Shintassova Aiymkhan Adilkhankyzy

Student of 2nd course of law department

Al-Farabi Kazakh National University

Almaty, Republic of Kazakhstan

 

Karataeva Aygul Muratbaevna

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.