Legal families: the concept, types, characteristics, characteristics, classification
Today in the world there are more than 250 countries. As a means of regulating the life of society in each state uses the legal system. If we conduct a comparative analysis of current legislation in different countries, we can find a number of common features.
Legal system and legal family
What is the difference between these concepts?Legal system and legal familycorrelated as private and common. National legislation can be combined into several groups.Legal families, brieflyspeaking, it is a combination of domestic regulatory frameworks. National legislations are grouped according to a number of criteria. Among the main ones we can mention the commonality of legal sources, key concepts, the historical path of formation, internal structure.
Conceptlegal families"The German scientist Leibniz first introduced it. In 1667 he published a work in Latin on methods of teaching and studying jurisprudence. In this work there is a paragraph 7. In it Leibniz proposedcharacteristic of legal familieson the basis of similarity in development and a single source. A little earlier, the scientist put forward a similar idea about languages. Subsequently, his ideas were developed.Classification of legal familiesToday is carried out taking into account various factors. These include:
- Global legal ideas.
- The internal structure of the institute.
- Specificity of the origin and development of different systems.
- Legal culture.
It is worth noting that scientists have no consensus about which legal families should be considered essential. The first approach was proposed by R. David (French figure). He is considered a pioneer in this field. In the 60s of the 20th century, David began to use the comparative methods developed by him in the study of legal science. As a result, they were allocatedbasic legal familiesand additional. To the first he referred to the continental, general and socialist. Additionallegal families:
- Religious (Islamic).
- Far East.
The second approach was proposed by Ketz and Zweigert. They singled out eight families: the Romanesque, Germanic, socialist, Anglo-American, Hindu, Islamic, Far Eastern, Scandinavian.
The third point of view on the classification of families was expressed by Osakwe (an American scientist). He combined them into three categories. In total, it has 13 families. The groups were as follows:
- Other non-Western.
He attributed to the first: the Romanesque, Germanic, English, Scandinavian, American, socialist, Russian families. The second group included African and southeastern. Among the religious families, the scientist called Muslim, canonical, Jewish, Hindu. Another approach to the separation proposed Behrose. This scientist believed that there are no additional legal families, and all of them are basic. In total, he identified 7 species. He took the family to them: traditional, traditional-aesthetic, legislative, religious, precedent, post-Soviet, mixed law.Another point of view was expressed by the Frenchman Leger. He highlights twolegal families.To the first Lezhe took the legal institutions belonging to states with a long tradition. The second group consisted of systems of countries subordinating the law of ideology or religion.
To better understand the differences between the categories, it is advisable to take the division proposed by David.Legal families of our timebased on the foundation laid in the last century. Today, there are four groups. The first isRoman-Germanic legal family.It is also called continental. This is due to its place of origin.Romano-Germanic legal familycombines the Roman, canonical and local traditions of Sweden, Spain, France and other countries.
First of all you should pay attention tosources of law of the romano-germanic legal family. The main one is the regulatory act. Its share in the total composition of the sources is 70%. In addition, a precedent is used. It applies to cases of inconsistency, ambiguity of the law.Legal family structureincludes customs. However, they are used in practice quite rarely. Compared to other families, legal doctrine is widely used in the Roman-Germanic. Scientific figures are of great assistance to authorized bodies in the resolution of disputes. Features of the legal familyalso consist in the consistency and doctrinalities of domestic legislation. Scholars, together with representatives of government agencies, are involved not only in the resolution of complex disputes or cases in which there are no regulations, but also in the development of draft laws. Often, scientists are the initiators of the approval of a particular act.
The family structure is formed by industries, sub-sectors and institutions. When considering a particular case, the law enforcer needs to determine to which industry exactly the dispute should be referred. In its composition, he subsequently seeks the appropriate rate. Consideringsigns of legal familyIt should be noted a clear systematization of acts. Previously established industries are codified, that is, deep processing. As a result, an organic document is formed, usually referred to asby code.
It is clearly visible between the acts. The meaning of dependence is as follows. The statutory position approved by the higher structure has an advantage over the act adopted by the lower body. In the event of a contradiction, the first cancels the action of the latter. The hierarchy is also present between legal sources. In particular, legislative acts have an advantage over all other forms (precedent, custom, etc.). This is due to the large role of the state in the sphere of normative regulation.
Not alllegal familiesput material norms above procedural. However, in the laws of the continental group, this is exactly the ratio. The advantage of substantive law over procedural means that, in the absence of evidence, it is impossible to refuse to accept the case for trial. But if during the consideration the position of the applicant will not be reasoned, the dispute will be lost. This rule also exists because in the countries that use the systems of this legal family, the inquisitorial process is implemented.He assumes a certain activity of the court, the possibility of it taking measures aimed at gathering evidence. In civil disputes, of course, there is also competition. But in these processes, the court may well be active. It should be noted that the system of bodies resolving the case is also hierarchical. It assumes the presence of local, appeal and cassation, as well as higher instances. The control of their activities is carried out by the Ministry of Justice.
Anglo-Saxon legal family
It includes the United Kingdom, Canada, Australia, USA, etc. Currently in the British Commonwealth consists of 36 countries.Anglo-Saxon legal familyIt was formed not by scientists (legal theorists), but by practitioners. Their ideas were based on the results of the consideration of specific cases. Accordingly, a precedent is used as the main source. Today, its share is about 50% of the volume of other regulatory forms. However, in earlier times, this figure was significantly higher. In statutory regulation, statutes (laws) are mainly used. Their share is at 40%. In Europe, the law is considered as a set of rules established by law.As for the countries of the British Commonwealth, it is for them the result of the consideration of the dispute in court. In addition, the law will not be considered an obligatory rule until it is tested in practice and the relevant experience in its application is accumulated. Customs are also used in the family. However, they are of secondary importance.
Legal doctrine in the family is underestimated, because the law is more connected with the activities of the courts than scientists. One of the distinguishing features of this group is considered to be pragmatic. This means that any dispute must be resolved even in the absence of an appropriate rule. English law is casuistic. This is due to the fact that precedents take place in specific cases. The principle on which homogeneous cases are resolved is formed after examining all the evidence and describing their signs. Before using it, another judge compares the case to be dealt with the one set forth in the previous decision. The opinion that the precedent fetters the authorities is deceptive. The judge independently decides whether the case he is examining coincides with the one on the basis of which the decision was made earlier. Since there is never a complete similarity, he may well throw the precedent.
A distinctive feature of the Anglo-Saxon system is that it does not have an expressed logical construction of norms. This situation is emerging not only among precedents, but also among statutes. The fact is that the formation of laws took place under the influence of judicial practice, which was not systemically different. In this family there is no division into branches. However, there are institutions. Within the framework of case law, there is no division into public and private norms. In addition, there is no hierarchy between the cases of practice. By and large, precedents predominate over statutes that have not received judicial interpretation. This all indicates that the state plays a minimal role in the law-making procedure.
The specifics of the resolution of cases
Procedural rules take precedence over material ones. This circumstance is a consequence of the hard rule that any case should be allowed. In the absence of material norms, the court is entitled to create it. However, if there is no evidence, even this will not help in resolving the case. The decision of the court should be motivated and contain a detailed analysis of the circumstances and arguments.Consideration of cases is carried out on the basis of adversarial procedure. He acts in civil and criminal proceedings. For the results of the proceedings the presence of guilt is not significant. The judge first of all determines whether a specific fact has occurred (causing harm, a crime, etc.).
Legal families of our time, as follows from the analysis of the literature, are the names of states in which they are common. The African group includes countries on the same continent. Their laws are based on a set of unwritten rules of behavior that are passed on through generations orally and are protected by the state. The literature uses the concept of "traditional legal family"This name is due to the fact that the rules are formulated under the influence of customs. At first they covered the whole life of society. Customs acted in the political, property, criminal, economic, family spheres. But after the conquest of African states by Europeans, the expansion of interactions with other countries became not enough .Traditional legal familyhas undergone a number of changes.Europeans began to help African nations shape the doctrine in their own ways. The intervention affected:
- Financial sphere.
- The police.
- Health care.
- Public activities.
- Criminal practice.
As a result, traditional law was reduced to the sphere of private life - land, family, property, inheritance and other relations. The new doctrine reflected the specifics of the metropolitan country. Where the English were present, more judicial practice was developed, where the French were, legislation. Meanwhile, any innovations are met with resistance from the people. In this regard, outside the major cities, the population continues to live according to customs.
It should be noted that the attitude of the population to the law is peculiar - its sense of justice. People respect and unconditionally honor customs. This is largely facilitated by the collective consciousness inherent in African peoples. Obligation is considered one of the key elements of traditional law. Subjective capabilities are almost unknown to Africans. As a rule, rules of law are kept by leaders in their memory.In the absence of specialized bodies, namely, the courts, they consider incidents. In African countries, not only legal institutions and professions are underdeveloped, but science as a whole.
What family does she belong to? There is currently no clear answer to the question. There are two points of view on this. Most scientists are of the opinion that Russian law comes from the Romano-Germanic family. In particular, we are talking about pre-revolutionary doctrine. After the metamorphosis that took place in the Soviet period, which lasted several decades, the right gradually returned to the Roman-Germanic family. The essence of the other opinion is as follows. The domestic family acts as the center of Orthodox doctrine. It can be considered peculiar and independent. The originality of statehood lies in the traditional interference of power in all spheres of society. The economic development of the Slavic countries was influenced by many common factors. At the same time, collective types of management were of particular importance.
In addition, it should be noted, and the specific social status of the individual.There is no clear boundary between individual and state interests. Slavic countries differ in cultural, historical and religious-ethnic community. A number of authors believe that Russia is joining the continental legal family. Experts estimate this process as slow, with errors and unresolved issues. Lawyers point out that there are still many problems on the way that can be solved when interacting with foreign partners. The most urgent tasks are the following:
- Expanding the scope of precedent.
- Elimination of ideological remnants in regulatory documents. In this case, it is not only the preambles, but also the content of the acts.
Strictly speaking, this family cannot be called independent, but only a branch of the Romano-Germanic system. It is characterized by state control over a multitude of spheres of economic and social life of society in exchange for securing in the legislation a large number of social guarantees, a simplified procedure for handling cases in case of actual abandonment of competition. In almost all socialist countries there are features of the Roman-Germanic legal family.As one of the specific, albeit to a certain extent, secondary elements, there was a comrades' court.
Their main source is the Holy Scriptures. The most famous are Islam and Halacha. The latter is Jewish law. In European countries, religious norms are not widespread, even in the Middle Ages. This was due to the fact that the authority of the church acted exclusively within the spiritual sphere of life of the population. As for issues related to the punishment and application of civil law, they were decided solely at the level of local rulers. Before Peter I came to power, the church in Russia did not have judicial authority. But in some cases, repentance (taking monastic vows) could act (with the consent of the priests) as a substitute for certain types of criminal punishment. Religious law was not absolute, but only the prevailing norm.
The Jews had a rule according to which the law of the state within which the community resides is enforced without question. Currently, Israel does not consider the Jewish rule to be dominant.The legislation approved by the government is the regulatory framework. Some processes that concern marriage and the family can be considered both in a religious and in a state court. In general, in practice, the sphere in which Halacha can be applied is increasingly reduced to certain ritual ceremonies within certain communities. As for the Islamic society, in it Sharia can be used in combination with local customs, as well as with legislation approved by the rulers.