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КОНЦЕПТУАЛЬНЫЕ ВОПРОСЫ ПРАВОВЕДЕНИЯ
GLOBAL LEGAL SYSTEMS, LEGAL FAMILIES AND INDIVIDUAL LEGAL SYSTEMS IN THE CONTEXT OF MODERN WORLD ORDER: A NEW APPROACH
DOI: http://dx.doi.org/10.14420/ru.2019.2.5
Veniamin E. Chirkin, LL.D, Professor, Chief researcher of the Institute of State and Law at the Russian Academy of Sciences; Honoured Worker of Science of the Russian Federation; Honoured Jurist of the Russian Federation, e-mail: vechirkin@yandex.ru.
Abstract. The author analyses the concepts and classifications of legal systems
and legal families described in Russian and foreign literature, noting some inaccuracies. For example, the author claims that the term «national legal system» does not imply ethnic nature, but rather refers to a state legal system, while in the Russian language the term «national» is more about ethnicity, that is why he recommends to avoid the term «national legal system» in the Russian terminology. Users often fail to distinguish between the terms «legal system» and «legal family»: there exists a tendency to ignore different nature (social core) of the three global legal systems currently effective in the world. The capitalist Anglo-Saxon law family and the totalitarian socialist legal system are often placed in the same family classification unit. The author offers new approaches, a different synthesis of legal systems and a new classification of legal families. The methods applied are as follows: historical, logical, deductive, inductive, method of system-functional and comparative legal research, in the framework of formation-civilisational approach. Along with legal systems of individual states and traditional families it is common to identify three main legal systems of the modern world against the criterion of their societal nature. The tree legal systems are as follows: the Muslim (Islamic) system with separate semi-feudal elements (used for more than 1.7 billion people), the liberal semi-social capitalist system (many developing countries have recently started using it, so now it is effective for more than 4.5 billion people), and the totalitarian
socialist system (used for more than 1.5 billion people). The article presents main features and peculiarities of each global legal system. Legal families exist in the framework of a specific global system. The socio-cultural-legal approach allows to distinguish legal families within each of the three global systems. Legal families are mainly different in their legal content, while their social nature is the same. The author exemplifies it with how it works in specific countries. Within the Muslim (Islamic) system scientists identify the fundamentalist (radical) and modernised («advanced») legal families; on other grounds they also identify Sunnitic and Shiite legal families. Within the liberal semi-social capitalist system they identify Anglo-Saxon, Romano-Germanic and other families; modern scholars also identify Latin American, Scandinavian, and other legal families. Within the totalitarian socialist system they identify the orthodox family (earlier represented in law by the Soviet system of proletarian dictatorship) and the emerging specific totalitarian socialist family, which is clearly manifested in amendments to the Chinese Constitution of 1982, which were introduced in the period from 1988 to 2004, and in the new Constitution of Cuba of 2019. The totalitarian socialist system is partially modernised, but only in the area of economic regulation. The author indicates main differences between legal families. It is stated that law systems of different countries are converging, still we observe a certain antagonism between them. Harmonisation is hardly achievable until antagonistic contradictions in social nature of the systems are eliminated. Keywords: Individual legal systems of states; Global legal systems; Legal families;
Classification.
General Definitions In Russian and foreign legal science and a comparative study of legal formations scientists use the concepts of national legal system 1, legal family and legal system. These concepts concern the domestic, i. e. internal law of states, while the legal system of international law holds a special place. Scientific literature presents a uniform approach to the concept of a legal system in a given state, for example, in the United States or China, provided we do not imply their social nature. Herewith, there does not exist a uniform approach to the concept of a legal family, which covers a group of states, often on different continents, like in the case of Anglo-Saxon family. The same applies to the concept of a legal system, i. e. a certain unity of a legal system used in a certain type of states, for example, in totalitarian-socialist states that still exist on different continents, including Vietnam and Cuba. Furthermore, there is no uniform classification of legal systems and legal families.
Russian scientists claim that first of all we should distinguish the concepts of the system of law and the legal system. The former is believed to describe the internal structure of law (legal acts, norms, institutions, branches of law, etc.), though many researchers detect not only a regulatory aspect, but also
1 The term «national» in Western literature is associated with the concept of a nation actually meaning «state». When applied to Russia, it should be clarified or explained, since in the Russian language the word «national» means ethnic, and Russia is a multinational state.
other aspects in the system of law, like enforcement. The legal system in Russian studies is understood more broadly than the system of law, however, different researchers can include a different range of components into the concept of the legal system. For example, along with other components some researchers declare that legal psychology is also part of this concept. Sometimes such extensions lead to confusing the concepts of law and the legal system.
As far as we know, the terms commonly applied in foreign literature do not provide for a clear distinction between the system of law, the legal system, the legal family (the latter is often used in the meaning of the legal system). It happens despite the fact that languages of these countries allow for making such a distinction, since they have corresponding vocabulary items with a specific lexical and conceptual meaning. Besides, different works interpret the terms law, legal system, legal family in a different way.
Foreign researchers examine the system of norms, institutions, and branches in detail (it is impossible to study law without it), as well as historical legal systems and modern legal families, but they make no distinctions between the legal system and the legal family. There is no developed system of components for the legal system and the legal family, consequently, foreign researchers often refer to legal families as to systems. The French researcher R. David, speaking about «great systems», actually means the Anglo-Saxon and Roman-Germanic legal families 1, while another French researcher, the comparativist R. Leger writes: «three great legal systems: English, French and German law» 2. Confusion of these concepts is also common in foreign papers devoted to the issue of structuring systems of law 3.
Since a long time ago researchers have conducted comparative studies, first of separate significant legal acts of individual countries, then of branch legal systems (for example, civil or criminal law), integral individual systems of law of individual countries (originally in the framework of legal geography), legal families. Nevertheless, direction of these studies changed only in the second half of the twentieth century. The founders of the systematic approach in the field of comparative law (the American of German origin R. Schlesinger, known in the USA as the «father of comparative law», R. David in France, R. Sacco in Italy, K. Zweigert, H. Koetz in Germany, P. Glenn in Canada, and others), made a breakthrough in scientific research. They created a new direction of research, identified and analysed various contemporary legal societies, defined them as systems or families, examined historical systems of the past and remnants of
1 David R. Les Grands Systèmes de Droit Contemporains (Droit Comparé). Librairie Dalloz, P. 1964. In fact, when dealing with contemporary history, they mostly imply systems, rather than families.
2 LégerR. Great Legal Systems of the Present. Comparative Legal Approach. Moscow: Wolters Kluwer, 2011.
3 Sandevoire P. Structure of the Legal System: Public Law and Private Law. Moscow: Publication of the French Embassy in Moscow, 1994 (According to the author, the work is aimed at countries of Central and Eastern Europe).
their elements in the modern world. The work of the French lawyer René David 1 had an especially strong influence in Russia: René David has many followers here, who have published books on legal systems, including Yu. Tikhomirov, A.Kh. Saidov, M. N. Marchenko 2, as well as other authors, who published works devoted to less general issues.
R. David did not give definitions of the legal system and legal family, but in fact he identified the Roman-Germanic (continental), Anglo-American (he called it common system of law), and socialist legal families, as well as six distinct types of religious and traditional law, namely: Muslim, Jewish; canonical; Hindu; Far East (Japanese and Chinese), and African legal systems. Other foreign and Russian researchers used the concepts of the legal system and the legal family in the same way.
We believe that it was a mistake to include into one classification unit the capitalist and socialist systems of law, which have absolutely different social nature. For example, the Anglo-American family and Soviet law were placed at the same level in his classification. Muslim law is historical, but it is also effective now, while canonical law is in fact not used as such in any state, therefore by definition it cannot be considered the law. Anyway, R. David's work served as a fundamental conceptual guidance.
As mentioned, the founders of the system analysis tended to use the concepts of legal systems and legal families as similar, since they considered the family as another type of a system. In our opinion, these concepts definitely require to be distinguished. In scientific literature the term «national legal system» refers to a specific legal system of a certain state. The terms legal system and legal family both refer to groups of states (legal communities), but they differ in nature and form, or content and form.
Nevertheless, these phenomena and concepts are still confused both in foreign and Russian literature. To see this it is enough to check tables of contents of books written by foreign and Russian comparativists. We have already referred to some books by R. David and R. Leger. Let us consider one more source, which is the most detailed foreign reference book. It gives a list of six legal systems, also called families, as follows (in the brackets we indicate the number of states where the given system is used): civil law (84), common law (44), religious law (12), civil and common law mixed systems (25), continental and sharia law (11), common and sharia law (7).
It should be noted that the term the civil law system is the traditional name of the system in the countries that use it. The name is connected with the fact that these states adopted civil codes. Russia and some other countries more often
1 The first book where René David outlined this approach was the book David R. Traité élémentaire de droit civil comparé: introduction à l'étude des droits étrangers et à la méthode comparative, published in 1950. The book, which brought him world fame, David R. Les grands systèmes de droit contemporains. Dalloz, was published in 1964, and it was first published in Russian in 1967. It still has the highest international rating.
2 See, for example, Saidov A.Kh. Comparative Law. Main Legal Systems of Our Time. Moscow, 2003.
refer to this family as the Romano-Germanic or continental system or family. The term the common law system often refers to the Anglo-Saxon system. One country, India 1, uses what is classified as a hybrid legal system. This list does not include all UN member states and, conversely, includes some countries that do not have an official status of a state, such as Taiwan, Macao, etc. Despite some inaccuracies, the list gives an idea of the modern approach to the classification of legal systems in foreign science.
Some new Russian publications also present a similar approach, for example, the 15th edition of the manual composed by M. N. Marchenko. The author of this textbook does not offer any definitions of the legal system and the legal family, and just lists the systems as follows: «Romano-German legal family, Anglo-Saxon legal family or common law system, legal systems of socialist and post-socialist states, Jewish law, and Muslim law as a kind of religious law» 2.
Russian authors who propose their classifications in the field, whether they distinguish between the concepts of the legal system and the legal family or not, do not have a uniform approach to the content of the legal system as a concept, and to its components. V. V. Gavrilov identifies three main approaches: 1) the legal system is considered only as a normative formation; 2) the concept of the legal system combines law as a normative formation, law-making and law enforcement; 3) the legal system constitutes internal interconnections of legal phenomena, their bodies and structures; set of legal norms, principles and institutions (normative element), set of legal institutions (organisational element), set of legal ideas and views (ideological element)3.
V. V. Gavrilov does not specially explain the concept of the legal family, but he gives a broad definition of the national legal system as a composition of certain components. According to V. V. Gavrilov, the national legal system «is an integral set of legal norms operating in its territory, characteristic of a given state (society), as well as its legal bodies, institutions, organisations along with legal ideology that, in the process of legal practice, as mediated by legal psychology, provide for regulation of public relations in accordance with objective laws of the society development» 4.
It is highly advisable to give a definition before a researcher proceeds to an actual analysis of legal systems or other concepts, which, unfortunately, the authors whose works we have just quoted, just like many others, hardly ever do. In our opinion, it is not reasonable to include into the legal system
1 Law system // Wikipedia. URL: https://ru.wikipedia.org/wiki/npaBOBaq_CHCTeMa.
2 Marchenko M. N. Legal systems of the modern world. Moscow, 2016. PP. 25, 111, 206 and other [Pravovyye sistemy sovremennogo mira].
3 Gavrilov V. V. The concept of national and international legal systems // Journal of Russian Law. 2004. Issue 11. PP. 98-112. [Ponyatiye natsionalnoy i mezhdunarodnoy pravovykh system // Zhurnal rossiyskogo prava].
4 Gavrilov V. V. International and national legal systems: concept and main areas of interaction. [Mezhdunarodnaya i natsionalnyye pravovyye sistemy: ponyatiye i osnovnyye napravleniya vzaimodeystviya]: Author's synopsis of thesis for Doctor of Law Degree. Kazan, 2006. P. 7.
such components as bodies and institutions, since even an ordinary police officer is to some extent authorised to enforce law in administrative and legal relations, therefore such definition of the legal system appears to be too broad. In case a researcher includes law enforcement in the definition of the legal system, it is essential to identify the nature and peculiar features of applying the given legal system rather than the bodies that apply it (although this is also important).
V. V. Gavrilov does not use the term «enforcement» in his definition, although he uses such terms as bodies, institutions and legal practice. In our opinion, law enforcement is an integral component of the legal system; we suggest using the term «component» rather than «element», since it has a broader volume. Of course, researchers should identify types of law enforcement, but first of all it is advisable to examine nature, content and forms of law enforcement, rather than physical law enforcement officials or bodies, like imams in some countries of Muslim fundamentalism. When saying «nature, content and forms», we mean whether law enforcement is democratic or not, based on principles of the rule of law and legality or not, whether it includes all necessary stages or it is somehow incomplete, etc.). Moreover, we should consider not only judicial enforcement, but also administration of justice, that is any application of norms of law by authorised bodies or officials. In fact, individuals and legal entities do not enforce law, they only apply it.
V. V. Gavrilov correctly notes that legal psychology mediates enforcement of law, without being part of the legal system, though he gives no grounds for such a conclusion. In our opinion, firstly, legal psychology can be viewed either as a factor in individual cases for a specific law enforcer, or it can mean social psychology of certain layers of society. Naturally, the former understanding, i. e. individual legal psychology, of course, does not imply including legal psychology into the legal system. We should rather imply more or less well-established public legal psychology, i. e. what concerns attitude to such phenomena as homosexual marriage in relation to human rights or sovereignty of the state in the context of states integration. Furthermore, public legal psychology is mainly about mentality, thus it cannot be standardised by rule of law: instead, it is being constantly formed in the course of everyday public (and private) activities of people, including officials who make law and enforce law. Besides, a certain psychological attitude can be formed in a law enforcer when they consider and settle a specific case or perform other functions. When law enforcers work jointly, e. g. when using the format of full court, different members of a group may have different attitudes. Thus, it is not psychology in general, but social legal ideology that we offer to view as a component.
As discussed, some researchers include lawmaking as a component of the concept of the legal system. We also insist that lawmaking is an essential element of the legal system. It becomes evident when we compare lawmaking in the Muslim legal system (with such sources as the Quran, Sunnah, madhhab, fat-
was, etc.) 1 or countries of totalitarian socialism (where they have joint acts of the Central Committee of the Communist Party and the Government, often more important than the law) with other legal systems.
The concept of the legal system is necessarily connected with the concept of the law itself, no matter what definition of the law we use 2. The concepts of law and the legal system must be used consistently, since they specify related, though still different phenomena: some elements included in the concept of law are not part of the concept of the legal system, and conversely, the concept of the legal system includes additional components, which the former does not have.
In our opinion, the legal system at the national or group (global) level presents an integrated unity of the following five main components of legal reality: 1) rule-making (methods of creating legal norms and their subsequent grouping); 2) the normative component of law with its content (legal acts, legal principles, norms, institutions, public and private law, branches of law); 3) law enforcement (specific nature of law enforcement, some elements of which are mentioned above); 4) social legal ideology, which is part of the state ideology, manifested in norms of the constitution and legislation (One may not agree with it, it should not be mandatory, but violence is prohibited in speaking out against it.); 5) legal culture as part of social culture accepted in society. Legal culture includes issues related to individuals and legal entities, associations, organisations, bodies, officials, rulemaking, law enforcement, legal ideology.
These components are crucial for the individual legal system and the legal family (which is part of the system), but they constitute an integrity with features of an individual system that determine their manifestation in a particular society or state (e. g., the legal systems of the USA and Great Britain are different, although they belong to the same family), or with comprehensive features of a group of countries. These features apply when we make a classification within the system. When singling out individual legal systems and legal families, some components may be of little significance (e. g., legal ideology is embedded in the system itself, thus it should not be taken into consideration to single out a family within the system), whereas other components become essential, like uniqueness of a specific legal culture.3
1 The Quran is recorded from memory revelations to the prophet Muhammad; the Sunnah (also Sunna or Sunnat) is the canonized biography of the prophet (these holy books are the basis for the life of a Muslim). Madhhabs are canonised interpretations of the Quran made by famous Islamic jurists in the VIII—IX centuries (serves as a source of law, guidelines on principles of law enforcement). Fatwa is a legal position or decision of Islamic jurists who have the right to make binding decisions.
2 We adhere to the structural-functional value definition of law as a system of internally agreed legal norms established or authorised by public (first of all state) bodies aimed to regulate socially significant relations; these legal norms are ultimately enforceable by state coercion and serve as the legal basis for creating and distributing social values (benefits) in the given society.
3 G. Olmond and S. Verba demonstarated it in their historic work on civic culture, which is still recognised as classical. See Almond G., Verba S. The Civic Culture. Princeton, 1963. These authors mainly conducted research on modern political cultures of various nations (Great Britain, the USA, etc.), but their work also contained provisions on the legal culture. See also. Legrand P. Fragment on Law-in-Culture. Deventer, 1999; Legrand P. Le droit comparé. P., 4ème édition, P., 2011.
The national system operates within one state (it can and does affect other states, but is effective as a system in the territory of its own country only). All national systems simultaneously belong to a particular legal family (or mixed families), and to a certain global legal system (we do not believe mixed global systems can exist in principle, because of antagonistic differences in their nature). The global legal system is the broadest concept in classifications of legal communities. Legal families operate in different countries and often on different continents (e. g., Romano-Germanic law is applied in Latin America); still they belong to a specific global legal system.
The main difference between a legal family, a national legal system and a global legal system is not the size of the territory and population they govern, although this is also significant. Sometimes the legal system of one state is effective for a larger population than a global system (if we compare China and countries where classical Muslim law governs, we see that the former is approximately 40 thousand times larger than the latter).
The key difference is essence, content and form of these three phenomena and corresponding concepts. As discussed, the national legal system always refers to a specific country, e. g. Brazilian, Egyptian, French national legal systems. Its essence is predetermined by the global legal system, while it has its own peculiar elements of the essence (predetermined by the system) and content (predetermined by the family), as well as its own individual content and form. The concept of a specific family of law is individual. On the contrary, the concepts of a legal family and a global legal system are general: they take into account data from many states, which are marked with both different and similar features. Differences and, most importantly, similarities in their social essence serve as the grounds to distinguish a particular global system of the contemporary world. The classification of legal families is based on the similarity of their content, which is less significant than the essence, but it is also much richer, more versatile, includes not only social content, but also other elements of content.
Three global legal systems and their families
There exist both similar and very different legal systems in each country considering 193 UN member states (Vatican is not a UN member). However, it is obvious that legal systems of capitalist countries even from different continents, like France and the USA, are essentially similar. The same is true about legal systems of socialist countries like Vietnam and Cuba. Furthermore, we can easily track certain similarities in the social content of families of law of capitalist countries, such as Great Britain and Germany, or Muslim countries, such as Morocco and Kuwait. The legal system of Great Britain is similar to that of Canada, and Austrian is similar to German one, while they are all fundamentally different from, for example, the legal system of the People's Republic of China or from the legal system of Saudi Arabia. The countries that are geographically close to each other can be very different: legal systems of Brazil and Mexico are similar to each other, but have almost nothing in common with the legal system of socialist Cu-
ba, though all these countries are situated in Latin America. The legal system of Germany is very different from that of Great Britain; similarly, the legal system of Egypt differs a lot from that in Morocco, etc.
Many of these countries have identical forms of government, whereas many have different forms of government, the same goes about the state and territorial structure and state regime. It shows that the nature and content of legal systems and legal families can be similar or different despite similarities or differences between corresponding forms of law and state. In other words, the form does not predetermine the essence: on the contrary, it depends on the nature (basis of the form) and content (other elements of the form).
In 193 countries of the world there exist many different legal systems, but many legal systems can also be similar in a variety of ways. That is why we can classify legal systems operating in individual countries by various criteria.
The main ground to identify the largest group, as said, is the social essence of law. Differences in the social nature are noticeable first of all in the field of public law. For example, according to the Constitution of the People's Republic of China of 1982 the principles of law are worded as follows: «China is a socialist state with a democratic dictatorship of the people led by the working class» (Article 1) 1. At the same time the Basic Law of Saudi Arabia of 1992 (Al Nizam, a constitution-like charter) declares that Saudi Arabia is an «Islamic state» (Article 1), where power belongs to sons of the sons of the first king in history (Article 5) 2.
Based on findings of current research in the field of social and legal sciences and specific legal issues, it appears that in the modern world we can identify three geographically separated global systems: the Muslim system, within which semi-feudal elements manifest themselves to this or that extent; the liberal semisocial capitalist system (it cannot be considered as being completely social due to the very nature of the capitalist system, which implies dominance of private property and gaining maximum profits as the main purpose of capitalism); the legal system of totalitarian socialism. Public and more often private and personal relations of the remaining part of the Earth population are governed by a mixture of different norms. For countries with mixed systems it may be difficult (e. g. Sub-Saharan Africa and Oceania), or not so difficult (e. g. Japan or India) to identify a dominant, which allows to classify a certain country as belonging to a particular legal family.
It is reported that as of 2019 the population of the Earth is about 7.7 billion people, of which 1.8 billion adhere to Islam, which means that roughly every fourth person living on the planet is a Muslim. Muslims constitute a majority of population in 42 countries; 28 countries declared Islam to be their state religion. There live millions, in some cases even dozens of millions of Muslims in coun-
1 Constitution of the People's Republic of China of December 4, 1982 // Constitution of Asian states. The Far East. Moscow: Norma, 2010. P. 226.
2 Highlights of the Development in Saudi Arabia. The Basic Law of Government. Riadh. Year not given. P. 92, 93.
tries, where state religion is not Islam, however they apply principles of Islam in their personal and quite often in public relations.
The Muslim legal system has peculiar features common for all Muslim countries, namely: the Quran, Sunnah, Sharia serve as the main source of law 1; Allah is recognized as the Universal Authority; they all use the concepts of ummah, the faithful as opposed to Disbelievers (Kafirun); rights are mentioned, but the main thing is responsibilities before Allah and the Muslim Ummah (community); people are passive, Allah rules all their actions; there exists polygamy and legal inequality (including inequality of women), all are equal only before Allah. Whereas Article 17 of the French Declaration of Human and Civil Rights of 1789 starts with «Since property is an inviolable and sacred right...», in the Muslim legal system not private, but public property is considered sacred. Article 16 of the abovementioned Basic Law of Saudi Arabia declares that public property was granted by Allah only to the faithful. The form of government is a caliphate, which sometimes influences the republican form of government as well. Functions of elected agencies are performed according to the Asshur principle, which implies making decisions by means of consultations, addressing the ruler's council and local governors' councils.
Within the Muslim system of law scientists distinguish legal families grouped on different grounds, namely: on the ground of religious differences (Sunnis and Shiites, who live in the same countries), and on the ground of geographical location (fundamentalist legal family used in «classical», radical countries, and modernised legal family used in «advanced» countries. The fundamentalist family of law is noted for its radicalism; it defends the purity of Islam, and dismisses any other interpretations. Cases when some existing phenomena are interpreted by other global legal systems in a similar way and have similar institutions are considered to be mere coincidences. Lawyers of «advanced» countries hold exactly the opposite position, for example, the Lebanese Professor N. Marrat believes that all (italics added by me, V. Chirkin) institutions of Islamic law are compatible with European institutions 2, which is an exaggeration.
Sunnis (the majority) and Shiites present two main branches of Islam. They live in the same countries, but apply different interpretations of some fundamental provisions of the Quran, especially those concerning authorities. Both branches have their own official interpretations (madhhabs), which are legal and religious principles formulated by Islamic scholars in the VIII—IX centuries on the basis of rational interpretations of the Quran and the Sunnah. Sunnis have four main madhhabs named after their creators (Hanifites, Shafiites, Malikits, Han-balites), Shiites have three madhhabs (Jafarites, Ismailis, Zeidites), but there also exist other madhhabs. Sometimes the contradictions between the Sunnis and
1 Article 2 of the new Constitution of the Arab Republic of Egypt of 2014 adopted after the Arab Spring, also establishes: «The principles of Islamic Sharia serve as a source of legislation». See the Constitution of the Arab Republic of Egypt. Cairo, 2015.
2 The Oxford Handbook of Comparative Law / ed. by M. Reimann, R. Zimmermann. Oxford, 2008. P. 631.
the Shiites (who consider themselves the oppressed part of the Ummah) lead to violent and prolonged armed clashes like the ongoing civil war under religious banners in Yemen.
Constitutions of modernized Muslim countries sometimes mention the «moderate Muslim religion» (Article 1 of the Constitution of Morocco of 2011) 1. As a rule in countries where they practice moderate Muslim religion (besides Morocco), they have republican systems, elections, parliaments, parties, public associations, all of which is prohibited in countries of legal fundamentalism. They also have developed legislation, while in countries of legal fundamentalism they declare that the holy books already contain all the rules of law (kanuns), thus one has only to find them there. The latter system implies that institutions of the Muslim law are incompatible with European institutions. Another difference is that long ago «advanced» countries abolished Islamic courts, which used to impose punishments connected with mutilations: among other things they applied lex ta-lionis, which is the principle «An eye for an eye».
In the countries of Muslim fundamentalism there have taken place some changes since the 1990s: now monarchs grant basic Nizams, which function like constitutions, while the Quran and Sunnnah are declared to be true constitutions; several countries, e. g. Bahrain, have adopted constitutions; some women have shortly participated in Asshurs under the monarch; in some cities they are creating councils, and men have been given the right to take part in limited elections of such councils (since 2005, Saudi Arabia).
The liberal semisocial legal system of modern capitalism operates in most countries of the world in its various, including undeveloped, forms. In developing countries the social element is insignificant or is not present at all, still they can be classified as belonging to this system. Approximately 4.5 billion people live in areas where this system operates. Advanced countries within this framework apply democratic principles, they have a developed social legislation and high living standards, which does not preclude a possibility to assess the system itself as having certain social and integral drawbacks, since it exists in many countries and has many forms and varying degrees of development between and within nations. This system also rules former countries of totalitarian socialism, which have chosen a new path of development.
Theoretically, and to a large extent in practice, legal foundations of the capitalist liberal semisocial system embrace such universal values as freedom, equality, justice, people's sovereignty, democracy, human rights, etc. The trend of recent decades is that some constitutions deal with such concepts as social justice, social partnership, social responsibility, competition not only in economics, but also at other levels, etc. Legislation in countries within this system specifies issues related to sustenance of the person: capitalist countries were the first to establish de jure minimum subsistence level and minimum monthly wage. We cannot but admit that this legal system consolidates the most important achieve-
1 Constitution du Royaume du Maroc. Rabat, 2011.
ments of economic, social, political and spiritual life of the society at this stage of human development. Nevertheless, liberal social capitalism is still capitalism, not some other system of a higher type, which might come in the future. The main value in this system is private property; the law is dominated by an individualistic approach and principles of equal rights, formal equality, equal opportunities rather than social equality. Political democracy is developed mainly at the level of liberalism. As for production sphere, there are only some elements of social democracy, mainly in such forms as arranging consultative councils at factories (which can bear different names), selling part of the company's shares to employees, etc.). It is practically never when people's will plays a crucial part; primarily, there is no genuine social distribution by labour when it comes to distributing the social product. We can simultaneously observe excessive wealth and terrible poverty in the most prosperous capitalist countries.
Long ago researchers distinguished traditional Romano-Germanic and Anglo-Saxon families within the liberal semisocial capitalist system, but now they also add other legal families, such as Latin American, Scandinavian, Slavic or Orthodox, etc. The distinctions lie in the sphere of socio-cultural and legal content. Traditional families have been partly studied from these positions, whereas newly distinguished families still expect to be scientifically examined.
The totalitarian socialist legal system operates in five states with a population of approximately 1.5 billion people (Vietnam, China, North Korea, Cuba, Laos). The perfect socialism as was conceived by many advanced minds of mankind has not come true yet. It is difficult to predict if it is possible in principle to establish a legal system of socialism, which would radically differ from the one that existed in former totalitarian states, like the USSR, and exists in other countries now. However, we assume it is hardly possible in the near future: this requires a much higher level of development and a different type of people. The main legal features of the totalitarian socialist legal system are as follows: proclamation of dictatorship of the proletariat, constitutionally fixed domination (leading role) of one party, the communist party, to be more specific; prohibition of political opposition; division of the society into unequal classes (the working class plays the leading role); prohibition of private property, while it is allowed to have personal possessions and small-scale commercial units; dominance of the socialist property and the socialist system of economy; nationalisation of the entire economy based on the principle of state planning and distribution (the market is prohibited), the «republic of councils» (like in the Soviet Union); negation of the concept of separation of powers, which implies that legislative bodies, state administration, justice agencies and prosecutors perform all different functions; replacing local self-government with a system of councils that are the only public authorities both at the level of the country and locally (other authorities act as governing, not self-governing, bodies, etc.); rights and freedoms are granted to citizens only for the purpose of building socialism; a mandatory ideology is Marxism-Leninism with some national peculiarities, like including ideas of Jose Marti in Cuba, Kim Il Sung in the Democratic People's Republic of Korea, Mao Zedong, Deng Xiaop-
ing and Xi Jinping (since 2018) in China, Ho Shimin in Vietnam, etc.); totalitarian state regime and other features.
For a long time in the countries of totalitarian socialism there existed, although with some peculiarities, one orthodox totalitarian-socialist family, and it still remains in some countries (for example, in the DPRK). Nowadays we might be witnessing formation of a new family with the following elements: refusal to apply the principle of the dictatorship of the proletariat; constitutional provisions for the need to have private property and recognition of its important role in the economy; conceding the need to apply the market economy, though it is proclaimed to be the «socialist market economy»; recognition of human rights (till recently only rights of a citizen have been recognised); introduction of the thesis about the rule of law, etc. Some of the changes manifest themselves in four amendments adopted in 1988-2004 in the Chinese Constitution, new constitutions of Vietnam of 2013 and Cuba of 2019, which recognised private property. However, real changes in these countries mainly concern the economy, not the political system and ideology.
On convergence of legal systems, antagonism and harmonisation
In the Soviet period any possibility of convergence of «oppressive bourgeois law» and «higher type of socialist law» was negated in principle, and, naturally, there was not conducted any analysis on the subject. At the same time, in reality there already were signs of convergence, which manifested themselves in some constitutional provisions. For example, the USSR Constitution of 1936 established equal rights of citizens, introduced some elements of parliamentarism, and also many civil law institutions, which were initially rejected as being «bourgeois». It was even more obvious from provisions of the USSR Constitution of 1977, which abandoned the concept of the dictatorship of the proletariat and declared «state of the whole people»; furthermore, it established that the Communist Party was operating within the framework of the Constitution.
Although there were made some advances towards universal values, the priority was still placed on the irreconcilable antagonism between the bourgeois (represented by the capitalist society) and socialist legal systems. This antagonism rooted in the initial Marxism proposition of the «dictatorship of the bourgeoisie» and the «dictatorship of the proletariat». The two systems of law were really opposed, and they are still opposed when it concerns fundamental issues of the social essence of law. Still, experience of China proves that a certain approximation of legal norms can take place even with regard to such fundamental legal provisions as private property, market, human rights, etc., if they do not refer to the very essence of economic, social, political systems and spiritual life of society.
Harmonisation is taking place to a greater extent between national legal systems and families belonging to the same global system, but even in this case there are some difficulties. For example, British courts refused to accept the con-
cept of a legal entity accepted in the EU law 1, since Anglo-Saxon law applies its own concept of corporation 2. As for the harmonisation of the three essentially different systems, in our opinion, in the current context it is absolutely impossible. In order for it to happen we have to overcome the said antagonism between these systems. The above mentioned amendments to the Chinese Constitution, and some current realities, like the fact that in 2017 the socialist Chinese Republic came second at the world level after the United States by the number of dollar billionaires, show that this is already taking place, at least to some extent. Nevertheless, genuine harmonisation on essential issues is possible only after disappearance of the antagonism itself, i. e. when each of these legal systems transforms into some different system, or a single common global legal system is established.
Now it does not make much sense to speculate on what kind of system it will be. Still, it should be noted that many nations have already attempted to apply the totalitarian socialist legal system, but ultimately they have chosen a different path of development. It is also unlikely that humankind will allow the world to be dominated by the archaic fundamentalist Muslim system of law: military struggle of various states, including Russia, against the atrocities of the «Islamic State» proclaimed in the Middle East testifies to this. We assume that the single global legal system of the future will embrace best legal practices of the whole mankind and will become a new global socio-democratic legal system with those elements of capitalism and socialism that have proved their efficiency to peoples and development of countries.
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