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An exercise on the internal logic of legal systems

Published online by Cambridge University Press:  02 January 2018

Esin Örücü
Esin Örücü*
Affiliation:
Erasmus Universiteit Rotterdam, University of Glasgow
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Extract

At the outset, an exploration of the terms exercise, legal system, and internal logic used in the title of this paper may be useful. The assumption that a legal system has an intrrnal logic, also needs accounting for.

I call this an exercise because it is but a preliminary search for an all-embracing explanation for various specific and isolated observations related to legal systems; an attempt to prove that legal systems unfold in a way predetermined by their internal logic and that every step in this unfolding is a sine qua non of the one before and after. This is also called an exercise, because it is an attempt at analysing only three of the legal families or cultures.

Type
Research Article
Information
Legal Studies , Volume 7 , Issue 3 , November 1987 , pp. 310 - 318
Copyright
Copyright © Society of Legal Scholars 1987

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References

1. Raz, J., The Concept of a Legal System: An Introduction to the Theory of Legal Systems (Clarendon Press, Oxford, 1973), pp 1–2.Google Scholar

2. David, R. & Brierley, E. C. J., Major Legal Systems in the World Today (Stevens, London, 1985), p 19.Google Scholar

3. See Raz, Austin, Kelsen. For example, for Kelsen a normative system is a legal system as long as it has a certain minimum degree of complexity. See Raz, op cit, p 141.

4. Friedman says, ‘law often refers only to rules and regulations; but a line can be drawn between the rules and regulations themselves and those structures, institutions and processes which breathe life into them. This expanded domain is the legal system’ which he sees as having various functions: being a part of the system of social control; dispute settlement; social engineering; social maintenance. L. M. Friedman, American Law (W. M. Norton & Co, New York, London, 1984), pp. 4, 10.

5. Ehrmann uses the term legal cultures as Merryman uses legal tradition: See H. W. Ehrmann, Comparative Legal Cultures (Prentice-Hall, Englewood Cliffs, NJ, 1976), pp 6–11. J. H. Merryman, The Civil Law Tradition (Stanford University Press, Stanford, 1985, 2nd edn), p 2.

Friedman uses the term legal cultures, first, as a concept to replace legal family. ‘Legal culture is the term we apply to those values and attitudes in society which determine what structures are used and why; which rules work and which do not and why… Legal cultures obviously ‘differ in ways that cut across the conventional similarities and differences of legal systems, classified by historical evolution, so, therefore do legal systems differ.’ L. M. Friedman, ‘Legal Culture and Social Development’ (1969) 4 Law and Society Review, 35. Secondly, he uses the term legal culture as one of the elements of a legal system. According to Friedman, a legal system has three aspects or components: a structure (skeleton or framework which are persistent, long term patterns), a substance (the law in its popular sense, the rules, norms and behaviour patterns of people inside the system) and the legal culture (peoples’ attitudes to law and the legal system, that part of the general culture which concerns the legal system). L. M. Friedman, American Law, pp 5–6.

6. J. H. Merryman, op cit, n 5.

7. David, R., International Encyclopaedia of Comparative Law, vol II, chap 2, p. 6.Google Scholar D. White, ‘Some Problems of a Hybrid System: A Case Study of St Lucia’ (1981) 30 Int & Comp LJ, 879–880.

8. Cooper, ‘The Common and the Civil Law- A Scot's View’ in Lord Cooper of Culross, Selected Papers 1922–1954 (Edinburgh, 1957), pp 201–209.

9. The anxiety felt about the appropriateness of this simplistic grouping is discussed by this author elsewhere. See also S. Krislov, ‘The Concept of Families of Law’ in Legal Systems and Social System (eds A. Podgorecki, C. J. Whelan, D. Khosla) (Crom Helm, London, Sydney, Dover, New Hampshire, 1985), pp 25–38. Nevertheless, for pedagogical purposes this well-established simplistic division is used here.

10. Friedman says that legal systems can be clumped together into clusters (families) —‘groups of legal systems that have important traits of structure, substance or culture in common … in most cases members of a legal family are related, that is they have a common parent or ancestor, or else have borrowed their laws from a common source’. Thus, the similarity in culture and tradition is likely to end in similar legal systems. L. M. Friedman, American Law, p 15. Zweigert and Kötz talk of the style as the critical thing about legal systems, being quite distinctive for each group of legal systems. According to the authors, crucial for style are: historical background and development; predominant and characteristic mode of thought in legal matters; especially distinctive institutions; the kind of legal sources it acknowledges and the way it handles them; ideology. See K. Zweigert, and H. Kötz, An Introduction to Comparative Law (VI North-Holland Publishing Co, Amsterdam, New York, Oxford, 1977), pp 62–66. David, on the other hand, stresses the importance of the constant and fundamental elements, that is, what is truly significant in a legal system. ‘These characteristics can be identified by examining those fundamental elements of the system through which the rules to be applied are themselves discovered, interpreted and evaluated. While the rules may be infinitely various, the techniques of their enunciation, the way in which they are classified, the methods of reasoning in their interpretation are, on the contrary, limited to a number of types. 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.’ R. David, J. E. C. Brierley, op cit, n. 2, p 20.

11. See A. Podgorecki, ‘Social Systems and Legal Systems — Critieria for Classification’ in Legal Systems and Social Systems, n 9, supra, pp xi, 2, 7.

12. Good examples of this can be encountered in mixed jurisdictions such as Quebec, Louisiana and St Lucia.