|
...obligatory part of comparative law, and their relevance to other aspects of comparative law remains essentially opaque. Generally it can be said that even within the confines of single book those texts concerning legal families remain somehow set apart from the other issues discussed in it.
As is commonly known, most general works on comparative law present different groupings and classifications of legal systems as a part of macro-comparative law[1]. When classified into legal families, different legal systems are thus grouped into larger entities (famille de droits, Rechtskreis, legal culture, legal tradition) according to common elements and characteristics. This kind of systematization and classification is by its general nature macro-comparative; it deals with comparison of entire legal systems. This kind of macro-comparison seems to have become part of the canon of modern comparative law.[2] It is almost impossible to even think of weighty books on comparative law without reflection on legal families/cultures/spheres/traditions. However, this kind of macro-comparative law's relation to micro-comparative law remains unclear.
It is probable that there are only a limited number of paradigmatic key questions that concern the grouping of legal systems. Is it possible to classify the world's legal systems into only a few major legal families? What are the world's major legal families? By using which criteria can an individual legal system be included in a particular legal family? In comparative scholarship, legal families have been discussed heatedly and critical contributions concerning earlier classification methods, employed criteria and results have been presented[3]. It is rare to find consensus in this field[4].
Instead of going into the specifics of that discussion, this article tries to outline how legal families can enhance the research of comparative law. Comparative law here refers to comparative studies that focus mainly on the study of legal rules, institutions and concepts, i.e. micro-comparison[5]. My aim in this context is to try to offer a kind of preliminary theoretical answer to the question of what legal families in fact are when seen from methodological point of view. After this I will return to the question posed in the title of this article.
The Concept of 'Legal Family'
What does the concept 'family' mean in this context? It is my understanding that it may be seen as a very useful conceptual device. In the first place, it enables us to extend the metaphor talk about family members, such as children and parents. For example, the common law of England is traditionally seen as a parent system of the other common law systems[6].
Secondly, a more extended use of the concept of relationship becomes possible; it makes sense to say that certain legal systems belong to the same family, or that they are more or less closely related[7]. We can also talk about immediate or distant relatives, cousins, half-brothers, illegitimate children etc. Thus we can talk about the "legal genetic" or historical interrelations between different legal systems[8]. Hence, legal family automatically contains an idea of historical relationship between different systems of law. If the whole discipline is defined from this point of view it "is a study of the relationships, above all the historical relationships, between legal systems or between rules of than one system."[9]
As conceptual constructions, legal families are not, however, necessary for all comparatists. If the aim of comparison is to fulfill practical needs, the issue of grouping legal families as such will hardly be of great interest. Neither would a court of law, turning to other legal systems for reference, be interested in the classification of legal families when it needs to solve a legal case under consideration[10]. The same probably also applies to legislation[11], although classification of legal families can have (subconscious) significance, when deciding which legal systems have solutions that are worthy of being considered in a state's law-drafting process.
The situation is different in theoretical work on comparative law and other attempts to promote scholarship on comparative law. It is, however, fruitless to exaggerate the distinction between theoretical and practical - the two basic comparative interests. Constructing legal families, as well as their groupings and classifications, is not completely futile, even if one is engaged in practical comparative law. Accordingly, with the help of groupings, the problematic diversity of the world's legal systems is simplified, and the transparency of foreign legal systems is enhanced[12]. Namely, it is possible to lower the knowledge threshold of foreign law. The auxiliary role of legal families is particularly useful if the legal systems concerned are very different from each other, because then the need for general and contextual information is greatest.
Legal Family as "Pre-Understanding"[13]
One of the greatest challenges facing a comparatist is the...
NOTE: All illustrations and photos
have been removed from this article.
More articles from Global Jurist Advances
Human rights risk, infrastructure projects and developing countries., March 06, 2002
North America as a Medieval legal construction., February 11, 2002
The `weak law': contaminations and legal cultures. (borrowing of legal..., January 08, 2002
The institutional backgrounds for the Field Civil Code in New York (18..., January 08, 2002
Looking for additional articles?
Search our database of over 3 million articles.
Looking for more in-depth information on this industry?
Search our complete database of Industry & Market reports by text, subject, publication
name or publication date.
About Goliath
Whether you're looking for sales prospects, competitive information, company
analysis or best practices in managing your organization,
Goliath can help you meet your business needs.
Our extensive business information databases empower business
professionals with both the breadth and depth of credible,
authoritative information they need to support their business
goals. Whether it be strategic planning, sales prospecting,
company research or defining management best practices -
Goliath is your leading source for accurate information.
|
