M1 T3 comparative law and legal families: grouping of legal systems

Question 1

What theory is important as we can not study the legal system of each nation to compare?

Answer 1

The theory of legal families

Question 2

Comparatist René David said: “Legal system of a given country at a given time in history is made up of (?)”

Answer 2

permanent and variable elements.

Question 3

What are permanent elements in law?

Answer 3

the collective legal conscience that entails certain stability. Legislative authorities can not alter it without social consensus

Question 4

What are variable elements in law?

Answer 4

transformed and renewed over time with relative frequency, or interpretation may vary from one place to another.

Question 5

what are the 6 juridical elements we take into account when grouping legal systems into Legal families?

Answer 5

• Historical origin and evolution
• System of sources
• Legal concepts and categories
• Methods of producing law
• Philosophical, economic or political principles that inform the system
• Institutions and procedures

Question 6

What questions must be asked and answered prior to classification?

Answer 6

1. Public or private law?
   In some legal families, public and private law belongs to different legal families
2. Time period?
   Define the precise period of time to be studied
3. Legal culture?
   include other areas of study such as history, philosophy and sociology
4. Criteria?
   are they based on one or several criteria? Importance of each characteristic will change according to the particular features of each legal system.

Question 7

What are the two most significant doctrinal classifications in classifying different legal families?

Answer 7

1. René David

2. Arminjon, Nolde, and Wolff

Question 8

What are the two criteria used by René David for grouping legal families, and what did he consider the main criteria?

Answer 8

1. Legal technique
2. Ideology(religion, philosophy, political/economic/social structure.)

Philosophical foundation as the main criteria-the conception of justice

Question 9

What do we mean when we say that René David applied a pragmatic perspective for a didactic purpose?

Answer 9

Understood a series of events, not ordered according to laws or rules with the purpose of teaching. Ex: cultural context

Question 10

How did René David group the different legal families?

Answer 10

1. Western law (pre-eminence)
   - The Roman/Germanic law
   - The Common law
2. The family of Socialist laws
   - Has practically disappeared
   - some believe it should be replaced by Russian law
3. Other systems. Those outside Europe
   - Islamic law
   Hindu law
   Jewish law
   Law from the far east
   African law and law in Madagascar

Question 11

A,N and W said legal systems should be classified according to their (?) and their analysis concentrated on (?)

Answer 11

substance; tangible and solid presence

originality, derivation and common elements

Question 12

Which factors did A,N and W discard?

Answer 12

geography and race

Question 13

Which legal families did A,N and W divide legal systems into?

Answer 13

French
German
Scandinavian
English
Russian
Islamic
Hindu

Question 14

Why did A,N and W make a distinction between the French and German legal systems?

Answer 14

They believed the historical evolution has been different.

French: France and other nations adopted the French civil code from 1804- The Napoleonic code

German: countries that took the German civil code as a basis

Question 15

What system did Arminjon, Nolde and Wolff view as a separate family as it is a hybrid system that is difficult to classify?

Answer 15

Scandinavian law

Question 16

What are 2 shortcomings of Arminjon, Nolde and Wolffs classification?

Answer 16

1. It only applied private law in its classification

2. It is Euro-Centric as 5 out of 7 are found within Europe.

Question 17

Whos classification was similar to Arminjon, Nolde and Wolff?

Answer 17

Zweigert and Kötz

Question 18

What did Zweigert and Kötz say about the “legal style” of the different systems?

Answer 18

That it is the most significant characteristic of each system, even though no conclusive element exists to deem factors as more important or essential.

Question 19

5 Factors of Zweigert and Kötz legal style

Answer 19

1. Background and historical element
2. Mode of legal thought
3. Existence of legal institutions with particular characteristics
4. Selection of legal sources
5. ideology involved: political/economic/social organization or religious elements

!! Each factor will vary according to the particular circumstances of each legal system.

Question 20

Example of how each factor of Zweigert and Kötz legal style classification vary according to particular circumstances

Answer 20

Ideology can be important when differentiating common law from Islamic law, but not as important when differentiating Common law from Roman/Germanic law

Question 21

What systems do Zweigert and Kötz highlight as hybrid systems?

Answer 21

Greece, South Africa and Quebec

Question 22

Why do we say that classifications of the legal systems are of relative nature?

Answer 22

It is merely about creating order in the chaos of different legal systems in the world and should be understood mainly as an instrument to teach rather than the answer sheet.

Question 23

What difficulties are presented in the classification process?

Answer 23

1. The existence of mixed or hybrid systems
2. When a system is of an individual nature that sets them completely apart from other systems
3. When systems have been produced by the fusion of two legal traditions.

Question 24

Must one always approach a legal system from the perspective of one single family?

Answer 24

No. To a certain extent, legal systems may possess features that are characteristic of various families. One can therefore approach a given system from the perspective of one family or the other.