A legal tradition or legal family is a grouping of

law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the ar ...

s or

legal system A legal system is a set of legal norms and institutions and processes by which those norms are applied, often within a particular jurisdiction or community. It may also be referred to as a legal order. The comparative study of legal systems is th ...

s based on shared features or historical relationships. Common examples include the

common law tradition Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

and civil law tradition. Many other legal traditions have also been recognized. The concepts of legal system, legal tradition, and

legal culture Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the ar ...

are closely related. The understanding of legal families and traditions has shifted over time. Early and mid-20th-century efforts at classifying legal systems commonly employed a taxonomic metaphor, and assumed that the affiliation of a legal system with a legal family was static and that

mixed legal system The contemporary national legal systems are generally based on one of four major legal traditions: civil law, common law, customary law, religious law or combinations of these. However, the legal system of each country is shaped by its unique ...

s were an exceptional case. Under more recent understandings, legal systems are understood to partake of multiple legal traditions.

Definitions

The concept of a legal tradition is widely used, with varying definitions, in the disciplines of

comparative law Comparative law is the study of differences and similarities between the law and legal systems of different countries. More specifically, it involves the study of the different legal systems (or "families") in existence around the world, includ ...

and comparative legal history. In comparative law, the theory of legal traditions is strongly associated with the scholarship of H. Patrick Glenn. The concept of a legal tradition may also be used more broadly to understand the laws of a

or traditions within a legal system. In the influential 1969 comparative law work ''The Civil Law Tradition'', John Henry Merryman defined a "legal tradition" as "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 the legal system, and about the way law is or should be made, applied, studied, perfected, and taught." The concepts of legal tradition, legal culture, and legal system are closely related and are sometimes used interchangeably. At the level of a national legal system, a national legal tradition relates the legal system to the culture of which it is a part. In contrast, H. Patrick Glenn avoided formulating any single definition of legal tradition "because the (various) definitions are out there" and "one must simply work with them". Glenn did however define "tradition" as a "loose conglomeration of data, organized around a basic theme or themes". The metaphor of a bee swarm has been used to understand the loosely organized nature of a legal tradition.

History

The first documented efforts at grouping legal systems date from the

early modern period The early modern period is a Periodization, historical period that is defined either as part of or as immediately preceding the modern period, with divisions based primarily on the history of Europe and the broader concept of modernity. There i ...

and the first efforts at

. For example, in 1602 William Fulbecke classified the laws of Europe as Anglo-Saxon (common law), continental (civil law), and

canon law Canon law (from , , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical jurisdiction, ecclesiastical authority (church leadership) for the government of a Christian organization or church and its membe ...

. The first systematic taxonomies of legal systems were developed in the late 19th century. In 1880, the French comparatist Ernest Désiré Glasson presented a taxonomy based on the proximity of different legal systems to

Roman law Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (), to the (AD 529) ordered by Eastern Roman emperor Justinian I. Roman law also den ...

: a first group strongly influenced by Roman law, and including Portugal, Italy, and Romania; a second group moderately influenced by Roman law and including England, Russia, and Scandinavia; and a third group with a mixture of Germanic and Roman influences including France and Germany. In 1893 the Brazilian jurist Clóvis Beviláqua adapted this taxonomy by adding Latin American systems as a fourth family, a classification that was followed by a number of subsequent Latin American comparatists. Taking a more global view, in 1884, the Japanese comparatist Hozumi Nobushige divided the world's legal systems into Indian, Chinese, Islamic, Anglo-Saxon, and Roman families. Breaking with these early ad-hoc classifications, at the 1900 International Conference on Comparative Law in Paris, Gabriel Tarde called for the grouping of legal systems to be put on a taxonomic basis similar to the taxonomies that had been developed in linguistics and biology. Early taxonomies by Adhémar Esmein and Georges Sauser-Hall adopted linguistic and

racial Race is a categorization of humans based on shared physical or social qualities into groups generally viewed as distinct within a given society. The term came into common usage during the 16th century, when it was used to refer to groups of va ...

bases for classification, but were not widely adopted due to the lack of a demonstrated connection between these bases and the attributes of the legal systems. In 1923, Henri Lévy-Ullmann developed the first grouping of legal systems based on

sources of law Sources of law are the origins of laws, the binding rules that enable any state to govern its territory. The terminology was already used in Rome by Cicero as a metaphor referring to the "fountain" ("fons" in Latin) of law. Technically, anything ...

: English law (based on custom), civil law (based on written sources), and Islamic law (based on religious revelation). This was the first clear statement of the dichotomy between civil and common law that later became commonplace. By the 1950s a division of legal systems between common law and civil law families had become prevalent. In 1950, René David presented a division of the world's legal systems into

Western Western may refer to: Places *Western, Nebraska, a village in the US *Western, New York, a town in the US *Western Creek, Tasmania, a locality in Australia *Western Junction, Tasmania, a locality in Australia *Western world, countries that id ...

socialist Socialism is an economic ideology, economic and political philosophy encompassing diverse Economic system, economic and social systems characterised by social ownership of the means of production, as opposed to private ownership. It describes ...

, Islamic, Hindu, and Chinese groups. In 1962, he replaced this with a much more influential division into "Romano-Germanic", common law, and socialist legal families. David emphasized the inevitably arbitrary nature of these classifications. In 1961, Adolf Schnitzer divided the world's legal systems into five "circles" (): primitive, ancient, Euro-American, religious, and Afro-Asian. The ancient circle included the legal systems of

ancient Egypt Ancient Egypt () was a cradle of civilization concentrated along the lower reaches of the Nile River in Northeast Africa. It emerged from prehistoric Egypt around 3150BC (according to conventional Egyptian chronology), when Upper and Lower E ...

Mesopotamia Mesopotamia is a historical region of West Asia situated within the Tigris–Euphrates river system, in the northern part of the Fertile Crescent. Today, Mesopotamia is known as present-day Iraq and forms the eastern geographic boundary of ...

ancient Greece Ancient Greece () was a northeastern Mediterranean civilization, existing from the Greek Dark Ages of the 12th–9th centuries BC to the end of classical antiquity (), that comprised a loose collection of culturally and linguistically r ...

, and

ancient Rome In modern historiography, ancient Rome is the Roman people, Roman civilisation from the founding of Rome, founding of the Italian city of Rome in the 8th century BC to the Fall of the Western Roman Empire, collapse of the Western Roman Em ...

; the Euro-American circle included all of the legal systems of modern Europe and the Americas. Schnitzer regarded these five legal groups as corresponding to the five great Kulturkreise of the world. By the later 20th century the division between civil law and common law traditions was increasingly challenged or abandoned by comparative law scholars, along with taxonomic approaches to legal system classification in general. However, in the same period that taxonomic approaches were being abandoned in comparative law, the

legal origins theory The legal origins theory claims that the two main legal traditions or origins, civil law and common law, crucially shape lawmaking and dispute adjudication and have not been reformed after the initial exogenous transplantation by Europeans. Theref ...

became popular among economists. In the late 20th and 21st century, more dynamic and flexible understandings of legal traditions have taken hold, in which most or all legal systems partake of multiple legal traditions.

Major legal traditions

Accounts of the world's legal traditions vary. Glenn's influential but controversial classification divided the laws of the world into six major legal traditions:

chthonic In Greek mythology, deities referred to as chthonic () or chthonian () were gods or spirits who inhabited the underworld or existed in or under the earth, and were typically associated with death or fertility. The terms "chthonic" and "chthonian" ...

(roughly corresponding to

customary law A legal custom is the established pattern of behavior within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Customary law (also, consuetudinary or unofficial law) exists wher ...

and Indigenous law),

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

, civil law,

Confucian Confucianism, also known as Ruism or Ru classicism, is a system of thought and behavior originating in ancient China, and is variously described as a tradition, philosophy, religion, theory of government, or way of life. Founded by Confucius ...

Hindu Hindus (; ; also known as Sanātanīs) are people who religiously adhere to Hinduism, also known by its endonym Sanātana Dharma. Jeffery D. Long (2007), A Vision for Hinduism, IB Tauris, , pp. 35–37 Historically, the term has also be ...

, Talmudic, and

Islamic Islam is an Abrahamic religions, Abrahamic monotheistic religion based on the Quran, and the teachings of Muhammad. Adherents of Islam are called Muslims, who are estimated to number Islam by country, 2 billion worldwide and are the world ...

. These can be further grouped into four global categories: * Traditions based on oral tradition (chthonic) * Traditions based on religious revelation (Talmudic, Islamic) * Traditions emphasizing duty (Confucian, Hindu) * Traditions based on state power (common, civil) In Glenn's analysis, any particular country's laws will typically draw on multiple traditions. Thus for example he analyzes the

law of the People's Republic of China The Law of the People's Republic of China, officially referred to as the socialist rule of law with Chinese characteristics, is the legal regime of China, with the separate legal traditions and systems of mainland China, Hong Kong, and Macau. C ...

as a layering of Confucian and Western traditions.

References

{{reflist Legal concepts Comparative law

Definitions

History

Major legal traditions

Further reading

References