COMMON (TRADITIONAL) LAW FAMILY: ASPECTS OF TYPOLOGY

Abstract

The article deals with the problematic aspect of the typology of legal systems, including the separation of the common (traditional) law familiy. The author analyzes the views of both domestic and foreign scientists regarding separation of families (subtypes) traditional and customary and traditional (Far East). It is noted that David Rene separated three legal families: the Anglo-American; Romano-Germanic; socialist. However, the Renй David names other legal systems as "other forms of social order and law" and distinguishes among them Muslim, Hindu and Indian law and legal system of such states as states in Africa and the Far East. The author supports the classification of legal families proposed by H. Behrouz who distinguishes two families of traditional law, while one of them (Far Eastern) he calls not just traditional, but ethical and traditional, which is consistent with the mentioned above assumption about the possibility of isolation within the common law family two subtypes considering the peculiarities of social relations regulation within the states that make up the relevant subtypes. As the criteria for legal families typology the author takes into account the following factors: common historical roots of the emergence and further development; current doctrine of legal thought and its specificity; the unity of the main source (form) of objective law and the ways of interpretation of the legal norms; unity in the structure of the legal system and the legal norm; common principles of social relations regulation; specific legal institutions; unity of legal techniques, including terminology, legal categories, structures; ideological factors. The attention is focused on the fact that the common (traditional) law family should be seen as a family, not a group (subtype) of religious and traditional law family, because the latter is essentially the result of eclecticism. Common (traditional) law family is viewed as a set of national legal systems, which are formed on the basis of the rules-customs. In its turn, within this type of the legal system, given the peculiarities of the historical development, characteristics of origin (sources) of the custom itself, peculiarities of the principles of social relations regulation we can distinguish different subtypes of legal systems.