg law"39 refer to the existence of a corresponding legal system and allude to a certain "ancestry" of municipal law.40 Such municipal legal families were also to be found in certain other areas of the empire, such as the Soest41 and Frankfurt42 municipal law families. A municipal legal sphere having developed from the "bestowal" of a significant and influential municipal law to another town usually involved an organizational and jurisprudential relationship between the mother town and her daughter.
Legal Family – Legal Sphere
This approach to the subject is based on geography, establishing legal families on a territorial basis, but can also factor in other elements such as language or religion. Noteworthy are especially the more recent treatments of the subject and predominantly those including extra-European legal orders as a distinct subject of research. One example of such an approach is the discussion of the delimitation and characterization of a Far-Eastern (East-Asian) legal system. Here there is only space for one example of the latest trends and discussions, putting special emphasis on the indigenous "non-Western" view of the doctrine of legal systems. Similar discussions are to be found within the debate on the possibility of establishing an African legal system.
Of the Western comparative legal scholars, René David was the first to consider China as a separate and independent legal system. His approach was to differentiate between law and convention as the main system of social norms; Japan was also classified on this basis. His works from the 1970s included Korea, Mongolia and Indochina in the "anderen Konzeptionen der sozialen Ordnung und des Rechts" ("alternative conceptions of social orders and law") which according to his analysis, comprised also the Islamic and Hindu legal orders.43 Similar criteria, based on the conception of law as a means for establishing a social order were also initially applied by Zweigert and Kötz. Proceeding from the different conceptions of law as a creator of order in human communities, and its value in comparison to conventional or non-judicial conflict resolution, "Far-Eastern" and "South-East Asian" law was grouped into an "East-Asian legal system." Kötz, however, was later to depart from this criterion and, in the third edition of his introductory survey to comparative legal studies (1996), he emphasises the differences between modern capitalist Japan and socialist China. He now separates Chinese and Japanese law as belonging to different legal orders.44
Western comparative legal scholars such as David or Zweigert and Kötz differentiate between three Asian legal families: West-Asia (characterised by the predominance of Islamic law), South-Asia (the Hindu legal system) and an East-Asian legal family which excludes the South-East Asian countries. Supplementing this schema, the Japanese scholar Kiyoshi Igarashi (Sapporo) pleads for the existence of an "East-Asian legal family", although he simultaneously concedes that this classification is a matter of disagreement amongst even his Japanese colleagues.45 If the opinion is being voiced here that "Asian legal research is a task for the Asian comparative legal scholars" this highlights a new tendency to move away from a Western-centric approach and to plead for an "indigenous" research perspective. These diverse approaches involving a tendency to delimit or summarize, also employ a great range of classification criteria within these legal families, and ascribe very different values to each of them. Some even result in the development of new criteria, in this case, those of economic geography such as rice-planting zones.46 Following Nobuyuki Yasuda, Igarashi has identified a unitary East-Asian legal system in which he includes China, Taiwan, Korea and Japan and ascribes this to their historical development. According to him, from the institutional-legal point of view, the East-Asian legal system does display similarities with the continental legal system, but in the course of the twentieth century, was able to develop its own independent legal culture, from which it derives the character of an independent legal system.47
Legal Family – Legal Style
If European legal historians and, to a certain extent, those involved in comparative legal studies concentrated on the area of legislation and codification, recent times have seen greater attention being accorded to jurisprudence and law enforcement. The term "legal style" was for instance, introduced by the comparative legal approach as practiced by Konrad Zweigert (1911–1996). Working from the perspective of legal history, Franz Wieacker had already pointed out that the "style" of lawyers within the Romance legal system was characterized to a greater extent by a "politisch-forensische Justizkultur" ("political-forensic culture of justice")48 than was the case in, for example, the Germanic system. As in the Anglo-Saxon legal system, in addition to its practical role of law enforcement, the justice system was accorded a public, political relevance. Despite the considerable extent of convergence amongst the European legal systems brought about by the European process of legal harmonization since Wieacker's times (he was writing in the 1960s), the differences in legal training between states still remains a constitutive and determining factor in shaping various legal styles and remains decisive in producing distinctions within historically related legal orders.
The attempt to classify the global mass of legal transactions according to a variety of criteria in groups of varying "density" and clarity, i.e. the development, discussion and critique of the classification into "legal systems", has been undertaken by various disciplines (such as the legal sciences and other humanities) since the late 19th and early 20th centuries. The variety of taxonomies developed have all been subject to great discussion in terms of the value of their interaction, each with "material-related" and "period-related" relevance. The extent to which the processes of globalization has brought the legal sciences and historians to deal with extra-European orders as self-contained areas of research has resulted in the development of new criteria and the appearance of new protagonists. Just as the term "civilized peoples" popular at the turn of the 19th to the 20th century and associated with a certain local dimension of law, was subject to increasing discussion, eventually to be discarded, so contemporary concepts such as the "Western world" or the "Atlantic world" are increasingly having their status as valuable conceptual terms questioned.49 The inclusion of dimensions such as "law" and the (legal) historical view of space, while presenting a constant challenge, represents a further attempt to reach sharper definitions. Both, the attempt to investigate the law in terms of space and the doctrine of the variety of legal systems are subject to constant flux. As a result, historians are constantly required to adjust their perspective to take account of this rapid change.