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Criteria for the Classification of legal system

Pabitra Raut
Roll No. 15/2065
LL.M. Second Year

Introduction:

Legal system is a systematic approach to law, comprising all theorotical and fucntional
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......”1 Moreover, the multitude of individual legal norms may not amount to legal system
unless they are linked with each other in an integreted structure.2

In Prof. Upendra Boxi’s view, legal system can be conceptualized in three principles3:

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 David and Brierley. 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.

The criteria and classification have much to do with the theory of legal system. Hence, this
term paper deals with the criteria for the classification of various legal system forwarded by
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.
notable figures including Joseph Raz, Michael Bogdan and Konard Zweigert and H. Kotz in
compatible with the theory forwarded thereby.

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

In general, 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?”

4
Edgar Bodenheimer, An Introduction to the Anglo-American Legal System, American Case Book Series, West
Publishing Company, 1988, p.4.
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.

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:

In a simple sense, 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.

In relation to criteria, Dias pointed out there are such elements in every legal system which
are- Principle of validity, institutional structure and purpose. Likewise, A.R. Biswas, there are
such elements in every legal system which are Structure, substance, culture and impact.
Similarly, Antony Allot views norms, institutions, process and autonomy as pre-requisites in
every legal system. Likewise, H.L.A. Hart refers to primitive and developed legal system that
have the criteria primary rules of obligation or duty imposing laws and the secondary rules or
power conferring laws.

According to Prof. Lon L. Fuller, a law should fulfill following requirements which can be
described as criteria of a legal system:

1. Definite rule
2. Well Published

3. Easily understandable

4. Not contradictory or inconsistence

5. Not abuse of retrospective legislation contradictory or inconsistence

6. Not subject to frequent changes

7. Rule for actual enforcement

8. Required beyond his power or capacity

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.
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.

According to Michael Bogdan, there are seven criteria for the classification that helps in
explaining and describing similarities and differences between the legal systems which are as
follows:

1. The Economic System: The economic factor is a criterion to classify the legal system
which influences the society and social life including criminality and family life.

2. The political system and Ideology: The political system and ideology influences to
larger extent to the legal system. This influence is visible in the matter of
constitutional law, criminal law and administrative law.

3. Religion: Religion affects not only the religious life of people but also the legal
system. Religious beliefs and value along with religious texts helps in determining
laws such as laws relating to marriage, inheritance and penal laws.
4. History and Geography: Historical development or evolution of the country accounts
the development of the legal system therein. Likewise, the geographical reality in
terms of location, climate and natural resources makes visible impact on the legal
system.

5. Demographic factors: The uniformity or diversity of population is a crucial criterion


to analyze the legal system as different races and ethnic groups having different
backgrounds amounts the effect on legal system.

6. Co-influence of other means of control: Means of control is a criterion to classify the


legal system. Labour law legislation in the form of collective bargaining agreements
as a mean of control may influence the legal system.

7. Accidental and unknown factors: The effect of accidental and unknown factors leads
to similarities or differences between legal systems.

When we make a recourse to Joseph Raz, the criteria for classification of legal system
becomes four i.e. ‘criteria of Existence, criteria of Identity, criteria of Structure and criteria of
Content.’5

1. Criteria of existence: The existence is a criterion to determine the truth and falsity of
various facts and things relating to legal system. For instance, it is said 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.

2. Criteria of identity: The criteria of identity helps to determine which legal system
belongs to which category or which laws to which system. 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?

3. Criteria of structure: The classification of the legal system is done considering the
structure. The most important questions in this regard are: Is there 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?

4. Criteria of content : The content of legal system is also a basis for the classification. It
consists of the answer to the questions: Are there any laws which in one form or

5
Joseph Raz, The Concept of Legal System, Clarendon Press Oxford, (2nd edn.), Reprint 1997.
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?

In the analysis of K. Zwiegert and H. Kortz, one’s division of the world into legal families
and the inclusion of legal system in a particular family is vulnerable to alteration by historical
development and change. So in the theory of legal families much depends on the period of
time which one is speaking. At the same time, the classification of legal system should not be
based on single criterion and one dimensional. Legal styles should be deployed as a basis for
putting legal systems into groups.
The following factors are crucial for the style of a legal system or legal family: (1) its
historical background and development (historical development), (2) its predominant and
characteristic mode of thought in legal matters (a distinctive mode of legal thinking), (3)
especially distinctive institutions, (4) the kind of legal sources it acknowledges and the way it
handles them (Sources of law) and (5) its ideology.6
1. Historical development: historical development as one of the factors to determine the
style is crucial in classifying the legal families. The weight lies in the alteration
brought by historical development and change in legal families.
2. A distinctive legal thinking: It is counted as a hallmark of any legal family or system.
For instance, the Germanic and Romanistic families are marked by a tendency to use
abstract norms which might not be the case with other legal systems existed at that
time.
3. Legal institutions: It is much seen that certain legal institutions are so distinctive that
they lend a characteristic style to a legal system.
4. Sources of law: The choice of sources of law relating to recognition of and the
methods of interpreting and handling them in connection with the court machinery
and rules, of procedure should be considered as a remarkable factor in marking the
style in legal system.
5. Ideology: An ideology, whether be it a religious or political conception relating to
how social or economic life should be organized, adds the style in the legal system.
Thus, it becomes a distinctive criterion for the classification of legal system such as
Islamic law and Hindu law.

Conclusion:

6
K. Zweigert and H. Kotz, An Introduction to Comparative Law, Clareendon Press Oxford, (3rd edn.), 1998, pp
63-73.
As Edgar Bodenheimer rightly said that rigorous thought about the terms and justificatious of
legal classifications cannot eliminate ambiguity from the law, but it can do much to reduce it.
The law is filled with the problems of debatable classification. So, the importance of defining
the criteria for the classification assists in unraveling the debate and problems of
classification and complexities of legal consequences in light of the applicable legal
classifications. This is the most profound objective of any theory of legal system.

In reference to Joseph Raz, 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 and (4) the
problem of content. Earlier all four problems of the legal theory of legal system have
neglected. Kelsen 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.” Zwiegert and Kotz stand in same line as they
believe that there should not be single criterion to classify the legal systems into the groups.

In a simple sense, it can be said that naturally every theory of legal system must be
compatible with an explanation of the features of law and legal system: normative,
institutionalized and coercive. Again, the criteria should not be too rigid and too narrow. The
context and content of legal system both matter. As K. Zwiegert and H. Kotz said, there
should be the considerations of multiple criteria rather than a single criterion. Importantly, the
period of time in which a particular legal system is existed is also an inescapable factor to be
considered. Thus, the criteria are the core essence of any legal system and have to be
understood with the light of the theory of legal system.

References:

1. Joseph Raz, The concept of a Legal System, Clarendon Press Oxford, (2nd edn.),
Reprint 1997.

2. K. Zweigert and H. Kotz, An Introduction to Comparative Law, Clarendon Press Oxford, (3rd
edn.), 1998, pp 63-73M.D.A. Freeman (ed.), Lloyd’s Introduction to Jurisprudence, Sweet &
Maxwell, London, (6th edn.), 1996.

3. Michael Bogdan, Comparative Law, Kluwer Law & Taxation Publishers, Sweden, (1st
edn.), 1994

4. Rene David & Brierly, The Major Legal System in the World Today, (3rd edn.) 1985.

5. Rewati Raj Tripathi, Nepalese Legal System, Lumbini Prakashan, Kathmandu, ( 1st edn.)
2008.
6. Ambika Prasad Koirala, “Notes on Concept of Legal System and Sociology of Law”,
Nepal Law Review 2006, pp. 229-236.

7. Tek Prasad Dhungana, “Criteria and Characteristics of Existing Nepalese Legal


System”, Vol 2 NBA 2062.

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