There is no generally recognized division into legal circles, since a legal system in civil law, for example, can be assigned to a different legal circle than in public law . Therefore, it happens that in a State legal areas are belonging to different jurisdictions.
The summary in groups is used in comparative law in order to work out similarities and differences. Since comparative law has so far taken place almost exclusively in the field of private law, the common classifications of legal circles have also been developed in private law and only apply to this.
Comparative law in public law partially overlaps with comparative political science and comparative administrative science . Genus-differentia definition can at constitutional Rechtsvergleichungen about the basis of the questions of who the within a state carrier state power is whether a separation of powers takes place, whether a separation of church and state is whether the state unitaristisch or federally constructed if a Parliament from one or two chambers or whether the system of government is presidential , semi-presidential or parliamentary .
Roman-Germanic legal system
In Germany , Austria , Switzerland and Liechtenstein , the Roman-Germanic legal system applies, which - in contrast to the Anglo-Saxon common law - is also called civil law . Civil law is shaped by received Roman law .
His sphere of influence also extends beyond continental Europe . Despite the various influences from US law , all of Latin America , parts of Scotland and a number of areas influenced by French law such as the US state Louisiana , the Canadian province of Québec , most parts of the Near and Far East and parts of Africa are subject to this the sphere of action of civil law, i.e. almost all parts of the world where English is not spoken. Some of these systems are also discussed in more detail below in the section on mixing systems.
In contrast to common law, court proceedings in the Roman-Germanic legal system are tailored to the judge, who, as an independent organ of the administration of justice, not only directs it, but controls it to a large extent. Simply put, it can be called inquisitorial . Parliamentary laws are the most important source of law . In contrast to common law, judicial law is often not recognized as an independent legal source. In the past, people even thought that all decisions could be read from the law ( Montesquieu ). Although theoretically overcome, this tradition still shapes the legal argumentation.
The Roman-Germanic legal system can be subdivided into further legal systems.
Romanesque legal family (Code Napoléon)
This legal family includes France and the legal systems of Belgium , Luxembourg , Romania , Italy , Spain and most of Latin America, North and West Africa, which are closely related to its civil law ( Code civil of 1804) . The style of legal language is characterized by pathos and rather programmatic. The countries Portugal and the Netherlands, which also belong to the Romance legal system (both originally closely based on Spanish law) are, however, also significantly influenced by German law. In the Nieuw Burgerlijk Wetboek , adopted in the Netherlands in 1992 , a more extensive approximation of German law took place, whereby Dutch law has produced a large number of creative solutions and its own creations, which give it a strong independence within the European legal circles.
The representative legal system of this legal family is that of France.
History of the Romansh legal system
On the one hand, the Civil Code is strongly influenced by the natural law pathos of the French Revolution , and on the other hand by pre-revolutionary law. These are customary and particular law (droit coutumier) based on the Franconian- Germanic feudal law (droit coutumier) from the north of France and the common law of French style (droit écrit) from the south of France.
Roman jurisprudence, which flourished again in the 11th and 12th centuries, also found its way into France, without, however, the Franconian customary law having been superseded: In the south of France, Roman law was received in complexu , while in the north it was only received in subsidium , where customary law offered no or unsatisfactory solutions.
In the middle of the 15th century, Charles VII issued the order to record the customary law of the north of France, which had been based mainly on oral tradition. This also contributed to the fact that customary law retained a strong position compared to Roman-French law. In addition, it led to a rapprochement between droit écrit and droit coutumier and initiated the development of common French law (droit coutumier commun) .
The case law of the Court of Justice of Paris also contributed to alignment . The customary law of the Paris Code of Law (coutume de Paris) was soon applied wherever the other regional laws showed gaps.
These foundations, together with the spirit of the French Revolution, ultimately led to uniform legislation in the field of civil law in the form of the Civil Code . Napoleon himself had a not inconsiderable influence on the plain language style of the Civil Code .
German legal circle
The German legal system, which in addition to Germany, Austria, Liechtenstein, Portugal , Switzerland and Greece , and since the time of Ataturk , the Turkish count is distinguished by its system. Rational, abstract and conceptual thinking prevail, such as B. the principle of abstraction .
The representative legal system of this legal family is that of Germany.
History of the German legal system
The Germanic tribal law that was initially prevalent in the German-speaking regions was increasingly ousted. The reception of Roman law, which took place mainly in the 15th century, was also favored by the fact that the Holy Roman Empire of the German Nation saw itself as the successor to the Roman Empire and that Roman law was also the law of the Holy Roman Empire, as well as the fact that the Imperial power decreased in favor of the power of the territorial states. In this way, no uniform German law could develop that would have made the reception of Roman law - as in France or the Nordic countries - at least partially superfluous. There was also no effective imperial jurisdiction that could have standardized the jurisdiction nationwide; the jurisdiction of the Reichshofgericht was severely curtailed by the evocation and appeal privileges that the strengthened territorial princes had granted themselves. When the Reich Chamber of Commerce was finally established in 1495 , it was already too late for the development of community German private law; Roman law gained more and more ground due to its rich and differentiated set of instruments, as the Germanic forms of legal finding no longer met the needs of the time. The reception that started now took place partly even completely ( Latin in complexu ).
The training of jurists contributed to the spread of Roman law. These had initially acquired their knowledge at the universities of Northern Italy (e.g. the University of Bologna ); later the German universities also began to teach Roman law.
With the age of the Enlightenment came the desire for an overall codification based on systematics and rationality. Philosophers such as Pufendorf or Thomasius developed an abstract and logical system, which, however - again, unlike in France or the Nordic countries, for example - often lost the connection to the social problems actually to be solved. Unlike in France, however, the desire for a comprehensive codification was not fought for from below, but rather - in keeping with the enlightened absolutism prevailing in Germany - given from above. Examples of such a codification are the General Land Law for the Prussian States of 1794 and above all the Austrian General Civil Code of 1811, which is still in force today .
The following epoch of Romanticism also brought about the Historical School of Law , which turned away from the law of reason and focused on historically mature law. One of the founders of the historical school of law, Savigny , turned to especially Roman law, not in the form of usus modernus pandectarum , but in its ursprünglichster searchable form of the ancient Roman law, as from the records I. Justinian emerged. It therefore belonged to the Romance branch of the historical school of law. Unlike the Roman sources, however, Savigny assumed private autonomy as the basis of legal transactions.
In the spirit of Romanticism, Savigny spoke out against a codification of civil law, since the law was not to be prescribed by a legislature , but developed organically through the manifestation of the folk spirit , while the representatives of the Germanic branch of the historical school of law advocated a codification.
Under Savigny's successors, Puchta and Windscheid , the Romance branch developed into pandect science, which is also seen as term jurisprudence. Jhering finally turned away from conceptual jurisprudence towards a view of law oriented towards real social requirements (cf. interest jurisprudence ).
The general unification of the law ultimately led to the creation of the German Civil Code . This had only received the "drop of social oil", which the social question of the time demanded, through the improvement of the draft by the 2nd commission, which Anton Menger also belonged to . It came into force on January 1, 1900.
Nordic legal system
The Nordic legal family is also known as the Scandinavian legal family; it includes Sweden, Norway, Denmark, Finland and Iceland. In terms of style, the practical orientation of Nordic law can be particularly emphasized; the institution of ombudsmen is also characteristic.
Representative legal systems of this legal family are those of Sweden and Denmark.
History of the origin of the Nordic legal system
First of all, the old Germanic law, to which certain regional deviations occurred. Due to the close political and cultural ties between the Nordic countries ( Danish-Norwegian personal union , Kalmar Union , etc.), the countries in this area never developed any particular legal deviations. In the High Middle Ages, landscape rights such as Jyske Lov , which were valid in Southern Jutland (also: Schleswig ) until 1900, were created.
The laws of the then dominant powers, Sweden ( Sveriges rikes lay from 1734) and Denmark ( Danske Lov of King Christian V from 1683; entered into force in the Norwegian part of the empire under the title Norske Lov ), each of which the process in their areas of application , had a great influence - Standardize criminal and private law. Both codes of law were written in a simple and understandable language.
The influence of Roman law, which only took place in Scandinavia in the 17th century, was less than in the rest of continental Europe, due to the already established legal systems at that time, but still greater than on common law. It was received primarily in those areas in which the applicable law knew no or insufficient regulations; however, there were no theoretical generalizations here either.
From the end of the 19th century, the pronounced historical and cultural feeling of togetherness led to close, mostly informal, cooperation between the Nordic countries on legislation. The Nordic Council is therefore of little importance. Many uniform laws subsequently came into force in the Nordic countries.
Common Law or Anglo-American legal system
This legal family essentially comprises the Anglo-American or the common law family that was exported from England to its colonies ( Australia , India , Canada , New Zealand , United States of America , etc.). After their independence, these countries have mostly adopted their own legal systems that are more or less strongly influenced by the British legal culture of common law, which maintain and strengthen similar legal traditions and certain common institutions (e.g. within the framework of the Commonwealth ).
The most striking difference to the Roman-Germanic legal system are the roots of jurisprudence: while scholastic thinking predominates in continental Europe , in common law it is the forensic approach to the specific case. This fact has an effect, among other things, in the fact that in the Roman-Germanic legal system the lawyer uses norms to determine how a legal dispute will be resolved, while in common law it is about predicting how the judge will decide the specific case by means of prejudices .
History of the Common Law
Since the time of the conquest of England in 1066 by the Normans ( Battle of Hastings ), English customary law has been gradually replaced by the legal institutions introduced by the Normans. For their part, the Normans were influenced by French law, which explains the French influence on English legal language, which was largely lost in the colonies. The newly created administrative system in the form of the feudal system , whose supreme liege was the king, was particularly influential . After conquering England, King William I confiscated the property of his opponents and distributed it to his followers, whereby he - like his successors later - ensured that the territories were not too large and that the territorial rulers were not too powerful to maintain his central power were.
The tax system (→ Domesday Book ) was connected with the feudal system . In order to secure this source of income, the royal administration soon took over functions of the administration of justice, and a judicial system with the Court of Exchequer , the Court of Common Pleas and the Court of King's Bench developed . In addition, since the 12th century travel judges (justices in eyre) were increasingly sent by the king to the provinces to give justice there. This also led to the centralization of the judiciary and thus to the progressive standardization of the law, whereby the old legal habits were pushed back further.
In the Middle Ages, legal proceedings could only be initiated with instructions from the king, so-called writs . A large number of standardized writs emerged that were very similar to the actiones of Roman law. Whether you won or lost a process largely depended on choosing the right writ . This led to legal practitioners' thinking that was very procedural. Overall, the procedures were too formalistic and cumbersome. The neglect of the material aspect led to results that were felt to be unfair. In the 14th century, therefore, requests were made by many inferior parties to the king to correct a result that was perceived as unjust by royal order according to the commandments of morality. Over time, this task was taken over directly by the Chancellor , the highest administrative officer, who carried out clarification procedures that were not bound by the formal rules of evidence. In addition to common law in the narrower sense, a new component of common law in the broader sense developed, which is summarized under the term equity . Towards the end of the 16th century, equity law became more solid and a law firm was established. In the 18th century, equity jurisprudence finally formed a component that was on a par with common law in the narrower sense and, like it, was based on case law . The relationship between equity and common law in the narrower sense had already been clarified in the 17th century when the chief judge Edward Coke complained that the chancellor with his equity jurisprudence could not simply make himself a judge over the common law courts. King James I decided this dispute in favor of the Chancellor, so that from then on it was clear that in cases of conflict, the equity law takes precedence.
The common law owes its resistance to direct interference by the king, which proved to be positive in England in that it protected against the absolutist Tudors and Stuarts in the 16th and 17th centuries . Since then, common law has also been linked to the idea of guaranteeing freedom; a role that the Constitution has in continental Europe . To date, there is no written constitution in the UK .
The Judicature Act of 1873, which came into force in 1875 , finally reformed the judicial system and procedural law. Among other things, the jurisdiction for common law and equity previously held by different courts was merged. From now on, a court had to observe both, even if different divisions continued to have jurisdiction within the courts . The outdated writ system was also abolished; all processes before the newly established High Court of Justice have now been initiated by the writ of summons .
The Statute Law has a total of little importance; only in the fields of influenced by Roman law and Commercial Law of the Sea as well as in social law, there was comprehensive codification which, however, partially confined by case law (case law) are made out formed common law ordered summarize and otherwise mainly from point laws, which for their part build on existing common law.
Legal teaching and literature
Even today, in the minds of lawyers, despite the merger, a distinction is made between common law ie S. and equity , which is also reflected in the fact that separate textbooks and lectures continue to exist for both areas. The writs system, which was abolished for procedural law, is often still used today in textbooks as a classification scheme.
One recognizes the common law, among other things, by the strongly adversarial character of court proceedings , which are dominated by the parties, while the judge pays particular attention to compliance with the procedural rules. Another characteristic is the important role played by juries, who deliberate independently of the judge. In addition, judges' law in the form of precedents ( case law ) is recognized as being of great importance in common law .
Mixed systems exist both within and between the major legal circles.
Such systems of Roman-Germanic law on the one hand and common law on the other hand exist in Scotland and South Africa , for example , but also in the French-influenced US state Louisiana and the Franco-Canadian province of Québec .
Within the Roman-Germanic legal system, the civil law of Brazil, codified in 1916, is a typical example insofar as it is shaped by the reception of both the German Civil Code and the French Civil Code . The same applies to a large number of other codifications that emerged after 1900 in non-European countries.
Mixed legal systems:
- Romance legal family + common law:
- Roman-Dutch law + common law: Botswana , Guyana , Indonesia , Lesotho , Namibia , East Timor , Scotland, Zimbabwe , Sri Lanka , South Africa , Swaziland
- German legal theory + Ottoman law + Common law: Israel
Formerly socialist states
As a further clearly delimited special group, a distinction was made, at least until around 1990, the communist or socialist legal systems, which can be divided into three subgroups:
- Russia and other former CIS countries
- other Eastern European countries including the Baltic States
- East and Southeast Asian countries, in particular the civil law of the People's Republic of China.
The socialist legal system was primarily characterized by the fact that the means of production were generally not privately owned, but state property. In general, private autonomy, especially the right to economic activity, was severely restricted. The state controlled the entire economic process and also integrated into civil law matters, e.g. B. by the fact that prosecutors could appear in civil matters. Despite these peculiarities, roots in Roman law were recognizable.
History of the emergence of the socialist legal system
After the end of the Second World War , the Soviet Union had gradually introduced real socialist dictatorships in the territories it controlled . These converted the companies according to the specifications of the Soviet Union. This went hand in hand with the introduction of the so-called socialist social order in the sense of the “ socialist brother countries ”, in the context of which the legal systems were also and especially changed significantly. The same development took place in the two socialist countries of Europe that were not ruled by the Soviet Union: Albania and the SFR Yugoslavia .
The socialist legal system no longer exists, as the so-called socialist social order was given up in these countries due to the fall of the communist dictatorships in the Eastern Bloc as well as Albania and Yugoslavia. Since there has been an inconsistent reorientation of the legal systems in the affected countries since the fall of the “ Iron Curtain ” in 1989, there is also no uniform legal system of former socialist countries.
Islamic legal system
Religious law, the Sharia , does not recognize the separation of church and state , which has been common in the western legal tradition since the Enlightenment, and claims universal validity. “In Islamic culture, the Sharia describes the law in its broadest form, that is, the totality of the religious, moral, social and legal norms contained in the Koran and the prophetic tradition.” ( Bodiveau ) However, the Sharia is in practically no longer an Islamic country the sole basis of the state and legal system.
The legal systems of the Islamic legal system apply religious family and inheritance law depending on the religious affiliation of the person concerned. Either Islamic law, the law of the Christian denomination concerned or Jewish law apply . Sunnis and Shiites also differ on some questions of family and inheritance law. Historically, there are four different schools of law within the Sunnah: the Hanefite , Malekite , Shafiite and the Hanbali , with different schools of law prevailing in the individual countries. Contract law and international private law of the Islamic states are largely based on the Egyptian civil code of 1948, which in turn took many suggestions from the Code Napoléon . A strong direct influence of the Code Napoleon can also be demonstrated in the Maghreb .
The legal systems of most Islamic countries are characterized by a differently weighted juxtaposition of civil, often based on European models or further developed and religious legal traditions, which not infrequently also leads to competing efforts and tensions that are resolved differently or remain unresolved. The drafts range from a formally strict separation based on the model of Turkey to the legislative and judicial systems of the Islamic Republic , in which the Sharia is enshrined as the ultimate constitutional standard of all legislation and application. Pre-Islamic law or local law that is independent of Islam, including tribal law, can be incorporated in different ways.
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