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Amrit Bishowkarma

Roll No. 18/2075 DAY


LL.M. 1st semester
Introduction:
Legal system:
 The entire laws of a given political society.
 is a systematic approach to law, comprising all
theorotical and fucntional aspects of the legal norms,
legal institution and legal process.
 is a social system, which reflects the existing social,
political, economic, cultural characteristics of the given
society.
 Every legal system has its own origin, history, socio-
economic, cultural conditions and political ideology in
shaping native legal system.
Prof. Upendra Boxi’s view:
 legal system can conceive merely as and
aggregate of legal norms, as a sum of its
parts,
 legal system can be conceived as a system of
social behaviors, of rules, statues, and
institutions, as involving parented interactions
between the makers, interpreters, breeders,
enforcers and compliers of the norms of law
and
 legal system may be equated with social
authority and powers, different normative
requirements and sanctions, and distinctive
institutional complex.
A/c Agarwal, Components of Legal system:
 Basic principle and values
 A set of operational rules
 Law enforcing mechanisms
 Legal professional

Rationale for the classification or grouping of the


legal system:
 ‘classification’ can be counted as kinds, types,
styles,
 provides a tool for coping with diversity of legal
systems by finding a number of types or categories,
Criteria for the classification of the
legal system:

Criterion refers:
a. essentials, requirement, minimum qualification,
and element
b. a standard by which something may be judged

Can we divide the vast number of legal systems into


just a few large families or groups? How do we
decide with what these groups should be? How do we
decide whether a particular legal system to one
group rather than another?
make these grouping primarily for taxonomic
purposes, so as to arrange the mass of legal
system in a comprehensible order.
In 1905, Esmein attempted to divide the legal
system into Romanistic, Germanic, Anglo-saxon,
Slav and Islamic families.
Arminjon/Nolde/Wolff in their work “traite de
’droit compare” (1950), considered that modern
systems of law should be grouped on the basis of
their substance focusing on originality, derivation
and common elements and ignoring geographical
and racial factor. They had divided the legal
world into French, German, Scandinavian,
English, Russian, Islamic and Hindu families
Rene David was criticized earlier writers for
failing to produce convincing criteria of
distinction, and concludes two criteria were
satisfactory:

a. The criteria of ideology, since the law is the


product of religion, philosophy, or political,
economic, or social structure)
b. Legal technique: differences of legal technique
being of secondary important, the principal
ground of distinction is philosophical basis or
conception of justice.
Prof. Lon L. Fuller, a law should fulfill
following requirements which can be
described as criteria of a legal system:
a. Definite rule
b. Well Published
c. Easily understandable
d. Not contradictory or inconsistence
e. Not abuse of retrospective legislation contradictory
or inconsistence
f. Not subject to frequent changes
g. Rule for actual enforcement
h. Required beyond his power or capacity
Michael Bogdan, there are seven criteria for
the classification that helps in explaining and
describing similarities and differences
between the legal systems which are as
follows:
The Economic System:
The political system and Ideology:
Religion:
History and Geography:
Demographic factors:
Co-influence of other means of control:
Accidental and unknown factors:
Joseph Raz, the features of law and legal
system is normative, institutionalized and
coercive on the basis of these four criteria
for classify:

 Criteria of existence:
 Criteria of identity:
 Criteria of structure:
 Criteria of content :
Dias pointed out there are such elements in
every legal system which are- Principle of
validity, institutional structure and purpose
A.R. Biswas, there are such elements in every
legal system which are Structure, substance,
culture and impact.
Antony Allot views norms, institutions, process
and autonomy as pre-requisites in every legal
system.
H.L.A. Hart refers to primitive and developed
legal system that have the criteria primary
rules of obligation or duty imposing laws and
the secondary rules or power conferring laws.
In the analysis of K. Zwiegert and H. Kortz,

one’s division of the world into legal families and


the inclusion of legal system in a particular family
were vulnerable to alteration by historical
development and change.
legal families much depends on the period of time
which one is speaking.
the classification of legal system should not be
based on single criterion and one dimensional.
Legal styles should be deployed as a basis for
putting legal systems into groups.
Following factors are crucial for the style of a
legal system or legal family:
a. its historical background and development
(historical development),
b. its predominant and characteristic mode of
thought in legal matters (a distinctive mode
of legal thinking),
c. especially distinctive institutions,
d. the kind of legal sources it acknowledges and
the way it handles them (Sources of law)
and
a. its ideology.
Conclusion:
 It is very difficult to classify the legal systems
 Various attempts have been made in order to
classify the legal system
 Defining the criteria for the classification is the
most profound objective of any theory of legal
system.
 Kelsen was the first to insist that “it is
imposssible to group the nature of law if we limit
our attention to the single isolated rule.”
 Zwiegert and Kotz stand in same line as they
believe that there should not be single criterion
to classify the legal systems into the groups.
 As K. Zwiegert and H. Kotz are in view that historical
background and development, predominant and
characteristic mode of thought in legal matters,
especially distinctive institutions, the kind of legal
sources it acknowledge and the way it handles them,
and ideology factors are crucial for the style of the
legal system or legal family.
 They said, there should be the considerations of
multiple criteria rather than a single criterion. Also
they agree with David, who concluded his treatment of
the controversies of classification by saying; much ink
has been spilt on the subject, but to little purpose.
Importantly, the period of time in which a particular
legal system is existed is also an inescapable factor to
be considered.
At last We conclude-

There is some hybrid system of law which is


not easy to put into right family.
Sometime it is doubtful and impossible to fix
upon an exact moment, when a legal system is
in the process of moving towards a particular
legal family.
Thus, the criteria are the core essence of any
legal system and have to be understood with
the light of the theory of legal system.