Taxonomy of law and legal mapping

2010, Acta Juridica Hungarica

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20 pages

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Attempts from the 17 th century onward anticipate the 20 th-century mood of legal mapping. They classify legal arrangements by languages, races and genetic roots, then by their ideologies and technicalities. Later on they do so by separating the Western from the Soviet/socialist law, by their correspondence to underlying general cultures, as well as according to legal families. It is the insuffi ciency of resorting to dichotomy contrasting the Western "Us" to any differing Eastern "Others" that has recently resulted in typologising in terms of the dynamism and directions of legal development in the duality of professionalism and traditionalism or in the cross-reference of what is established/stable and unestablished/instable, and of what is drawn from Western and non-Western sources. Material taxonomy cannot be accomplished in law through genuine class-concepts. Characterisation through concepts of order can be achieved at most. In want of any meta-system, cultures formed to idealise and hypostasise ideas of order by independent principles can provide no common basis of division for law. Accordingly, only some division to major and minor sets and subsets can be achieved. The own arrangement will be better cognised by other schemes' understanding. The gradual transcendence of rule-fetishism by identifying law with some specifi c culture may prevent the coming "clash of civilizations" from reaching aggressive self-assertion and care for the sustainability of the laws' diversity.

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—, a grouping that, not being based primarily on extant and actually prevailing features, has remained worthy of being taught up to our day. In a typologically characteristic manner, Glasson perceives, when mapping Europe’s inner division, the particularity of the Nordic and the Russian Plateau. Remarkably, the classification also draws the English and the Scandinavian legal systems within a single category while putting the French and the German together, differentiating both from the actual Romanist heritage. Almost two centuries later, in 1880 Glasson proposed* a tripartite classification derived om historical origins again, namely, laws developing

In another attempt at grouping, Sauser-Hall (1913) accepted the exclusive criterion of race as the principle for classification, in a manner not alien to the dominant spirit of the 7 age’— —, which, despite being rather influential for a while as an early attempt, proved to be toc sketchy and limited in outlines. However, at the peak of European imperialism or politico- economic expansion, this analysis theoretically encompassed the world through the historical prism of Europe. Interestingly enough, it also involved Arabic culture—having in mind its presence in the His panic Peninsula for centuries in the Middle Ages—as a partner on an equal footing.® We see here for the first time the Germans separated as a block from the Romar legal tradition, perhaps owing to the clashes with which the German Empire, with the Austro- Hungarian Monarc hy in the background, confronted the rest of the world. At least, there car scarcely be any other explanation in that allusion was also made to Hungarian law.

In the interwar period, Lévy-Ul/lmann (1922) was the first to divide laws, acknowledged as civilised, along the lines of their respective development®— —with a conciseness that may increase posterity’s suspicion that he (like so many before and after him) actually made the only distinction between his home arrangement, accepted in the natural course as serving as a starting point, on the one separated from the former, on the other. Or, he proceeded as if be nothing but embellishment, decoration or flourish, with hand, and everything else for him anything else could he sheer aim of aesthetic completeness. — From the vast three volumes of the historico-comparative tableau Wigmore (1928)? drew for the American legal profession, one simply cannot ascertain whether or not the author indeed wished to classify or simply alluded to items by exemplification, when in an all-inclusive overview—

—he presented the huge variety of past and contemporary legal systems.

—has (with its separation of the Nordic region!*) remained an exceptionally mature accomplishment for a long time. The series of classifications produced during the half-century following World War II was opened by a magnificent theoretical conspectus, authored by a triad in France. As is well known, the primary aim of Arminjon, Nolde and Wolff (1950) was to lay the theoretical- methodological foundations of legal comparatism rather than to accomplish any description of the extent of the legal world. Accordingly, these authors excelled in elaborating private law as a group with criteria of categorisation given in a most promising manner. As an unavoidable by-product, however, they disregarded ideals of order (e.g. of the Far East) where any conceptualisation was abhorred. Eventually, they saw the historical evolution of private law in Europe as stemming from, and represented by, seven independent types. All in all, their classification!'— imei valine <> ae ted David (1950), whose work in due course became the number one classic of the international comparative law movement, paved a somewhat different road. Although starting, too, with a dedication to civil law, he extended his research interests from the civil law technical instrumentality to entire legal arrangements as unities organised into a system, with various components gaining specific roles. In parallel with the rise of the Iron Curtain between East and West in Europe and the threat of nuclear devastation with the increased sense of danger through the menace of a Third World War, the ideology or philosophical

—has exerted a long-standing influence through the basic polarisation implied, despite its elementary simplicity in structure. Or, it constituted a plain reflection of the Cold War ideology raging at the time, whose basics were defined by the opposition of the Western European and Atlantic world to the Third Rome, the Muscovite Empire. And again, as already seen elsewhere, the occasional reference to one or two remote cultures from faraway peripheries (which were starting to loom on the horizon) could only serve as sheer complementation. David’s subsequent analysis (1961) did in fact alleviate the harshness of this categorical opposition. Following its own path—-he admitted—the West might also be inclined to move towards Socialism; moreover, even Africa and Asia (without Christianity in their past) might commit themselves to the same direction.'* Ironically enough, the deadly menace by the Soviet superpower (accompanied by the West’s growing slump into the pragmatism of realpolitik, having relinquished Hungary in the dramatic days of 1956) made Soviet ambitions respected worldwide, compelling the West to cowardly submission. Finally, the very cause of Socialism as a method of building a global system could obtain worldwide acknowledgment by granting its own typological locus to itself, while the Soviet terminology renamed its counter-pole, the “Western” law, as “bourgeois” one. Tr, 1 4 r re a a ee SAOMFAN 41 worldview underlying the given legal regime became his primary concern for classification, only to be seconded with the technique of law in supplementation.'> His proposition—

—, in terms of which, in the Far Eastern arrangement denominated as intuitive mediational, Yet, in the meantime the world opened itself up to the Western mind, and theoretically inspired attempts at a philosophical classification emerged. In a classical manner, Northrop’s typification (1959)!"—based on an understanding of the specifically Far Eastern—discerned the following groups: —, applying his typological model in order to outline a legal sociological panorama with a historical approach in the background.!* Albeit being otherwise conservative as permeated by respect for traditional values, this typology may astonish us by presenting both the West and the anti-West, i.e. Bolshevism, with equal taxonomic weight, moreover, in a way mixed sublimely with arrangements originated in world religions that had in their time set our civilisational path for millennia. However, assessing the atmosphere of cosmic threats with expectations of a coming cataclysm, such western submissiveness still needs to be explained in terms of social psychology rather than in cool detachment with some apparent objectivity.

—, within which each and every “great cultural circle” [grofe Kulturkreise] could generate a corresponding “circle of law” [Rechtskreis]. Accordingly, the respective cultures are to be separated historically in a way that encompasses the whole of legal development. Probably only this can explain, why the Nordic region was not differentiated within a Euro—Atlantic civilisation taken as a coherent block.

—, which would consolidate as precisely an expression of timely need.*’ Even if from some opposite starting point—based not on the futurism of forming man according to Socialist utopianism, but on exactly that which Socialism denies from the Western achievements of several millennia of civilisational development-—, Western thinkers arrived at a similar result in a typological sense. Thus, according to the Indian Bose (1962), the only criterion of division cannot be but the nature and degree of “adherence to the rule of law’”’.*8 Accordingly, there are two opposing poles and various transitions distinguished— —, in which the dynamism of the intermediate sphere (with the value-orientation of the tendencies of development that may forecast recent directions) seems to be the most progressive element.

The debate addressing the issue for a quarter of a century as to how much the distinctive features are expected to stem from a common basis and their ideological background—in addition to the separation of the distinctive ones from within a single entity—compelled the French master of post-war legal comparatism to change his stand definitely. Having left behind the community of ethos indicated by the category of “Western law”, David then proposed (1964) the introduction of two mutually supplementing criteria, namely “/egal technique” (including vocabulary, concepts, hierarchy of the sources of law and juridical methods) as well as “philosophical, political or economic principles desired to be implemented’’—only providing that “[t]he two criteria are to be used subsequently and not in isolation.”*° Accordingly, he re-formulated his taxonomy, using the middle term of “legal family” [famille de droit] in the following way: Albeit this separates what is obviously distinct from within the diverse formations (or Soviet deformations) of Western civilisa relegates everything non-Western into one ion, yet in a scholarly indefensible manner it single and improperly defined notional category. For indeed, any reference to “philosophical, religious or traditional”?! laws is hardly more in the final analysis than a mere pretex for separating what is “other” or “different”. Following such logic, any comparatist—from the Far East via the Muslims to the Malagasy and Hova tribes in Madagascar—might arrange a cliché to group Berlin, Paris, Rome, London and New York into the same ca’ Tirana. egory of esoterica alongside with Moscow and ~ ee ‘+ ‘+ a ee 7 tp ~~ — + 1. i. — . - ~

Following this line of thought, grouping in terms of the variations of a definite correlation amongst the above elements had by then become the standard pattern. The classification put forward by Malmstrém (1969), based principally upon historical characteristics with varying subdivisions*4— —proposed the most enlarged version since Davia’s early attempt in 1950, as the very first to grant the laws of Latin America a named status, while he grouped distinct civilisations under one bland collective notion to typify regimes in Africa that have managed to survive as faint copies of their English or French colonisers’ law. The other variation produced at that time was the typology improved by Zweigert—Kétz (1971)*—

The proliferation within a few decades of attempts bearing the marks of fashion may have discredited the undertaking itself and the merits of the whole enterprise; at least no new proposal could be heard about during the subsequent quarter of a century. Edrsi’s distinction with sensitivity to civil law (1973)°’ represented again a Marxist historical perspective, while adding to Kulcsdr’s typology (“exploitative / Socialist”) framed a decade ago— -, and excelling by the presentation of Anglo-American and Scandinavian laws in one common category as well as by the very naming of the Central and Southeast-European region.

In the ethos and drift of debates induced by Mattei, the Finnish Husa (2004) presented the available configurations in a cross-referential frame. His grouping of a double division®— polarised about the centrifugality of becoming established and the centripetality of being unestablished, and the substantiation through Western and non-Western models or impacts, at the same time. It treated Socialism as a transitional phase from the outset, an inherent product of the West, for “socialist law is culturally a European innovation [...] of European Marxism”, independently whether taken as generation or degeneration.*° As to the Eastern tradition, only the Muslim and Hindu laws were specified as sufficiently established and worthy of analysis. Or, Korean, Chinese and/or Japanese Confucianism were portrayed as weakening and vanishing in law, therefore relegateable to a category with the uncertainties of Africa, and as left without doctrinal analysis. Finally, in his mixed category it is reassuringly realistic to encounter Scottish law as foreseen to change (certainly reviving again its Roman roots), Louisiana (presumably weakening in resistance to Americanisation), and Israel (as settled in multiculturality).