Introduction:
Legal system is a systematic approach to law, comprising all theorotical
and functional aspects of the legal norms, legal institution and legal process.
A legal system “institutes an individual system determind by an inner
coherence of meaning:.....an integrated body of rules......”
Moreover, the multitude of individual legal norms may not amount to legal
system unless they are linked with each other in an integreted structure.
1. legal system can conceive merely as and aggregate of legal norms, as a
sum of its parts,
2. legal system can be conceived as a system of social behaviors, of
rules, statues, and institutions, as involving parented interactions between
the makers, interpreters, breeders, enforcers and compliers of the norms of
law and
3. legal system may be equated with social authority and powers, different
normative requirements and sanctions, and distinctive institutional complex.
In this light, legal system seems to be an
abstraction inseparable from the society and social reality that can be considered
as a sub system of social system.
On the
other hand the, if we take legal system seperately, diversity of laws in the
modern world is a fact as said by Rene David. In this regard, the
word ‘classification’ has a special meaning in relation to the classification of legal system and thus, defining and describing
critieria for the classification of legal system is serious and time
consuming task.
Hence, this term paper deals with the criteria
for the classification of various legal system forwarded by notable figures including
Joseph Raz, Michael Bogdan and Konard Zweigert and H. Kotz.
Rationale for the classification of the legal system:
The word ‘classification’ can be counted as nomenclatures of various
words such as kinds, types, styles, classifications, families which has lot
to do with diversity of factors which clearly differ from one to another
system of laws. Classification
means, figuratively speaking that one takes objects which are equal or quite
similar in their appearance, characteristics and qualities puts them into a
bottle and marks the bottle with a label.[4]
Likewise, a criterion refers to the essentials, requirement,
minimum qualification, and element.
The word
criteria defines a standard by which something may be judged. In legal
system, the term used to define a legal system which makes more
scientifically and more correctly. It is used by Joseph Raz to define proper
meaning of the legal system. It is pre-requisites or elements for a legal
system, which intend to provide.
Classification
provides a tool for coping with diversity of legal systems by finding a
number of types or categories by which the legal systems of the world can be
organized. In order to classify legal systems it is necessary to look beyond
mere differences in rules. Difference between legal systems is not determined
simply by difference in rules from one country to another.
For example the age of consent to marriage
may be 16 in one common law country and 18 in another. This does not
necessarily mean that these two national systems stem from a different
“parent”. What needs to be looked at is the structure within which the rules
and concepts are organized,
the function of law in society, the sources of law and the categorization of
different branches or fields of law. While rules may change, these aspects of
the “legal system” are less likely to do so, and so there is continuity
evident despite the rules.
In distinguishing
legal systems one is concerned to look at the overall picture and at the
elements that are constant – not for instance subject to sudden change by a
new case decision or a new statute – that is substance, technique and form. A
test suggested by David & Brierley is to ask if a lawyer from one system
would be able to understand and operate within the other system. If the
answer is yes, then the two systems may well be from the same legal family.
However one would also have to check that the two systems shared the same
outlook on the role and function of law.
For classifying legal
systems then, the unchanging elements need to be considered rather than the
changeable ones. One has to ask “What are the fundamental elements of this
system?”
Thus one might look
at the conceptual structure of the law, the sources of law, the place of law
within society, or the purpose of law. Different conclusions may be arrived
at depending on which of these criteria is chosen, and in order to test
whether in fact one legal system belongs to the same parent legal system it
may be necessary to use a number of criteria. For example, there may be two
national systems which regard codes of law as the major source of law.
However one legal system might regard the function of law as being to uphold
the power of the state, while the other might regard the use of codes as a
way of reducing the power of the state. Here the philosophical or political
approach is different. Similarly the different sources of law may be viewed
differently.
In Civil Law systems, for example, case law
or la jurisprudence does not have the same significance as in common
law systems. Both however have case law. Religious law and questions of
morality/spirituality may have a greater influence in Islamic, Hindu or Jewish legal systems than in
Socialist, while customary law has a greater role in Africa legal systems or
those of the Pacific region than in Common Law systems – although again some
traces of customary law are found in common and civil law systems.
Ultimately though
classification is a tool, and as such a number of classification models may
be used. Indeed one finds published comparativists classifying legal systems
differently, for example David & Brierley classify the legal systems of
the world into Common law, Romano-Germanic and Socialist law. Konard Zwiegert and Kotz however,
separate the Romano legal family from the Germanic legal family, and De Cruz
suggests that there is no longer a socialist legal family but consideration
should be given to the Chinese Communist system as a major legal system.
Criteria for the classification of the
legal system:
According to Prof. Lon
L. Fuller, a law should fulfill following requirements which can be described
as criteria of a legal system:
Dias pointed out there
are such elements in every legal system which are- Principle of validity,
institutional structure and purpose.
For A.R. Biswas, there
are such elements in every legal system which are Structure, substance,
culture and impact.
According to Antony
Allot, pre-requisites in every legal system are norms, institutions, process,
autonomy.
***
In the words of R. David and E.C. Brierly,
when endeavouring to determine the families into which different laws can be
grouped, it is preferable to take into consideration these constant and more
fundamental elements rather than the less stable rules found in the law at
any given moment. The classification of laws into the family should not be
made on the basis of the similarity or dissimilarity of any particular legal
rules, important as they may be; this contingent factor is, in effect,
inappropriate of a given system of law.
These characteristics can be identified by
examining those fundamental elements of the system to which the rules to be
applied are themselves discovered, interpreted and evaluated. While the rules
may be infinitely various, the techniques of enunciation the way, in which
they are classified, the methods of reasoning in their interpretation are, on
the contrary, limited to a number of types. It is therefore possible to group
laws into 'families' and to compare and contrast them when they adopt or
reject common principles as to substance, technique or form.
while recognizing legal families into various group
writer’s veiws are also different. Some
writers base their classification on conceptual structure or on the theory of
sources of the law, other are of the view that there are technical differences
of secondary importance. The matter of classification turns upon the context
in which one is placed and the aim in mind.
The suitability of any classification will
depend upon whether the perspective is worldwide or regional or whether
attention is given to public, private or criminal law. Each approach can
undoubtedly be justified from the point of view of the person proposing it
and none can, in the end, be recognized as exclusive.
According to Michael Bogdan, the following
text deals with some of the factors which are often referred to in
comparative law literature as explanations of similarities and differences
between the legal systems. The factors are not independent of each other but
rather must be seen as interrelated. Their influence on the legal system is
not mechanical and it can vary from case to case.
1.
The
Economic System: The economic factor is one factor to classify the legal
system. The economic systems have, in many regards, different legal rules in
the economic fields. Economic system influences other areas in the society,
such as criminality and family life; it also has an indirect effect within
such legal fields as penal and family law. Socialist legal family is one
example of it.
2.
The
political system and Ideology: The legal system is influenced to a high
degree by the country's political system, especially in the matter of
constitutional law, criminal law and administrative law. There is a strong
connection between a countries' economic and political system on the one hand
and the prevailing ideology on the other.
3.
Religion:
The population's religious attitudes and beliefs can play an important role
for the legal system, especially within family law but also, for instance, in
penal law.
4.
History
and Geography: The legal system is framed under the strong influences of the
country's historical development. The fundamental features of a country's
constitutional structure, for instance, whether it is republic or has monarch
can usually be explained with reference to historical factors. The physical
condition existing in a country, primarily the geography, climate and natural
resources can made noticeable influence on the country's legal system.
5.
Demographic
factors: Different races and ethnic groups frequently have different
backgrounds which relatively high degree differs from each other and which
affect a valuable influence upon the legal system.
6.
Co-influence
of other means of control: Collective bargaining agreements may influence the
legal system i.e. labour law legislation.
7.
Accidental
and unknown factors: There is much room for different incidental factors
which can lead to similarities or differences between legal systems. The
particular personal preferences of an important person with great authority
and power can significantly influence the legal system such as the influence
of Napoleon's own family situation in family law rules in French Civil Code.
Apart from these, public revolution,
authority, time duration, area of impact, importance, sources of law and such
other factors may play an important role to determine the legal system.
Therefore, no any universal classification of legal system is found.
Different scholars have been classifying the legal system according to their
own point of view considering the factors mentioned above.
For
instance: David
and Brierly have divided legal system as Romano Germanic, Socialist Law,
Muslim law, Law of India and law of far-east Chinese and Japanese. Max Webber has divided the legal system
into four types i.e. substantive irrational, formal irrational, substantive
rational and formal rational. Likewise, Steven Vago has classified legal
system into three types from the development point of view- primitive,
transitional and modern legal system.
H.L.A. Hart refers to primitive and
developed legal system. The primitive laws exist in a society, which is
governed by primary rules of obligation or duty imposing laws, and in modern
or developed societies, these primary rules of obligation are supplemented by
the secondary rules or power conferring laws. In this way Esmein has divided
the legal world into Romanistic, Germanic, Anglo-Saxon, slave and Islamic
families. Again, Prof. Henry Wigmore believed that there were sixteen legal
systems in the world- Egyptian, Mesopotamian, Chinese, Hindu, Hebrew, Greek,
Roman, Maritime, Japanese, Mohammedan, Celtic, Germanic, Slavic,
Ecclesiastical, Romanesque and Anglican.
***
According to Joseph Raz
Criteria of existence: What are the criteria for the existence of a legal
system? We distinguish between existing legal systems and those which have
either ceased to exist (e.g. the Roman legal system) or neverexisted at all
(e.g. Plato’s proposed law for an ideal state). Furthermore, we say that the
French legal system exists in France but not in Belgium, and that in
Palestine there is now a different lega system from the one which was in
force 30 years ago. One of the objects of the theory of legal system ie to
furnish criteria of determine the truth or falsity of such statements; these
we shall call the existence criteria’ of a legal system.
Criteria of identity: What are the criteria which determine the system to
which a given law belongs? These are the criteria of membership, and from
then can be derived the criteria of identity, answering the question: which
laws form a given system?
Citeria of structure: Is therre a structure common to all legal system,
or to certain types of legal system? Are there any patterns of relations
among laws belonging to the same system which recur in all legal system, or
which mark the difference between important types of system?
Criteria of content : Are there any laws which in one form or another
recur in all legal systems or in types of system? Is there any content common
to all legal system of determining important types of system?
Conclusion:
The law is filled with problems of debatable classification precise and
orderly thought is an essential virtue for a lawyer, because such thought
assists in unraveling the complexities their legal consequences in light of
the applicable legal classifications. Rigorous thought about the terms and
justificatious of legal classifications cannot eliminate ambiguity from the
law, but it can do much to reduce it. (Bodenheimer)
***
1.
Every law necessarily belongs to legal system.
2.
Every legal system consists of solution to the four problems
1.
The problem of existence
2.
The problem of identity
3.
The problem of structure
4.
The problem of content
Earlier all four problems of the legal theory of legal system have
neglected. Kelson was the first to insist that “it is imposssible to group
the nature of law if we limit our attention to the single isolated rule.”
Normative, institutionalized and coercive... a naturally every theory of
legal system must be compatible with an explanation of these features.
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[1]Ross,
On Law and Jusice, pp.32-34, cited in W. Friedmann, Legal Theory, Universal Law Publishing, Delhi, (5th edn.), 1999 p.16.
[2]
Id.
[3]
Prof. Upendra Baxi, Socio-legal Research in India, A Program Schrift, Indian
Council of Social Science Research, New Delhi, 1975, pp. 19-20, cited in Ambika
P. Koirala, “Notes on Concept of Legal System and Sociology of Law”, Nepal
Law Review 2006, p.231.
[4]
Edgar Bodenheimer, An Introduction to the Anglo-American Legal System,
American Case Book Series, West Publishing Company, 1988, p.4.
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