1. Legal families

2. Outline Legal formants Legal traditions vs legal systems
Which legal families?
Criteria of classification
Common law and civil law
Hybrid or mixed legal systems
Socialist law: Still a valid category?
Islamic legal family

3. Legal formants (R. Sacco)
Legislation (codified rules)
Case law
Scholarship
(Customary law)

4. Legal tradition vs legal system (Merryman)
‘A set of deeply rooted historically conditioned attitudes about the nature of law, the role of law in the society, the political ideology, and the operation and organisation of a legal system’
Legal system:
‘An operating set of legal institutions, procedures and rules’
The legal tradition is the cultural dimension of a legal system

5. Legal families: classifications
1900: First international Congress of Comparative Law
Esmein (1905): Romanistic, Germanic, Anglo-Saxon, Slavic, and Islamic
David (1978): Romano-Germanic (civil) law, common law, socialist law, philosophical or religious law

6. Pros and cons of selecting legal families
Allows macro-comparison among ‘similar’ systems
Explanatory function
Most legal systems possess features that are predominantly identified with one or more of the three major legal families
Based on Western legal prototypes (biased classification)
Focused on private law
Does not encompass all possible legal systems of the world

7. Criteria to define legal families
Historical development
Mode of legal thinking
Sources of law

8. Common law v. civil law: Historical development
Battle of Hastings (1066). Normans conquered England
Unitary (feudal) system
“King could do no wrong”
Commoners: securing freedoms from an absolutist system (writs)
Justice administered by clerics, by itinerant judges and by the King
Based on Roman law, in particular on the Corpus iuris civilis or Iustinianeum ( ) 
Civil Codes (codification in Universities and by Parliaments)
French Napoleonic Code of 1804 and German civil code of 1900

9. Common law v. civil law: Mode of legal thinking
Court-based
From case to case
Parties and litigation in courts
(Codified) rule-based
From general principle to general principle
Existing enacted rules that plan and systematise everyday life. Litigation as extrema ratio

10. Common law v. civil law: Sources of law
Customary law
Case law and precedents (stare decisis doctrine). HoL 1966
Equity: principles of justice Appeal to the King against unfair decisions of King’s judges. Developed years after the ‘birth’ of common law
Legislation, to consolidate or clarify existing law, intended to build on existing case-law
Legislation (written and codified rules)
Scholarship (German tradition)
Customary law
The judge as the ‘bouche de la loi’

11. Common law v. civil law: Jurisdictions
England and Wales
USA
Australia and New Zealand
Canada
India and Pakistan
Continental Europe
Central and Eastern European countries
Turkey
Japan
Latin America

12. Common law v. civil law or convergence?
In common law jurisdictions legislation has become increasingly important
In civil law jurisdictions the role of judges and the importance of case law have changed
Explanations:
European Union, international organisations and treaty-making
Pluralistic societies

13. Hybrid or Mixed legal systems
Legal systems that show features of both civil law and common law families (usually because of the colonial past) Examples: Scotland, Louisiana, Quebec, Israel, South Africa, Greece, Puerto Rico, Philippines

14. Socialist legal family: Still a valid category?
Roots in ancient Roman law
Marxist-Leninist ideals
Marginalisation of the judiciary
Law as an instrument of State policy (protection of individuals neglected)
Supremacy of the State machinery, i.e. Russian Communist Party, over any other organisation
After the end of the cold war and constitutional transitions, very limited explanatory power of legal reality

15. Islamic legal family (brief overview)
Extremely fragmented reality
Sources (Shari‘a):
Koran (as the word of God)
Sunnah (traditions or known practices of the Prophet most of them codified in the Hadith)
Consensus of the Muslim community or of the jurists (Ijma)
Analogy used by judges (Qiyas)