by Hein Kötz
1. The concept of legal family
The doctrine of legal families seeks to answer the question whether and how the vast number of existing national legal systems can be divided into just a few large groups (legal families). Comparative lawyers have discussed this question time and again. Not only does it seem to be of a certain theoretical interest but the answers to the question may also provide some practical help by making it easier for the comparative lawyer to arrange the mass of legal systems in a persuasive order and to present these systems in a comprehensible way. The concept of legal families is also needed to define a mixed legal system since the latter is characterized by the difficulty of allotting it to only one or another of the existing legal families. Finally, if a legal system proves ‘representative’ of a certain legal family, it may be reasonable to concentrate on the study of that system and to treat its results as characteristic for the legal family concerned unless there is proof to the contrary.
2. Criteria of division
Different legal systems can only be treated as belonging to the same legal family if they are sufficiently ‘similar’, ‘related’, ‘affiliated’ or ‘close’ to each other. It is therefore of paramount interest to establish convincing criteria that would be helpful in concluding whether or not there is a sufficient degree of proximity. It comes as no surprise that comparative lawyers have not produced a uniform solution to the problem. Since they all have special purposes in mind or a particular thesis to prove, it is entirely legitimate for them to decide what legal systems to deal with and how to group them in the way that best suits their purpose or thesis. In 1961 Konrad Zweigert proposed a number of different factors which, if taken together, would constitute the specific ‘style’ of a legal system. In his view, factors crucial for the distinctive ‘style’ of a legal system include its historical background and development, its predominant and characteristic mode of thought in legal matters, especially distinctive legal institutions, the kind of sources of European private law it acknowledges and the way it handles them and ideological factors. He said nothing, however, on the relative weight each factor should be given. In the end he came up with a number of legal families which were not very different from those other authors had already proposed on the basis of other criteria: there was the legal family of the common law and the civil law which was to be subdivided into the Romanistic, the German and the Scandinavian legal families. There were the socialist legal systems (socialist law) which have meanwhile practically disappeared from the inhabited globe, and finally Islamic law, Hindu law and the family of the Far Eastern legal systems which included at the time the laws of Japan, Korea and the People’s Republic of China. This division was used in the comparative law treatise of Zweigert and Kötz (1st edn, 1971), but had been used earlier in similar form by Arminjon, Nolde and Wolf and by René David.
Over the last years the doctrine of legal families in its ‘classical’ form has increasingly been criticised. However, the ‘classical’ doctrine is nowhere as dogmatic and narrow-minded as it has sometimes been made out. René David pointed out a long time ago that most classifications of legal systems merely pursue a didactic purpose in that they are intended to show the novice how the confusing variety of legal systems may be put into some kind of loose order. The experienced comparatist on the other hand, will soon develop a ‘nose’ for the distinctive style of a national legal system and will either not use the device of legal families at all, or will use it with all the circumspection called for by any attempt to force into a schematic order social phenomena as highly complex as living legal systems. Nor has it ever been alleged that the criteria used for the purpose are fixed and immutable; instead they may be selected on the basis of what each author thinks is relevant in the light of the subject matter, method or purpose of his or her comparative endeavour. It is no coincidence that the ‘classical’ doctrine has been developed in books dealing with private law. Obviously, one may use other criteria and come up with other classifications once the comparative approach is applied to constitutional law, criminal law, family law, or the law of succession or if one seeks to discuss, on a comparative basis, the law relating to unfair competition or the regulation of securities. Never has it been argued by the ‘classical’ doctrine that legal systems have a réalité biologique (René David). Instead, since they are not static but constantly in flux, any division of the world’s legal systems into families is susceptible to alteration as a result of political upheavals or social change and economic development. Likewise, a classification that might make perfect sense if used with respect to earlier phases of historical development will be inapplicable to present, let alone to future conditions. For this reason it may be preferable to follow the approach taken by Patrick H Glenn and to differentiate not between legal families, but ‘legal traditions’.
It has also been criticized that the ‘classical’ doctrine tends to focus on the ‘law in the books’ rather than on the ‘law in action’ and relies too heavily on a legal system’s legislation, case law, legal institutions and taxonomic peculiarities. While some books may have fallen into this error, if error it is, there is no doubt that authors are perfectly free to accord more weight to other factors and to concentrate on what has been described as the ‘living legal culture’ (Lawrence M Friedman) of a legal system, ie the mentalities, attitudes and approaches individuals entertain as to their legal system’s normative texts, institutions and procedures (legal culture). Thus for Atiyah and Summers the character of a legal system depends very much on whether ‘form’ or ‘substance’ predominates in its judicial reasoning, its interpretation of statutes, or its court procedures. After analysing and comparing the case law, the legislative techniques, the role of judge and advocate, and the nature of legal training in England and the United States, they conclude that the two legal systems are really very different, so different indeed that many readers will think that English law, with its tendency towards more formal argument, is closer to the continental systems than to that of the United States. In analysing legal systems and forming clusters on the basis of their proximity one might also concentrate on the training, professional organization, economic interests and social ranking of its most prestigious lawyers, called Rechtshonoratioren by Max Weber. Some countries have ‘weak’ legal systems because their courts do not function, take years to come to a decision, are not accepted as mechanisms for the resolution of disputes, or produce decisions which cannot be enforced in practice. Research based on methods derived from economics, political science, sociology and anthropology may determine the incentives moulding human conduct in these countries, and distinctions and classifications may be developed along these lines as well.
Pierre Arminjon, Boris Nolde and Martin Wolff, Traité de droit comparé I (1950) 42 ff; Adolf Schnitzer, Vergleichende Rechtslehre, vol 1 (2nd edn, 1961) 133 ff; Konrad Zweigert, ‘Zur Lehre von den Rechtskreisen’ in Twentieth Century Comparative and Conflicts Law: Legal Essays in Honor of Hessel E Yntema (1961) 24 ff; Léontin-Jean Constantinesco, Rechtsvergleichung, vol 3 (1983) 73 ff; Patrick Atiyah and Robert S Summers, Form and Substance in Anglo-American Law—A Comparative Study of Legal Reasoning, Legal Theory and Legal Institutions (1987); Lawrence M Friedman, ‘Some Thoughts on Comparative Legal Culture’ in Comparative and Private International Law: Essays in Honor of John H. Merryman (1990) 49; René David and Camille Jauffret-Spinosi, Les grands systèmes de droit contemporains (10th edn, 1992) 13 ff; Tony Weir (tr), Konrad Zweigert and Hein Kötz, Introduction to Comparative Law (3rd edn, 1998) 63 ff; Hein Kötz, ‘Abschied von der Rechtskreislehre?’ (1998) 6 ZEuP 493; H Patrick Glenn, Legal Traditions of the World (2nd edn, 2004); H Patrick Glenn, ‘Comparative Legal Families and Comparative Legal Traditions’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (2006) 421.