Old and new legal typologies

• Author: Laura - Cristiana Sp?taru - Negur?
• Position: Assistant Lecturer, PhD Candidate, Faculty of Law, 'Nicolae Titulescu' Unive
• Pages: 48-63

LESIJ NO. XXI, VOL. 2/2014

OLD AND NEW LEGAL TYPOLOGIES

Laura - Cristiana SPĂTARU - NEGURĂ*

Abstract

The existence of legal constants does not preclude the process of legal change, of its permanent

evolution. Thus, the legal doctrine emphasizes that there is no legislation valid for all times, the legal

progress mentioned by Turgot being ubiquitous. Multiple forces drive to diversification or to approach

the national legal systems. Analysing the history of law, we distinguish the existence of overlapping

legal systems, fact that raises the question of legal typologies. Different criteria and different names

have been proposed by the legal comparatists. In the present study, we shall address some of the most

important and famous criteria, with emphasis on a new legal typology that has arisen - the European

Union law.The present study is part of a more complex research on this theme and it is meant to

approach certain important points of my Ph.D. thesis.

Keywords: comparative law, diversification, European Union, legal systems, typology

1. Introduction*

Conceived as a multidisciplinary study

combining elements of general theory of

law, with elements of comparative law and

European Union la w, this paper aims to

answer the questions: what are the legal

typologies and is the EU law a new type of

law, with specific qualitative

determinations?

We are currentl y witnessing exciti ng

challenges concerning the European Union –

there are discussions about the integration in

a legal order above the Member States legal

order, about connecting supranational

interests, about the reconfiguration of

sovereignty, about the intertwining of

national values with the European Union and

about the harmonization of legislation.

Thus, we ask ourselves if the European

Union law, characterized by multilingualism

and multijuridism, can be considered a new

type of law, emerged in the panorama of the

world’s legal systems? We believe t hat, just

* Assistant Lecturer, PhD Candidate, Faculty of Law, “Nicolae Titulescu” University of Bucharest, Romania, LLM

alumnus, Fribourg University, Switzerland (email: negura_laura@yahoo.com).

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Nicolae Popa, Teoria generală a dreptului, 4th edition, C.H. Beck Publishing House, Bucharest, 2012, p. 58.

as far as the EU is based on an autono mous

legal will and on principles and values that

are within the eternal law, “unity in

diversity” is possible and so the existence of

a new legal family.

In law, because the legislator cannot

exhaust all legal situations that may arise in

society and that have to be regulated, he

selects certain current types out o f the

diversity of possible relationships, excluding

the others. Using simplification methods, the

legislator chooses sometimes typification,

and other times classification.

The typological or t ypological-

classificatory method is used from ancient

times by legal sciences (e.g. from Roman

law we find out about the type of pater

familias). In general, legal typologies are

used in law by considering the real elements

and relationships in legal life in order to

know more precisely what mechanisms or

structural relationships have been

established in a range of legal issues

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Laura - Cristiana SPĂTARU - NEGURĂ 49

LESIJ NO. XXI, VOL. 2/2014

We consider that typologies involve

the analysis of typical features between

different types of objects, phenomena,

processes and people. However, any

typology face a particular problem – the

selection of the criteria underlying the

classification of the phenomena studied.

Because the typology represents a partial

synthesis, the social sciences use very often

the typological method, providing valuable

results.

2. Paper Content

Humans are social beings, but they are

also juridical beings - homo juridicus, who,

wishing to regulate and develop the human

society, understood that it is necessary to

create the law. Equipped with consciousness

and will, humans act in order to meet their

needs and interests, whether by respecting

their values protected by law, whether by

breaking them.

Law is conditioned by time and space,

and its history is lost in the mist of ti me.

Thus, using the historical method of legal

phenomenon research, we find out that law

appeared in the Ancient East. We note here

the cosmogenetic conception that

encompasses several philosophical ideas

crystallized in China and Ancient Greece,

ideas which constitute the basis of law.

An impressive feature of the entire

universe is diversity. Like there are not two

snowflakes alike, two leaves alike, two trees

alike, two people alike, two souls alike, there

are not two legal systems alike. But having

no unity around us, can we dream of

knowing the law of other societies?

Law is co nnected to the social

environment, being influenced by various

legal and extra-legal factors. Because of this

connection, the law evolves with the society,

and as Ihering said, law is not always and

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Nicolae Popa, op. cit., p. 57.

everywhere the same. But people do not live

isolated. Since ancient times, they felt the

need to gather in communities. Today more

than ever, in this globalized world, people

come in contac t with each other. T his

requires an under standing of the rules

governing legal systems. It requires a

common understanding of people’s rights

and obligations. This thirst for knowledge is

watered by t he science of comparative la w,

which explains the institutions and lega l

concepts in the context in which it occurs, in

their dynamics, analysing the concrete social

conditions in which they arise.

The exis tence of legal constants

changes la w, its per manent evolution.

Thus, ther e can be no legis lation which

would be v alid for all times, b ecause in the

natural process of becoming law the legal

progress, that T urgot was mentio ning

about, inte rvenes.

Multiple forces drive divers ification

or the closeness of the national rights. Some

of these forces are not legal (e.g. geography

of the respective states, religion, politics,

economics, language). Others are leg al

because even the law can be “an accelera tor

of it s own dive rsity”. The comparatists do

not just try to est ablish the existence of

these forces, but they tr y to group them into

systems.

Analysing t he histo ry of law, we

distinguish the existe nce of overlapping

legal systems, fact that ra ises the question

of legal typologies. As I have und erlined

above, the typological method is widely

used in the social sciences (especiall y in

law), and it sup poses “no t consid ering

individual differences insignificant for the

given goal, s ince any typology is subj ect to

some research purpos es, especially in terms

of esta blishing uniformit y and expla natory

value”

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