Shintassova Aiymkhan Adilkhankyzy
Student of 2nd course of law
department
Al-Farabi Kazakh National University
Almaty,
Republic of Kazakhstan
PhD in Law, association professor
Al-Farabi Kazakh National University
CONCEPT AND DISTINCTIVE FEATURES OF ROMAN-GERMAN LEGAL FAMILY.
Legal family - one of the central concepts of comparative jurisprudence;
represents more or less wide set of national systems of law which unite a
community of sources of law, the basic concepts, structures of the right and a
historical way of its forming.
Each legal family is unique, however the comparative jurisprudence
allows, having found out their similarities and distinctions, to make a
typology of systems of law. Thus, the types of systems of law called by legal
families are created. Criteria are:
• ratio and use of sources of law,
• a role of court in creation of precedents,
• origin and development of system of the right.
In addition to historical value allocation allows to be guided in the
specific legal phenomena, it is reasonable to make use of foreign experience,
to catch and understand general tendencies of a legal development of humanity,
to enrich the legal and political culture.
The most known is classification of the French scientist Rene David [1]
according to which are allocated:
• Roman-German legal family,
• Anglo-Saxon legal family,
• religious legal family (Muslim, Judaic, etc.),
• socialist legal family,
• traditional legal family,
• some other legal families.
The Romano-German legal family, or system of the continental right has
long legal history. In the Roman-German legal family allocate group of the
Romance right and group of the German right. It is a striking example of how in
one historical type several various systems of law coexist.
Distinctive feature of the Roman-German legal family is that it is based
upon regulatory legal acts which are, as a rule, codified. Owing to the
historical reasons the right acts here, first of all, as means of regulation of
the relations between citizens. Other industries of the right were developed
much later and are less perfect in comparison with the civil law which remains
fundamentals of jurisprudence.
The Romano-German system of law was created in continental Europe, as a
result of reception of Roman Law by the countries of continental Europe.
Development of trade, crafts, growth of the cities became the basis for
reception in the economic sphere. The urban population, however in several
centuries was originally social basis and scope of Roman Law in medieval Europe
mainly, with change of rural way, the land relations in the village the system
of law which arose in the cities became nationwide, continental.
Except the economic reasons there were also welfare prerequisites of
borrowing of Roman Law by Europe. Development here of education, arts, cultures
paved the way for perception of the Roman legal concepts, views, concepts,
designs. The important role in this process was played by universities where
occurred studying of original Roman texts (school of glossators), and then
their adaptation to Middle Ages conditions (school of post-glossators). Not
accidentally some researchers of the Roman-German right consider it as
"the reason right", "the right of universities". University
professors actively were engaged in enhancement of the legal doctrine, the
categorical device, and later – development of models, drafts of the major
laws, codes. Universities got an education of the judge, the prosecutors,
lawyers promoting further practical application of the Roman legal doctrine.
Date when from the scientific point of view the system of the
Roman-German right appeared, the 13th century which began with revival of
studying of Roman Law at universities is considered.
Creation of the Roman-German legal family is connected with revival
which happened in the 12th and 13th centuries in the west of Europe. This
revival was shown in all plans; the aspect legal was one of its important
aspects. New society realized need of the right again; it began to understand
that only the right can ensure an order and safety which are necessary for
progress.
In the 16-18th centuries process of legal development of Europe
purchases new forms. Formation of the nations and national statehood introduced
in it elements of legal nationalism. The general principles and the beginnings
of Roman Law were integrated into national standard systems. This process came
to the end with development of the national legal system, the national codes
considering features of social ways of various countries.
The main source from where the new ideas extended, favoring thereby to
revival of the right, there were culture centers which arose in Western Europe.
The leading role at the same time belonged to universities from which
University of Bologna in Italy was the first and the most known. Therefore it
is important to know what purposes put before themselves universities and as
they within centuries developed the right of scientists which became despite
borders between the states, general for all Europe. Universities didn't teach
"the practical right". University professor taught the method
allowing to create the most fair regulations on content most of all
corresponding to morals and societies favoring to normal life. At universities the
right was considered as model of the social organization. The university
science specified to judges how to solve affairs on the basis of justice,
orders rules to which respectable people shall follow in the social behavior.
The right as morals is due (what needs to be done), but not real (what
practically occurs).
The next period in development of the right of the Roman-German family –
the period of the legislative right, is significant the fact that the school of
the natural right achieved great success in two directions: questions of the
public law began to concern widely lawyers while in Roman Law much attention
was paid to private law; codification which aimed to make the model right of
universities the law in force. Napoleonic codification of 1783 is the most
striking example of such activities.
And though such regulations would shall divide the countries from
consolidation in one legal family, nevertheless, the majority of lines of all
industries of the right of each country are general for all group of the countries,
as allows to speak about existence of the Roman-German legal family.
One more distinctive feature of the Roman-German system of law – strict
industry classification. The system of the right is subdivided into industries
among which are basic the constitutional, administrative, civil, criminal law,
and also civil and procedural and a criminal procedure law. Within industries
of the right sub industries and institutes develop. So, the constitutional
right includes sub industries of the rights and freedoms of citizens, the
electoral right, the federal right, the power and state bodies, institutes of
direct democracy.
In system of bodies of the state accurate distinction on legislative and
law-enforcement bodies is carried out. Legislative functions constitute
monopoly of the legislator. Availability of the hand-written constitution is
characteristic of the majority of the countries of this system.
Within the Roman-German system of law allocate the following groups:
1)
group of the
Romance right (systems of law of France, Italy, Belgium, Spain, Romania, right
of the Latin American countries);
2)
group of the
German right (systems of law of Germany, Austria, Hungary, Switzerland, Greece,
Portugal, Turkey, Japan);
3)
group of the
Scandinavian right (systems of law of Denmark, Norway, Sweden).
Some researchers allocate independent group of the Slavic right which,
in their opinion, has the unique historical way of development different from
the European legal traditions. Originally it was created under strong impact of
the Byzantine right, further adopted many provisions based on reception of
Roman Law and thereof, closely approached the Roman-German right, also special
role in it was played by the socialist right.
In all countries of the Roman-German legal family the precept of law is
understood, estimated and analyzed equally. In this family where the science
traditionally is engaged in streamlining and systematization of the decisions
passed on specific affairs, the precept of law ceased to act only as a cure of a
specific case. Thanks to efforts of science the rule of law is lifted to the
highest level: it is understood as a rule behavior, more serious value, than
only its application by judges having generality and having in specific case.
Let's sum up the result of our consideration of the Roman-German legal
family and we will allocate its main signs:
- the single hierarchically constructed system of sources of the written
right in which dominating place is taken by regulations (legislation);
- the leading role in forming of the right is assigned to the legislator
who creates general legal rules of conduct; the right realization (the judge,
administrative authorities, etc.) is designed to realize only precisely these
general regulations in specific law-enforcement acts;
- there are written constitutions having the highest legal force;
- high level of standard generalization is reached by means of the
codified regulations;
- the powerful position is held by subordinate legislations
(regulations, instructions, circular letters, etc.);
- division of system of the right on public and private, and also on an
industry;
- the legal custom and a legal precedent acts as auxiliary, additional
sources;
- not obligations, but human right and the citizen are in the first
place;
- the legal doctrine which developed and developing the basic principles
(theory) of creation of this legal family at universities has special value.
In conclusion it is necessary to tell that now the Roman-German system
in addition to continental Europe extended to all Latin America, a considerable
part of Africa, the country of the Middle East, Japan, Indonesia. The system of
law of the Republic of Kazakhstan also concerns to her.
The list of the used sources
1. David R. Main systems of law of the present. — M, 2009.
2. Ibrayeva A. S., Ibrayev N. Theory of the state and right. Almaty,
2006
3. Saidov A. H. Comparative jurisprudence. — M, 2003. — Page 238.
4. Tikhomirov A. Yu. Rate of comparative jurisprudence. — M, 1996. —
Page 128-319.
5. Lafitsky V. I. Comparative jurisprudence in images of the right. — M,
2010. — T. 1. — Page 200-275.