Can Legal Origins Help Classify the Legal Systems of the World?

Quantitative comparative law rests on four main premises: (1) Legal systems are different; (2) Differences can be traced back to legal origins – the civil law tradition and the common law tradition; (3) Legal rules differ due to historically rooted differences in policies: market support (common law) versus policy implementation (civil law); (4) Legal differences can be quantified. Thus, in quantitative comparative law, legal origins play a crucial role for a country’s political orientation and, hence, economic success. Yet, what does the legal origins theory really entail? It is essentially based on the premise that the legal systems of the world can be traced back to two main sources (or origins): the English common law and the French civil law. (German and Scandinavian civil law are dealt with separately within the civil law group, but most of the publications essentially focus on the dichotomy between English common law and French civil law). Through colonization, conquest and adoption, common and civil law have spread throughout the world and have since shaped our legal environment up to a point where legal origins determine economic success.

To comparative lawyers such a simplistic approach to the legal systems of the world is quite provocative. Two major points of critique have been raised against the legal origins theory. First, the factitiousness of clustering legal systems into groups has been pointed out. As discussed previously, comparative law has started to focus on cultural variability of legal systems. Quantitative comparative law, however, explicitly ignores such cultural nuances in order to focus on big picture differences of laws. Both are, however, just two contrarian approaches to comparative law. In fact, the (artificial) clustering of legal systems into families has a long-standing tradition in comparative legal research and seems to be a legitimate way to facilitate large(r)-scale comparisons. Second, some have pointed out the iffiness of seeing legal origins as the main reason for differences in legal process and economic success. These critics say that legal origins or colonial history are only one of many aspects where the colonial powers diverged. More importantly, colonies also differed in climate and natural resources with the French colonies often on the poorer side. Hence, it is difficult to base economic success on legal origins alone.

Bibliography

  • Daniel Klerman et al, Legal Origin or Colonial History?, 3 J. LEGAL ANALYSIS 379-409 (2011).
  • Rafael La Porta et al., The Economic Consequences of Legal Origins, 46 J. ECON. LIT. 285-332 (2008).
  • Mathias Siems, Reconciling Law & Finance and Comparative Law, 52 M.GILL L J 56-81 (2007).
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