1. Comparative Law – Continental Law
Prof. Giorgio F. COLOMBO

2. Legal Families: Partitions and Problems
Lesson n.4

3. Legal Families
In Comparative law, scholars usually divide the various legal systems of the world in groups, called “legal families”.
This partition has several purposes, mainly:
making easier to study legal system, as coherent groups are easily understandable;
finding common traits, features, history;
identifying original models and derivate models.

4. Traditional Families
Many scholars of Comparative law tried to create groupings of legal families, using different parameters and criteria, with different results. Some famous examples are:
Arminjon, Nolde, Wolff (1950): 7 families
David (1964): 4 families
Zweigert & Kötz (1977): 6 families

5. Arminjon, Nolde, Wolff
Arminjon, Nolde, Wolff, used the following criteria:
Originality  to what extent a system expresses an original model
Derivation (historical origin)  common historical origin of different legal system
Common elements  sources of law, training of lawyers, etc.
They identified the following families:
French
German
Scandinavian
English
Russian
Islamic
Hindu

6. David David used the following criteria:
Ideology  whether political, philosophical, religious, etc.
Legal technique  how laws and rules are formulated, codified, interpreted, applied.
He identified the following families:
Romanistic-German
Common Law
Socialist
“Other systems” (Jewish, Hindu, Far Eastern, African, Malagasy)

7. Zweigert & Kötz Zweigert and Kötz used the following criteria:
Historical background
Legal thinking  e.g. abstract norms, decisions
Institutions  estoppel, trust, juristic act, etc.
Sources of law  constitutions, codes, judgments
Ideology  political, economic, philosophical
They identified the following families:
Romanistic
Germanic
Anglo-American
Nordic
Far Eastern
Religious

8. An Example  Germanic Family
The “Germanic” family (Z&K) is centered on German Law. It includes several different countries:
Germany
Austria
Switzerland (but the Swiss Code is much simpler than the German Code)
Turkey
Greece  why?
(1832, Treaty Of London, Grecian Independence. Otto von Wittelsbach is appointed king of Greece)

9. The case of Turkey inside the Germanic Family
Turkey and the influence of the Swiss Code
A very peculiar case of legal transplant: the Turkish ministry of Justice had studied in Switzerland
Conflicts between traditional law and State law in the period 1926 – 1929

10. The case of Japan outside the German Family
Japan and the influence of the German System
Why is not Japan in the “German” Family?
“Far Eastern” Legal Family
“Importing” legal systems: which way is the best?

11. An Old Approach?
As it may be noticed, although those divisions are still studied today, they are quite old (1950, 1964, 1977).
Two fundamental questions:
1) Were they accurate in the first place?
2) Are those categories still fit for contemporary world?

12. 1) Conceptual problems
These approached are marked by two conceptual problems, one underestimating differences, the other overestimating them. Another problem relates to State law and religious rules.
“Eurocentrism” (or “Westerncentrism”)
“Legal Orientalism”
Religious rules vs. State rules

13. Eurocentrism
Basically any categorization tried so far is centered on Continental Europe and UK-USA.
This was legitimate by the fact that most legal system of the world now have adopted a model deriving either from the Continental Europe (mostly France and Germany) or UK- USA Common Law.

14. Eurocentrism
However, this fails to give proper attention to local peculiarities and to the law in action.
In terms of “weight” given to non-Western systems (e.g. 211 pages vs. 37, Z&K).

15. Legal Orientalism
In the attempt to find peculiar features of legal systems, sometimes their characteristics are overemphasized.
e.g. China and Japan  a common cultural heritage (Confucianism) is still used today to make the part of a single legal family.

16. Japan in the dawn of comparative law
Advocay for broader cultural understanding (based on old cultural misunderstaing?)
Legal Cultures, Legal Paradigm and Legal Doctrine: Towards a New Model for comparative Law, 1998, 506 (Van Hoecke, Warrington):
«Conflicts are preferably not brought to the court but solved through reconciliation. If there is a trial, each party has to make reciprocal concessions, so that it can, eventually, be terminated amicably» (References: 80’s German Scholars after Kawashima and Noda; early Taniguchi)

17. (...) (Örücü, 2003) “Extraordinary Place”
(Tamm, 2011 – “Confucian Systems”) “And you must understand the impact in China still from traditional Chinese thinking. The Chinese like poetry and calligraphy and painting and money-basically they do like these activities better than law and lawyers. I think that is still true even if on the surface it may appear different”
Who in the world prefer lawyers to money? (with the possible exception of lawyers!)

18. Religious rules vs. State rules
These categorizations deal with system of norms coming from religion: Hindu law, Islamic law, Jewish law.
When dealing with this (or these) families, scholars also deal with the countries where such religious belief are widespread.

19. Religious rules vs. State rules
However, one should be really careful, as:
Hindu law (religious) ≠ Indian law (the laws of the Federal Republic of India)
Islamic law (religious) ≠ law of Islamic countries (in which there is some legislative reference to Islamic law) ≠ law of countries in which the majority of people is Muslim.

20. «Islamic» Law?
Sharī‘a
Purely religious body of law
Different schools
Countries which adopt Sharī‘a as part of their legal system
E.g. Saudi Arabia; Iran, Afghanistan
Countries in which the majority of people is Muslim
E.g. Senegal

21. «Islamic» Law?

22. Legal Families: Mattei’s «Triangle»

23. Menski’s «Kite»

24. Menski’s «Tertahedron»

25. 2) New Approaches to Legal Families
Converging legal systems/Legal Globalization
Are they really converging?
Which parameters should be the basis of categorization?
Technically: criminal law? Public law?
Culturally: importance of legal cultures. Tools from anthropology, sociology.
Is the “Socialist” family dead?
How to deal with re-Islamization?