Legal Systems, Classification of
Comparative law and society is a challenge to the dominant legal theory prevailing today in most countries among politicians and legal professionals who often ignore cross-cultural legal classifications. The clearest challenge comes from legal anthropologists and others who emphasize legal pluralism as a fundamental reality of social life. Legal pluralism contests the four premises of established theory: nationalism, statism, monism, and positivism
Nationalism as it relates to law took hold in its modern form in two major waves. The first occurred after the American and French revolutions and dramatically reshaped the legal landscape of Europe and the Americas in the nineteenth century. The second wave happened after World War II in conjunction with the United Nations' mandate for decolonization. Since 1945, under the principle of self-determination, more than 80 former colonies have gained their independence. Some of these new political units were the result of splitting or reformulating former legal structures, and others emerged from consolidation. However, all emphasized what was special about the people within them and different from other people. This singularity, tied to citizenship, could coincide with language, ethnicity, culture (or history), religion, climate, geography, or other features. Nationality demanded symbols to further unity: a flag, a song, a seal, the pledge of temporal allegiance, perhaps a bird, tree, flower, or motto, and possibly a currency or state religion.
Statism suggests that the state should have a monopoly over sovereignty and its implementation through jurisdiction. In traditional Enlightenment terms, this includes jurisdiction to legislate, administer, and adjudicate. Statism supports nationalism and is hostile toward legal pluralism. The latter maintains that individuals may have multiple obligations or loyalties or in essence live outside official state authority. Legal pluralism characterized all legal systems prior to the rise of nationalism. It reflected the more complicated legal universe in which people lived, especially salient during colonialism
Monism in law is similarly hostile to legal pluralism. Monism holds that there exists the possibility of a single, internally coherent, legal system. Thus, it is supportive of both nationalism and statism so long as the level of concern is the state. However, in the modern nation-state system of independent (and equal) sovereign countries, how can law, binding upon a particular state, exist beyond that state? How can there be international law? The universal monist response, as in France, is that the state will incorporate international legal norms and jurisdiction into its national legal system without exception. Consequently, the state is in reality a subunit of the larger international legal system. The more frequent national monist response, as in the United States (with its supreme Constitution) and even more strikingly in the United Kingdom (with its parliamentary supremacy), is essentially dualist. There exist two distinct legal systems: one national, and the other international. The former will usually incorporate valid international law into its state system as is politically convenient, but in the case of a direct conflict between an international norm and the supreme national law, the latter prevails.
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Finally, there is positivism. Positivism in law is the philosophical (or jurisprudential) view that purported norms or institutions that the state does not create or recognize as ‘law’ are not law. This is the only or dominant theory taught to those who become legal professionals in most of the world. It excludes a meaningful role for natural law, historical jurisprudence, or sociological jurisprudence, even in the face of strong religious influence, ethnic and cultural cohesion, or community institutions and processes such as juries.
The strength of this dominant legal theory and its four elements works against the relevance of comparative law in the Weltanschauung of most legal professionals. Their legal education is oriented toward national law, perhaps a bit of international law, and little foreign or comparative law. This generalization has less validity today in European countries that are members of the European Union, but even among those nations, some governments make little effort to implement proper education about foreign legal systems. In the rest of the world, nationalism in law is a strong force.
Nevertheless, there have been developments since the 1990s that are encouraging for the understanding of foreign legal systems and the study of comparative law. Economic and cultural globalization is one such obvious development. Small segments of legal professionals in most countries occupy themselves with servicing and dealing with the effects of globalization. A larger group, including judges and government administrators, have occasion to handle foreign and comparative law issues. This involves both transnational transaction work and transnational litigation and arbitration. A few law schools have even promoted themselves as global institutions that are aware and supportive of this international legal integration.
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Another encouraging trend is the increased interest among legal scholars and researchers in social science disciplines about legal norms, professionals, institutions, processes, and culture. Most of this work is ‘academic,’ which in most societies means that it will have little or no impact on the people who do most law jobs. Nonetheless, it offers promise that some small percentage of people will come to appreciate the variety and benefit of legal pluralism. Just as biodiversity is a measure of the health of ecosystems, legal diversity is recognition of the variability and richness of human culture.
In 1915 the Comparative Law School of China was established in Shanghai by the American lawyer and missionary Charles W. Rankin.43 It was patterned after the US model of legal education, focusing on Anglo-American law. Since this early American influence, there has been a progressive opening of Chinese legal education:
Over the past several decades, a salvo of development agencies, donors, NGOs, educational programs, law schools, and academics, many from the U.S., have sought to reform the Chinese legal system and, particularly, legal education. At the same time, education ministries of the People’s Republic of China (PRC), increasingly mindful of the status of Chinese education in a global market, have adapted aspects of the U.S. legal education model in China.44
The interest in comparative legal studies is not one way, however. There are currently over 40 law schools offering classes on Chinese law within the United States, and many of the premier Chinese universities have started to offer legal coursework for visiting foreign students.45 This, in conjunction with several formalized semester or summer study-abroad programs between American and Chinese law schools, can often be approved by the American Bar Association and used toward US graduation requirements.46 Many of these programs provide an overview of Chinese law, with an emphasis on commercial transactions, or incorporate comparative law components in the coursework.
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Law schools that have borrowed from their foreign counterparts have sought to adjust the Chinese legal education system to reach the goal of standardizing the curriculum. For example, within recent years 49 law schools have established a Juris Master program,47 which only accepts graduates of non-legal majors and takes two years to complete.48 Its aim is to shift the former focus of ‘pure’ scholarship within graduate education to a more practical orientation. Westernized programs are also utilizing case method studies in conjunction with the more traditional emphasis on legal theories. Finally, schools are starting to offer clinical programs similar to American law schools; currently more than a dozen Chinese law schools offer such clinics.49
The task of classifying legal systems has been tied to the development of comparative law as a practical and scholarly discipline. More recently, the differentiation of the behavioral and social sciences into discrete subjects has added diverse perspectives on the nature of law and legal systems.
Classical Classifications
Classical Greeks made the earliest recorded efforts explicitly classifying legal systems as a result of their philosophical speculation based on the comparative study of law. For instance, Plato (429–348 BC) in his Laws discussed the rules of several Greek and other poleis in formulating his ideal code and legal institutions for Magnesia. Aristotle (384–322 BC) examined many legal structures in his Politics before settling on the three preferred categories of kingship, aristocracy, and constitutional government (politeia) with their deviant siblings tyranny, oligarchy, and democracy.
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In Rome, jurists' interest in foreign law was more practical, particularly with the creation of the office of praetor peregrinus in 242 BC. This praetor supervised jurisdiction over disputes involving non-Romans. It was here that the mixture of a less formalistic Roman ius civile, Greek law, and other foreign legal norms led to an internationalized ius gentium. Roman jurists did not have a philosophical interest in studying and classifying foreign legal systems, since they believed in the superiority of their own law. An exception that makes the point was the fourth-century Collatio legum Mosaicarum et Romanarum, in which excerpts from Roman jurists were paired with the laws of Moses to improve the stature of Christianity (Zweigert and Kötz 1996, p. 48).
Early Modern Classifications
In the early modern era some natural law jurists such as Hugo Grotius (1583–1645), Samuel Pufendorf (1632–1694), and Baron Charles Louis de Montesquieu (1689–1755) used the comparative law method to provide empirical backing for natural law principles. Others such as William Blackstone (1723–1780) had the additional objective of providing prestige for their national law: Blackstone's four-volume Commentaries on the Laws of England (1765–1769) (Blackstone 2001) emphasized the similarities in English common law, Roman law, and natural law.
Montesquieu's extensive speculation about the relation of law to natural and social forces and explicit classification of legal systems emphasized the distinct manners (moeurs) of a particular people in a particular era. His Lettres Persanes (1721) (Montesquieu 1964), published anonymously, used the device of two Persians traveling in Europe who satirized the customs of French and European society. They pointed to the abuses and cruelties of criminal justice systems and argued for a rational theory of punishment adjusted to the settled sensibilities of the people. Letter 80 could have been written to critique the turn-of-the-millennium criminal sentencing and prison policy of the USA:
[O]bedience to the laws of a state does not correspond with the greater or lesser degrees of cruelty in punishment. In countries where penalties are moderate, they are as much feared as those in which they are tyrannical and dreadful …. Our imagination adapts itself to the customs of the country in which we live (Montesquieu 1964, p. 136).
Montesquieu's relativist view of humans' ability to achieve justice was further developed in De l'esprit des lois (1748) (Montesquieu 1989), which drew upon causative factors such as climate, soil, population size, a people's morals and customs, religion, and commerce. He classified governments along with the appropriate principle for their constitutive societies. Thus democracy required civic virtue; aristocracy, moderation against the people; monarchy, honor for the law and intermediate institutions; and despotism, fear to maintain order. He found different mechanisms for lawmaking and adjudication in the first three types of legal system, but pointed out that law was not necessary for despotism.
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