Civil and Common Law Systems

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  • Created by: Nikki
  • Created on: 08-04-15 11:22

Comparative law

Why compare?

What to compare?

How to compare?

  • 'Same problem, different solutions'
  • Understanding foreign law 'from the inside' -- why do members of that system think the way they do?
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History of French Private Law

Ius Commune -- from Corpus Iuris -- following re-discovery of Justinian's code

Glossators

  • annotations on CI -- clarify; give context; correct inconsistencies
  • written reason
  • accumulation of glosses formed defined body of doctrine

Post-Glossators

  • adapt Roman texts to particular requirements of medieval life -- bridge theory and practice
  • comprehensive and systematic commentaries on specific legal issues
  • new, improved version of CI produced

Roman law and Canon law

School of Secular Natural Law

  • significance of CI lay in its moral quality -- CI as raw materials to build perfect legal system
  • REASON
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French Civil Code

French revolution -- epitomised rationalistic dualism of natural lawyers

Republic built on rational ideas -- reason-infused CI preserved; oppressive feudal customs eradicated

Civil Code 1804

  • Romanist, canonist and rationalistic influences
  • grounding in law of nature
  • repeal of all prior law and formal declaration that extra-codal legal materials would be considered of no legal force
  • Code ought to be complete
  • ought to be drafted in relatively general principles
  • ought to fit them together lgoically as coherent whole and be based on experience
  • piecemeal modernisation
  • articles are not only rules of law but sources of law
  • 'civil constitution'
  • written code as guarantee of freedom
  • Book I 'Of Persons'; Book II 'Of Property and...ownership'; Book III 'Of the various ways in which ownershp is acquired
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History of German Private Law

Ius commune

Kant's theory of knowledge 

  • acquisition of knowledge proceeds from interaction between subjective & objective
  • law, while grounded in morality, demarcates itself from moral realm int hat it concerns eternal relations between subjects and must accordingly be objectified through actual, material sanctions

German historicists

  • ought not ignore history
  • facts overtake ideas
  • 'objective idealism' -- Hegel -- mind and matter merge into the objective
  • theory is subservient to facts, and reasoning that aspires to operate independently from factual experience is ill-conceived
  • Historical school
  • Volkgeist
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German civil code - BGB

  • idea/fact tension manifests itself
  • Privatautonomie = celebrates subjective -- freedom of each individual to govern himself through hisown will
  • tempered by imposition of constrants upon way in which this freedom can be exercised -- only those acts of will that are deemed acceptable in the larger context of German juridical order ever materialize as legal facts
  • balance of subjective and objective
  • more academic and exhaustive -- much longer process to make
  • infiltration of public into private
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History of English Private Law

Development of common law

  • William the Conqueror
  • integrated local customs and isntitution into single admin structure governed by King
  • Domesday book (1086) 
  • Royal intervention into local justice at first limited to tax matters, but fiscal considerations soon caused this to extend to civil and criminal matters
  • end of 12th century -- ambulatory justice system that Henry I had established had by regularity and increased frequency of its circuits become most powerful institution in ENG
  • 13th century -- royal justice grew from occasional jurisdiction into highly solicited one -- 3 permanent courts in Westminster
  • early common law was procedural 'common custom' concerned almost exclusively with matters of proof -- empty procedural framework to be filled with substance by jury
  • identity of those in charge of administering justice -- not conceptual thinkers
  • ideas still present in every judicial decision -- in time extricated themselves from material, heavily procedural context of decision -- formed substantive legal rules

Equity -- operate like continental court -- flexible and not formally bound by precedent -- less important -- Judicature Act stripped equity of separate jursidiction and merged it with CL

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Comparison of law -- contractual mistake

French

  • subjective representation
  • any non-trivial mistake in mind of even on of two parties suffices to undermine existence of validity of contract
  • set aside in all such cases as matter of principle
  • logic of autonomy of will dictates that mistaken party's subjective intention trumps non-mistaken party's objective interpretation of this intention
  • French judicial practice is more qualified -- 'exceptions' and 'qualifications'

German

  • balanced approach -- equal weight to subjective intentio and objective manifestation
  • only set contract aside where mistake related to an essential part of contract

English

  • objective approach
  • general theory of mistake in aassumption has no place in English law
  • only exceptionally have judges allowed subject intentions to prevail over obj manifestations
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Comparison of law - role of judge

France

  • apply law in mechanical fashion -- avoid interpretation -- reserved for scholars
  • reasoning by syllogisms
  • decisions tend given consideration only insofar as they corroborate conclusion of scholars
  • anonymous decisions without dissent nor concurring opinion
  • extremely short judgments that lack explanation of why the decision has been made
  • not an official source of law

Germany

  • decisions are less cryptic and more readily indexed and more accessible
  • Code provides as much direction as an be given w/o excessive complexity
  • greater importance of disclosing reasoning

England

  • reasoning by analogy -- begins and ends with fact
  •  judicial prcedence
  • more important role -- judges work with facts
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Summary of comparison

France

  • subjectivism
  • ideas, not facts
  • judges less important
  • Civil Code

Germany

  • balance of subjectivism and objectivism
  • BGB

England

  • objectivism
  • facts, not ideas
  • judges are very important
  • Common Law
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English v French legal profession

French judicial profession

  • career judges
  • law school -- Ecole Nationale de la Magistrature -- civil servants for life -- train judges and procecutors -- most candidates recent university graduates
  • 31 month full time course -- written and oral exam & interview 
  • begin in court of first instance and hope to be promoted to higher courts

English judicial profession

  • not career judges
  • law school -- join the Bar (normally) -- become QC -- apointed to HC -- work way up from there
  • from narrow group of society -- later stage of career so older
  • lay persons working as magistrates
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