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THE WORLD’S LEGAL SYSTEMS^1
Wigmore identifies the following sixteen legal systems in the history of the civilised world: Egyptian, Mesopotamian, Chinese, Hebrew, Hindu, Greek, Roman, Islamic, Japanese, Keltic, Slavic, Germanic, Maritime, Papal, Romanesque and Anglican. The Keltic system, centred around the class of professionals known as the Druids, was not law in the full sense because it was based on kin organisation rather than on political unity. Neither was maritime law, which has a separate existence for nearly five thousand years, finally being absorbed into the territorial laws of nations in the seventeenth century. The sea laws derived from the decisions of the merchant courts, unofficial treatises by anonymous scribes, and legislation by the sea guilds; the resulting codes had considerable binding force, but they were not created and enforced by representatives of governments. The papal legal system has not been governmental law for the past three centuries or more, but prior to that it was, at least for matters of “acclesiastical jurisdiction”. Popes began to claim jurisdiction over “spiritual” matters as early as 400 A.D. Church courts later had supreme appellate jurisdiction over “acclesiastical” matters for much of the entire Christian world, reaching their greatest power between 800 and 1200 A.D. perhaps Wigmore goes too far, but he maintains that secular law in the many hundreds of local baronies was weak and rigid; and that in comparison the canon law was relatively uniform, progressive, and oriented more to equality before the law than to guaranteeing status.
The Early Legal Systems : Developed before 4000 B.C., the Egyptian legal system was evidently the world’s first, at least according to Wigmore; it was followed about 4000 B.C. by Mesopotamia’s. The Code of Hammurabi, dating from about 2100 B.C. contains three hundred sections or so with a broad scope that includes crime, family, property and commerce. The development of
(^1) Source: F. James Davis, Henry J. Foster (et.al.), Society and the Law , The Free Press of Glencoe (1962).
commercial law very marked, the documents including a wide range of transactions-deeds, leases, loans, sales, deposits, bills of lading, agency, partnerships and others. A Mesopotamian promissory note payable to a bearer, dated about 2100 B.C., is the oldest known negotiable instrument. There law was performing the function of controlling trade in the ancient crossroads of the world more than thirty-five hundred years before a commercial revolution was to occur in Western Europe. Not until the late Middle Ages did this idea of transferability to the bearer appear in European commercial law. Wigmore maintains that the five earliest legal systems-Egyptian, Mesopotamian, Chinese, Hebrew and Hindu-were all derived from religion except the Chinese. The Greek was the first system to be secular, but all later major systems throughout the world were secular except that of the Moslems. General statements of this nature seem warranted, but our knowledge of the ancient systems is fragmentary, and the transactions are very controversial. The only system that has survived continuously is China’s, which began about 2500 B.C. Particularly after the time of Confucius (551-479 B.C.), the chief function of Chinese law was to sustain monarchy. It provides a contrast to Western law, which emphasises individual rights; the demand for one’s just due has traditionally been vulgarto the Chinese, and a reasonable compromise preferable. The traditional magistrate was a friendly arbitrator, highly subject to public opinion, and the government was one of men rather than rules. Chinese procedural law was long admired by Western lawyers; but the codes almost ignored the relation of people to things and were thus unable to cope with the demands of commerce resulting from the industrial revolution in the West. Some modern reforms were begun during the last days of the Empire, accelerated after the Republic was established I 1912, and codified under the National Government during the 1930’s. This westernised system continues on Taiwan, but apparently the law of Communist China is copied from that of the Soviet Russia. Only two of the world’s systems have developed a national law through the precedents of official judges-those of Japan and England. The Japanese
Code (a digest of legislation), and the Institute (a student’s handbook of law). The citation of the Latin sources was thereafter strictly forbidden, and they have perished.
The Three Present-Day “World-Systems” of Law : The oldest of what Wigmore calls the three great existing world-systems of law is the Islamic, which was fully developed by 900 A.D. Its sources have been the Koran, Mohammed’s sayings and conduct, and juristic treatises. This legal system spread with the faith, and an extensive literature developed in each of five sects of Islamic civil law. The Criminal law has been a matter of personal justice by the Sultan and his subordinates (this is Weber’s “Khadi justice”), and it has reflected local variations in custom and belief. All caste and colour distinctions have been removed in Islamic law, the only existing world-system in which this has been accomplished. Along with the other two present-day world-systems-the Anglican and the Romanesque-this system has proven adaptable to communities with varied local customs and institutions, and in a written language it has provided a cultural base for education, government, and progress for a large part of the globe.
Under the Germanic conquerors, law in the Italian city states was for a time a haphazard mixture of Germanic law and what had survived of the Roman law. About 1100 A.D., Irnerius began to lecture at Bologna on the Justinian compilations of Roman law. The resulting University of Bologna was the first Christian university in Europe; by 1200 it had about 10,000 students, mostly in law. Other universities sprang up in Northern Italy, and students came from all over Europe to study the resurrected digests. France became the centre of Roman legal scholarship in the sixteenth century, Holland in the eighteenth, and Germany in the nineteenth. Germany’s supremacy in Roman legal thought became world-wide with the works of Savigny, Windscheid, and von Jhering. During the centuries following Irnerius, the revived Roman law was adapted to the conditions of a thousand local Germanic political communities throughout Western and Northern Europe. The system of law resulting from this fusion is
evidently more Germanic than Roman. It has been variously called the Romanesque system, civil law, and continental law. The rise of national governments brought attempts to nationalise the Romanesque law in Europe. After three centuries of effort, France achieved its famous Code Civil in 1804. Napolean helped push the code to completion, but succeeded in shaping its content very little. The bench and bar of all France participated in a way that made Justinian’s effort seem superficial and mechanical; many professional meetings were held, and hundred of reports were made before the code was completed. The law of property and contract and the conceptual form were primarily Roman, but the remainder of the code was based mainly on French customary law and is permeated with liberalism and individualism. Soon translated into nearly every language, this book has influenced the entire world. National codes followed in most countries of Europe, and then Romanesque law spread to become a world-system. The French code was widely used as a model, and the similarity in the Romanesque codes around the world is marked. Wigmore estimated that over three hundred millions of people (then about one-sixth of the population of the world) were living under this legal system, and that it was the most extensive of the three world-systems. The third of the world-systems, the Anglican, serves very nearly as many people as the Romanesque does. Islamic law became a world-system by religious expansion; Romanesque by the long tradition of systematic scholarship and by political reform; Anglican by colonization. In the face of successive invasions and other influences from the continent, how did England develop an indigenous legal system? The fact that it is an island helped to isolate it and to promote unity. The early Norman overlords wanted unity and system, and they nationalised and centralised law six centuries before it occurred on the continent. Westminister Hall, the oldest courthouse in Europe, became the central court of justice about 1300. Another factor is that even before the Norman conquest there was a strong national interest in the study of law. There was a legal profession in England at least two centuries before its rise in Germany and elsewhere on the continent. The lawyer guilds,
legislative and judicial bodies. This contrasts sharply with the troublesome policy of imposing European legal rules and procedures on native peoples, as the French have done. In South Africa the white minority has supported its economic supremacy with political power, including law. Here is a clear case in which a major function of the legal system is class domination. Having spread in part by imposition but probably more by voluntary borrowing, the three world-systems of law now either control or heavily influence about half the people of the earth. Each has proven to be highly adaptable to local conditions. Ll three, and also the Hindu system, eist in some countries as pure systems; the other four surviving legal systems in Wigmore’s analysis do not. In much of the world today there are fused systems, or composites in which different ones exist side by side. Like Wigmore, Weber stresses the influence of the education of trained specialists, saying that only in the Western world have legal profession arisen. He believes commerce and the rise of rational economic systems in the West have greatly influenced legal thought, education and practice toward more systematisation. Other aspects of Western law he considers to be unique are: the reception of Roman law in medieval Europe, the full development of folk justice and of patrimonial status group law, and the use of natural law to guide the law of the political community. The similarities in legal systems are less political community. The similarities in legal systems are less obvious than many of the differences, but comparative study reveals that they share at least the general characteristics of formal social control and that they support certain common broad human interests such as those in the human body, human life, and possessions.
