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If you had to classify all the legal systems in the world, what would you do? Would you stress the singularity of each system or would you try to divide them into groups? And, in the latter case, how would you characterize such a group? These are some of the basic questions that a comparative lawyer faces. Well, there seems to be a general consensus that clustering legal systems is more practical. Different approaches, however, exist as to how a group of legal systems shall be defined. The challenge is to develop a classification method that merges similar legal systems in a most comprehensive way without being random or fragmented. This post will present five criteria for grouping the legal systems of the world: (1) sources of law, (2) ideology and legal technique, (3) substance of the legal system, (4) legal style, and (5) tradition.

(1) Sources of Law [1]

A straightfoward way of classification is to divide the legal systems into groups that differ in terms of  sources of law. Usually, this method leads to the distinction of two groups:

• common law countries and
• civil law countries.

Common law countries base their legal systems on the English common law tradition, whereas civil law countries have codified law. The pros and cons of using sources of law as a distinctive factor are illustrated in the following box.

(2) Ideology and Legal Technique [2]

Another classification method looks primarily at a country’s ideology and, complementarily, at its prevailing legal technique. The ideology of a country is derived from looking at religion, philosophy, and political/economic/social structure. Originally, this methodology led to five legal families

• Western systems,
• Socialist systems,
• Islamic law,
• Hindu law,
• Chinese law.

It was subsequently modified to include only three legal families:

• Romanistic-German family,
• Common law family, and
• Socialist family

… plus a miscellaneous group of other systems that did not fit into these three groups.

Again, the pros and cons of an ideology-based classification are illustrated the in following box.

(3) Substance of the Legal System [3]

A different way of grouping legal systems is to focus on their substance, in particular their originality, derivation, and common elements. This classification method arrives at seven legal families:

• French family,
• German family,
• Scandinavian family,
• English family,
• Russian family,
• Islamic family,
• Hindu family.

For the pros and cons of this methodology, please refer to the following box.

(4) Legal Style [4]

The idea of style is derived from the arts. In law, style is characterized by historical background and development, mode of legal thought, distinctive institutions, recognized legal sources, and ideology. From this follows a division into eight legal families:

• Romanistic family,
• Germanic family,
• Nordic family,
• Common law family,
• Law of the Peoples Republic of China,
• Japanese law,
• Islamic law, and
• Hindu law.

The pros and cons of using style as a distinctive factor are illustrated in the box below.

(5) Tradition [5]

A rather new way of grouping legal systems is to look at how they transmit information from the past to the present. From this follows the distinction of seven legal traditions:

• Chthonic legal tradition,
• Talmudic legal tradition,
• Civil law tradition,
• Islamic law tradition,
• Common law tradition,
• Hindu legal tradition, and
• Asian legal tradition.

Again, the pros and cons of this particular methodology can be found in the box that follows this paragraph.

The preceding assessment shows that neither of the described methods is perfect in an absolute sense. Rather, it depends on the context which of the above-explained methods – if any – should apply. For a comprehensive, but general comparison of laws, the traditions approach (5) seems appropriate. For a coarse confrontation of basic principles of private law in Europe and the United States, the simple distinction between common law and civil law may suffice. For a global functional analysis of a specific aspect or area of law, some variation of approaches (2) – (4) could be workable. If you are only interested in how an issue is addressed in a handful of countries, you do not really need to resort to clustering at all. Although a basic understanding of how legal systems relate to each other is always helpful. Finally, some areas of law need other differentiating factors. (E.g. in constitutional law, there are quite different interrelationships of legal systems). In sum, the above-described approaches provide a useful working basis for everyone who is interested in comparative law, though they may need to be adapted for each individual case.

Footnotes

[1] JAMES GORDLEY & ARTHUR TAYLOR VON MEHREN, AN INTRODUCTION TO THE COMPARATIVE STUDY OF PRIVATE LAW (2006).

[2] RENE DAVID, TRAITE ELEMENTAIR DE DROIT CIVIL COMPARE (1950), modified in RENE DAVID & CAMILLE JAUFFRET-SPINOSI, LES GRANDS SYSTEMES DE DROITS CONTEMPORAINS (1992).

[3] PIERRE ARMINJON ET AL., TRAITE DE DROIT COMPARE (1950).

[4] KONRAD ZWEIGERT & HEIN KOETZ, INTRODUCTION TO COMPARATIVE LAW (1998).

[5] PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD (2007).