Transcript Slajd 1 - University of Wrocław

Criminal Law I
Cje
Lecture III
THE LEGAL FAMILIES OF THE WORLD
Karolina Kremens, LL.M., Ph.D.
Wojciech Jasiński, Ph.D.
Department of Criminal Procedure
Faculty of Law, Administration and Economics
University of Wrocław
Lecture III
THE LEGAL FAMILIES OF THE WORLD
OVERVIEW
can we divide the vast number of legal
systems into a few large groups (legal
families)?
how do we decide what these groups should
be?
if we decide what the groups should be –
how do we decide whether a particular legal
system belongs to one group rather than the
other?
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THE LEGAL FAMILIES OF THE WORLD
In what kind of groups you can divide legal
systems of our world?
What kind of criteria would you choose?
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THE LEGAL FAMILIES OF THE WORLD
Adhemar Esmein’s concept
Adhemar
century)
5 groups:
Esmein
(French
1. Romanistic
2. Germanistic
3. Anglo-Saxon
4. Slav
5. Islamic
lawyer,
19th
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THE LEGAL FAMILIES OF THE WORLD
Adhemar Esmein’s concept
‘we must classify the laws of different
countries, enacted or customary, by dividing
them into a small number of families or groups,
each of which constitutes an original system of
law and the teaching of comparative law, if it is
to be scientific, must start with a survey of the
historical sources, the general structure and
particular characteristics of each of these
systems’
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THE LEGAL FAMILIES OF THE WORLD
Adhemar Esmein’s concept
good division for Esmein’s time (the end of
19th century and beginning of 20th century)
Esmein’s criteria:
sources of law
race
at that time developed Marxist theory with
seperate concepts of criteria but will be
disregarded
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THE LEGAL FAMILIES OF THE WORLD
Arminjon’s, Nolde’s, Wolff’s concept
Pierre Arminjon, Baron Boris Nolde, Martin
Wolff
1950 – ‘Traite de Droit Compare’ (Treatise on
Comparative Law)
proposed the term ‘families’ instead of
‘groups’
systems should be studied, irrespective of
external factors such as geography or race
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THE LEGAL FAMILIES OF THE WORLD
Arminjon’s, Nolde’s, Wolff’s concept
7 families:
1. French
2. German
3. Scandinavian
4. English
5. Russian
6. Islamic
7. Hindu
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THE LEGAL FAMILIES OF THE WORLD
Rene David
Rene David, French lawyer
1985 – ‘Major Legal Systems in the World
Today: An Introduction to the Comparative
Study of Law’
two division criteria:
• ideology (religion, philosophy, political,
economical or social structure)
• legal technique
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THE LEGAL FAMILIES OF THE WORLD
Rene David
5 families
1. Western
2. Socialist (Soviet)
3. Islamic
4. Hindu
5. Chinese
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THE LEGAL FAMILIES OF THE WORLD
Rene David
3 families (changed his view)
1. Romanistic-German
2. Common Law
3. Socialist
group of ‘other’ systems: Jewish, Hindu, Far
East, African, Malaysian
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THE LEGAL FAMILIES OF THE WORLD
Zweigert’s and Koetz’ concept
Konrad Zweigert and Hein Koetz, German
lawyers
1998 – An introduction to comparative law
criteria:
the historical background
the characteristic way of thought
the different institutions
the recognized sources of law
the dominant ideology
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THE LEGAL FAMILIES OF THE WORLD
Zweigert’s and Koetz’ concept
6 families
1. Roman family
2. German family
3. Common law family
4. Nordic family
5. Family of the laws of the Far East
(China, Japan)
6. Religious family (Muslim and Hindu)
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THE LEGAL FAMILIES OF THE WORLD
ISSUES IN STUDIES OF LEGAL FAMILIES
•HISTORICAL DEVELOPMENT
•common law
•Germanic law (Germany, Austira and
Switzerland)
•French law (France, Spain, Portugal, South
America)
•why the Germanic and French law evolved
differently? – no impact of French postrevolution legislation on Germany
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THE LEGAL FAMILIES OF THE WORLD
ISSUES IN STUDIES OF LEGAL FAMILIES
•DISTINCTIVE MODE OF LEGAL THINKING
•approach to law:
•common law – case law, development
from decision to decision
•continental law – abstract legal norms,
well-articulated system containing welldefined areas of law
•great jurists:
•common law – judges
•continental law - professors
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THE LEGAL FAMILIES OF THE WORLD
ISSUES IN STUDIES OF LEGAL FAMILIES
•DISTINCTIVE MODE OF LEGAL THINKING
•facing problems:
•common law – predict how the judge
would deal with the problem
•continental law – ask what solution the
rule provides
•where the law comes from:
•common law – from the court
•continental law – from the study
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THE LEGAL FAMILIES OF THE WORLD
ISSUES IN STUDIES OF LEGAL FAMILIES
•DISTINCTIVE MODE OF LEGAL THINKING
•legal thinking:
•common law – concrete, in terms of
cases, the relationship of parties, ‘rights
and duties’
•continental law – abstract thinking in
terms of institutions
•the system:
•common law – the way is feeled
gradually from case to case
•continental law – complete and free from
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ISSUES IN STUDIES OF LEGAL FAMILIES
•DISTINCTIVE MODE OF LEGAL THINKING
•systematics:
•common law – sceptical of every
generalization
•continental law – inherent element of law
•distinctive
model
of
legal
thinking
corresponds with differences in mentality
which are the result of historical dev
•common law – improvising, experience
•continental law – regulating, systematizing
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ISSUES IN STUDIES OF LEGAL FAMILIES
•DISTINCTIVE MODE OF LEGAL THINKING
•these differences are not conclusive
•common law – in many areas the caseapproach does not exist and the law is
carefully structured by statutory law
•continental law – some rules don’t exist
and must be interpreted by the trial
chambers
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THE LEGAL FAMILIES OF THE WORLD
ISSUES IN STUDIES OF LEGAL FAMILIES
•SOURCES OF LAW
•statutory and case-law systems
•precedents
•differences are enormously exaggerated
•many case-law countries have highly
developed statutory law
•the distinctive method of legal thinking is
more important
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THE LEGAL FAMILIES OF THE WORLD
ISSUES IN STUDIES OF LEGAL FAMILIES
•IDEOLOGY
•important when making distinction between
legal families
•ideology – religions or political conception of
how social or economic life should be
organized
•examples:
•Islamic law
•Hindu law
•historical ‘socialist legal systems’
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THE LEGAL FAMILIES OF THE WORLD
ISSUES IN STUDIES OF LEGAL FAMILIES
•HYBRID SYSTEMS
•Louisiana
•Quebec
•Scotland
•South Africa
•Israel
•China
•Philippines