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

Posted on by Anita Frohlich

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).

What is Legal Culture?

Posted on by Anita Frohlich

In my last post, it became evident that culture should play a role in comparative law research. Yet what exactly is legal culture? While the strong interrelationship between law and culture has been emphasized since Baron de Montesquieu published his De L’Esprit des Lois in 1758, the concept of legal culture is still unclear. Historically, the term “culture” has nationalistic connotations, mostly due to its use by German romanticism. Today, the term legal culture is often used to talk about the “living law” as opposed to the law in books. Frequently, lawyers refer to Western law as opposed to other legal cultures. In this context, legal culture serves as a general term to indicate law in action in a particular system or region. Seen in this way, however, legal culture does nothing to improve or extend the study of comparative law, but is just a vehicle to distinguish the West from the rest. Still, Csaba Varga employs the term legal culture in order to establish a new interdisciplinary area of research (he calls it comparative legal cultures) that intends to study legal systems not only from a legal stand point, but also from a sociological, philosophical, historical and anthropological perspective. According to Varga

“[…] the term ‘legal cultures’ […] stands for an operative and creative contribution, through social activity rooted in underlying social culture, to express how people experience legal phenomenon […], how and into what they form it through their co-operation, how in what way they conceptualise it, an in what spritit, frame and purpose they make it the subject of theoretical representation and information.” (Varga, p. 182).

In return, Patrick Glenn has pointedly criticized the use of the term legal culture in comparative law. Instead, Glenn prefers the term tradition which he defines as follows:

“A given tradition emerges as a loose conglomeration of data, organized around a basic theme or themes […].” (Glenn, p. 15)

Consequently, legal tradition is transmitted information pertaining to the concept and content of law. Legal traditions are explicitly border-less, meaning they extend beyond the conventional limits of legal systems. This is probably the key element that distinguishes legal traditions from the historic concept of legal cultures. And what are the implications of this dispute for comparative law? In practical terms, because legal culture is such a vague concept, authors should specify their individual definition of culture. More generally, the fact that terms like legal culture and legal tradition are extensively discussed in current comparative law literature shows the importance of legal pluralism for modern comparative law research.

Bibliography

  • Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (2004).
  • Jaakko Husa, Legal Culture vs. Legal Tradition – Different Epistemologies?, Maastricht European Private Law Institute Working Paper Series 2012/18, available here.
  • Ralf Michaels, Legal Culture, available here.
  • Csaba Varga, Legal Traditions? In Search for Families and Cultures of Law, 46 Acta Juridica Hungarica 177-197 (2005).

The European Union as a Mixed Legal Sytem

Posted on by Anita Frohlich

In my last post, I mentioned the role of the European Union (EU) as a vehicle to converge civil and common law. Today, I am going one step further by discussing whether the EU can be considered a mixed legal system. On the one hand, such a classification may seem evident. On the other hand, it is quite unusual to describe a transnational system as a mixed jurisdiction. So the question is whether the EU can be classified as a mixed legal system. If yes, EU law could draw inspiration and learn from the way things are handled in mixed jurisdictions.

Mixed jurisdictions traditionally combine common and civil law elements in an obvious way. Usually common law takes charge of public law, while civil law governs the private law side. While this definition is very simplistic and does not do right to the diversity among non-traditional mixed jurisdictions, it will serve the purposes of this post – determining whether the EU meets the standards of a mixed legal system.

So does the EU combine civil law and common law in an obvious way? According to a previous post, civil law is characterized by more generalized, codified laws, while common law distinguishes itself by rather specialized case law. Prima facie, the EU has a large body of treaties and regulations that may be seen as codes. Its law is also further shaped by case law by the European Court of Justice (ECJ). Thus, the EU merges civil law and common law elements. Decisions by the ECJ, however, resemble more interpretative decisions by civil law courts than creative rulings by common law courts.

Consequently, the EU does not fulfill this first criteria and can therefore not be considered a mixed jurisdiction in the traditional sense. Instead, the EU is a brainchild of civil law countries that was assigned to the few common law members. This situation is the exact opposite of the way mixed legal systems historically developed. In that regard, mixed jurisdictions may still help in resolving issues of reception of EU law in common law member countries.

Bibliography

  • Valentine Vernon Palmer, Mixed Jurisdictions … and the Myth of Pure Laws, 67 LA L. REV. 1206-1218 (2007).
  • Colin B. Picker, International Law’s Mixed Heritage: A Common/Civil Law Jurisdiction, 41 VANDERBILT TRANSNAT’L L. REV. 1083-1138 (2008).
  • William Tetley, Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified), 60 LA L. REV. 618-738 (2000).

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