Legal Systems
Legal Systems
I. Comparative Law and Legal SystemsMax Rheinstein
II. Common Law SystemsEdward McWhinney
III. Code Law SystemsEdward McWhinney
IV. Socialist Legal Systems—Soviet LawHarold J. Berman
I COMPARATIVE LAW AND LEGAL SYSTEMS
Laws are different in different countries and often within the same country. This fact has given rise to that branch of jurisprudence which is known as comparative law (Rechtsvergleichung; droit comparé).
Precursors
While laws have been different through the ages, sustained scholarly concern about their diversity is hardly one hundred years old. An occasional interest in the diversity of laws has, of course, been shown every now and then, but systematic studies had their origin in the 1860s.
Comparative law could not be developed as a field of learning before thevarious local laws had come to constitute subject matters of academic learning. On the continent of Europe that was not the case until the high Middle Ages; in England it did not occur until the nineteenth century. But even the development of scholarly pursuits in the several legal systems did not immediately result in their comparative treatment. In fact, the way legal learning developed on the European continent constituted a hindrance to comparative observation.
The legal learning of the Roman Empire was lost in the barbarian invasions. In the course of the Middle Ages the crude customs of the Germanic invaders developed into bodies of law of considerable complexity and refinement, but they developed as customs of local courts of manifold kinds rather than as bodies of law that would be cultivated and elaborated by scholars. In England, the only medieval country where, in consequence of the Conquest, the growth of the law began to be centralized in the courts of the king, thelaw specialists were craftsmen rather than academic teachers and scholars. Only canon law, the law of the church, was given some attention by the scholars who came to gather in the emerging universities. A change occurred when Roman law was rediscovered and, from the twelfth century on, made the subject matter of academic teaching and writing, first in Bologna and then in the other rapidly growing and increasing universities. By the successive schools of the glossators (twelfth century) and post-glossators (thirteenth and fourteenth centuries), the humanists (sixteenth century), the Dutch and French jurists of the seventeenth and eighteenth centuries, the rationalist school of natural law, and, ultimately, the German Pandectists of the eighteenth and nineteenth centuries, the Roman law was transformed into the so-called civil law, which was taught in all the universities and was elaborated in scholarly treatises and dissertations, but which was not practiced anywhere in the form in which it was taught. The law that was actually appliedin the courts was an amalgam of the civil law and local customs and statutes. The civil law of the scholars was thought of as a body of rules and principles of universal validity. The law in action differed from place to place. It was rarely regarded as worthy of the attention of the scholars. The law with which they were concerned was uniform. There was nothing with whichto compare it. If views of the law differed, only one of them could be right. The actual laws that could have been compared were too limited in their spheres of application. What little comparative attention was paid to them was limited to a dry enumeration of differing rules. Even the great codifications of private law in Denmark-Norway (1683–1687), Sweden (1734), Prussia (1791–1794), and Austria (1811) evoked little interest on the part of the scholars. In France, on the other hand, Napoleon’s codes (1804–1810) established themselves so firmly as the subject matter of professional treatment that the old civil law disappeared from the curriculum. The same concentration on new nationwide unified laws took place in consequence of the later codifications in Germany (1896), Switzerland (1907), Italy (1865-1942), and other countries. The vast task of expounding and elaborating the contents of the new codes absorbed the energies of the scholars. In each country legal science came to be nationalized in the sense of being nationally isolated. Scholars would look beyond the national borders only insofar as the national codification had been modeled upon that of another nation. French legal learning was thus looked to in Italy, the Netherlands, Spain, Latin America, and those other countries in which Napoleon’s codes had served as models. German legal learning was influential where the local codes or laws had come under the influence of German scholarly writing, as in Austria, Switzer-land, Scandinavia, and Japan.
In both periods, that of the civil law and that of the codes, Continental legal learning was primarily interested in “dogmatics.” Starting with an authoritative text—in the civil-law epoch that of the corpus juris and in the later period that of the respective national code—the scholars busied themselves with the “interpretation” of these texts. The law laid down in the texts was regarded as being complete, that is, as providing the answer to every problem that would ever arise, provided one would only read and understand the text in the right way. Legal science was the science of properly interpreting the texts, just as theology consisted in the interpretation of the Scriptures. Under such an approach there was as little room for, and interest in, comparison of laws as there was in the comparison of religions.
In England the situation was similar but for different reasons. The centralized, well-organized, and politically powerful English bar had succeededin resisting the onslaught of the Roman law. In the royal courts at Westminster, the various local customs were welded into the common law of England. The elaborators of the law were the practitioners, especially the judges. They were craftsmen, not academicians. English law was hardly taught in the universities; one learned it in apprentice fashion, by doing. To learn the practice of some outlandish law, say, of Scotland, was for the English lawyer of as little interest as it would have been for a shoemaker to learn carpentry.
Lawyers are not the only people interested in law. The law also attractsthe interest of theologians, philosophers, and those who in English-speaking countries have come to be called jurists, that is, scholars who know the law and yet are interested in it not from the strictly professional point of view but from that of one who looks upon the law, so to speak, from the outside. The jurist is the man who is interested in the law’s growth in history, in the values which it protects and promotes, in the machinery through which it functions, in the structure of its body, and in its role and functions in society. It was among philosophers and jurists that interest in comparative law was first exhibited. It is among sociologists, anthropologists, and political scientists that such interest is presently growing; but attitudes are changing also among the lawyers, especially the legal scholars. They have begun to develop a new jurisprudence within which comparative law is coming to play a constantly increasing role.
Among the precursors of modern comparative law students one might mention Aristotle, who engaged in the comparison of the constitutions of the Greek city-states. In the Middle Ages some canonist, legist, or theologian every now and then engaged in comparative observation of secular law and canon law. In later times the peculiar features of the law merchant attracted some attention.
Suddenly there appeared Montesquieu, almost without predecessor—and also to be without immediate successors. In The Spirit of the Laws (1748), the law is treated as a social phenomenon and the diversity of the laws is seen as being caused by diversities of the natural, historical, ethnical, political, and other factors of the social setting. In the early part of the nineteenth century, Montesquieu’s ideas reappeared in thethinking of Hugo, Savigny, Eichhorn, and the other writers of the German historical school. In reaction to the natural-law jurists’ belief in the possibility and desirability of a system of law that could be developed by reason and would be valid universally, they again emphasized the dependency of the laws upon the surrounding conditions, especially the peculiar spirit of each nation (the Volksgeist). Divided into the two hostile camps of Romanists and Germanists, the men of the historical school endeavored to replace the amalgam of Roman and Germanic traditions that characterized the usus modernus pandectarum by new systems of revitalized Roman or Germanic law. Comparisons between these two systems were, of course, incidental to the heated debates, and some attention had to be paid to the law of France, in which Germanic traditions had survived to a larger extent than in Germany, and to the laws of England and Scandinavia, where no wholesale reception of Roman law had taken place. Institutions of English public law had attracted attention ever since their praises had been sung by Montesquieu, and they were widely imitated on the Continent in the course of therevolutionary movements that were sparked by the events of 1789.
Montesquieu’s insight into the interdependency of the law and other social factors was applied again by Sir Henry Maine, who was struck by similarities between the laws of ancient Rome and of India and by parallels in their development. Influenced by the Darwinist thought of his time, he ventured in his Ancient Law (1861) to formulate his famous “law” of universal sociolegal development from status to contract.
Modern comparative law
The interest of lawyers rather than jurists in the field of modern comparative law began with the foundation of the Société de Législation Comparée in 1869, the establishment of the Comité de Législation Comparée in the French Ministry of Justice in 1876, and the founding of the English Society of Comparative Legislation in 1898. The movement had its origin in practical considerations. It was believed that the ideas and experiences of foreign countries, especially new foreign legislation, should be made available for one’s own nationalaw making, which in the spirit of the time was identified with legislation. Translation and discussion of new foreign codes and laws thus constituted the principal field of activity of the small circle of interested specialists.
Comparative law rather than comparative legislation came to appeal to a widening circle of scholars in connection with the late nineteenth century’s optimistic belief in the desirability and possibility of large-scale international unification of private law. Along with public and private international law, comparative law thus figured among the topics discussed at the annual meetings of the Institut de Droit International. The ideal ofinternational legal unification also was the inspiring motive of the great international Congress of Comparative Law, held in Paris in 1900. With its large assembly of scholars from all over the world, the congress lived in the memories of the participants as the high point of what is nostalgically called la belle époque du droit comparé. From then on the work in the field grew more realistic. The development is reflected in the life work of Edouard Lambert, whose institute of comparative law at theUniversity of Lyon (founded in 1920) constituted for some decades the center of painstaking, detailed research.
Practical interest in knowledge of law for purposes of legislation, international unification, and everyday law practice in international transactions, commercial and otherwise, continued to stimulate steadily increasing interest in the study of foreign laws. There also grew up new theoretical interest. The desire to discover the beginnings of the development of law as a general social phenomenon —a development which was widely regardedas having proceeded more or less unilineally—drew attention beyond Roman, Greek, or Germanic law to laws of more archaic character, as well as to the customs of primitive peoples. This new interest in “ethnological jurisprudence” and related matters was given a focus in the Zeitschrift fiir vergleichende Rechtswissenschaft (begun in 1878).
The more comparative law assumed the character of a social science, that is, a pursuit of systematic knowledge about law as a social phenomenon the study of which would have to reach beyond national boundaries, the more the workers in the field became aware of its difficulties. Where could one finda library containing all the necessary materials? What human mind could retain and organize them? A decisive step was taken in 1917 with the establishment of Ernst Rabel’s institute of comparative law at the University of Munich and, nine years later in Berlin, the Kaiser Wilhelm (now Max Planck) institutes for foreign and international private law (now in Hamburg) and also for foreign and international public law (now in Heidelberg). At these institutes a comprehensive library was established, and there was assembled a team of specialists, who under Rabel’s direction would advise drafters of new legislation and participants in international legal life and who would systematically observe legal developments the world over in order to gain theoretical insights and develop new methods of legal thinking and research. The impact of the innovation has been far-reaching. The establishment of the comparative law institutes coincided with and strengthened the change in method of German legal thought from conceptual—analytical jurisprudence to the new method of jurisprudence of interests with its emphasis upon knowledge of the facts of social life and of socially current evaluations of conflicting interests. Under such a method, limitation of scholarly concern to the phenomena of one’s own nation is no longer possible.
The simultaneous shift in legal method that occurred in the United States was a principal cause of the rapid growth of American interest in comparative law or, as it is now frequently called, international legal studies. The growing involvement of the United States in world affairs, political and commercial, was another powerful motive.
Scholars like Roscoe Pound, John H. Wigmore, Ernst Freund, and H. W. Millar had been working since the turn of the century at breaking through “Mainstreetism” toward world-mindedness in legal learning. Their breadth of learning is reflected in the scope of their own work as well as in the Legal Philosophy Series, the Continental Legal History Series, and the Modern Criminal Science Series, which they promoted and edited. Effectively supported by the Ford Foundation, international legal studies have, since World War II, come to constitute an essential part in the curriculum andthe research programs of American university law schools. Cooperation with sociologists, economists, political scientists, anthropologists, and historians is being sought by the law scholars. What is still lacking in the United States is a great research institute on the pattern of the German Max Planck institutes.
In the United Kingdom, the study of comparative law was pioneered by Harold C. Gutteridge. It is now finding its place in the universities, where academic teaching of the law has come at a rapidly increasing pace to supplement, or to take the place of, the old-fashioned apprenticeship training. Acenter for research is provided at the Institute of Advanced Legal Studies in London, established in 1948.
In France, courses on the great legal systems of the world are offered at the university law schools; research is promoted through institutes, especially in Paris, Lyon, and Toulouse. In Italy, interest in comparative law is vigorously cultivated at a number of universities. Institutes and university faculties in Spain, Latin America, Scandinavia, Japan, Yugoslavia, andother countries are also active. In the Soviet Union, foreign legal developments are closely observed in the law institute of the Academy of Sciences.
Comparative law, being supranational, calls for international cooperation. An organizational instrument for cooperation is provided by the International Association of Legal Science, which is affiliated with UNESCO, and through its directorate, the International Committee of Comparative Law. International meetings of comparatists are sponsored by the International Academy of Comparative Law. Instruction is offered by the International Faculty for the Teaching of Comparative Law, which has its seat in Strasbourg, and the International University of Comparative Sciences in Luxembourg.
Methods and scope
In comparative legal research one may distinguish between micro-comparison and macro-comparison. The latter is concerned with the comparison of entire legal systems, such as the Anglo-American common law and the so-called civil law, or, within the civil law, the family of the so-called Romanist laws, that is, those based on the French and German patterns. Micro-comparison is concerned with detailed legal rules and institutions. The two approaches, of course, shade into each other, especially in the comparison of methods of procedure and of legal thought.
Micro-comparison
In the earlier phase of the study of comparative law one tended to start out from particular institutions. One would, for instance, compare contractin Anglo–American and in civil law, or possessions in French and in German law, or the common-law doctrine of consideration and the civil-lawconcept of causa. In such a process one made two important discoveries: first, that seemingly identical terms rarely have the same meaning in different legal systems; second, that the same, or seemingly same, institutionmight perform different functions in different surroundings. The meaningof the Anglo–American term “contract,” for instance, was found to differ in several respects from the term “contractus”of Romanist terminology and its modern counterparts. The institution of damages for tort was found to have a strictly compensatory function in German law, but both a compensatory and a punitive function in the common law. Thus, cornparatists have increasingly come to incline toward the functionalapproach. Instead of starting with any particular rule or institution, one starts with a social problem and seeks to discover the rules or institutions bymeans of which the problem is resolved. What devices are, for instance, employed in different laws to provide for the orderly payment of the debts of a dead person, or to provide relief for the victims of unfair or sharppractices in business deals, or to provide for the security of title of purchasers of real estate? Such investigations are likely to indicate that, on the one hand, devices of considerable variety have been and can be used to achieve more or less identical purposes but, on the other hand, that the catalogue of technical devices available to legal designers is not unlimited.
Macro-comparison
Macro-comparison of entire legal systems has sought, in the rare case of Max Weber or in such modern surveys as that of Rene David, to cover the world. Mostly, however, it has been concerned with the two great systems of Western civilization, the Anglo–American common law and the civil law.
Common law versus civil law. Close inspection has shown that the characteristic differences between common law and civil law ought not to beexpressed in the frequently used antitheses of codified versus uncodified law, or of statute law versus judge-made law, and even less in that between authoritarian versus libertarian law. Large sections of the law of civil-law countries, for example, the bulk of French or German administrative law, are neither codified nor even expressed in statutes, while big portions of English and American law have been brought together in comprehensive statutory codifications, as, for instance, the maritime and commercial laws of the United Kingdom or, in the United States, the uniform commercial code and the U.S. code of internal revenue. There exist, it is true, differences in the judicial attitudes toward such codifications, but they have their basisin that difference between the two great systems which is essential, namely, the difference between methods of legal thought.
The role of judicial precedent also differs less in the two systems than it was commonly believed to do. In theory, a common-law judge is bound by precedent, while a civil-law judge is not only free to ignore it but is supposed to take a fresh look at every individual case. In fact, judges in France or Germany pay such careful attention to precedent that entire sections of the law are judge-made, such as the French law of torts or that large body of German law which determines in great detail the commands of good faith and fairness which contracting parties are to observe toward each other. The older the code—the French civil code is 160 years old, the German civil code is about 70—the greater is the weight of the judicial gloss by which the text is overlaid. Common-law judges, on their side, are as well versed as their Continental brethren in the fine art of distinguishing upon the facts a new case from an unconformable precedent. Besides, in contrast to British courts, American courts no longer shy away from openly overruling a precedent that is regarded as no longer suitable.
As to the alleged contrast between civil-law authoritarianism and common-law espousal of liberty, it suffices to indicate that Switzerland is a civil-law country and Ghana is a common-law one, as was England in the days of Cromwell. And finally, it is a myth, though apparently an ineradicable one, that in civil-law criminal procedure the accused has to prove his innocence.
The essential difference between common law and civil law lies in the technical structure of court procedure, in the different conceptual framework within which legal thought moves, and in the underlying cause of these differences: the diversity of the personnel by which the machinery of the administration of justice is handled and guided.
Perhaps the most far-reaching discovery that has been made in comparative law research is Max Weber’s observation that the climate of a society’s legal system is ultimately determined by the kind of people by whom it is dominated, that is, as Weber calls them, the honoratiores of the law (1922). It makes a difference whether a legal system is dominated, as that of classical Rome, by gentlemen of leisure and high-ranking administrators, or, as the Islamic, by theologians, or, as the classical Chinese, by philosopher-bureaucrats. The common law grew up as the law of one set of centralized courts that was staffed with a small elite judiciary; this judiciary, in turn, was linked to that closely knit centralized bar from which it was drawn. The resulting common law reflects these surroundings: the mode of reasoning is that of analogy—policies are not always followed with consistency, nor are concepts always clean-cut; the law is thought of less as a body of norms of social conduct than as a set of rules of decision for the relatively few disputes that cannot be settled extrajudicially. Occasional obsolescence is not necessarily regarded as a serious evil, but, in general, those ex-barristers who occupy the bench are close to the course of affairs and know how to decide a concrete case that is presented to the court in oral contradictory trial by the members of a highly experienced bar.
What was decisive on the Continent was the absence of one central court. If the law was to keep abreast of changing conditions and to preserve a minimum of uniformity, guidance had to be exercised by the university law faculties, whose members for centuries constituted a supralocal community. Interpreting the book that was thought to constitute the theoretical basis of the law, they tended toward systematic arrangement, the elaboration of great principles, the logic of the syllogism, consistency of terminology, and an occasional remoteness from life. Efforts to adapt the law to changing social conditions were apt to be hidden behind controversies as to what should be the right interpretation of the authoritative text. Law being thought of as a set of rules of human conduct, it tended toward paternalistic guidance by those who would know best—the professors and the high-ranking officers in the service of the princes.
Today the scene has changed. On the Continent the establishment of central national courts has given great power to the judiciary, with a corresponding decline of the once leading role of learned doctrine. In the United States, on the other hand, the influence of the professors of the national law schools has come to be powerful in those branches of the law for which nouniform case law is created by a court of nationwide jurisdiction, that is, for all law other than that of the constitution of the United States and the body of federal statute law. With the breakdown of the centralized appellate jurisdiction of the Judicial Committee of the Privy Council, a similar development has occurred in Britain. Legal education is being taken over by the universities, and their professors are becoming guides for the judges of the courts of England and the Commonwealth countries. These courts are now as independent of each other as the state supreme courts in the United States are and as the courts of the small jurisdictional units of the Continent once were. Subtle changes in the character of the law, substantive and procedural, are the consequence of these developments in both systems.
Socialist law. In macro-comparison of legal systems, much attention has recently been paid to the laws of the socialist countries, especially the Soviet Union. Western observers have raised the question of whether these laws constitute a legal system of their own or whether they should be regarded as a branch of the civil-law system. The answer depends upon what test one applies. If one looks to the content of the legal rules and the machinery by which they are administered, one will agree with the Soviet jurists that their laws constitute a system of their own, even if one regards the difference between socialist law and “bourgeois law” as less enormous than it is made to appear in Soviet theory. After all, the welfare-state idea has taken hold in Western countries. If, on the other hand, one looks to the conceptual framework of the law, especially as it appears in the codes, or if one is interested in the basic features of court organization and procedure, a lawyer trained in French, German, or Swiss law will find his way more easily than one trained in the common law. If one looks to the personnel of the administration of justice, he will observe attitudesconsiderably different from those of Western judges and lawyers, but he can also observe among his Eastern brethren a steadily growing tendency to look upon themselves as guardians of individual rights against arbitrariness.
The tasks of comparative law
The careful analysis of legal systems that is now being elaborated has resulted in a distrust of timeworn cliches. Even the distinction between common law and civil law must, we have learned, not be overestimated. It is a difference more in method and traditions than in content. Also, it applies more to private than to public law. The forms of democratic government and the legal devices to secure the citizen’s participation in government and his protection against abuses of governmental power, democratic or authoritarian, are independent of the historical background of legal development.
Comparative law impressively demonstrates the unity of Western civilization, which has spread over the world and is transforming the once different civilizations of the East. Western laws have come to be the laws of Asia and Africa. They are influencing even family law, in which non-European traditions have held out longest. Except for disappearing traditions of family law and matters related thereto, there is now in the world not a single country whose law would not belong to one of the three systems of Western origin: civil law, common law, socialist law.
In both micro-comparison and macro-comparison, the comparatist has to domore than merely ascertain differences and similarities of legal norms and institutions. If he wishes to learn about the reasons he must investigate the social conditions under which the norms and institutions of the law haveoriginated, under which they operate, and which they influence. The legal comparatist must become a social scientist. The difficulties of the task, which are already formidable in a strictly formal comparison, are multiplied. No wonder that performance has been lagging. However, beginnings have been made in micro-comparative as well as in macro-comparative studies, especially of subjects of private law and procedure.
The great creators of law have always been observers of social reality. The classical Roman jurists who patiently elaborated the legal norms which are necessary for the smooth functioning of an economic order of free enterprise were consistently engaged in what we today call social research. Medieval canonists sound like modern sociologists when they observe that papalefforts to suppress blood feuds by means of law had to fail because such means conflicted with the mores of the people. The ever-recurrent tendency of lawyers to regard law as a self-sufficient body of rules was carried ad absurdum by Montesquieu, Savigny, and such more recent legal scholars as Rudolf von Jhering, Henry Maine, Frederic W. Maitland, Otto von Gierke, and Frangois Geny.
In the new jurisprudence of the mid-twentieth century, as it has been developed simultaneously in the United States (Roscoe Pound, John H. Wig-more, Karl Llewellyn), in Germany and Austria (Eugen Ehrlich, Max von Riimelin, Philipp von Heck), and in Scandinavia (Anders Vilhelm Lundstedt), and which is now tending to become as universal as the jurisprudence of concepts was in the latter part of the nineteenth century, the science of law has become a social science.
Max Rheinstein
[See alsoJurisprudence; Law; PublicLaw; and the biographies ofEhrlich; Gierke; Llewellyn; Maine; Maitland; Montesquieu; Pound; Savigny.]
BIBLIOGRAPHY
A concise but comprehensive discussion of comparative law, its background, and its problems is Gutteridge 1946. For a bibliography of books and articles published in English see Szladits 1955-1962 and annual supplements; for non-English periodical literature, see the Index to Foreign Legal Periodicals.
American Journal Of Comparative Law 1961 XXth Century Comparative and Conflicts Law: Legal Essays in Honor of Hessel E. Yntema. Leiden (Netherlands): Sythoff.
American Journal of Comparative Law. → Published since 1952.
David, RenÉ 1964 Les grands systèmes de droit contemporains: Droit comparé. Paris: Dalloz.
Gutteridge, Harold C. (1946) 1949 Comparative Law: An Introduction to the Comparative Method of Legal Study and Research. 2d ed. Cambridge Univ. Press. Index to Foreign Legal Periodicals. → Published since 1960. International Association Of Legal Science, International Committee Of Comparative Law, Bulletin d’information. → Published since 1955.
International and Comparative Law Quarterly. → Published since 1952.
Introduction à l’étude du droit comparé: Recueil d’études en l’honneur d’Edouard Lambert. 3 vols. 1938 Paris: Société Anonyme du Recueil Sirey.
Maine, Henry J. S. (1861) 1960 Ancient Law: Its Connection With the Early History of Society, and Its Relations to Modern Ideas. Rev. ed. New York: Dutton; London and Toronto: Dent. → A paperback edition was published in 1963 by Beacon.
Montesquieu (1748) 1962 The Spirit of the Laws. 2 vols. New York: Hafner. → First published in French.
Rabels Zeitschrift für ausldndisches und Internationales Privatrecht. → Published since 1927.
Revue internationale de droit comparé. → Published since 1949.
Schlegelberger, Franz (editor) 1927-1939 Rechtsvergleichendes Handworterbuch für das Zivil- und Handelsrecht des In- und Auslandes. 7 vols. Berlin: Vahlen.
Schnitzer, Adolf F. (1945) 1961 Vergleichende Rechtslehre. 2 vols., 2d ed., rev. & enl. Basel: Verlag fur Recht und Gesellschaft.
Szladits, Charles 1955–1962 A Bibliography on Foreign and Comparative Law: Books and Articles in English.Published for the Parker School of Foreign and Comparative Law, Columbia University. 2 vols. Dobbs Ferry, N.Y.: Oceana. → Volume 1 contains abibliography up to 1953, published in 1955; Volume 2, from 1953 to 1959, published in 1962. Supplemented annually.
Weber, Max (1922) 1954 Max Weber on Lawin Economy and Society. Edited, with an introduction and annotations byMax Rheinstein. Cambridge, Mass.: Harvard Univ. Press. → First published as Chapter 7 of Max Weber’s Wirtschaft und Gesellschaft.
Zeitschrift für ausländisches öffentliches Rechtund Völkerrecht. → Published since 1929.
Zeitschrift für vergleichende Rechtswissenschaft. → Published since 1878.
II COMMON LAW SYSTEMS
The term “common law” is used in a number of different senses. In medieval English law it denoted that law which was administered by the king’s courts and which was, in principle at least, common to the whole realm. The common law, in this sense, was to be distinguished from the law administered in the local, county courts or in the feudal, barons’ courts, which tended to be specialized or particularized by region; and it was also to be distinguished from autonomous bodies of law, like the law merchant, which were peculiar to certain classes of persons.
In another sense, however, the common law is set in opposition to statute law. The common law is rendered concrete and explicit in, and derives its juridical efficacy from, decisions of courts; whereas statute law, or legislation, is an emanation of the will of the sovereign parliament or legislature. In this same specific sense, the common law is also distinguished from codified law or code law (civil law). The common law is conceived of as a body of principles originally derived from customs which are either reflected in the judgments of the highest national courts or else contained in piecemeal statutes passed ad hoc to correct or extend those same decisions. Thus it is opposed to those systems of law which have been reduced to more or less permanent written form and organization through a single comprehensive piece of legislation or codification.
Insofar as the English-speaking countries have generally been able to resist comprehensive codification of their laws, we are led into the broadest and most popular meaning of the term common law—the law of the English-speaking countries as opposed to the (generally codified) civil law of continental Europe and of those countries in Latin America, Asia, and Africa that were politically influenced by, and whose legal systems were shaped by, continental Europe.
In yet another sense, the common law is opposed to equity—that body of law, distinct from the common law, which was administered by the lord chancellor, as “keeper of the king’s conscience,’” through the chancery courts, in order to correct or ameliorate the harshness or rigidities of the common law as administered by the regular courts. Equity started as a series of principles and rules, reflecting considerations of fairness and natural justice, which were, in medieval times, of such flexibility and range as to warrant the latterday charge that equity was “as long as the chancellor’s foot.” By the early nineteenth century, however, it had jelled into a fairly rigid system of precedents and judicial authorities distinguishable from the common law mainly in that it was administered by a separate judicial hierarchy, the chancery courts. The Judicature Acts of 1873—1875, which effected a wholesale organization of the English judicial structure, abolished the special chancery courts, and equity was formally fused with the common law into a single system of precedents administered by one system of courts.
Last, the term common law is sometimes used to denote the private law, i.e., that body of law governing relationships of private citizens inter se in which the public or state interests are normally minimal or else only peripheral (for example, the law of contracts, torts, personal property), in contradistinction to constitutional law and public law generally (for example, administrative law, labor law, antitrust law) in which the public interests are normally pervasive. This distinction is ceasing to be really meaningful in modern terms, as the state increasingly intrudes into areas of law originally considered as involving personal interests only.
Diffusion of the common law It is true of the common law that English settlers proceeding overseas to found new colonies carry with them the law of England existing at the time of the first settlement, except insofar as that law may be obviously inapplicable to the new area. For example, the old common law rule of “ancient lights” might be considered inappropriate or unnecessary in newly settled areas without any tall buildings and therefore inapplicable and not automatically “received” as law on settlement. Through this device, whereby new content and meaning were poured into old formulas, the common law became the basic law of the United States and of those Commonwealth countries founded by settlement. In the case of those parts of the British colonial empire acquired by military conquest and already having a local population (indigenous people or non-British settlers), different principles were applied, usually involving the maintenance of the local private law, as, for example, in the case of India, South Africa, and the Province of Quebec.
Once the English common law was “received” into an overseas colony, it continued in force until such time as it was repealed, altered, modified, or added to by appropriate constitutional authority— whether by the British Parliament as the supreme imperial legislative authority, or by the Privy Council sitting in Westminster as the final appellate tribunal for the overseas empire, or by the colonial legislature and colonial courts acting within their respective jurisdictional limits and competence and subject to appropriate control by imperial constitutional agencies. These imperial controls disappeared, in the case of the American colonies, with the Declaration of Independence; and they virtually disappeared in the case of the self-governing Commonwealth countries with developing constitutional custom and convention. This was partly confirmed and recognized in statutory form with the Statute of Westminster (1931), a British statute, although some members of the Commonwealth (Australia and New Zealand, for example) still retain, by their choice, an appeal from their courts to the Privy Council. Insofar as the common law remains the basic private law of the various English-speaking countries today, it is by those countries’ own decisions to maintain and even extend their historical legal inheritance. For these purposes it becomes necessary to consider the juridical institutions and techniques whereby the common law is applied and developed in these countries.
Institutions and techniques The key element in the continued viability of the common law today is undoubtedly the existence of the doctrine of precedent. This doctrine establishes, first, the obligation of court jurisdictions to adhere to and apply the decisions of tribunals that are superior to them in the judicial hierarchy; and, second, the principle that the highest court in the land is bound by its own decisions. The first aspect seems obvious enough, since it is a natural consequence of the pyramidal structure of court organization in England and has the practical utility of ensuring uniformity and predictability of decisions by inferior and intermediate tribunals. The second aspect— the principle of stare decisis in the strict sense— although often regarded as a truism of common law jurisprudence, was actually formulated as a binding principle of the English common law only in 1898, in the London Tramways case decision. Since that time, however, it has been one of the major preoccupations of common law legal theory.
Quite apart from the issue of whether courts ought to be bound by past decisions, the “legal realist” school, which was very influential in American law schools in the period between the two world wars, raised the issue of whether courts, as a matter of fact, did bind themselves by past decisions. Led by such brilliant young scholars as Judge Jerome Frank and Karl Llewellyn in the early 1930s, the legal realists pointed to the substantial devices or stratagems available to courts to mitigate the effects of unwanted judicial decisions from earlier eras. Among these devices the legal realists identified the practice of “distinguishing” prior cases: focusing on assertedly new or different fact situations in the case before the court, in contrast to the fact present in those earlier cases that established the now unwanted principles of law. The legal realists also pointed to the widespread judicial inclination toward “shading” of earlier decisions, that is, giving some more weight than others by categorizing them as the decisions of “strong courts” or by focusing on individual judicial opinions, separate and distinct from the official opinion of the court, in cases in which more than one judicial opinion is filed. These individual opinions could be special concurring opinions or even dissenting opinions in the case of “prestige” jurists like Oliver Wendell Holmes of the United States Supreme Court. Opinions of the intellectual caliber and clarity of Holmes’s great dissent in the Lochner case in 1905 became appeals to the future and were later expressly vindicated by United States Supreme Court majorities, as in West Coast Hotel Company v. Parrish Company (300 U.S. 379) in 1937.
It must be admitted that “distinguishing” prior decisions is immensely facilitated by the proliferation of individual opinion writing on final appellate tribunals in the common law world. Only the Privy Council, among these courts, still resolutely adheres to its practice of filing only a single per curiam opinion in each case.
The “distinguishing” of cases is also assisted by the plethora of separate common law jurisdictions of the present day, each turning out its own decisions. Consider the problem in the federal states of the English-speaking world. In the United States there are 50 autonomous private law jurisdictions; each is theoretically independent and separate from the other, and the supreme court of each state is the final appellate tribunal for cases arising there (except insofar as those cases also raise issues involving federal jurisdiction). Although the decisions of any one state supreme court are not, of course, binding on any other state, they may have a certain persuasive authority, and it is frequently possible to find lines of opposing decisions from different state supreme courts, thus opening up the way for a creative judicial choice—judicial policy making. Notwithstanding the 50 separate, and at times competing, state private law jurisdictions there are countervailing forces that point toward the unity of the common law in the United States. There is, first, the Restatement of the Law prepared by the American Law Institute (1953–1965). Although not “official,” it brought together the best experts available (law professors, judges, and lawyers) and soon achieved a quasi-official status. The Restatement tried to present the consensus of private law among the then 48 states and thus performed an important unifying function among the 48 jurisdictions. It still enjoys high respect in most state courts. Another important unifying factor is the existence of great “national” law schools (Yale, Harvard, Columbia, Chicago, etc.), which consciously avoid stressing the law of their own particular state and can thereby teach a genuinely “national” common law that can draw on the best principles of the jurisprudence of the 50 sepa-rate state systems.
Emphasis upon the “distinguishing” of cases on the facts directs attention to the crucial role of facts in contemporary common law decision making. It is not merely that the orthodox view of the principle of a case (or ratio decidendi) is the rule enunciated by the judge plus the material facts in the case (Goodhart 1931). It is also that, under the influence of legal realist teachings, courts, in accepting the desirability and inevitability of judicial policy making (or judicial legislation) at the final appellate level, have increasingly accepted the desirability of having an adequate factual record in aid of such judicial legislation. This new emphasis has perhaps received its fullest outlet in American jurisprudence in the so-called “Brandeis Brief” method of adducing constitutional facts to the notice of the United States Supreme Court; but it has also had its effects in the private law.
It is in American constitutional law, of course, that the direct and avowed departure from the principle of stare decisis has been most marked, prompting Judge Owen Roberts to comment ruefully, on the overruling of earlier United States Supreme Court decisions, that this trend to court flexibility tended to “bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only” (Smith v. Allwright, 321 U.S. 649, 1944).
The common law and social change The contemporary judicial disposition to depart from stare decisis —either by directly overruling past decisions or by “distinguishing” cases—emphasizes movement and growth in the positive law as the society in respect to which the positive law is to operate itself changes.
The American school of sociological jurisprudence, led by Roscoe Pound, was strongly influenced by the pragmatist teachings of William James and John Dewey. Sociological jurisprudence preached the necessary and proximate relationship, or symbiosis, between law and society—that is to say, the notion that the criteria for evaluating and appraising the positive law at any time must include (1) the extent to which that positive law in fact reflects the complex of interests pressed in society at that time, and (2) the extent to which the positive law has changed in measure with that society. The values to which a sophisticated legal system must give effect include both the interest in a reasonable stability of settled legal expectations and the interest in mobility and change in law, lest the positive law, if too unimaginatively and rigidly applied, should act as a brake on future social development.
The legal realists charged that in attempting to balance these two opposing principles the common law systems, certainly until the 1930s, overemphasized the interest in stability and predictability of legal relationships and forgot the maxim that “the life of the law has not been logic, but experience” (see, for example, the writings of Karl Llewellyn and Jerome Frank). The theories of most legal realists emphasized the law-making role of appellate judges. The recent emphasis on the more dynamic elements in law (see the work of Myres McDougal, Harold Lasswell, and others) represents, in addition, a return to an earlier common law philosophy, a philosophy which had, after all, so successfully transformed the common law from crude and unrefined custom, in the closed medieval society, into an instrument of social control amply suited to the resolution of conflicts and tensions in modern complex industrial civilization.
Edward Mcwhinney
[See alsoJURISPRUDENCE; LAW. Directly related are the biographies ofBlackstone; Brandeis; Cardozo; Coke; frank; Holmes; Llewellyn; Pound.]
BIBLIOGRAPHY
American Law Institute 1953–1965 Restatement of the Law Second: Conflict of Laws. Tentative Draft ^Nos. 1–13. Philadelphia: The Institute.
Cardozo, Benjamin N. (1921) 1960 The Nature of the Judicial Process. New Haven: Yale Univ. Press.
Dicey, Albert V. (1885) 1959 Introduction to the Study of the Law of the Constitution. 10th ed. New York: St. Martins.
Frank, Jerome (1930) 1949 Law and the Modern Mind. New York: Coward.
Frank, Jerome 1949 Courts On Trial. Princeton Univ. Press. → A paperback edition was published in 1963 by Atheneum.
Goodhart, Arthur L. 1931 Essays in Jurisprudence and the Common Law. Cambridge Univ. Press.
Holmes, Oliver Wendell (1881) 1963 The Common Law. Cambridge, Mass.: Harvard Univ. Press.
Llewellyn, Karl 1931 Some Realism About Realism: Responding to Dean Pound. Harvard Law Review 44: 1222–1264.
Mcdoucal, Myres S.; Lasswell, Harold D.; and Vlasic, Ivan A. 1963 Law and Public Order in Space. New Haven: Yale Univ. Press.
Maitland, Frederic W. 1908 The Constitutional History of England. Cambridge Univ. Press.
Maitland, Frederic W. (1909a) 1936 Equity. Cambridge Univ. Press.
Maitland, Frederic W. (1909b) 1936 The Forms of Action at Common Law. Cambridge Univ. Press.
Plucknett, Theodore F. T. (1929) 1956 A Concise History of the Common Law. 5th ed., enl. & entirely rewritten. London: Butterworth.
Pound, Roscoe (1922) 1954 An Introduction to the Philosophy of Law. Rev. ed. New Haven: Yale Univ. Press.
Stone, Julius (1946) 1950 The Province and Function of Law: Law as Logic, Justice, and Social Control; a Study in Jurisprudence. Cambridge, Mass.: Harvard Univ. Press.
III CODE LAW SYSTEMS
The term “code-law systems” is usually employed, as a legal term of art, with two different, if related, meanings. First, “code” refers to the reduction of the laws customarily observed by a particular people to a more or less permanent, organized, and written form through a comprehensive piece of legislation or codification. Strictly speaking, a “code” may denote a constitution or similar public-law enactment of fundamental laws; but more usually the term is limited to compilations of the private law (contracts, torts, property, agency, marriage, matrimonial property, and related matters), although many countries also have codifications of their criminal law, criminal procedure, civil procedure, and commercial law. It is in the general sense of there being a collection in a single, comprehensive statute of particular national laws on one or more main subjects that the code-law systems are normally opposed to un-codified, or common-law, systems. In the latter systems, in general, the private law at least remains an uncodified body of what were originally custom-derived rules or principles that purport to be reflected in the judgments of the highest national courts and in piecemeal statutes that may be passed ad hoc to correct or extend those judicial decisions.
In a second and more popular sense, the term “code-law systems” denotes the body of continental European civil law, which, as represented principally in the two major acts of codification of modern times, the French civil code (or Code Napoleon) of 1804 and the German civil code (Bürgerliches Gesetzbuch, or B.G.B.) of 1900, has spread throughout the world. The German civil code of 1900 had a decisive influence on the drafting and adoption of the present Japanese civil code and on the precommunist Chinese code. The Code Napoleon has been widely copied or borrowed from in the codifications of the Middle East, former French Africa, and Latin America generally.
It is in this particular sense of referring to the substantive civil-law content of the two great western European acts of codification that the term “code-law systems” is normally distinguished from the common law of the English-speaking countries. The common law of England was carried by process of conquest, occupation, or settlement, to the original American states and to the British colonies overseas. With some modifications based on deference to existing local, customary law, in the case of certain countries having an indigenous, predominantly non-English or non-European population, the common law has remained in these countries even after British political power has formally and practically disappeared. Thus the common law is today the basic private law of Great Britain, the Commonwealth countries, and the United States. The term “common law” applies both where the common law has itself been codified—as is the case in most of the English-speaking countries in regard to commercial law and criminal law—and even where the law was originally Romanist (as in South Africa and Ceylon) and, while still formally uncodified, was transformed by successive decisions of the Privy Council in London into a semblance of the common law, case law system of precedents. An act of codification is always something of a revolutionary step in the sense that it represents a certain intellectual break with the past. Although all the codes purport to be merely a restatement of the old, pre-existing law, most of the great codifying commissions have used the opportunity to make innovations and changes in the old law; and the act of codification itself, in the sense that it involves reducing a large and hitherto unorganized mass of materials to comprehensive form, necessarily involves a certain clarification and streamlining of the existing law.
The great codifying projects have usually coincided with eras of great political or social change or upheaval, probably because in such periods it may be easier to obtain that minimum degree of consensus among the decision-making elite necessary to force such projects through to completion. It may be only in such periods that the conflicting pressures for stability and change can be satisfactorily reconciled to the point of reducing the laws to a single, comprehensive enactment. The French civil code was adopted in the wake of years of revolutionary turmoil in France and was one of the first projects of the Emperor Napoleon, who personally guided it through to completion, to the point of sometimes presiding himself at the sessions of the codifying commission. In Germany the codification movement only really got under way and received official blessing after the achievement of German political union, in federal form, in 1871; and codification was then looked upon as an instrument for assisting and furthering the spirit of national unity.
In the case of Quebec, the civil code of 1866 was adopted at the time of the pending political incorporation of French-speaking Roman Catholic Lower Canada into a Canadian confederation in which French Canadians would be heavily outnumbered by English-speaking Protestants: the codification of French Canada’s civil law was viewed as a defensive measure to protect the distinctive social values and institutions of Quebec (for example, the family law, with its emphasis on the family unit with paternal control, the absence of any divorce, and the institution of the joint matrimonial property system) against the encroachment, after confederation, of an alien common law that was viewed as incorporating Anglo-Saxon Protestant values.
The modern Japanese and Chinese civil codes, with their large German civil law influences and derivations, were adopted as part of a deliberate policy of modernization or “Westernization” of basic social institutions, with a view to speeding large-scale industrialization and development.
The Soviet Russian civil code of 1922 was adopted at a time when governmental pressures in the Soviet Union were all for stability, clarity, and certainty in law, after the disastrously chaotic experiences in the era of free law finding from 1917 to 1921. During that period, the tsarist codes and laws had been largely swept away and Soviet judges and administrators were often bound by a no more sure and reliable criterion for decision than their own “spirit of revolutionary consciousness.” The year 1922 also marked the introduction in the Soviet Union of the New Economic Policy, with an official relaxation of controls on economic activity and a new encouragement of entrepreneurial business activity and of foreign trade and investment in the country. It was, therefore, argued that a fixed and definite civil code—which manifestly, in its structure and organization and in a great deal of its substantive principles, too, did not depart too much from the main continental European civil-law stream—would be an invaluable asset in promoting a more liberal Soviet official image, both at home and abroad.
Individual national codes differ widely, depending principally upon whether their makers have looked to the French or to the German civil code for their main intellectual inspiration. The Code Napoleon is direct, lucid, and often sparkling in structure and in language, reflecting perhaps both the inherently graceful qualities of the French language and the personality and techniques of its original drafting commission, whose members, essentially practicing lawyers, under some prodding from the Emperor Napoleon produced their final code in a matter of several months. The B.G.B., by contrast, is heavy, pedantic, and profuse, both in language and in drafting, reflecting in measure the essentially professorial and bureaucratic character of its main drafters and the years of research, public debate, and criticism that preceded its final adoption; for although the actual project for codification was put under way in 1874, with the appointment of the members of the codifying commission, it was not until 1896 that the final draft was completed and approved, to take effect from 1900. The Emperor Napoleon had said that his aim was to have the code so simple and convenient in its arrangement that the French peasant, reading it in its single, slim, pocket-book form by candlelight, would be able to know his legal rights; and so successful has the code been, from the viewpoint of legal writing, that Stendhal is said to have read a few pages of it each day to improve his literary style. The German code, by contrast, remains essentially a legal technician’s code, without any particular claims to literary elegance or refinement of style.
This reference to a distinctive national psychology or personality—or Volksgeist, as Savigny called it—and its relationship to individual acts of national codification calls attention to the question of whether there are any particular periods in a nation’s history that are especially ripe for codification, and perhaps it also poses the even more basic question of why some countries have achieved codes and others have not. In 1814, in reaction against the various French invasions and military occupations of the revolutionary and Napoleonic eras, Anton Thibaut and the German nationalist movement urged the immediate codification of German laws. Savigny, who opposed these pressures, argued that since a code existed primarily as a restatement or concretization of a nation’s law it would act as a brake on national development if any nation should seek to codify its laws before it had reached its full political, social, and economic maturity. Savigny added a nationalistic argument to his injunction against any “premature” codification. He stated that, given the condition of German law at the opening of the nineteenth century, when only the loose, diffuse, and prolix Prussian code of 1794—an original project of Frederick the Great acting under the impulse of French rationalism—was available as a strictly Germanic model, any German act of codification, unless it were to be a reproduction in terms of the Code Napoléon, which had been carried into the Rhineland and other parts of Germany by Napoleon’s armies, would require legal talents and resources beyond the then existing intellectual capacities of the German university law faculties.
It was far better, in Savigny’s view, to keep the existing patchwork quilt of German law. In the Rhineland states, for example, the Code Napoleon would be retained; in Prussia and the areas under its control, the code of 1794; in the other states, the uncodified common law, or “received Roman law.” The absorption of this uncodified law into Germany had taken place over the course of the fourteenth, fifteenth, and sixteenth centuries. In the process of that absorption and in the subsequent intensive study in the university law schools, it was progressively refined and restated. There is a particular irony in Savigny’s argument against codification by appeal to German nationalistic traditions, since the received Roman law, which dominated so much of Germany at the opening of the nineteenth century, became ultra-Roman in content and character. Even the Code Napoleon, for example, while drawing heavily on the Roman law of southern France (or the pays de droit écrit), was still greatly influenced as to its substantive principles by the Germanic customary law of the northern provinces of France (or pays de coutumes).
A good part of the dynamics of a codification movement certainly comes from the spirit of rationalism. There have been powerful codification movements in both Great Britain and the United States. Bentham and his disciples, as part of their general law-reform movement in the early nineteenth century, launched a codifying project designed, in Bentham’s own words, to render the law “cognoscible” to the layman. But the movement, except for some sustained influence in certain specialized areas of law, especially the criminal law and commercial law, and in the British colonies overseas, had largely petered out by the middle and late nineteenth century, probably because of the tenacious resistance of the vested professional interests of the judiciary and the practicing bar. The intellectual thoughtways of these special skill groups were attuned to that pragmatic, problem-by-problem development of legal principles inherent in the case-law system, and they were firmly opposed to any a priori postulation of principles through an act of codification. Since university teaching of law in England was very weak and largely unorganized until well into the nineteenth century, the practicing profession’s influence was dominant in legal education through the Inns of Court, and this acted as a further intellectual barrier to codification.
In the United States the codification movement had its impact, represented in the great Field-Carter debate of the mid-nineteenth century; but the influence of codification has been very slow and, outside the commercial sphere, limited in area of impact. On the other hand, some factors have been very conducive to uniformity in the development of American private law, notwithstanding the existence of fifty formally separate and autonomous state jurisdictions. Especially important are the Restatements of American Law and the influence of the prestigious “national” law schools of the pattern of Yale and Harvard, which purport to teach a truly national, as distinct from a particularist or local law.
Once they have been drafted, there is a certain tendency for codes to become invested with a great deal of the seeming permanence, rigidity, and immutability of constitutions or similar fundamental laws. This particular truth, which had been observed by Savigny, seemed to be amply vindicated by the detailed history of the interpretation and application of the Code Napoléon during the nineteenth century. In France a highly conservative judiciary, aided by a strict and literal “grammatical” construction or exegesis of the text of the code, insisted on confining its practical application to a highly individualistic laissez-faire philosophy, at a time when France as a whole, speaking in social and political terms, had experienced a full-scale industrial revolution and had largely accepted collectivist or social democratic ideas. Yet, by the close of the nineteenth century the judiciary, aided by the work of a brilliant group of text writers and commentators, had begun systematically to reinterpret the Code Napoléon to take account of the new climate of an advanced industrial civilization, in which the code must operate. The operational tools for this transformation of the code were the new techniques of teleological interpretation (or interpretation in terms of social purposes), themselves products of Geny’s call (1889) for free scientific research in law (la Wore recherche scientifique). These developments in French code law in action parallel and anticipate the later realist and sociological emphases in North American jurisprudence.
Codes, like constitutions, if they are to be viable, must change with the society in which they operate; and this preferred relationship, or symbiosis, between law and society is assisted by the use of broad general formulas in drafting them. When the German Social Democrats were disposed to challenge the draft B.G.B. because of its alleged liberal, individualistic bias, the great jurist Rudolf Stammler was able to assure them that the lapidarian quality of the code’s general provisions would make it continually adjustable to the community’s own acceptance of social democratic ideas. The very generality of a code’s key provisions—like the “due process” clauses in the fifth and fourteenth amendments to the United States constitution—enables new content to be poured into the old formulas. Thus the process of interpretation can serve to effect change and innovation in the law while avoiding the apparently radical step of direct legislative amendment.
Edward Mcwhinney
[See alsoConstitutions and Constitutionalism; Jurisprudence; Law; andthe biographies of MontesquieuandSavigny.]
BIBLIOGRAPHY
American Journal of Comparative Law 1961 XXth Century Comparative and Conflicts Law: Legal Essays in Honor of Hessel E. Yntema. Edited by Kurt H. Nadelmann, Arthur T. Von Mehren, and John N. Hazard. Leiden: Sythoff.
David, RenÉ; and De Vries, Henry P.(1957) 1958 The French Legal System: An Introduction to Civil Law Systems. Dobbs Ferry, N.Y.: Oceana.
David, Rene et al. 1960- le droit françias. Paris: Libraire Générate de Droit et de Jurisprudence. → Two volumes have been published to date.
Geny, Francois (1889) 1962 Méthode Dinterpretation et sources en droit prive positif: Critical Essay. 2d ed. St. Paul, Minn.: West.
Great Britain, Foreign Office 1950-1952 Manual of German Law. 2 vols. London: H.M. Stationery Office.
Hazard, John N.; and Shapiro, Isaac 1962 The Soviet Legal System: Post-Stalin Documentation and Historical Commentary. 3 vols. Dobbs Ferry, N.Y.: Oceana.
Mcwhinney, Edward 1958 Canadian Jurisprudence: The Civil Law and Common Law in Canada. Toronto: Car swell.
Savatier, Rene 1948 Les métamorphoses economiques et sociales du droit civil d’aujourd’hui. Paris: Dalloz.
Savigny, Friedrich Karl von (1814)1840 Vom Beruf unserer Zeit fur Gesetzgebung und Jurisprudenz. 3d ed. Heidelberg (Germany): Mohr.
Schlesinger, Rudolf B. 1950 Comparative Law: Cases and Materials. New York: Foundation Press.
Von Mehren, Arthur T. 1957 The Civil Law System: Cases and Materials for the Comparative Study of Law. Englewood Cliffs, N.J.: Prentice-Hall.
IV SOCIALIST LEGAL SYSTEMS—SOVIET LAW
Despite its stormy history, the Soviet legal system has acquired a definite character and gives evidence of being permanently established. Many of its features derive from prerevolutionary Russian origins and are therefore similar to those of other legal systems (especially the German and French), from which Russia borrowed in the nineteenth century. Other features, however, are peculiarly Soviet, reflecting the needs of a one-party state, a planned economy, and a social order directed toward a communist morality.
Development
In the first two decades after the Communist seizure of power, in 1917, Soviet legal institutions had to contend with the official Marxist–Leninist theory that law (like the state) is essentially a capitalist institution destined to wither away (literally, “die out”) once socialism is established. This theory derived from the premise that the apparatus of political authority (the state) and the formal procedures and general rules enforced by such apparatus (law) are essentially instruments of domination by the ruling class. They would have to be retained during the period of proletarian dictatorship but would not be needed in the future classless society, which would regulate itself, like a family or a kinship society, by customary standards, by morality and common sense, and by a recognition of the identity of individual and social interests.
In the period of War Communism, 1917–1921, the new Soviet regime made strenuous efforts to eliminate the legal institutions of the prerevolutionary period and to usher in the new classless society as rapidly as possible. The formal political and legal institutions that were introduced were quite primitive in character and were thought to be very temporary. By 1921, however, the entire economy was at a standstill, and Lenin introduced the New Economic Policy (NEP); private trade was restored, foreign firms were invited to do business on the basis of “concessions,” and the peasants were encouraged to sell the produce of their private holdings in the open market. The restoration of a certain degree of capitalism was thought to require also a restoration of law, and Lenin therefore sent his jurists to the prerevolution ary Russian codes, as well as to western European legal systems, to copy their provisions and adapt them to the new Soviet conditions.
In the 1920s there were promulgated codes of criminal law, criminal procedure, civil law, civil procedure, land law, labor law, and family law. These codes, as interpreted and developed by the judiciary, the bar, the Procuracy, the Ministry of Justice, and legal scholars, gave the Soviet Union a system of law comparable in its techniques and main outlines to those of Western countries. The system was hedged about, however, with provisions designed to prevent its being used contrary to the interests of the proletarian dictatorship.
Thus, article 1 of the Civil Code stated that the rights declared in the code should be protected by law “except in instances when they are exercised in contradiction to their social–economic purpose.” Similarly, the Criminal Code, rejecting the “bourgeois” principle of nullum crimen sine lege, provided that an act not made punishable by a specific article of the code may, if it is socially dangerous, be punished under articles relating to analogous acts (the doctrine of analogy).
Other features of the law of the NEP that reflected a “proletarian” or “Leninist” orientation included severe limitations upon rights of private ownership, civil liability for causing personal injury regardless of the absence of fault on the part of the defendant, an administrative procedure for divorce by unilateral repudiation, and heavy penalties for “counterrevolutionary” acts or utterances. In addition, the legal system as a whole was rendered somewhat precarious by the theory that it was only part of a transition toward a socialist society in which law would die out.
With the end of the NEP in 1928, the introduction of the first Five-Year Plan, and the collectivization of agriculture, there came a return to the nihilistic and apocalyptic spirit of the earlier period of War Communism. Now, however, a more positive content was given to the notion of the dying out of state and law. These were to be replaced, it was declared, by the plan. The legal institutions of the NEP, although not formally abolished, now became in many respects obsolete. Communist party directives and police terror replaced law in many areas of economic and social life, and Stalin, in that period, built his personal machine for governing.
The spirit of Soviet law in the early 1930s was reflected particularly in the writings of E. B. Pashukanis, the leading jurist of that period, who in his “General Theory of Law and Marxism” (1927) had expounded the view that law in its very nature is based on the concept of reciprocal exchange of goods and hence is essentially a product of a market economy. In the early 1930s Pashukanis foresaw the imminent disappearance of law and argued that such law as continued to exist in the period of construction of the planned economy should have maximum political elasticity. “The utmost dynamic force is essential,” he wrote in 1930. “Revolutionary legality is for us a problem which is ninety-nine per cent political” (Soviet Legal Philosophy 1951, pp. 279–280).
In the mid-1930s, however, there was once again a reaction against excessive dynamism. Stalin, in his “Report on the Draft Constitution,” 1936, called for “stability of laws.” With the adoption of the constitution in December 1936, socialism was declared to have been achieved; class antagonisms were said no longer to exist within the Soviet Union; but at the same time the new socialist era was said to require the strictest legality together with the strongest possible state power. The dying out of state and law was now postponed until the final stage of communism, after the end of “capitalist encirclement”—that is, when the whole world would be communist.
To this postponement Stalin added the “dialectical” doctrine that in order to pave the way for its own abolition the state must in the meanwhile become stronger and stronger. Thus the increase of terror against internal enemies—called agents of foreign imperialism—was given a theoretical justification, while at the same time the stabilization of the legal system could be promoted in those areas of social and economic life where terror was not considered necessary.
The dual system of law and terror that Stalin established in the mid-1930s is well symbolized by the fact that Pashukanis’ nihilistic theories of law were denounced and he himself was shot as a counterrevolutionary. He was replaced as dean of the Soviet legal profession by Andrei Ia. Vyshinskii, who laid down the new party line about law in a series of articles and in a book on Soviet public law (1938). While defending party supremacy and the use of force against “enemies of the people,” Vyshinskii attacked Pashukanis and other Soviet jurists for their attempt to reduce law to economics or to politics. He asserted that law has an “active, creative role” to play in the Soviet planned economy and that the reduction of law to politics would signify the ignoring of those tasks that stand before law, such as the tasks of legal protection of personal, property, family, testamentary, and other rights and interests (1938).
Under Vyshinskii’s aegis the whole vocabulary of “rights,” “duties,” “legality,” “contract,” “ownership,” “inheritance,” “fault,” “independence of the judiciary,” “right to counsel,” “burden of proof,” and the like was carried over from the NEP period and rebaptized as “socialist both in form and in content.” Moreover, the escape clauses of the NEP codes, such as article 1 of the Civil Code and the doctrine of analogy in criminal law, were greatly restricted in their application. In criminal law the element of personal guilt was emphasized as an essential element of crime. Liability for personal injury was now to be based on fault rather than on mere causation. A judicial procedure for divorce was introduced. Freedom of testation was increased, and the maximum 90 per cent inheritance tax was eliminated and replaced by a maximum 10 per cent notarial fee.
At the same time, “counterrevolutionaries” and “enemies of the people” were generally dealt with in secret administrative trials by the Special Board of the Ministry of Internal Affairs (MVD) or in a special secret procedure in the military courts. (The great purge trials of 1936–1938 were an exception to this rule.). Indeed, Vyshinskii developed theories to justify the application of special legal doctrines in political cases—for example, the theory that confessions have special evidentiary force in cases of counterrevolutionary crimes, since no person would confess to such a crime unless he were actually guilty!
The restoration of law as a positive feature of Soviet socialism was part of a general stabilization of social relations that occurred in the mid-1930s. It was related to the restoration of historical traditions, the re-emphasis of family stability, and the stress on Soviet patriotism, as well as to the recognition of the need for personal material incentives and for greater regularity and calculability in the administration of the economy. In the sphere of constitutional law, however, including choice of leaders, the legislative process, and civil liberties, “socialist legality” was largely a facade for Stalin’s personal despotism.
After Stalin’s death, in 1953, his successors denounced his “violations of socialist legality” and restricted very substantially the use of terror. They abolished the Special Board of the MVD and the special procedures in military courts for counterrevolutionary crimes. Hundreds of thousands of persons who had been convicted of counterrevolutionary crimes were released from labor camps and rehabilitated. Confessions were deprived of special evidentiary value, and the burden of proof was placed squarely on the prosecution in all criminal cases. The doctrine of analogy was eliminated from criminal law. New laws provided for the publication of all statutes and executive decrees having “general significance.” There was also a slight narrowing of the law on counterrevolutionary crimes (renamed “state crimes”), although it remained a crime to defame the Soviet political and social system or even to possess written materials of such defamatory nature for the purpose of weakening Soviet authority. The regime in the labor camps (renamed labor colonies) was substantially reformed.
Even apart from political crimes, Soviet law underwent substantial liberalization in the years after Stalin’s death. There was a re-examination of virtually every branch of law and a weeding out of most of the harshest features. Between 1958 and 1962 “Fundamental Principles” were enacted by the U.S.S.R. Supreme Soviet in the fields of criminal law, criminal procedure, civil law, civil procedure, and judicial administration. On the basis of these Fundamental Principles the various Soviet republics have begun to enact new codes in these fields. Draft “fundamental principles” of labor law were published in 1959 and were still under discussion in 1965, with new Fundamental Principles of family law in preparation as of that date. The new basic legislation has effected not only a general liberalization of the pre-existing law but also a significant systematization and rationalization.
Characteristics
Among the distinguishing features of the Soviet legal system is the institution of the Procuracy, which was established by Lenin in 1922 on the model of the old Russian Procuracy established by Peter the Great. The procurator-general of the U.S.S.R. and his subordinates at all levels have the function not only of indicting and prosecuting criminals but also of supervising legality generally. “General supervision” includes “protesting” administrative abuses to higher administrative authorities, as well as “protesting” erroneous judicial decisions to higher courts. Any citizen may complain about an abuse of his rights to the Procuracy, which is required to investigate and reply to the complaint and in proper instances to “protest” it. Thus, the Procuracy exercises a “watchdog” function, without having administrative powers of its own (apart from the power to indict for crime). It is a legal institution peculiarly adapted to a political system in which there is a high degree of central administrative regulation.
A second characteristic Soviet legal institution is the system of administrative adjudication of contract disputes between state economic enter prises and organizations. So-called Arbitrazh tribunals hear such disputes and resolve them on the basis of contract law, administrative regulations, and state economic plans. Where plans require enterprises to enter into contracts for supply of goods and the enterprises cannot agree on the terms, Arbitrazh tribunals will hold hearings and resolve the dispute. Most of the several hundred thousand cases decided annually by Arbitrazh involve, however, not these “pre-contract” disputes, but suits for specific performance or for damages for breach of contract.
A third distinguishing feature of the Soviet legal system is its heavy stress on the educational role of law. Both substantive and procedural law, in virtually all fields, is oriented toward the guidance, training, and disciplining of Soviet citizens to be loyal, responsible, and devoted to the aims of the society as formulated by the Communist party. A specific manifestation of this “parental” philosophy is the law of official crimes, which makes administrative and managerial personnel of state organizations criminally liable for intentional malperformance or negligent performance of their official duties.
The emphasis on the educational role of law is connected with the theory of the dying out of state and law once communism is achieved. In 1961 the achievement of the first stage of communism was promised within twenty years. At the same time the Stalinist theory that the state must get stronger and stronger in order to create the conditions for its demise was rejected. The 1961 Communist party program declared that the period of proletarian dictatorship was over and that Soviet society would take immediate (although very gradual) steps to replace the coercive machinery of the state by the persuasive, voluntary processes of popular social action. In accord with this theory, various paralegal bodies have been established—notably, informal “comrades’ courts” in factories and apartment houses, which mete out reprimands and light fines for minor offenses, as well as “people’s patrols” (druzhiny), which act as volunteer auxiliary police. In addition, people who lead an “antisocial, parasitic way of life” and “live on unearned income” are tried by collectives of workers or by the courts in a special administrative procedure and are subject to “resettlement” for two to five years in places where they must take socially useful jobs.
The adoption of these “antiparasite” laws in the major republics in 1961 coincided with a general increase in harsh penalties for serious crimes. Thus, in 1961 the death penalty was introduced for large-scale economic crimes, counterfeiting, and illegal transactions in foreign currency. In 1962 repeated bribery of officials, rape committed by a group, and attempted homicide of a policeman or volunteer auxiliary policeman (druzhinnik) were added to the list of capital offenses. (Prior to 1961, only certain political crimes—treason, espionage, banditry, wrecking, terrorist acts—and murder committed under aggravating circumstances were subject to the death penalty in time of peace, and in 1958 the maximum period of confinement had been reduced from 25 to 15 years.)
Thus, as of the early 1960s there was a certain ambivalence in the Soviet legal system. On the one hand, many of Vyshinskii’s theories justifying the use of terror were denounced, and socialist legality was proclaimed to extend to all spheres of Soviet life. On the other hand, the dualism of law and terror was replaced by a dualism of law and informal social pressure, and law itself, although applied with greater objectivity than ever before in Soviet history, reflected increased harshness in some areas and increased leniency in others. Soviet jurists rejected Vyshinskii’s definition of law as a coercive instrument of state domination (embodying, Vyshinskii added, the will of the people); yet they were unable to find a new definition that corresponded to Marxist–Leninist theory, to the new conditions of Soviet life, and to the aspirations toward a communist society in which social influence and persuasion would replace formal rule and command.
Harold J. Berman
BIBLIOGRAPHY
The major “classics” of Soviet legal theory in the period prior to Stalin’s death have been translated in part by Hugh W. Babb in Soviet Legal Philosophy 1951. No one has emerged to replace Vyshinskii as dean of Soviet jurisprudence (1938). Among those scholars, formerly associated with Vyshinskii, who have been in the forefront of the reform movement since 1955 are M. S. Strogovich, S. A. Golunskii, A. A. Piontkovskii, and S. N. Bratus. Of the younger junsts who first came to prominence in the middle 1950s, O. S. loffe is perhaps the most outstanding. An extensive bibliography of Soviet legal writings may be found in Hazard & Shapiro 1962.
Berman, Harold J. (1950) 1963 Justice in the U.S.S.R.: An Interpretation of Soviet Law. Rev. & enl. ed. Cambridge, Mass.: Harvard Univ. Press. → Originally published as Justice in Russia: An Interpretation of Soviet Law.
Berman, Harold J. (compiler) 1966 Soviet Criminal Law and Procedure: The R.S.F.S.R. Codes. Cambridge, Mass.: Harvard Univ. Press.
Grzybowski, Kazimierz 1962 Soviet Legal Institutions: Doctrines and Social Functions. Ann Arbor: Univ. of Michigan Press.
Gsovski, Vladimir 1948–1949 Soviet Civil Law: Private Rights and Their Background Under the Soviet Regime. 2 vols. Ann Arbor: Univ. of Michigan Press.
Hazard, John N. 1960 Settling Disputes in Soviet Society: The Formative Years of Legal Institutions. New York: Columbia Univ. Press.
Hazard, John N.; and Shapiro, Isaac 1962 The Soviet Legal System: Post-Stalin Documentation and Historical Commentary. 3 vols. Dobbs Ferry, N.Y.: Oceana.
Pashukanis, E. B. 1927 Obshchaia teoria prava i marksizm (General Theory of Law and Marxism). Moscow: Izdatel’stvo Kommunisticheskoi Akademii. → For a partial English translation see Soviet Legal Philosophy, 1951.
Schlesinger, Rudolf (1945) 1951 Soviet Legal Theory: Its Social Background and Development. 2d ed. London: Routledge.
Soviet Legal Philosophy. 1951 Cambridge, Mass.: Harvard Univ. Press; Oxford Univ. Press. → A collection of major classics by V. I. Lenin and others, translated by Hugh W. Babb and published under the auspices of the Association of American Law Schools.
Vyshinskii, Andrei Ia. (editor) (1938) 1948 The Law of the Soviet State. New York: Macmillan. → First published in Russian.
Legal Systems
Legal Systems
A legal system is a mechanism for creating, interpreting, and enforcing laws in a given jurisdiction. The major legal systems in the world include civil law, common law, socialist law, religious law, and customary law. Most nations have incorporated aspects of some or all of these systems, or developed variations on each system, into their own legal system.
CIVIL LAW
The civil law system is the predominant legal system in the world. It developed out of Romano-Germanic law—the law of continental Europe—based on a mixture of Roman, Germanic, ecclesiastical, feudal, commercial, and customary law. The beginnings of the civil law tradition can be traced to the Twelve Tables, written in 449 BCE, which laid the foundation for Roman law and would eventually become one of the most advanced systems of law in history.
Following the rise of the nation-state system in Europe, natural or civil codes were established in several countries, including France, Spain, Germany, and several Latin American and East Asian countries. The purpose behind the civil codes was to create a unified system of laws or statutes derived from basic principles and upon which judicial decisions are based. Perhaps the most widely known civil code is the Napoleonic Code established in France in 1804, which is the foundation for the civil law systems of Quebec and Louisiana. The German Civil Code, too, provides the legal foundation for the civil law systems of the former Soviet bloc countries, Japan, South Korea, China, and Taiwan. Most of Latin America also uses the civil law system as a result of the influence of its former colonial masters in Europe.
A distinguishing feature of the civil law system is that it is based on the idea of flexibility and judicial discretion in interpreting the law. Different schools of judicial interpretation exist in most civil law countries, and the law tends to be a product of these competing schools. Judicial disregard of precedent is considered to be a strength of the civil law system because it allows for alternative interpretations of the law that may be more compatible with the facts and circumstances of a particular case. One of the results of this more flexible approach in applying the law is that judicial opinions tend to be more concise, as courts discuss only the relevant legislation that applies rather than detailing how a decision was reached. However, the civil law system is still subject to the vagaries and uncertainties of judge-made law where the role of precedent has little influence.
COMMON LAW
Common law systems can be found in many nations that were former colonies or territories of England. The common law originated with the unification of England and the institutional stability provided by William the Conqueror (c. 1027–1087) after 1066. In 1215 King John (1167–1216) elevated the importance of the common law at Runnymede when he signed the Magna Carta. The Magna Carta freed the church, localized the court system, and codified the basic principles of the common law. By the sixteenth century, the common law system had supplanted the civil law system in England, and over time it would become more reliable as a consistent record of case law for judges and lawyers developed.
An important aspect of the common law is the role of precedent or the principle of stare decisis (“let that stand which has been stated”). The common law represents the law as expressed by judges in the form of judicial decisions based on precedent rather than statutes. These judicial decisions, if issued by the highest court in a jurisdiction, are binding on all other lower courts within that same jurisdiction. To ensure predictability in the law, high courts are expected not to overturn their own precedents in the absence of strong justification. Though new rules are adopted from time to time and judicial decisions can be overturned, these new rules or decisions also become binding precedents, thus restoring certainty to the law.
In the early twenty-first century, every state in the United States, except Louisiana, utilizes the common law system. Most state statutes provide that the common law, equity, and statutes in effect in England in 1603 be deemed part of the law of the jurisdiction. The common law system also constitutes the basis of the legal systems of Canada (except for Quebec), Australia, Hong Kong, India, Malaysia, New Zealand, and South Africa, among other nations. Each of these common law jurisdictions recognizes the importance of the adversarial system and the fundamental principles of law that have been adopted over the centuries by way of custom and precedent.
SOCIALIST LAW
Socialist law is the legal system used in most Communist states. It is based on the civil law system and Marxist-Leninist ideology. During the cold war period, it was incorporated into the legal systems of the Soviet Union and its former satellite states in Central and Eastern Europe. These systems were built on the notion that the state, rather than private individuals, should own most of the property within its jurisdiction.
When the cold war ended and the Soviet Union collapsed in 1989, support for the socialist legal model waned considerably. Some states, such as China, Cuba, Vietnam, and North Korea, continue to practice their own version of socialist law; however, most of these states have modified their legal systems in response to the growing popularity of market-oriented reforms and the inevitable forces of globalization.
RELIGIOUS LAW
Religious law is based on the sacred texts of religious traditions, which advocate norms, principles, or rules as revealed by God that are intended to govern human behavior. Most of the major religions of the world, including Islam, Christianity, and Hinduism, espouse a particular code of ethics or morality that is believed to be required by God and necessary to promote justice within a state. Many nations incorporate religious law into their national legal systems and, in some cases, there is no separation between religion and the state in administering these systems.
Islamic law, or sharia, is based on the Qu’ran, the primary source of Islamic jurisprudence, and the sunna, which purportedly incorporates the practices of the Prophet Muhammad (c. 570–632). Muslims believe that there is no distinction between religious and secular life and, therefore, national laws should reflect Islamic principles. Nations practicing some version of Islamic law in 2007 include Afghanistan, Saudi Arabia, Iran, Iraq, Pakistan, Indonesia, Libya, Morocco, Algeria, Turkey, Egypt, Kuwait, Tunisia, Syria, Sudan, Mauritania, and Lebanon, to name a few.
Canon law is a legal system developed by the Catholic Church and based on the Bible, the foremost source of Christian law. The Code of Canon Law has been compiled, organized, and revised over the centuries to reflect changes in the Catholic Church’s hierarchical, administrative, and judicial practices. Today, the canon law system, which consists of its own courts, judges, lawyers, and legal code of ethics, makes up the legal system of the Vatican in Rome.
Hindu law is a body of rules and principles set forth in the Manu Smriti and practiced by the Hindus. It is one of the oldest religious systems in the world and is characterized by beliefs and practices rooted in ancient Vedic culture. Hinduism is the third-largest religion in the world, and its followers are concentrated mainly in India. During the occupation of India by the British, Hindu law was recognized by the British government, but it has been corrupted by the imposition of British common law and secularization.
Other major religious legal systems include the Baha’i faith (Iran), halacha (Jewish law), Buddhist law (Tibet and Southeast Asia), and Confucian law (China).
CUSTOMARY LAW
Customary law is law developed from the bottom up. It consists of established patterns of behavior that are capable of being observed, and it gives rise to expectations that guide people’s actions. An important feature of customary law is that it is not imposed, or handed down, by some coercive institution or individual, but is instead created through mutual recognition and acceptance. Customary law consists of two elements: (1) an observable practice; and (2) a conception that the practice is required by or consistent with a prevailing norm (opinio juris ). Customary international law is a type of customary law that refers to the “law of nations” and the rules developed over time as a result of state practice and opinio juris.
SEE ALSO Administrative Law; Judiciary; Law; Law and Economics; Law and Order; Rule of Law
BIBLIOGRAPHY
Benson, Bruce. 1990. The Enterprise of Law: Justice without the State. San Francisco: Pacific Research Institute for Public Policy.
Glendon, Mary Ann, Michael Wallace Gordon, and Christopher Osakwe. 1985. Comparative Legal Traditions: Texts, Materials, and Cases on the Civil Law, Common Law, and Socialist Law Traditions with Special Reference to French, West German, English, and Soviet Law. St. Paul, MN: West.
Hogue, Arthur. [1966] 1985. Origins of the Common Law. Indianapolis, IN: Liberty Fund.
Merryman, John. 1985. The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America. 2nd ed. Stanford, CA: Stanford University Press.
Plucknett, Theodore. 1956. Concise History of the Common Law. 5th ed. Boston: Little, Brown.
Souaiaia, Ahmed. 2002. Islamic Law and Government. Lincoln, NE.: Writers Club Press.
Zubaida, Sami. 2003. Law and Power in the Islamic World. London: Tauris.
Klinton W. Alexander
Legal Systems
Legal Systems
As in many areas of business and professional practice, the use of computers in the legal sphere had become widespread by the beginning of the 1990s. In some realms of law practice, such as research and office management, computer automation had a major impact a decade or two earlier. Everything from the way courtroom trials are undertaken to the way lawyers prepare documents has been affected by automated systems. This article focuses on digital technology in six major areas of legal practice. Some topics, like artificial intelligence (AI) , that have yet to be developed to the point where they have everyday practical applications are not covered. This does not mean that they do not hold tremendous promise for the future, just that more work needs to be done before they are ready for a commercial market.
Legal Research
The heart of an attorney's work is research. One must be able to locate the primary sources, the cases, statutes, and regulations that make up the law, before clients can be advised, contracts prepared, or litigation brought to trial. This is the area of legal practice that has been most radically affected by the introduction of computer technology.
The earliest experiments with computer-aided legal research were undertaken by John Horty at the University of Pittsburgh in the early 1960s. Horty encoded the text of state public health statutes into a digital form that could be read by a computer. Simple searches could be run by matching language submitted by the researcher against the statutory text using Boolean logic .
By the mid-1960s, Horty's research had attracted the attention of several key members of the Ohio Bar Association. They wanted to take automated legal research to the next level by developing a system that would allow massive amounts of legal information to be stored and then retrieved by searching the full text of each document. By 1973 the system, now named Lexis, was ready for commercial marketing. The earliest version of Lexis was rather primitive; it mostly contained just state and federal case law. Communication problems were frequent and complicated searches were dreadfully slow, often taking longer than thirty minutes.
By 1975 a competing product, Westlaw, was being marketed to attorneys. West Publishing Company, the developer of Westlaw, originally built their product to work solely as an indexed system utilizing the topic and key number indexing employed in their print compilations of cases. Within a few years Westlaw was redesigned as both a full-text and an indexed system.
Today both Lexis and Westlaw are powerful research tools containing hundreds of databases incorporating millions of legal, news, and public record documents. Besides full-text searching, both Lexis and Westlaw now allow for indexed and natural language searching, the latter being introduced as a means to introduce computer-aided legal research to less computer-literate lawyers.
The success of both Lexis and Westlaw has led to several complementary software products. One of these works by extracting case citations from legal documents, such as a brief, and verifying that the cases are still valid law by referencing an electronic citation service. Numerous smaller companies have developed more modest research systems and tools. These CDROM (compact disc-read only memory) and online-based products offer relatively low-cost searching compared to Lexis and Westlaw. In addition, with the advent of the Internet, many courts, legislatures, and regulatory agencies have made their documents available via the World Wide Web. Using these Internet-based sources for detailed and comprehensive legal research has drawbacks, however, including the absence of older material, unsophisticated search engines, and the need to consult many different sites.
Document Assembly
The popular image of an attorney is usually based on television characters making heroic gestures in front of a jury. The truth is that many attorneys have never spent a working day in a courtroom. Legal work such as preparing wills, filling out tax forms, incorporating businesses, and handling real estate transactions can at times require shrewd analysis and attention to detail. Just as often, though, they are routine processes that can be automated to save time.
Beginning in the 1980s with the introduction of the personal computer, programs were developed to assist with document assembly. At first these were simple programs, like those to assist in drafting wills, based on word processing software. More sophisticated products, like those to compute taxes, were soon built around database or spreadsheet programs. These software packages quickly gained favor with the legal profession and now there are dozens of companies offering a wide range of document assembly products.
Case Management
A successful law practice involves more than good research skills and thorough knowledge of the law. There are business components that can be time-consuming, but many of these can be handled with computer technology. Storing client data, keeping track of timesheets, and debt collection are all business functions that are easily automated. One of the most important innovations in this area is software that functions as an electronic calendar or tickler file. These programs allow the busy attorney to track and maintain filing deadlines. The most sophisticated of these are keyed into state or federal court rules and automatically compute the date that a filing or court appearance is due.
Litigation Support
Complicated trials involving large corporations can require enormous numbers of documents. Boxes full of business records and depositions from potential witnesses may have to be examined, indexed, coded, and stored in a manner that allows for rapid retrieval. Up until the 1980s, microfilm was the storage vehicle of choice; computers were relegated to an indexing role. Low-cost scanning technology and cheap, abundant computer memory have allowed the entire process to be automated. It is still a labor-intensive undertaking and generally involves scanning documents onto compact disks as image files. Sometimes, at great expense, these documents are converted to text files using optical character recognition software so that they can be retrieved through full-text searching. At the same time, these records are assigned codes that capture identifying information such as date, author, title, addressee, and type of document; each record is also given a unique document number.
Another way computer technology provides litigation support is through the creation of graphics and other visual aids for courtroom use. The most sophisticated of these are simulations that can recreate an accident scene or show the path of a bullet.
Communications
A revolution is currently underway in the court systems of the United States. Fueled by the communications potential of the Internet, courts of all types are developing the capability to allow attorneys to file and retrieve documents in pending cases electronically. The potential is there for all parties in a case to receive filings simultaneously and without delay. Electronic docketing or registration of legal proceedings also allows attorneys to take note of other cases that were filed against a particular party within a specific period of time.
Courtroom Practice
The judiciary, as a whole, traditionally has not been eager to embrace new technology. Little by little changes have been working their way into the courtroom. In many U.S. counties it is now possible to receive real-time transcription of the proceedings of an ongoing trial. The court stenographer utilizes a system that converts shorthand to a transcript format that is distributed through multiple channels in the courtroom. This nearly simultaneous record can benefit deaf or blind jurors and participants.
The paperless trial is another reality that is being played out in a few selected courtrooms around the country. Jurors can view video clips, computer simulations, and exhibits on video screens or monitors in the jury box. The reported advantages have been faster and cheaper trials and the ability to focus the jury's attention in a more direct fashion.
see also Information Retrieval; Medical Systems; Security.
Marc Silverman
Bibliography
Eyres, Patricia. Smart Litigating with Computers. Los Angeles: Estrin Publishing, 1992.
Harrington, William G. "A Brief History of Computer Assisted Legal Research." Law Library Journal 77 (1984–1985): 543–556.
Leith, Philip, and Amanda Hoey. The Computerized Lawyer. New York: Springer Verlag, 1998.
Staudt, Ronald W. Litigation Support Systems: An Attorney's Guide. New York: Clark Boardman Callaghan, 1995.
Legal Systems
LEGAL SYSTEMS
The Russian legal system—the judicial institutions and laws—has been shaped by many different influences, domestic as well as foreign. It constitutes just one of several legal systems at work within Russia. As befits any large, multiethnic society, many different legal systems have coexisted in Russia at various points in history. Prior to the twentieth century especially, many of the non-Slavic peoples of the Russian empire as well as Russian peasants relied on their religious or customary laws and institutions to regulate important aspects of life (e.g., family, marriage, property, inheritance).
principalities and muscovy
As in Western Europe, the early history of Russian law is marked by an initial reliance on oral customary legal norms giving way in time to written law codes and judicial institutions heavily influenced by religious sources. The oldest documentary records of Russian customary law are several treaties concluded by Kievan Rus in the tenth century with Byzantium. These treaties included Russian principles of criminal law that, like their counterparts in Western Europe, were heavily reliant on a system of vengeance and monetary compensation for harm committed against another. One interesting feature of Russian customary law was that women enjoyed a higher, more independent status under Russian law than under contemporary Byzantine law.
The introduction of Christianity to Kievan Rus exposed the Russians both to the notion of written law as well as canon law principles imported from Byzantium. In the eleventh century, Russian customary law was set down in writing comprehensively for the first time in the Russkaya Pravda, which focused on criminal law and procedure and incorporated principles of blood feud and monetary compensation for damages. Later versions of the Russkaya Pravda included elements of civil and commercial law, which were heavily drawn from German and Byzantine sources. Courts under the Russkaya Pravda consisted of tribunals of the elder members of the local community, rather than genuine state-sponsored courts. While some scholars maintain that the Russkaya Pravda was in force over all of ancient Russia, others argue that its effect was much more limited to only a few principalities. Where it was enforced, the Russkaia Pravda remained in effect until the seventeenth century.
During the fifteenth through seventeenth centuries, Russian law was modified to support the emerging Muscovite autocracy. In particular, the legal status of the peasants was reduced to serfdom. During this same period, several important written collections of law were adopted dealing with criminal, civil, administrative, and commercial law and procedure. Under the Sudebnik of 1497, torture was institutionalized as a normal tool of criminal investigations. The Ulozhenie of 1649, which remained the principal basis for much of Russian law for two centuries, consisted of 967 articles covering most areas of the law. The criminal law sections of the Ulozhenie were noted for introducing more severe punishments into Russian law (burying alive, burning, mutilation). These documents were not well-organized, systematized codes of law, but were merely collections of existing laws, decrees, and administrative regulations.
russian empire
Beginning with Peter the Great, several tsars attempted to rationalize the Russian legal system by introducing Western innovations and bolstering their autocratic rule by improving the efficiency with which Russian courts went about their business. Toward this end, Peter established the Senate to supervise the courts and punish corrupt or incompetent judges as well as the office of the procurator-general, which was established in 1722 to oversee the Senate and to supervise the enforcement of laws and decrees. The office of the Russian procurator-general continues to this day.
One of the most intractable problems facing Russian legal reformers was the morass of unorganized and undifferentiated laws and decrees in effect. The Russian legal system sat on a foundation of out-of-date or half-forgotten laws, decrees, and procedures, and judges and government officials were hard-pressed to know which laws were in effect at any given moment. In the nineteenth century,
Russian specialists under the direction of M. M. Speransky attempted to rationalize this material by collecting and distilling it into a fifteen-volume digest, the Svod zakonov rossiiskoi imperii, published in 1832.
The most significant tsarist-era legal reforms were adopted in 1864, when a modern, Western-style judicial system was introduced in the aftermath of the emancipation of the serfs. The new judicial system introduced professional judges and lawyers, trial by jury, modern evidentiary rules, justices of the peace, and modern criminal investigation procedures drawn from Continental models. Reaction to these liberal judicial reforms set in during the reign of Alexander II after the acquittal of several famous dissidents, including the assassin Vera Zasulich, and the independence of the courts in political cases was significantly eroded after the assassination of Alexander II in 1881. Despite this reaction, the institutions established by the Judicial Reforms of 1864 remained in effect until 1917.
soviet regime
A decree adopted in late 1917, On the Court, abolished the tsarist judicial institutions, including the courts, examining magistrates, and bar association. However, during the first years following the Bolshevik Revolution, legal nihilists such as E. Pashukanis, who advocated the rapid withering away of the courts and other state institutions, contended with more pragmatic leaders who envisioned the legal system as an important asset in asserting and defending Soviet state power. The latter group prevailed. Vladimir Lenin, during the New Economic Policy, sought to re-establish laws, courts, legal profession, and a new concept of socialist legality to provide more stability in society and central authority for the Party hierarchy. The debate between the legal nihilists and their opponents was definitively resolved by Josef Stalin in the early 1930s. As Stalin asserted control over the Party and initiated industrialization and collectivization, he also asserted the importance of stabilizing the legal system. This process culminated in the 1936 constitution, which strengthened law and legal institutions, especially administrative law, civil, family, and criminal law.
The broad outlines of the legal system established by Stalin in the 1930s remained in effect until the late 1980s. Reforms introduced by Mikhail Gorbachev in the late 1980s, however, made significant changes in the Soviet judicial system. Gorbachev sponsored a lengthy public discussion of how to introduce pravovoe gosudarstvo (law-based state) in the USSR and introduced legislation to improve the independence and authority of judges and to establish the Committee for Constitutional Supervision, a constitutional court.
post-soviet reforms
In the years since the collapse of the Soviet Union, Russia has adopted a wide array of legislation remaking many aspects of its judicial system, drawing heavily on foreign models. Most of the legislation that has been adopted was foreshadowed in the 1993 constitution and includes new laws and procedure codes for the ordinary courts and the arbitrazh courts, which are courts devoted to matters arising from business and commerce, new civil and criminal codes, and a new land code, finally adopted in 2001.
See also: cooperatives, law on; family law of 1936; fundamental laws of 1906; governing senate; procuracy; russian justice; state enterprise, law of the; succession, law on; sudebnik of 1497
Michael Newcity