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Curzon
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Curzon

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November 22nd, 2009

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The Development of Modern Private Law

I was idly thinking about the growth of different systems of civil codes and related systems of law across the globe and came up with this rough graph of the development of modern private law.

private law development

Comments from fellow amateur legal historians most welcome.

Comments to this entry

Anon
November 22, 2009
7:38 am
Also, for us non-lawyerly types, what would be the most surprising difference for someone used to one system going into another?
ElamBend
November 22, 2009
8:37 am
You could put the state of Louisiana under France.
Wilson
November 22, 2009
9:12 am
Scotland is just chillin' off to the side, opposite China.
Daniel
November 22, 2009
10:03 am
Interesting graph, and I see that Elambend beat me to the punch with Louisiana.
Carl
November 22, 2009
10:20 am
The color codes for Scotland and China are a bit confusing. It leads me to believe that they share a commonality. Would it be that they share features of both civil and common law systems?

Also I find it hard to believe that Taiwan is even an indirect influence on the Chinese system, unless of course by 'Taiwan' the chart is referring to the system put in place by the Guomindang before their defeat in the civil war.
Curzon
November 22, 2009
11:36 am
Anon: To sum up each system in a sentence -- the common law system is based on historical court rulings that have defined the definitions and standards that are used in the systems today, often clarified today with legislation and codes. The French Civil Code is structured as being exhaustive, designed to create provisions that cover ever possible situation. The German Civil Code is more structured and specific, with general provisions followed by specific provisions that apply to property, contracts, and family.

Elambend: indeed, along with Quebec. This is chart is not exhaustive.

Carl: Sorry, Scotland and China are more independent in their development but influenced by, respectively, England and HK/Taiwan. I'm not qualified to state to what extent Taiwan has influenced China, but I understand that to be the case.
a
November 22, 2009
1:07 pm
the ROC which rules Taiwan dominated China prior to the PRC no?
Bubba
November 22, 2009
3:33 pm
I think China also was significantly influenced by the Soviet Union in the formation of its legal system. So maybe a line from Russia when it is added?
bdh
November 22, 2009
4:46 pm
i went to law school and i have only been a lawyer for under two years, so i am by far no expert. also, i have only dealt with specific laws in one or two areas. however, if i could add my to cents it would be this: the short paragraph offered up by curzon (above) does indeed point out the basic differences - but it is common to hear that both systems are approaching one another. that is, more and more laws are being codified in common law jurisdictions and more and more arguments are being allowed and relied upon in subsequent rulings in the courts of civil law jurisdictions. there are also differences in the theory of the two systems--i.e. the (ahem) roles of judges within each of the legal frameworks (whether or not it is true, in fact, is another point).

note--i also think it is worth noting that some common law jurisdictions such as england have no written constitution making them quite unique, especially when compared to usa and canada.


and-i suppose you could put quebec under france as well (in that it relies on its own version of the french, i suppose, civil law framework)

finally - i would almost, almost, put a line from canada to usa-->though i only can speak of canada--> the canadian legal system certainly has significant (putting it mildly) historical ties to england but it also relies heavily in more recent times on american, umm, perspectives, a better word escapes me. though technically american cases cannot be relied upon (i think often think unfortunately on this part, especially when i read some of the crap coming out of B.C.), they often are (fortunately). further, even though U.S. cases are not to be considered part of canadian "case law" they are often referred to in decisions and used (along with other common law case decisions) as evidence that other civilized, common law coutries, are doing "x" and do, whether they are technically allowed to or not, carry some weight with somes triers of facts.
bdh
November 22, 2009
4:48 pm
sorry first sentence was supposed to be quite different...cut and paste wasnt all it was "cut out" to be ... anyway, point i was trying to make was that law school and 2 yrs of work hardly makes me a hsitorian nor gives me some special insight into common vs civil law jurisdictions around the globe....
J0okwe
November 22, 2009
6:16 pm
It would probably be worthwhile for the chart to acknowledge the roots of the Napoleonic Code in Roman law. Napoleon is supposed to have looked to Justinian, who was in turn (possibly) influenced by Hammurabi.

The chart also presumes that the entire history comes from European sources. I think that's not accurate. Islamic law comes to mind, but it would also be interesting to investigate, for example, the state of commercial law in Imperial China and its influence on current law.

In the Dutch East Indies, Family law courts were supposed to identify the ethnic group of the litigants (eg Dutch, Muslim, Balinese, Bugis, Ambonese Christian etc.) and then apply the customary law of the group to the matter at hand. Although this created obvious difficulties both in deciding what group some individuals should be assigned to and in ascertaining the customary law of the relevant group, my understanding is that after independence the Indonesian government was unable to come up with a more workable system. I think this is a good example of how difficult it is to use a simple civil/common law dichotomy to describe legal systems.
McKellar
November 22, 2009
10:04 pm
It's just a little chart, but I agree with J0Okwe that it would be worthwhile to look at the interface of civil/national law, religious law, customary law, and now international law (and the idea that there should be uniformity amongst different nations' legal systems).

Max Weber did some fascinating stuff with legal history, outlining how joint stock companies and the insurance industry were developed as a means of circumventing usury laws.
M-Bone
November 23, 2009
1:55 am
France should link up with Canada as well.

The Civil Code of Quebec is an oddity that deserves in -
http://en.wikipedia.org/wiki/Civil_Code_of_Quebec
Roy Berman
November 23, 2009
4:23 am
The line from Japan to Taiwan should be erased, as the Japanese legal system was replaced by the ROC constitution and legal code post-war. Now, the ROC law was itself heavily influenced by German law, but their constitutional system is also clearly influenced by the USA's three branches, with the additional Control Yuan and Examination Yuan, which are based on institutions that existed under the imperial Chinese state.
Curzon
November 23, 2009
5:37 am
Apples and oranges, Roy -- the Constitutional system and court system would be different charts, and in that case, Japan also would be heavily influenced by the US. Taiwan's Civil Code, which came into force in 1918 is, with amendments, still the basis of the civil legal system today, and was based on Japan's Civil Code.

http://zh.wikipedia.org/wiki/%E6%97%A5%E6%9C%AC%E6%B0%91%E6%B3%95
http://zh.wikipedia.org/wiki/%E4%B8%AD%E8%8F%AF%E6%B0%91%E5%9C%8B%E6%B0%91%E6%B3%95
Aceface
November 23, 2009
6:44 am
What about Macau.Shouldn't it have link with Portugal?
Curzon
November 23, 2009
7:42 am
J0okwe: Family law is a whole different ball game, and there are dozens of bizarre systems across the globe that look at the nationality (e.g. Japan), ethnicity (e.g. Malaysia), and religion (e.g. India, Israel) of the parties before applying the law. America, applying the law generally equally to all persons in family matters, is truly an exception in this regard.

Aceface: I've found conflicting reports on this. Apparently Macau's original code was German influence, but later (?) became based on the Portugese code. I know that Mozambique's code is based on Portugal's... but again, this is a rough chart, and not exhaustive.
Mikhail
November 23, 2009
12:14 pm
Is the ChiCom use of Lautamies influenced by the Finnish system? Or was it a compromise to shoehorn a Jury into a Civil Law system?
fabius.maximus.cunctator
November 23, 2009
2:28 pm
Vy nice indeed. Reminds me of my early (German) law school years.

Remarks:
Where is Switzerland ? The Swiss have a very good civil code (ZGB) which ist quite distinct from ther German BGB while Austria (ABGB) is rather close.
Further to this, Kemal Atatürk incorporated the ZGB`s basic principles into Turkish law, not the BGBs as I remember (quick check in German Wiki confirms this).

Great admirer of the Corsican Ogre that I am, I wd rather call the French codification Code Civil as the French do. Boney`s contribution was real and important, but it was naturally exaggerated by his admirers.

Having done internships in France during my student days I wd not underrate the common origin of both systems: the Roman law. French and German law have astonishing similiarties in some respects (the concept of ownership and land ownership in part.) which show their common origin. I have also "heard" Common Law in my student days and it is just different.
Btw. Alsace and Lorraine still retain the post 1871 German-style land register (Grundbuch) which according to a French colleague was "just too good" too abolish again.

Finally, where wd you situate EU-law in this? The EU is forcing legal changes upon their members which may lead to a certain harmonisation in some fields.
Lexington Green
November 23, 2009
9:29 pm
Good chart. If you go back farther, you have the Roman/Civil law behind both German and French law. If you go back even farther you have medieval law in all three, including England. The introduction of Roman law on the continent set them on a different path in the early modern period.

Scotland was never under English common law and was influenced by the continental approach, so it is it's own category.

A unique element in English law, actually in Equity, which was a parallel system to the common law courts, was the law of trusts. The greatest of all English legal historians, F.W. Maitland, believed that the roots of civil society and political liberty large grew from that source -- which has no continental equivalent.

A very good discussion of Maitland and the law of trusts can be found in Alan Macfarlane's short book, which is full text here:

http://www.alanmacfarlane.com/TEXTS/Maitland_final.pdf

This is a huge subject which I have been interested in for a long time, but I will not go on and on about it here.

A good book on the subject is: Rene David, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law.
Lexington Green
November 23, 2009
9:36 pm
Here's a good map:

http://tinyurl.com/ygjlq9x

I think characterizing the ex-British colonies other than the USA and the Crown Commonwealth as "mixed" rather than common law is more accurate.

Indian law, for example, which I know a little bit about, is a unique hybrid, with common law features.
Roy Berman
November 24, 2009
2:33 am
Then you should replace "Taiwan" with "Republic of China", since calling it Taiwan in this context implies that the law came from its status as a Japanese colony, when in fact the colonial period Japanese law was repealed and replaced with the ROC civil code that had been developed on continental China. Both were mostly based on the Japanese interpretation of civil law, but even though they were similar, the ROC law also has some other influences that were never present in the defunct colonial era code.

And family law is indeed a whole different ballgame. It would be fun to try and make a chart for that some time, where I imagine some of the main influences would be Church Canon Law, Germanic/Anglo customary/common law, Islamic family law, the Ottoman system for applying separate family law to citizens based on their religion (not sure what that's called, but it persists in much of the Islamic world, and Israel) and the original Chinese family register system.

For example. the ROC Land Law section of the civil code is said to have originally been based on Sun Yat-sen's revolutionary ideals of equality, as it applied to the existing land situation.
"台灣的土地法立法精神源自於孫文的民生主義平均地權學說，主張平均地權，地盡其利，地利共享等觀念。整部土地法的存在皆在彰顯這三個精神"

http://zh.wikipedia.org/zh-tw/%E4%B8%AD%E8%8F%AF%E6%B0%91%E5%9C%8B%E5%9C%9F%E5%9C%B0%E6%B3%95

I also don't understand the line going from Taiwan to China. I don't see how Taiwanese (ROC) law could possibly have had any influence on PRC law. After 1949, the PRC ignored the ROC civil code and replaced it with their own based on the Soviet interpretation of European civil law. Same for HK-it just hasn't had any effect on the mainland law. I think for talking about formal legal systems (rather than politics) it makes far more sense to say ROC and PRC, and reserve "China" for the pre-revolutionary traditional Chinese law.
Roy Berman
November 24, 2009
2:36 am
Well, I suppose it's possible that HK law has had some influence on modern PRC commercial law since the handover, but I think it's more likely that the changes they've made are actually based on the international regime of the WTO and other similar treaties. I wonder if such treaties could be considered a descendant of the French or Germanic codes, or something new?
lirelou
November 24, 2009
5:13 am
Puerto Rico should be added to the Napoleonic tradition, via Spain. Of course, American constitutional guarantees govern both the penal and criminal procedure codes, and the Maritime Law sections of the Commerce Code are without force as long as Admiralty remains the prerogative of the Federal Courts. Likewise, firearms ownership is far more restrictive on the island, and there is no death penalty, so homicide rates are very high. Divorce arrived with the U.S. flag in 1898, but it still took years before one was granted.
Roy Berman
November 24, 2009
5:19 am
If you're going to include Puerto Rico in that way, you could also add Louisiana and Quebec, which have French-based civil codes that differ wildly from the rest of their respective countries.
Joe Jones
November 24, 2009
6:42 am
Another big missing spot on this chart is the USSR, which had a civil legal system largely borrowed from the Napoleonic model but incorporating strong Marxist-Leninist elements regarding property. The Napoleonic system was inherited by the CIS states, and the overall Soviet system combined with the ROC system to form the PRC system.

Israel, for what it's worth, mostly follows English common law, with the key exception of the Ottoman-derived family law practice of deferring to religious customs.
Joe Jones
November 24, 2009
6:47 am
By the way, one really good resource for this sort of macro analysis is the World Factbook. At least up to the 2008 online version, you could pull a snapshot of all the countries of the world by any given category, including legal system.