Legal Traditions or Legal Families

Scholars have advanced divers definitions of “legal traditions”, or “legal families”:

“There are three highly influential legal traditions in the contemporary world: civil law, common law, and socialist law … A legal tradition, as the term implies, is not a set of rules of law about contracts, corporations, and crimes, although such rules will almost always be in some sense a reflection of that tradition. Rather it is a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught. The legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legal system into cultural perspective.” [1]

“This grouping of laws into families, thereby establishing a limited number of types, simplifies the presentation and facilitates an understanding of the world’s contemporary laws. There is not, however, agreement as to which element should be considered in setting up these groups and, therefore, what different families should be recognized. Some writers base their classification on the law’s conceptual structure or on the theory of sources of the law; others are of the view that these are technical differences of secondary importance, and emphasize as a more significant criterion either the social objectives to be achieved with the help of the legal system or the place of law itself within the social order … There would appear to be three at least which occupy an uncontested place of prominence: the Romano-Germanic family, the Common law family and the family of Socialist law.” [2]

Other legal traditions include Moslem law, Hindu law, Jewish law, laws of the Far East, and African tribal laws.[3] J.H. MERRYMAN mentions also the Scandinavian tradition.[4]

A legal tradition is thus [5] the general culture underlying a family of similar legal systems. Since most legal systems duplicated the law administered in another jurisdiction (e.g. former British colonies duplicated British law), major legal traditions tend to be associated with the original legal system as it then existed rather than as it exists today.

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Notes

1. DAVID & BRIERLEY, Major Legal Systems in the World Today, 3 Ed., Stevens & Sons, London, 1985, para. 15 at 19.
2. MERRYMAN, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 2 Ed., Stanford University Press, Stanford, California (1985) at 1, 2.
3. DAVID & BRIERLEY, Major Legal Systems in the World Today, 3 Ed., Stevens & Sons, London, 1985, paras. 16-17 at 20, 22.
4. Ibid., para. 14 at 18 and paras. 22-25 at 27-31.
5. MERRYMAN, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 2 Ed., Stanford University Press, Stanford, California (1985) at 5.
6. William Tetley, Q.C., Mixed jurisdictions : common law vs civil law (codified and uncodified).

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