The Rise and Decline of Legal Families' by Mariana Pargendler in 60(3)
American Journal of Comparative Law (2012)
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The effort to group jurisdictions around the world into a handful of legal families based on common characteristics of their laws has traditionally occupied a central role in the comparative law literature. This Article revisits the intellectual history of comparative law and surveys the evolution of legal family taxonomies from the first efforts at classification in the late-nineteenth century to the influential categorizations advanced by René David and Zweigert and Kötz in the 1960s. The early taxonomies differed from their modern counterparts in important ways. Although the nineteenth century is usually viewed as the apex of the common-civil law dichotomy, this distinction was conspicuously absent from legal family classifications until the twentieth century. A number of economic and political factors – ranging from economic liberalism to anti-colonialist sentiment – likely played a role in minimizing the salience of legal traditions in nineteenth-century legal thought.
Pargendler concludes that
The relatively recent vintage of legal family classifications as we know them today raises several questions. Why did prevailing conceptions about the origins and affiliations of legal systems undergo such a major transformation over time? To what extent did shifting taxonomies track changes in legal developments on the ground? Were early comparativists simply less sophisticated and knowledgeable about foreign legal systems, and did they thus fail to grasp the true nature of their object of study? Or could it be that the variation in taxonomies over time was attributable to corresponding differences in underlying legal phenomena? While this study cannot provide definitive answers to these questions, it offers some tentative thoughts that underscore the importance of pursuing this line of inquiry.
Clearly, one cannot take legal family classifications – present or historical – as precise assessments of an underlying reality. Yet, it would also be wrong to dismiss the early authors’ groupings of legal systems as hopelessly flawed and lacking any instructive value about the then-contemporary legal systems that they sought to describe. While the first comparativists of the nineteenth century did not enjoy the benefit of subsequent theoretical advances, they had the comparative advantage of greater proximity to the legal systems and worldviews that their classifications sought to capture compared to twentieth-century observers.
There are reasons to believe that there is a mutually reinforcing relationship between legal family classifications and surrounding legal developments. On the one hand, one can expect classificatory schemes to reflect, even if only partially and imperfectly, the character of legal systems around the world as contemporary observers perceived them. On the other hand, because law is a social and cultural phenomenon, existing understandings about legal systems and traditions may in turn impinge on subsequent legal developments. In this view, the nineteenth-century comparativists’ lesser degree of attention to the civil-common law dichotomy was in part a product of the more cosmopolitan orientation of law and culture in that period. In turn, by de- emphasizing the importance of deep-rooted legal traditions, the existing theoretical framework likely facilitated legal borrowings from a broader array of jurisdictions, thus reinforcing the reigning belief in the desirability and feasibility of legal convergence.
A variety of factors may have contributed to a lesser degree of deference to, or consciousness of, legal traditions in the nineteenth century compared to the twentieth century. First, and most obviously, there was significant theoretical confusion in the nineteenth century about the meaning and origins of different legal systems – as exemplified by the existing diversity of classificatory schemes, as well as the frequent statements by prominent English and U.S. authors that English law stemmed from Roman law. An excellent study by Michele Graziadei examines the “change in the image” in the nineteenth century from the early understanding of English law as originating from Roman law to a later conception of the common law as the source of a distinct legal tradition. In his words, theoretical developments in nineteenth-century England (which were, paradoxically, inspired by contemporary doctrinal developments in Germany) “transformed the perception of the historical background of the law and eventually produced a new awareness of the distinctive character of the common law tradition.”
Second, conceptions about legal tradition and the appropriate sources for one country’s law were intimately intertwined with the search for identity – including legal identity – by the various nations that had then recently acquired independence. New countries were reluctant copycats, and wholesale legal transplants from one legal system seemed more dangerous to one’s identity and autonomy than a combination of numerous foreign sources. Relatedly, anti-colonialist sentiment was very much alive in many newly independent nations, which made them despise the notion of legal continuity from colonial times and thus view the idea of legal tradition rather unfavorably. For instance, in the United States, Chancellor Kent famously resorted to continental sources to legitimize certain common-law concepts in light of the “unpopularity of things English.” In his words, “[t]he judges were Republicans and very kindly disposed to everything that was French, and this enabled me, without exciting any alarm or jealousy, to make free use of such authorities and thereby enrich our commercial law.” That is, the argument that rendered English law an acceptable source was not that it was part of the U.S. particular legal tradition, but quite the opposite: English law was more legitimate to the extent that its precepts were the same as those of French and Roman law.
Third, the nineteenth century was the heyday of economic liberalism and the free trade of goods, persons, and ideas. Just like the globalization movement of the late- twentieth century, the late nineteenth century’s own (arguably just as profound) period of globalization generated significant pressures for cross-border legal convergence and integration. Such an intense degree of international trade and economic integration, in turn, created demand for legal harmonization and lessened the importance of local peculiarities. For instance, a 1862 free trade agreement between England and France pushed France to relax authorization requirements to incorporations along the lines of the English Companies Act in order to avoid putting French firms at a competitive disadvantage. In Brazil, the economic connections to Britain arguably generated more reliance on Anglo-Saxon legal institutions in the nineteenth than in the twentieth century. Yet each of these factors that downplayed the salience of legal traditions in the nineteenth century lost significance in the twentieth. The rise of comparative law as a discipline and the greater sophistication of comparative and historical studies cleaned up some of the existing confusion about the origins of legal systems in the Middle Ages. Roman and common law were then increasingly understood as not only lacking a common root but also as largely impervious to mutual influence, despite what were seen as sparse and isolated instances of legal borrowings. In addition, as memory of colonial times receded, legal traditions came increasingly to be viewed in a more favorable light.
Moreover, changes in world’s balance of power facilitated the solidification of legal traditions. Following decolonization, declining powers such as France and Great Britain viewed legal imperialism and the export of legal culture as a substitute for de facto occupation. From the perspective of the periphery, the return to legal traditions in the twentieth century often had the effect of strengthening a country’s sense of independence and identity in the face of American and Soviet economic and political hegemony. Finally, the turn towards autarkic policies and economic nationalism after World War I put an end to the earlier age of globalization and, in decreasing international trade, created an environment more favorable to legal nationalism (and to the ingrained and persistent differences across legal systems that legal families implied) and less conducive to legal convergence. ...
Comparativists have insistently debated the extent of the decline of legal family distinctions, but little attention has been paid to the rise of now-conventional understandings about legal families and traditions. By offering a brief intellectual history of the taxonomic efforts in the comparative law literature, this Article suggests that legal family categories followed a parabolic, rather than linear, path. Contrary to conventional understandings, the reification of a strong common-civil law dichotomy may have peaked in the twentieth century – after the end of the first globalization in 1914 but before the second globalization of the latter half of that century. In this light, the recent call by comparative law scholars for the abandonment of legal family classifications is a far less radical move than it may seem.
The view of the nineteenth century as a period dominated by a particularly strong and conscious dichotomy between civil law and common law is wrong. A variety of factors – ranging from theoretical underdevelopment to anti-colonialism and free trade – circumscribed the role of legal tradition in that period. Perhaps more important, many critical choices that would eventually shape legal family affiliations had not yet been made in the nineteenth century. Take, for example, Germany and Brazil which are today solidly in the civil law tradition but which had then not yet adopted one of the very hallmarks of that tradition, i.e., a civil code. Germany’s Bürgerliches Gesetzbuch came into force in 1900, while Brazil’s first Código Civil was not enacted until 1916. In both cases, the delay was not accidental, but rather the result of genuine disagreement about the desirability of a code and the suitability of existing models.
Ultimately, the development of legal family categories cannot, as is usually assumed, be explained by long-standing historical traditions alone; it was also profoundly shaped by trends in politics and economics. As the bulk of the comparative law literature has focused on the extent to which legal families are still relevant, the inquiry into the causes and consequences of strong conceptions of legal traditions provides interesting avenues for future research.
