ACADEMY OF ROMANIAN SCIENTISTS

Annals of the Academy of Romanian Scientists

Series on Philosophy, Psychology and Theology

ISSN 2067 – 5690

Volume

13

, Number

1–2

/

2025

10

MAJOR CONTEMPORARY SYSTEMS OF LEGAL CIVILIZATION

AND CULTURE: THE ROMANO-GERMANIC LEGAL SYSTEM

AND THE ANGLO-SAXON LEGAL SYSTEM

Mihai BĂDESCU



Abstract

. The contemporary world is divided into major systems of legal civilization and

culture,

distinguished

primarily

by

the

historical

type

of

law

to

which

they

belong.

The

formation of these major systems is explained by the convergence of legal systems across

various

countries

resulting

from

social

transformations;

the

history

of

law

reveals

significant

legal

shifts

throughout

the

ages.

An

overview

of

the

major

systems

in

the

contemporary world entails examining the legal frameworks currently applied in various

states.

Codes,

statutes,

decrees,

and

regulations

of

all

kinds—along

with

their

practical

application,

governing

principles,

and

prevailing

perspectives—collectively

shape

the

national

legal

system.

A

careful

analysis

of

these

structures

shows

that

national

legal

systems fall into broader categories defined by a shared set of principles.

Keywords

: civilization, legal culture, legal family, Romano-Germanic law, Anglo-Saxon

law, religious legal systems.

DOI

10.56082/annalsarsciphil.2025.1.10

1. Introduction

Historically, the law has undergone several major processes of reception

that

affected

vast

regions—sometimes

spanning

entire

continents—shaping

"local"

legal

systems

according

to

specific

rules,

principles,

and

concepts.

Montesquieu stated that laws "[…] must be suited to the physical conditions of a

country, to the climate—cold, hot, or temperate—to the quality of the soil, to its

location and extent, and to the people's way of life—whether farmers, hunters, or

shepherds; they must be suited to the degree of liberty the state order allows, to

the local religion, and to the people's morals and customs."

A

primary

instance

of

reception

is

that

of

Roman

law,

which

remained

applicable in many countries around the world for centuries, even after the fall of

the Roman Empire. In Germany or Greece, for example, Roman law was applied

directly

until

the

present

century.

In

other

countries

(such

as

France),

Roman

law—combined

with,

supplemented

by,

or

amended

by

local

customs—formed

the substance of modern French law. In Germany, even when Roman law ceased

to

be

applied

directly,

it

lived

on

through

its

interplay

with

local

customs

and



Professor

PhD,

Bucharest

Academy

of

Economic

Studies,

Full

member

of

the

Academy

of

Romanian

Scientists,

President

of

the

Section

of

Philosophy,

Psychology

and

Theology,

e-

mail:badescu.vmihai@gmail.com

Major Contemporary Systems of Legal Civilization and Culture:

the Romano-Germanic legal system and the Anglo-Saxon legal system

11

legislation, giving rise to contemporary German law; the great Romano-Germanic

legal system emerged from the normative foundation of these two currents.

Another

major

reception

process

that

left

its

mark

on

the

history

and

geography

of

law

is

the

French

one.

The

Napoleonic

conquests

introduced

the

Civil

Code

into

states

occupied

by

French

armies.

Italy,

the

Netherlands,

and

Luxembourg

adopted

civil

and

commercial

codes

based

on

the

French

model.

French

law

subsequently

became

applicable

in

former

French

colonies,

where

these regulations remained in force even after independence was achieved.

Furthermore,

certain

states

influenced

by

French

culture

and

legal

scholarship

adopted

specific

regulations

inspired

by

the

French

model

(e.g.,

Egypt, Romania, Poland).

There

was

also

a

"second-degree"

reception:

Spain

and

Portugal—

formerly major colonial powers—extended their legislation overseas. Central and

South American states, as well as Mexico, adopted civil codes of the Latin type.

Elsewhere in the world, the reception of British law—the common law—

took place; originating in England, it spread to former British colonies. It remains

in

force

today

in

Australia,

New

Zealand,

and

Canada

(with

the

exception

of

Quebec),

as

well

as

in

former

African

colonies,

where

it

coexists

with

tribal

customs.

In

India,

however,

a

highly

distinctive

system

emerged

through

the

fusion of traditional Hindu law and British law, the latter being codified for the

first time.

An

interesting

phenomenon

occurred

in

the

United

States

(excluding

Louisiana).

There,

the

common

law

took

root

but

underwent

an

evolutionary

process;

it

adapted

to

the

U.S.

federal

structure

and

the

American

way

of

life,

resulting in a legal system distinct from the original.

Through

such

processes,

national

systems

coalesce

into

major

legal

systems that shape the world's legal geography.

The

grouping

of

national

systems

into

major

legal

families

takes

on

a

distinct character within each branch of law. The criteria

for

classification into

these major families vary depending on the content of the specific branch of law.

A major legal system represents the grouping of significant national legal

systems based on shared characteristics—with the notable exception of so-called

traditional and religious legal systems. These are characterized by their attachment

to personal status; their norms do not apply to all residents of a given territory, but

rather to all individuals of a specific faith—regardless of their state of domicile—

who are subject to a personal status based on that religion's precepts (for example,

Islamic law). The need to delineate major legal systems arose primarily after the

First

World

War,

following

the

emergence

of

a

large

number

of

independent

states, although interest

in the subject had existed even prior to the 1918–1920

period.

12

Mihai

Bădescu

Some classifications are no longer of any significance today, having been

refuted by scholarship—such as the theory promoted by the fascist system, which

used "race" as a classification criterion. According to this theory—pioneered by

the

ethnologist

Sauser-Hall—modern

legal

systems

were

categorized

into:

an

Indo-European system (comprising Latin, Germanic, and English subsystems), a

Mongol system, a Semitic system, and a "barbarian" system.

Another criterion used was the degree of evolution and civilization of the

population,

and

Levy

Ullman

proposed

as

a

criterion

the

predominant

role

of

custom and religion in a certain legal system.

René

David,

criticizing

this

classification,

states

that

their

authors

base

them on criteria that are not scientifically substantiated. In his 1950 work,

Traité

elementaire

de

droit

civil

comparé

,

the

French

professor

distinguishes

five

fundamental legal systems: the Western world system, the “Soviet world” system,

the Islamic system, the Hindu system, the traditional Chinese system.

What emerges from this classification is the role that is given to the law of

socialist states, and on the other hand, it must be highlighted that the opposition

between

the

Romano-Germanic

and

the

Anglo-Saxon

systems

is

not

used,

including them in the concept of “Western world systems”.

In a 1964 work, R. David, starting from the criterion of law belonging to a

pool of legal civilization, creates another typology – the family of law. The author

analyzes

in

this

sense,

the

following

families

of

law:

–

the

Romano-Germanic

family; – the Anglo-Saxon family

(“common-law”);

– the family of socialist law;

–

a

family

of

philosophical

and

religious

systems

(Muslim,

Hindu,

Chinese,

Japanese, Far Eastern); – the family of law of Black Africa and Madagascar.

The specific differences between these families (which make up the major

legal

systems

contemporary)

are

of

an

ideological-legal

nature

(legal

language,

legal concepts, philosophical considerations, etc.).

Another attempt at classification was made in the 1950s by the Spanish

comparatist

Felipe de Solá Cañizares,

who distinguishes only

three major legal

systems: Western, socialist, and religious.

Harsh but justified criticism was leveled at these attempts by the French

professor

René

Rodière,

because,

in

his

view,

this

classification

"risks

transforming

comparative

law

into

a

study

of

comparative

civilization

[...]

Ultimately,

what

is

being

compared

is

not

legal

rules

so

much

as

the

higher

principles

of

civilizations.

Such

an

examination

is

far

from

uninteresting.

However, it risks having only a tenuous connection to

the surrounding science

and technology."

While criticizing this classification, the French professor himself proposes

a classification that is even more incomplete than the one he criticized. Thus, he

distinguishes three major groups, as follows:

Major Contemporary Systems of Legal Civilization and Culture:

the Romano-Germanic legal system and the Anglo-Saxon legal system

13

–

a Western group, which, in

his

opinion, includes French, German, and

Spanish law, etc.;

–

an

Anglo-Saxon

group,

comprising

the

law

of

the

United

Kingdom

of

Great Britain, various

Commonwealth

countries,

and

the

United

States

of

America;

–

a group of socialist countries.

All of these supposedly share common traits stemming from the fact that

they represent the law of the Christian world.

The incomplete nature of this classification—based on the criterion of the

"foundation of the respective civilizations"—stems primarily from the fact that the

author refuses to consider any system other than these. Thus, traditional systems

in

Africa

and

Asia

that

govern

the

lives

of

hundreds

of

millions

of

people

are

disregarded on the grounds that the civilizational foundation upon which they rest

is incomparable to that of the others.

Another shortcoming of this classification is that the Anglo-Saxon system

does

not

encompass

the

entire

United

Kingdom

of

Great

Britain

and

Northern

Ireland (Scottish law must also be considered), nor do the legal systems of the

USA and Canada fit perfectly into the Anglo-Saxon model—with Louisiana and

Quebec representing major, well-known exceptions.

A

superior

classification

attempt

is

credited

to

Marc

Ancel,

who

distinguishes between three essential groups of clearly defined legal systems and

two complementary groups that are less sharply defined.

In the opinion of the French professor, the essential groups are as follows:

the Romano-Germanic system, characterized by its Roman lineage and tendency

toward

codification;

the

Anglo-Saxon

system,

which

is

uncodified

and

features

the coexistence of three parallel regulatory systems—common law proper, equity,

and statute law; and the system of socialist states.

The complementary groups are: the religious law system and the system of

Third World countries.

Western European economic integration gradually gave rise to a common

Community law, which subsequently became the law of the European Union. This

body of laws constitutes a legal system distinguished by specific traits—namely, a

unified structure and function—that have shaped a Community legal order.

2. The Romano-Germanic legal family

The importance of Romano-Germanic law in today's world is evident; it is

widespread not only in Europe but also in the Americas (Central and South) and

even in Africa.

Contrary to what might be assumed at first glance, the Romano-Germanic

system is not merely the result of combining Roman law and German law; rather,

its components include the French legal system

and German customary law, as

14

Mihai

Bădescu

well as other related systems (such as Spanish, Italian, Portuguese, and Belgian

law).

The emergence of Romano-Germanic law dates back to the 13th century,

arising from the reception of Roman law and the establishment of legal principles

within major European university centers.

Regarding the timing of the emergence of Romano-Germanic law (13th

century AD), R. David points out that legal elements existed prior to this date;

specifically,

there

were

norms

of

Roman

law

as

well

as

French

and

German

customs applicable throughout Europe. Medieval universities (Italian, French, and

German)—true

centers

of

the

era's

culture—played

a

significant

role

in

the

synthesis of law; they countered the fragmentation of Roman law by establishing

a body of universally applicable principles and rules.

By

virtue

of

its

strength,

prestige,

and

superiority

over

local

customs,

Roman

law

gained

increasing

ground

across

Europe,

despite

resistance

from

customary law that had been systematically organized into collections by jurists.

It

is

worth

noting

several

codifications

recorded

in

the

5th

and

6th

centuries AD, intended to create a genuine bridge between Roman law and the

law of the Middle Ages on the one hand, and the law associated with the great

invasions of migratory peoples—particularly Germanic ones—on the other:

–

*Edictum

Theodorici*,

promulgated

by

Theodoric

II,

King

of

the

Visigoths;

–

*Codex Euricianus*, promulgated by King Euric (c. 475 AD);

–

*Lex

Romana

Visigothorum*

(also

known

as

the

Breviary

of

Alaric),

promulgated by King Alaric II in Provence;

–

*Lex

Romana

Burgundiorum*,

promulgated

by

King

Gundobad

in

the

Kingdom of Burgundy.

Catholic canon law also exerted a significant influence on the formation of

legal systems in Western countries; it consists of two major bodies:

–

"divine law," based on Holy Scripture, "divine tradition," and the works

of medieval Christian theologians;

–

"human canon law," based on the *Opus juris canonici* (compiled in the

16th century and comprising fundamental normative acts of the Catholic Church).

Legal

scholarship

generally

classifies

legal

systems

belonging

to

the

Romanist

(or

Romano-Germanic)

tradition

into:

a)

systems

showing

a

more

pronounced

French

influence;

b)

the

German-Swiss-Italian

system;

and

c)

the Nordic system.

a) Systems inspired by the French model

are based on the French Civil

Code of 1804—a code adopted in Belgium, Luxembourg, Italy, Portugal, Spain,

Venezuela,

Puerto

Rico,

Panama,

and

elsewhere.

The

history

of

French

law

is

divided into three periods: the "ancien droit" (old law)—extending from its origins

Major Contemporary Systems of Legal Civilization and Culture:

the Romano-Germanic legal system and the Anglo-Saxon legal system

15

to

June

17,

1789,

when

the

Constituent

Assembly

was

formed;

the

French

Revolution

period—the

"intermediate

law,"

lasting

until

the

onset

of

the

Napoleonic

codifications;

and

the

period

that

began

during

the

Empire

and

continues to the present day.

The

first

period

—that

of

the

"old

law"

(*ancien

droit*)—encompasses

the

numerous

customs

in

force

across

the

entirety

of

present-day

France.

Historically,

this

territory

was

divided

into

two

zones

by

a

clearly

defined

demarcation line: the "land of customs" (*pays de coutume*), located north of the

Loire, where the primary—if not sole—source of law was local custom (varying

from province to province and even from city to city); and the "land of written

law" (*pays de droit écrit*), located south of the Loire. In the latter region, Roman

influence persisted longer due to the written law embodied in Justinian’s *Corpus

Juris

Civilis*.

Its

provisions

served

as

a

form

of

common

law—a

"written

reason"—whenever local customs (which were diverse and contradictory) failed

to provide a solution for a case at hand or offered conflicting rules. Nevertheless,

customs remained the fundamental source of positive law in southern France as

well.

The

period

of

"intermediate

law

"

is

characterized

by

profound

legislative

transformations.

Laws

adopted

after

June

17,

1789,

enshrined

the

dismantling

of

the

feudal

state

apparatus

and

the

creation

of

a

new,

modern

system aimed at establishing capitalist property relations.

Other normative acts from this period (particularly decrees) eliminated

vestiges

of

canon

law,

authorized

interest-bearing

loans,

and

abolished

inequalities among heirs—granting equal shares of the inheritance to all heirs of

the same degree or establishing the right of representation in succession matters

along the direct descending line without limit.

When

discussing

the

formation

of

the

great

Romano-Germanic

legal

system, one cannot overlook the drafting and adoption of the French Civil Code of

1804.

Work on the draft of the new Civil Code began during the Consulate and

was

entrusted

to

a

commission

composed

of:

Fr.

Trouchet

(President

of

the

Tribunal of Cassation), F. Bigot de Préameneu (Government Commissioner to the

same

tribunal),

J.

Portalis

(Commissioner

General

to

the

Council

of

Maritime

Prizes),

and

J.

de

Maleville

(member

of

the

Tribunal

of

Cassation).

The

commission was led by J.J. de Cambacérès (Consul) and overseen by Napoleon.

The

drafting

process

took

four

months,

and

the

text

was

subsequently

submitted

for

debate

before

the

Council

of

State

(spanning

102

sessions).

Subsequently,

the

draft

was

presented

(by

Portalis)

to

Parliament

for

debate;

it

was noted that the authors had sought to preserve customs and royal ordinances as

much as possible, discarding only those "whose spirit had vanished in the face of

16

Mihai

Bădescu

a new spirit" while retaining those "linked to the great changes that had occurred

in the political order."

The Civil Code was adopted between 1803 and 1804 in the form of 36

separate laws, which were consolidated into a single code on March 21, 1804. It

was structured into three books of varying length, further divided into eight titles.

The reception of French law worldwide. It is estimated that the reception

of

French

law—spanning

vast

territories

and

an

impressive

number

of

inhabitants—surpassed even the global reception of Roman law.

While

Roman

law

spread

primarily

through

Roman

occupation—across

territories ruled by Rome or, via gradual

expansion,

into the Byzantine Empire

and

the

Holy

Roman

Empire

of

the

German

Nation—French

law

followed

multiple and diverse paths of reception.

French legislation (particularly civil and commercial law) was introduced

in many territories subject to the Empire—such as Belgium, the Grand Duchy of

Luxembourg, and parts of Switzerland, Germany, and Italy—as well as in other

regions, including Westphalia, Hanover, the Grand Duchies of Baden, Frankfurt,

and

Nassau,

the

Grand

Duchy

of

Warsaw,

the

Kingdom

of

Naples,

and

the

Netherlands.

French

law

was

retained

in

Belgium

and

Luxembourg

(where

codes

adopted based on the French model remain in force to this day); it remained in

effect for a long time in the Rhineland states until 1900, in Switzerland until 1907,

and in Poland until the establishment of the socialist regime.

French

law

was

adopted

in

Romania

(1865),

Portugal

(1867),

Spain

(1889), and Egypt (1883) due to its exceptional qualities.

Towards

the

end

of

the

19th

century,

French

law

also

spread

to

non-

European countries. Thus:

–

The Spanish Code extended to the Philippines, Panama, Honduras, Cuba,

Puerto Rico, Bolivia, Haiti, and the Dominican Republic; it heavily influenced the

Chilean,

Colombian,

Argentine,

Peruvian,

and

Mexican

codes,

and—to

some

extent—the Brazilian code;

–

The Italian Code was adopted in Malta and Venezuela, and partially in

Bulgaria;

–

In the Americas (Louisiana and Quebec), French law was adopted despite

opposition from the Anglo-Saxon legal system.

In the first half of the 20th century, French law was directly adopted in

French

colonies

and

in

Asian

and

African

states

that

emerged

following

the

independence of former colonies—states such as Indochina, the Maghreb region,

Senegal, Togo, the Malagasy Republic, etc.

However, the most significant adoption of French law took place in major

European countries.

Major Contemporary Systems of Legal Civilization and Culture:

the Romano-Germanic legal system and the Anglo-Saxon legal system

17

b) The German-Swiss system

•

German

law

represents

the

second

major

pillar

of

the

Romano-

Germanic legal tradition.

Customary law is linked to the origins of German law in the 12th and 13th

centuries.

Popular

maxims

defining

the

mentality

of

the

era—such

as

"in

the

beginning was custom," "custom is sacred," and "custom is law"—were deeply

rooted in the social reality of the time.

In the 13th century, famous collections of customs known as "Mirrors"—

specifically

the

*Sachsenspiegel*

(Saxon

Mirror)

and

the

*Schwabenspiegel*

(Swabian Mirror)—emerged, serving as genuine consolidations of customary law.

From the 15th century onwards, Roman law began to overlay customary

law within the German states; this process of reception was facilitated by the fact

that

the

Holy

Roman

Empire

of

the

German

Nation

regarded

itself

as

the

successor to the Roman Empire, and Roman law was consequently viewed as the

law of the German Empire.

The codification enacted in Prussia in 1794 played a significant role in the

formation of the German legal system.

Frederick the Great initiated the drafting of a general code encompassing

private,

constitutional,

administrative,

and

penal

law—and

even

canon

law;

the

era's

eminent

jurist,

Carl

Gottlieb

Svarez,

realized

this

vision

by

creating

an

exceptional work: the *Allgemeines Landrecht* (ALR), which comprised 17,000

sections.

Regarding the ALR, Arminjon, Nolde, and Wolff noted that "unlike the

French Civil Code, which marks the beginning of a new historical era, the ALR is

the product of an age that was passing away; it remains untouched by the ideas of

the Revolution. Its spirit is that of the police state."

German law experienced an unprecedented flourishing in the 19th century.

The fragmentation of the German Empire did not lead to the abolition of private

law;

under

the

designation

"common

law"

(*Gemeines

Recht*),

it

remained

consistent across many

of the states that emerged from

the ruins of the former

empire.

This

period

saw

the

rise

of

the

famous

Historical

School

(Savigny,

Eichhorn, Pufendorf, Dernburg), which distinguished within German law between

the so-called "law of the Pandects" (or "contemporary Roman law") and "German

private law"—the latter comprising institutions that had developed independently

of Roman law influence.

The

"Pandectist"

movement

was

notably

exemplified

by

the

following

works:

–

*System

of

Contemporary

Roman

Law*

(*System

des

heutigen

römischen

Rechts*),

authored

by

Friedrich

Karl

von

Savigny;

–*Pandekten*

(Dernburg);

18

Mihai

Bădescu

–

*Textbook

on

the

Law

of

the

Pandects*

(*Lehrbuch

des

Pandektenrechts*), by Windscheid. In this century, the most significant legislative

achievements were:

–

the Civil Code (Bürgerliches Gesetzbuch – B.G.B.), promulgated in 1869

and entering into force on January 1, 1900, and

–

the General Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch –

A.B.G.B.).

The German Civil Code (BGB):

–

represents

one

of

the

most

important,

yet

also

original,

legislative

monuments of the great Romano-Germanic legal system;

–

introduces novel elements and highly technical language, and possesses a

unique

structure—all

of

which

distinguish

it

from

the

French

Civil

Code

and

secure it a distinctive position within this major legal system;

–

finds

one

of

its

primary

sources

in

Roman

law—specifically,

in

the

German "common law" (*Gemeines Recht*) of Roman origin;

–

comprises

a

general

part

containing

the

principles

underpinning

the

regulation

of

civil

legal

relations,

followed

by

four

special

parts

(obligations,

property, family law, and succession), totaling 2,385 sections;

–

employs legal language that is inaccessible to the uninitiated; every term

has an invariable meaning, and studying the Code is further complicated by the

technique of cross-referencing between sections;

–

unlike

the

French

Civil

Code,

it

avoids

general

formulations

and

rules

with broad content.

The

German

Civil

Code

"bears

the

stamp

of

its

era;

the

product

of

the

Pandectist

school

and

19th-century

German

legal

conceptualism,

it

pushes

abstraction to the limit and is expressed in language that is at once rigorous and

incomprehensible to the layperson."

• Swiss Law

. As previously noted, the contribution of the two principal

legal

systems

(French

and

German)

to

the

formation

of

the

great

Romano-

Germanic

legal

family

was

impressive.

Swiss

law,

in

turn,

makes

a

significant

contribution

to

shaping

and

perfecting

the

Romano-Germanic

system,

successfully

synthesizing—in

a

distinctive

manner—key

legal

institutions

from

both French and German law.

The Swiss Civil Code stands as one of the most successful codifications in

Western Europe.

Adopted in

1907 and

entering

into force in

1912, the Swiss

Civil

Code

replaced a series of civil codes promulgated in various cantons during the 19th

century; some of these had replicated the Napoleonic Code, others the Austrian

code, and others the BGB (German Civil Code).

Major Contemporary Systems of Legal Civilization and Culture:

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The Swiss Code is drafted in simple language accessible to its intended

audience

and

is

written

in

multiple

languages,

reflecting

Switzerland's

multilingual nature. While the official text is in German, translations into French

and Italian also exist.

c) The legal system of the Nordic countries

The

law

applicable

in

the

Scandinavian

countries

(Sweden,

Denmark,

Norway, Iceland, and Finland) does not deviate from the characteristic elements

of the Romano-Germanic legal tradition: the predominance of written legislation,

the absence of the rule of judicial precedent, the minor role of custom, and the

influence of Roman law.

Understanding the position of Scandinavian law—and exploring the legal

systems of Sweden, Denmark, Norway, Finland, and Iceland—is no simple task,

precisely because the vicissitudes of history have seen these states at times united

in various forms and at other times separate.

The legal

systems

of the Nordic countries have held

varying degrees of

influence; for instance, the legal systems of Denmark and Sweden—the largest of

these

states—exerted

a

strong

influence

on

the

others.

The

political

history

of

these states provides the necessary explanations: from 1387 to 1814, Norway was

united with Denmark. In 1389, Sweden was conquered by Danish kings, but this

occupation lasted only until 1448, when the country regained its independence.

Iceland was a Norwegian province from 1264 until 1918, when it separated from

Norway to become an independent and sovereign state linked to Denmark by a

real union that lasted until 1944.

Finland,

in

turn,

was

conquered

by

the

Swedes

as

early

as

the

13th

century; their rule ended only in 1808, when the country was annexed by Tsarist

Russia. In 1918, exercising the right to self-determination proclaimed by Stalin,

the Finnish state became independent.

From 1814 to 1905, Norway formed a real union with Swed.

All

these

historical

vicissitudes

led

to

the

emergence

of

two

distinct

legislative

groups

within

the

private

law

of

the

Scandinavian

countries:

the

Danish-Norwegian legal system and the Swedish-Finnish one.

In the legal systems of the Nordic countries, Roman law penetrated late

and

indirectly,

as

their

courts

turned

to

principles

and

concepts

derived

from

Roman law to fill gaps in their national legal frameworks.

Over

the

last

century,

the

Scandinavian

countries

have

engaged

in

a

continuous process of modernizing their laws, drawing upon European systems.

This

modernization

process—which

resulted

in

the

introduction

of

numerous

legal

institutions

and

regulations

similar

to

those

found

in

European

states of the Romano-Germanic tradition—has significantly altered the provisions

of the older codes. All this justifies the assertion that contemporary Scandinavian

20

Mihai

Bădescu

law

does

not

constitute

a

standalone

system—as

some

believe—but

rather

a

variant of the broader Romano-Germanic legal family.

The legislation of the Scandinavian states is grounded in the Danish Code

of 1683 (*Danske Lov*), the Norwegian Code of 1687 (*Norske Lov*), and the

Swedish Code of 1734 (*Sveriges Rikes Allmänna Lag*).

The

Swedish

Code—a

codification

of

prior

Swedish

law

that

took

over

half

a

century

to

draft—is

the

most

renowned

and

widely

discussed

of

the

Scandinavian legislative monuments. Although based on ancient Swedish statutes

and customs, the Code reflects the principles of Roman law. While the Danish and

Norwegian codes have a less developed structure—being essentially collections of

concrete

solutions—the

Swedish

code

displays

a

more

elaborate

structure.

It

is

composed

of

the

following

titles

(*balkar*):

marriage,

succession,

real

estate,

construction,

commerce,

crimes

and

punishments,

enforcement,

and

judicial

procedure.

Finnish law has followed a distinctive evolutionary path. After an initial

period—characterized by the application of local customs and practices recorded

in the national epic *Kalevala*—the Swedish General Code was adopted in 1834,

subsequently undergoing various amendments over time.

Following

the

attainment

of

independence,

the

legal

system

underwent

extensive

modernization

(spearheaded

by

Professor

Robert

Montgomery);

later,

after the Republic was proclaimed, legislative acts covering various areas of civil

law (marriage, contracts, obligations) were adopted in 1929.

Since 1919, Finland has participated in the Pan-Scandinavian movement

for

legislative

unification,

coordination,

and

cooperation—an

involvement

that

has yielded remarkable results in shaping the Finnish legal system.

3.

The

place

of

Romanian

law

within

the

Romano-Germanic

legal

family

Following

the

revolutionary

transformations

in

Eastern

Europe

and

the

collapse

of

the

socialist

legal

systems,

the

national

legal

systems

of

these

countries resumed their place within the broader Romano-Germanic legal family.

This applies to the German Democratic Republic, the Czech Republic, Slovakia,

Poland, Bulgaria, Hungary, Yugoslavia, Romania, and even Russia.

Romanian

law

falls

within

the

Romano-Germanic

legal

tradition,

with

origins rooted in classical Roman law and ancient Dacian law.

Romanic

elements

were

also

present

in

the

customary

law

applied

for

centuries

in

both

Principalities

(known

as

*jus

Valachicum*).

Thus,

the

family

was organized in a manner closely resembling the Roman model, with the central

institution

being

*patria

potestas*;

this

granted

the

head

of

the

family—the

male—exceptionally

broad

rights

over

its

members—rights

that,

while

not

Major Contemporary Systems of Legal Civilization and Culture:

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21

extending

to

the

*jus

vitae

necisque*

(the

right

of

life

and

death)

found

in

classical Roman law, certainly encompassed the power of disinheritance.

In his study—which has become a classic work on the Roman character of

our legal system—Andrei Rădulescu demonstrated that the influence of Roman

law

is

evident

in

a

range

of

institutions

within

both

family

law

and

civil

law

proper:

adoption,

emancipation,

matrimonial

property

regimes,

ownership,

usufruct, servitudes, succession, and so forth.

However, one should not consider *jus Valachicum* to be a body of rules

of exclusively Roman origin. Indeed, the very originality of our customary law

stems from the indigenous origin of the majority of its provisions. At the same

time,

it

must

be

acknowledged

that

Roman

law

was

adopted

in

the

Romanian

Principalities

primarily

through

legal

codes

and

law

manuals

applied

as

actual

laws—in other words, through normative acts.

The customary law applied in the early period was known as the "custom

of the land" (*obiceiul pământului*).

Unlike

the

two

principalities,

Transylvania

saw

the

introduction

of

a

foreign legal system following the Magyar occupation; however, this system did

not

conflict

with

the

Romanian

one.

Even

there,

*jus

Valachicum*

remained

applicable in certain regions.

From the 14th century onwards, the influence (and adoption) of Byzantine

law began to make itself felt in Moldavia and Wallachia. Examples include:

–

Matthew Blastares’ *Alphabetical

Syntagma*, applied during the reign

of Alexander the Good;

–

The *Basilika*, also known as the "Imperial Books";

–

The *Institutes* of Theophilus and the *Hexabiblos* by Harmenopulos

(1345).

Subsequently, in the 17th century, three Romanian legal codes were added

to these Byzantine law manuals:

–*Cartea românească de învățătură* (1645);

–Eustratie’s Code (*Pravila lui Eustratie*) in Moldavia (1632);

–*Îndreptarea legii* in Wallachia (1632).

O. Sachelarie, a Romanian author dedicated to the study of Romanian law,

highlights a unique situation regarding that period—one otherwise found only in

common-law

systems:

the

coexistence

of

three

normative

systems

applied

in

parallel:

-

customary

law,

which

was

not

superseded

by

the

introduction

of

the

*pravile* (law codes) and applied to "simpler" cases;

-

written

law,

represented

by

these

*pravile*,

applicable

to

"more

complex" cases; and

–

"princely law," represented by princely charters (*hrisoave*).

22

Mihai

Bădescu

In the following century, significant strides were made in the reception of

Byzantine law. Worthy of mention in this regard are:

–

the

four

successive

drafts

(1765,

1766,

1775,

1777)

of

a

general

law

code, authored by M. Fotino;

–

the *Pravilniceasca Condică* (1780);

–

the

*Legiuirea

Caragea*

(1818)—a

particularly

important

regulation

which,

alongside

the

*Codul

Calimach*

in

Moldavia

(inspired

by

the

1811

Austrian Civil

Code),

constituted the most significant

legislation applied in

the

Principalities prior to the adoption of the Civil Code.

We also note the two *Regulamente Organice* (Organic Regulations)—of

1831 in Wallachia and 1832 in Moldavia—which provided the Principalities with

an

institutional

structure

inspired

by

French

law.

French

legislation

was

extensively

introduced

into

the

Romanian

Principalities

starting

in

1838.

Specifically:

–

in 1830, the French Commercial Code was translated into Romanian and

adopted

as

national

law

in

Wallachia,

while

in

1852,

under

Prince

Știrbei,

the

Napoleonic Penal Code was adopted;

–

on July 11, 1864, Prince Alexandru Ioan Cuza established the Council of

State—modeled on the French system and later transformed into the Legislative

Council—which

was

tasked

with

drafting

a

Civil

Code

based

on

the

French

model, incorporating modifications introduced by the Italian Civil Code of 1865;

–

between 1831 and 1846, various laws of French inspiration (concerning

guardianship,

emancipation,

*protimisis*,

etc.)

were

enacted

in

both

Principalities;

–

in

1840,

a

law

regarding

the

organization

of

guardianship—translated

from the French Code—was adopted in Moldavia and subsequently incorporated

into the Civil Code of 1864;

–

in 1840, the French Commercial Code was adopted in Wallachia.

The drafting of the Civil Code project took place during a period when all

of Europe was stirred by a desire for codification. Ripert and Boulanger spoke of

a veritable "mystique of codification" that had spread everywhere.

The initiative to draft the Civil Code project came from Prince Alexandru

Ioan Cuza (via the princely decree of July 11, 1864). The drafting commission

was composed of renowned jurists: Dimitrie Roseti, Ludovic Stega, and Costache

Donescu—counselors at the Court of Cassation; Tudor Veișa—a prosecutor; Gh.

Cruțescu, Grigore Filiti, and others.

The

commission's

work

lasted

40

days.

On

January

15,

1865,

the

first

three books of the

code were submitted to

the

Legislative Assembly;

the Code

Major Contemporary Systems of Legal Civilization and Culture:

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23

was

sanctioned

by

the

Prince

on

November

26,

1864,

and

promulgated

on

December 4, 1864. The Civil Code entered into force on January 1, 1865.

Regarding the Civil Code thus adopted, the following points can be made:

–

it does not represent a mere translation of French law; other sources were

also

taken

into

account

during

its

drafting,

such

as

the

1851

Belgian

law

on

mortgages or Pissanelli’s civil code draft;

–

a series of innovations were introduced into the Romanian Civil Code,

including

the

obligation

to

pay

succession

charges

and

debts

*ultra

vires

hereditatis* (Art. 774 of the 1864 Civil Code) and the recognition of the right of

universal legatees to the fruits of the estate (Art. 898 of the 1864 Civil Code);

–

certain institutions established by tradition in Romanian law were also

introduced,

such

as

marriage

impediments

arising

from

baptismal

or

adoptive

kinship,

the

husband’s

"enmity"

as

grounds

for

divorce

for

the

wife,

and

the

recognition of the impoverished widow’s right of succession;

Regarding the Civil

Code adopted in this manner, the following points can be made:

–

it is not merely a translation of French law; other sources were also taken

into account during its drafting, such as the 1851 Belgian law on mortgages or

Pissanelli’s draft civil code;

–

a

series

of

innovations

were

introduced

to

the

Romanian

Civil

Code,

including

the

obligation

to

pay

succession

charges

and

debts

*ultra

vires

hereditatis* (Art. 774 of the 1864 Civil Code) and the recognition of the right of

universal legatees to the fruits of the estate (Art. 898 of the 1864 Civil Code);

–

certain legal institutions already established in Romanian law were also

incorporated,

such

as

marriage

impediments

arising

from

baptismal

kinship

or

adoption, the husband’s "hostility" as grounds for divorce for the wife, and the

recognition of the impoverished widow’s right of succession;

–

an

important

innovation

was

the

recognition

of

*traditio*

(delivery/transfer of possession) as a means of acquiring property (Art. 644 of the

1864 Civil Code);

–

at

the

same

time,

the

Romanian

legislator

eliminated

a

number

of

institutions found in the French Code, such as judicial separation (*séparation de

corps*),

*tutelle

officieuse*

(informal

guardianship),

the

*curator

ventris*

(curator for the unborn child), the subrogated guardian, and civil death.

The Romanian Civil Code was harshly criticized by progressive forces for

the retrograde spirit it often displayed and for the fact that it represented a code

favoring

the

usurer,

the

creditor,

and

the

banker.

Furthermore,

numerous

provisions established blatant discrimination between men and women, between

"legitimate" and "illegitimate" children, and between employers and employees.

24

Mihai

Bădescu

Following

the

French

model,

the

Romanian

Civil

Code

proclaimed

that

"property is the right of a person to enjoy and dispose of a thing exclusively and

absolutely, yet within the limits determined by law" (Art. 480 of the 1864 Civil

Code).

In

the

same

vein,

adhering

to

the

concept

that

property

reflects

a

relationship

between

the

holder

and

the

object

held,

the

Code

consistently

safeguarded

the

positions

of

property

owners,

employers,

and

creditors.

These

were, of course, not creations of the Romanian legislator, but were adopted *tel

quel* from the French code.

Over time, the civil legislation adopted during Cuza’s reign—particularly

the Civil Code—underwent substantial amendments on several occasions.

Following

World

War

II,

the

establishment

of

the

communist

regime

altered the face of Romanian private law for more than four decades, gradually

transforming it into "socialist law."

Thus, the 1864 Civil Code remained in force, albeit subject to numerous

erosions and limitations. These include the following:

–

the

separation

of

family

law

regulations

from

the

Civil

Code

(1954)

through the adoption of the Family Code;

–

the exclusion of state enterprises engaged in planned economic activity

from the scope of commercial law, leading to the emergence of a new branch of

law known as "economic law," alongside which a distinct "enterprise law" also

existed;

–

the emergence of "cooperative law," which governed relations between

agricultural cooperative units.

The Code of Civil Procedure also underwent significant changes, notably

regarding

the

promotion

of

the

court's

active

role,

the

adoption

of

a

two-tier

judicial system, and the introduction of extraordinary appeals. Currently, the Civil

Code of July 17, 2009 (approved by Law No. 287/2009, published in the Official

Gazette, Part I, No. 505 of July 15, 2011) and the Code of Civil Procedure of July

1, 2010 (approved by Law No. 134/2010, published in the Official Gazette No.

247 of April 10, 2015, in force since April 10, 2015) have been in effect in our

country since October 1, 2011.

4. The Anglo-Saxon legal family

Common

law,

alongside

the

Romano-Germanic

legal

system,

represents

one of the most important contemporary legal systems.

For

centuries,

the

development

of

these

two

legal

systems

proceeded

in

parallel—on

the

European

continent

and

in

the

British

Isles,

respectively—

without either system exerting any significant influence on the other.

Major Contemporary Systems of Legal Civilization and Culture:

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25

This

evolution

resulted

in

the

emergence

of

two

distinct

legal

environments—the insular and the continental—that remained largely unaware of

one another.

The term "common law" derives from *commune ley* (common law) and

traces its origins to the customs in force prior to the Norman Conquest.

Subsequently, the process of unifying local customs into a common law

for

the

entire

kingdom

was

carried

out

exclusively

by

the

Royal

Courts

at

Westminster.

Currently, the term "common law" carries two meanings of varying scope:

in

a

broad

sense,

it

designates

the

major

legal

system

of

English

origin;

in

a

narrow sense, it refers to one of the three branches of rules characteristic of that

major legal system—or, as a contemporary English legal scholar puts it, "the most

fundamental part of our law."

Common law is a legal system governing vast territories extending beyond

Great

Britain

across

three

continents:

Africa,

Asia,

and

the

Americas.

Former

British

colonies—including

the

USA

(which

broke

free

from

the

political,

economic, and cultural influence of the mother country)—maintain ties with the

British

Empire

through

the

Commonwealth

(or

the

British

Commonwealth

of

Nations), connections that are predominantly economic in nature. It is particularly

noteworthy

that

all

former

British

colonies

have

retained

the

legacy

of

the

common law system; some regions adopted it fully, whereas others with deeply

rooted legal traditions (such as India and Pakistan) developed hybrid frameworks

that incorporated both the strengths and weaknesses of these legal systems.

Common law proves to be the legal system of a feudal society into whose

mold the substance of bourgeois law was cast. Viewed from this perspective, one

can

explain

the

distinctive

characteristics

of

British

law—a

system

defined

by

precedent and shaped by judicial practice.

Judicial precedent is the most important mechanism in the formation of the

English

legal

system.

The

practice

goes

so

far

that,

even

when

a

statutory

provision or a rule of customary law exists, judges prefer to cite previous court

rulings that applied them rather than directly applying the text or rule establishing

the governing principle. This state of affairs led Bentham to declare that English

law is a creation of jurisprudence (*judge-made law*).

A

contemporary

English

author

has

systematized

the

advantages

of

this

system, the most important being: the fairness it ensures in resolving essentially

similar cases; the capacity for growth and the continuous adaptation of new legal

rules to changing circumstances and the demands of a constantly evolving society

(hence the flexibility of the English system); the

wealth

of

detailed

rules;

its

practical nature, enabling it to readily address everyday needs.

The main disadvantages of the English system cited by the same author

are: rigidity; once established, a rule cannot easily be altered; the risk of illogical

26

Mihai

Bădescu

distinctions leading to the application of rules in situations for which they were

not intended; the volume and complexity, which make it difficult to ascertain the

applicable norms.

Institutions specific to "common law"

English law features certain institutions characteristic of common law, the

presentation of which is essential for an accurate description of this major legal

family.

Some

of

these

are

linked

to

British

legal

traditions

and

the

social

arrangements characteristic of Great Britain—such as, for instance, the regulation

of

property

rights.

The

conservative

nature

of

English

law

has

led

to

the

preservation of a feudal-style property structure.

Property law

involves a technique for protecting rights in rem that differs

significantly from the approaches found in continental legal systems. The primary

distinction

made

in

common

law

is

between

*real

property*

and

*personal

property*.

Simply

put,

*real

property*

encompasses

rights

protected

by

*real

actions*

(actions

*in

rem*),

whereas

*personal

property*

covers

the

sphere

of

rights

protected

by

*personal

actions*

(actions

*in

personam*).

In

reality,

this

division is arbitrary. By analogy with the Romano-Germanic legal tradition, this

classification

resembles

the

distinction

between

movable

and

immovable

property.

However,

the

analogy

is

only

approximate;

certain