MAJOR LEGAL SYSTEMS IN THE WORLD TODAY
By Rene David & John E.C. Brierley
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There would appear to be three at least which occupy uncontested place of prominence: the Romano-
Germanic family, the Common law family and the family of Socialist law. These three groups whatever
their value and extension throughout the world do not however take into account all contemporary
legal phenomena. There are other systems, situated outside these three traditions or sharing only part
of their conception of things, which prevail in a large number of contemporary societies and in their
regard too, a number of observations will be furnished.
Romano-Germanic family
A first family may be called the Romano-Germanic family. This group includes those countries in which
legal science has developed on the basis of Roman jus civile. Here the rules of law are conceived as rules
of conduct intimately linked to ideas of justice and morality. To ascertain and formulate these rules falls
principally to legal scholars who, absorbed by this task of enunciating the “doctrine” on an aspect of the
law, are somewhat less interested in its actual administration and practical application. These matters
are the responsibility of the administration and legal practitioners. Another feature of this family is that
the law has evolved, primarily for historical reasons, as an essentially private law, as a means of
regulating the private relationships between individual citizens; other branches of law were developed
later, but less perfectly, according to the principles of the “civil law” which today still remains the main
branch of legal science, Since the nineteenth century, a distinctive feature of the family has been the
fact that its various member countries have attached special importance to enacted legislation in the
form of “codes” .
The Romano-Germanic family of laws originated in Europe. It was found by the scholarly efforts of the
European universities which, from the twelfth century and on the basis of the compilations of the
Emperor Justinian (A.D. 483-565), evolved and developed a juridical science common to all and adapted
to the conditions of the modern world. The term Romano-Germanic is selected to acknowledge the joint
effort of the universities of both Latin and Germanic countries.
Through colonization by European nations, the Romano-Germanic family has conquered vast territories
where the legal systems either belong or are related to this family. The phenomenon of voluntary
“reception” has produced the same result in other countries which were not colonized, but where the
need for modernization, or the desire to westernize, has led to the penetration of European ideas.
Outside Europe, its place of origin, these laws although retaining membership in the Romano-Germanic
family nonetheless have their own characteristics which, from a sociological point of view, make it
necessary to place them in distinct groups. In many of these countries it has been possible to “receive”
European laws, even though they possessed their own civilization, had their own ways of thinking and
acting and their own indigenous institutions, all of which ante-date such reception. Sometimes reception
has left some of these original institutions in place; this is particularly clear in the case of Muslim
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countries where the reception of European law and the adhesion to the Romano-Germanic family have
been only partial, leaving some legal relations subject to the principles of the traditional, local law. The
old ways of thinking and acting peculiar to these countries may also mean that the application of the
new has been quite different from what it is in Europe. This question is particularly important in the case
of the countries of the Far East, where an ancient and rich civilization existed long before the reception
of western law.
Finally, with respect to the countries of Africa and America, it will also be necessary to ask whether their
geographical conditions and populations’ distribution, creating conditions entirely different from those
in Europe, have not led to the development of laws substantially different from their European models.
Common law family
A second family is that of the Common law, including the law of England and those laws modelled on
English law. The Common Law, altogether different in its characteristics from the Romano-Germanic
family, was formed primarily by judges who had to resolve specific disputes. Today it still bears striking
traces of its origins. The Common law legal rule is one which seeks to provide the solution to a trial
rather than to formulate a general rule of conduct for the future. It is then much less abstract than the
characteristic legal rule of the RomanoGermanic family. Matters relating to the administration of justice,
procedure, evidence and execution of judgments have, for Common law lawyers, an importance equal,
or even superior, to substantive legal rules because, historically, their immediate pre-occupation has
been to re-establish peace rather than articulate a moral basis for the social order. Finally, the origins of
the Common law are linked to royal power. It was developed as a system in those cases where the
peace of the English kingdom was threatened, or when some other important consideration required, or
justified, the intervention of royal power. It seems, essentially, to be a public law, for contestations
between private individuals did not fall within the purview of the Common law courts save to the extent
that they involved the interest of the crown or kingdom. In the formation and development of the
Common law- a public law issuing from procedure-the learning of the Romanists founded on the jus
civile played only a very minor role. The divisions of the Common law, its concepts and vocabulary, and
the methods of the Common law lawyer, are entirely different from those of the Romano-Germanic
family.
And as with the Romano-Germanic family, so too the Common law has experienced a considerable
expansion throughout the world-and for the same reasons: colonization or reception. The observations
made with respect to the Romano-Germanic family apply with equal value. But here again a distinction
between the Common law in Europe (England and Ireland) and that outside Europe must be made. In
certain extra-European countries, the Common law may have been only partially received as in the case,
for example, of certain of Muslim countries or India and where it was received, attention must be given
to its transformation or adoption by reason of its co-existence with the tradition of previous civilizations.
A different environment has, in any event, created difference between the Common law of the countries
where it originated and that of those into which it was imported. This observation is particularly true
with respect of the Common law family because it groups some countries such as the United States and
Canada where a civilization different in many respects from that of England has developed. The laws of
these countries enjoy a largely autonomous place within the family.
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Relations between these two families
Over the centuries there have been numerous contacts between countries of the RomanoGermanic
family and those of the Common law, and the two families have tended, particularly in recent years, to
draw closer together. In both, the law has under gone the influence of Christian morality and, since the
Renaissance, philosophical teachings have given prominence to individualism, liberalism and personal
rights. Henceforth, at least for certain purposes, this reconciliation enable us to speak of one great
family of western law. The Common law retains, to be sure, its own particular structure, very different
from that of the Romano-Germanic system, but the methods employed in each are not wholly
dissimilar. Above all, the formulation of the legal rule tends more and more to be conceived in Common
law countries as it is in the countries of the Romano-Germanic family. As to the substance of the law, a
shared vision of justice has often produced very similar answers to common problems in both sets of
countries.
The inclination to speak of a family of western law is all the stronger when one considers that the laws
of some states cannot be annexed to either family, because they embody both Romano-Germanic and
Common law elements. The laws of Scotland, Israel, the Union of South Africa, the Province of Quebec
and the Sophies in which the place and function of law are very different from what they are in the
West. A true picture of law in contemporary world society would be incomplete without taking these
considerations into account.
In non-western societies the governing social principles to which reference is made are of two types. On
the one hand law is fully recognized as being of great value but the law itself is framed in a different
concept than it is in the West; on the other, the very notion of law is rejected, and social relations are
governed by other extra-legal means. The first view is that of Muslim and Hindu societies, while the
latter is that adopted in countries of the Far East and large parts of Africa and Malagasy.
Family of Socialist Laws
The Socialist legal system makes up a third family, distinct from the first two. To date the members of
the socialist camp are those countries which formerly belonged to the Romano-Germanic family, and
they have preserved some of the characteristics of RomanoGermanic law. Thus, the legal rule is still
conceived in the form of a general rule of conduct; and the divisions of law and legal terminology have
also remained, to a very large extent, the product of the legal science constructed on the basis of the
Roman law by European universities.
But apart from points of similarity, there do exist such differences that it seems proper to consider the
socialist laws as detached from the Romano-Germanic family - the socialist jurist most decidedly do and
as constituting a distinct legal family, at least at the present time. The originality of Socialist law is
particularly evident because of its revolutionary nature; in opposition to the somewhat static character
of Romano-Germanic laws, the proclaimed ambition of socialist jurists is to overturn society and create
the conditions of a new social order in which the very concepts of state and law will disappear. The sole
source of Socialist rules of law resides therefore within the revolutionary work of the legislature, which
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expresses popular will, narrowly guided by the Communist Party. However, legal science as such is not
principally counted upon to create the new order: law according to MarxismLeninism- a scientific truth-
is strictly subordinate to the task of creating a new economic structure. In execution of this teaching, all
means of production have been collectivized. As a result the field of possible private law relationships
between citizens is extraordinarily limited compared to the pre-Marxist period; private law has lost its
pre-eminence – all law has now become public law. This new concept removes from the very realm of
law a whole series of rules which jurists of bourgeois countries would consider legal rules.
The family of Socialist laws originated in the Union of Soviet Socialist Republics where these ideas
prevailed and a new law has developed since the 1917 Revolution. However, the laws of the socialist or
people’s republics of Europe and Asia must be classed as groups distinct from Soviet law. These laws
belong to the Socialist family. But in those of the first group a greater persistence of characteristics
properly Romano-Germanic is detected, while in those of the second it is useful to enquire how these
new concepts are reconciled in practice with the principles of Far Eastern civilization which governed
such societies before the Socialist era.
Other Systems
The three families just described, each of which as numerous variants, are undoubtedly the three
principal families of law existing in the contemporary world. Strictly speaking there is no law in the world
today which has not drawn certain of its elements from one or other of these families. Some even hold
the view that all other systems, no more than survivors from the past, will ultimately disappear with the
passing of time and the progress of civilization.
This attitude however proceeds from a rather native sense of superiority and is really no more than a
hypothesis, it does not acknowledge an observable reality in the modern world. All contemporary states
have, it is true, taken over a number of western ideas either because it was necessary to preserve their
independence or because it was useful in their internal development. It does not follow that the older
ways of thinking which, not so very long ago, were widely accepted in these different societies have
been totally abandoned. Everyone will recognize the superiority of western technology; opinions differ
however on the superiority of western civilization taken as a whole. The Muslim world, India, the Far
East and Africa are far from having adhered to it without reservation. These countries remain very
largely faithful to philo society, must act legally, courts must ensure that law is respected. Law, a mirror
of justice, is in this conception superior even to equity itself; outside the law, there can only be anarchy,
or arbitrariness, chaos or, the rule of force are temples of justice, the judges its oracles.
Far Eastern countries reject this view. For the Chinese, law is an instrument of arbitrary action rather
than the symbol of Justice; it is a factor contributing to social disorder rather than to social order. The
good citizen must not concern himself with law; he should live in a way which excludes any revindication
of his rights or any recourse to the justice of courts. The conduct of individuals must, unfailingly, be
animated by the search for harmony and peace through methods other than the law. Man’s first
concern should not be to respect the law. Reconciliation is greater value than justice; mediation must be
used to remove conflicts rather than invoking law to resolve them. Laws may exist to serve as a method
of intimidation or as a model; but law is not made with a view to being really applied, as in the West,
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Scorn is reserved for those who aspire to regulate matters according to law or whose preoccupation is
its study or application, and who thereby defy convention and accepted Proprieties.
Countries of the Far East have, traditionally, held the view that law is only for barbarians. The Chinese
communist regime and the westernization of Japan have not fundamentally changed this conception
rooted as it in their ancient civilizations. In China the communist regime rejected the legal codes drawn
up after the fall of imperial rule along western lines and, and, after some brief hesitation, then
repudiated the Soviet method of building communism. The techniques finally adopted for doing so have
given up to the present time a very narrow place to law. Codes on the European model have been
instituted in Japan but, generally speaking, the populations makes little use of them; people abstain
from using the courts and the courts themselves encourage litigants to resort to reconciliation; and new
techniques have been developed for applying or removing the need of applying the law.
Muslim, Hindu, and Jewish Laws
The attitude of the Muslim, Hindu and Jewish communities about the law is easily understood by a
western jurist, even though the definition of law itself in western jurisprudence has always given rise to
difficulties and no single definition has so far elicited any general acceptance. One of the fundamental
reasons for this lack of agreement is the debate between the proponents and adversaries of the notion
of “natural law”. But it is because the idea of “natural law” exists that we are able to understand the
starting premise of these other systems
In this debate, law is held by some to be no more than the body of rules that are really observed. The
application of which is entrusted to the courts. This is the view today to our western universities in
which our national laws are taught. But law may also be seen as a model of ideal behavior, one not to be
confused with the actual rules by which individuals act which courts apply. European universities, in
their pre-nineteenth-century tradition, paid very little attention to national or customary laws of the
time and taught, almost exclusively, an ideal law constructed on the basis of Roman law. In Muslim
countries, in the same way, more attention is given to the model law linked to the Islamic religion than
to local custom (treated as a phenomenon of fact) or the laws and decrees of the sovereign (treated as
merely administrative measures) and neither of these is thought to possess the full dignity of law. The
same can be said of Jewish law and, in a very different context, Hindu law.
Law, then, whether linked to a religion or corresponding to a particularly way of thinking about the
social order, is not in either case always necessarily observed by private persons or applied by courts. It
may nonetheless exert considerable influence on both “righteous” men may endeavor to rule their own
lives according to what they consider to be truly the law. A student of western societies may well in a
positivist perceptive concentrate attention upon the rules enacted by legislatures and applied by court
or, alternatively, in a sociological perspective, classify as law only those rules which are really observed
as a matter of practice. This difference in approach is not a source of any real inconvenience because in
western societies there is a large degree of equivalence between justice, positive law and social
manners. The same cannot however be said of non-western societies where “rules of law” (in the
western sense) remain unorganized, fragmentary and unstable, and where there is generally feeling that
true law is to be found elsewhere than in legislation, custom or judicial decisions. Without taking sides in
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the debate between positivists and advocates of natural law, Muslim and Hindu law, therefore, must be
included within the major contemporary legal systems. Jewish law, despite its historical and
philosophical interest, must be omitted because its sphere of influence is incomparably less than that
the other two.
Far East
The situation in the Far East, especially China is completely different. Here there is no question of
studying an ideal law distant from rules laid down by legislators or simply followed in practice: here the
very value of law itself has traditionally been put into question. In the West, and in Islamic and Hindu
communities, law is held to be a necessary part of, indeed a basis for, society. Good social order implies
the primacy of law: men must live according to law and, where necessary, be prepared to fight for the
supremacy of law; administrative authorities, no less than any other part of Philippines would fall into
this group. And lastly, but from another point of view, the Romano-Germanic and Common law families
are included in the same deliberately ignominious term of “capitalist” or “bourgeois laws” by jurists of
the socialist camp, made up of the Soviet Union and those countries that have used its law as a model or
which, like the U.S.S.R. profess an adherence to Marxist-Leninist teachings.
Black Africa and Malagasy Republic
The preceding observations regarding the Far East apply as well to the black African countries and the
Malagasy Republic (Madagascar). There too, in milieux in which the community’ cohesion prevails over
any developed sense of individualism; the principal objective is the maintenance or restoration of
harmony rather than respect for law. The Western laws adopted in Africa are often hardly more than a
veneer, the vast majority of the population still lives according to traditional ways which do not
comprise what we in the West call law and without heed to what is very often nothing more than an
artificially implanted body of rules.
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