Comparative Legal Systems PDF

**COMPARATIVE LEGAL SYSTEMS** COMPARATIVE LAW {#comparative-law.Style1} =============== The nature of comparative law {#the-nature-of-comparative-law.Style2} ----------------------------- *What is comparative law?* comparative legal systems are about comparative law. *Mind works only if you open...

**COMPARATIVE LEGAL SYSTEMS** COMPARATIVE LAW {#comparative-law.Style1} =============== The nature of comparative law {#the-nature-of-comparative-law.Style2} ----------------------------- *What is comparative law?* comparative legal systems are about comparative law. *Mind works only if you open it*, said once Albert Einstein. Law is not only a set of rules! There are also many ways of thinking about law. We will see what is beyond a legal system, we try to relativise, look at our system from the outside, be more critic about the system, that is not the only and the best one. We will be comparing rules, systems and the approaching to law and we will see the different ways in which law is thought. Law is deeply rooted in history, only through history we will learn the reasons of similarities and differences. To understand what comparative law is, we can say what it is not: - **a branch of national laws** *ex. constitutional, commercial law* - **international public law** about international treaties and conventions, relations between states - **international** **private** **law** *ex. divorce between an Italian woman and a French man, there are rules in each system that tell which law is applicable*\ = part of the national system, set of positive rules governing relations of parts belonging to different systems - **the study of one foreign legal system** Comparative law is: = **a method**, an approach/a way of looking at law = **a branch of science**, a body of substantive knowledge that teaches us how to approach law *Why were comparative legal systems only introduced in the early 90's of the last age as a new subject in law studies?* the world was really changing, the Berliner wall was no longer there, globalisation with its good parts was starting, the world was shrinking, countries were more connected, the European integration was going on. **Looking beyond the legal system became important.** [Comparative law as a science:] in the history line, comparative law as a scientific subject is young. After World War II there was the great **expansion of the comparative method** and diversification of schools. It ended up **in the early 90s as a compulsory course** in many law schools through Europe. **Legal history** is important to understand **the reasons of the own legal system**. Law is rooted in society, politics, economics and so on. It is strictly connected to other sciences. *Ex. Confucian tradition is connected to the Chinese idea of law.* Comparative law is an historical, sociological, contextual method not a positive law!!! [Comparative law as a method]: neighbouring disciplines are **legal history**, legal sociology, legal philosophy, legal anthropology = **interdisciplinarity** *Which are the cases where comparative law can be considered positive law?* [Premises about the judicial dialogue in the EU]: there are two European systems: - European economic community, 1950 Rome and evolved with treatises, today **European Union**, European court of justice in Luxembourg, 27 member states, born with economic interests. The main source of EU law are treatises, the treaty about the EU and the treaty about the functioning of the EU have constitutional value. - **The council of Europe,** European court for human rights in Strasbourg, 48 member states (27 of it from the European union), born after World War II for the main task of protection of fundamental rights, main legal instrument is the European convention of the human rights CEDU. On some instances they connect: the major connection is that the 27 states of EU are part of the council of Europe. Anyway, they are **two different sovereign entities**. In these cases, **the comparative method turns out to be positive law**, there are these two different examples: 1. **statute of the international court of justice, article 38 paragraph 1** 2. **treaty of the EU and the treaty on the functioning of the EU** - **Treaty on the European union**, it establishes [the fundamental principles] governing the EU. **Article 6 paragraph 3\ **[about the fundamental rights]: they are the general principles as guaranteed by the European Convention for the protection of human rights and fundamental freedoms, a chart from the European council. But there are also fundamental rights that [result from the constitutional traditions common to the member states] -\> the fundamental rights are resulting from the comparative law method; the judges must look if the fundamental rights have common features with the constitutional traditions of the member states!!! - **Treaty on the functioning of the European Union**, it establishes more [detailed rules on the functioning] of the European Union **Article 340 paragraph 1 & 2** [about the non-contractual liability]: as continental lawyers, in common law it is known as court, *ex. car accident, the responsibility does not come from a contract (torts).* It is the correspondent of contractual liability where the sense comes out of a contract. The Union shall in accordance with the general principles common to the laws of the member states**,** make good any damage caused by its institutions or by its servants in the performance of their duties. The judges use the [comparative law method], looking at the non-contractual liability rules of the 27 member states, to resolve the case trough, the principles. **In conclusion**: the comparative law method can be used to solve practical cases! *What will we compare?* 1. Macro comparison: legal systems 2. Micro comparison: legal rules or institutions **A legal system** is an operating set of [legal institutions, procedures and rules] operating in a given territory or for a given group of persons. Goals and methods {#goals-and-methods.Style2} ----------------- *Which are the goals and methods? s*ome important ideas came out, the main were written down, they are the Trento thesis contained in the Trento manifesto of comparative law (1987). 1. **Be knowledge and understanding:** c*omparative law understood as a science necessarily aims at the better understanding of legal data -\>* it is a scientific method, *further tasks such as the improvement of law or interpretation are worthy of the greatest consideration but nevertheless are only secondary ends of the comparative research -\>* the end of the theoretical thinking can be practical, better understanding and improving law**,** opening my mind! 2. **Providing a rich range of model solutions:** the legislator is a theoretical entity who produces rules, in our tradition it is the parliament. The comparative method can help to find good usable solutions *ex. family law, in the mid-70s throughout Europe the feminism movement pushed parliaments to adopt new family laws, for ex. relations between husband and wife. To take ideas, the Italian parliament used to compare the laws of the French law. The Italian parliament used the comparative law method.* -\>\> see the legal transplants!!! 3. **A tool of interpretation of national rules:** there are two examples: - **Swiss civil code 1912**, it can be considered the last code of the great era of codification in Europe, that started with the French civil code 1804. **Art. 1**\ the judge must apply at first the law, secondly [the custom], thirdly [the rule that it would make as a legislator]. The court shall follow established [doctrine and case law]. He must use the comparative law method to resolve Swiss cases. **Custom**: no written rules, followed by society\ **Doctrine**: scholarship, what professors say, law review articles and books\ **Case law**: decisions by the judges also called judicial law or jurisprudence - **Constitution of the republic of south Africa 1996,** it is very young constitution after a story of apartheid and segregation. **Section 39** is an example of how the comparative method can be used in interpretating national law. [The bill of rights] is the chart of fundamental rights and freedom of South Africa. *When interpreting the Bill of Rights, a court, tribunal or forum--- (a) must promote [the values that underlie an open and democratic society] based on human dignity, equality and freedom; (b) must consider [international law]; and (c) may consider **foreign law.*** **\ -\> for the first time in a democratic constitution, the judge is not forced to consider foreign law,** but it is a possibility of looking what other legal system respond to ethical questions**. In this case the judge uses the comparative law method to understand foreign cases.** -\>\> See the judicial dialogue!!! 4. **Communication:** problems related to translations and different languages *ex. Europe, every document must be translated in every language of the EU,* this is a very difficult task because each system has its own language, tradition. Often there is no legal correspondence in languages, and in order to correctively translate it is necessary to know the systems = **multilingualism in the European context**, even though continental legal English is becoming the legal language in the western world, a lingua franca. 5. **The unification of law:** generally, there are [international and regional organisations] that promote the unification of law, especially for some topics. Some of them are important for the western world and they use the comparative method: [these are not enforceable rules!] **UNIDROIT** = institute for the unification of [private law], general principles of contract law, Rome, **Hague Conference on private international law, UNCITRAL** = UN commission on international trade law. Legal transplants {#legal-transplants.Style2} ----------------- = the moving of a rule or a system of law from one country to the other, framed by the US scholar in 1974 Alan Watson. A good comparative lawyer knows that rules are rooted in society, in history, applied by judges with different background. He must be aware that **a rule cannot be easily transplanted in other countries**.\ *Ex. Civil law and common law, to understand similarities and differences we must study the history.* Other labels: [legal borrowings, import/export]. Reasons of this: [imposition and prestige] but possible [rejection].\ *Positive ex: The first Italian civil code was a translation of the French code, this worked because the rules were general and adaptable, and the society had similar needs. It was easily transplanted.*\ *Negative ex*: **judicial review of legislation**, this is a revolutionary idea that was born in the US in 1803. It means that judges can check the constitutional validity of ordinary statues. This idea was exported in other countries, in some countries it worked for *ex. Latin America, Europe* and some countries *it did not work for ex. in Japan.* Judicial dialogue {#judicial-dialogue.Style2} ----------------- = the way in which comparative lawyers refer to the comparative method to interpretate national law. **The comparative method is becoming today a new way of interpreting domestic law.** In particular in the field of fundamental rights. In fact, national courts have to solve difficult problems and look to the solution of other courts. [Not every legal system has the same attitude to comparative law!] 1. **Countries where judicial dialogue is usual** = cosmopolitan attitude *ex. Canada and South Africa*. Why? The history explains.\ Canada has a bilingual and pluralistic society used to different answers to hard questions, forward former colony. It used to look for English and French solutions. Democracy reached south Africa in young times. It was almost natural to look at constitutional courts that have an old tradition. 2. **Countries where the comparative method is often adopted** *ex. England, Germany* 3. **Countries where courts usually reject comparative method and trans judicial dialogue, but some exceptions can be registered** *ex. France, Italy\ *Italy has three courts: constitutional court, court of cassation, consiglio di stato (council of state, administrative court). *Constitutional question: is an ordinary law in conflict with the constitution?* The court of cassation does not very often use the comparative method. *Ex. Englaro case:* issue about end of life in vegetative state, no law in Italy about, the court of cassation used the comparative method. The constitutional court is changing, looking at decision of other European constitutional courts. **Types of judicial dialogue:** 1. **Horizontal dialogue**: between courts of the same level belonging to different legal system or a national court looking to a supranational court\ *ex. Strasbourg court -\> no hierarchical relationship, because two different courts\ *[goal]: better interpretate the own system 2. **Vertical dialogue**: between courts in one system situated on different levels\ the dialogue it is based on a more [collaborative relation]\ *ex. Court of justice of the EU in Luxemburg, TUE and TFUE establish a system that when a national court has a problem with interpretation of the EU law, the court must refer to the EU court.* **Examples of judicial dialogue** 1. **From Canada, Supreme Court, United States vs Burns, 2001**\ -\> common law court, because Canada belongs to the common law world 2. **From England, House of Lords, White vs Jones, 1995**\ -\> contractual liability case, one of the lords (judge) writes an opinion about what the comparative method is\ -\> the new name of it: UK supreme court, common law system 3. **From Italy, supreme court of Cassation, 2007, n. 21748 (Englaro case)**\ -\> civil law system, continental Europe [Remember]: In **the common law system**, the name of the decision is the name of the parties and the date of the case. In **the civil law system**, the name of the decision is the name of the court, number and dates. This shows a lot about the system. England is the historical roots of common law. **The US** may be considered exceptional: the US is a federal system that has many courts, at the beginning the US were 13 English colonies in the east coast with a common law system. Today the 50 member states have their own institutions and courts: 50 state courts + 1 federal system composed by [1 federal court of first instance, 1 federal court of appeal and 1 US supreme court]. **= 51 judicial systems**\ The relationship between US and England were very tight at the beginning. Especially federal courts and the US supreme court used the comparative method to look at English decisions or other common law decisions as Canada and Australia and to continental Europe. Historically and traditionally courts of the US were relatively open. *Ex. Traditionally favourable attitude, Muller vs Oregon, US supreme court, 1908 and Greenspan vs Slate, State court, 1953*\ In the 90s the political situation changed, and the comparative method started to be criticized, reflecting and ideological divide between more liberal scholar and judges and more conservative ones. There are three decisions that were recently criticized since the early 2000s: 1. **Roper vs Simmons**, 2005, about capital punishment/death penalty\ -\>\> okay, but not for mentally retarded people 2. **Aktins vs Viriginia**, 2002, about capital punishment\ -\>\> okay, but not for minor of age 3. **Lawrence vs Texas**, 2003, about gay rights [Critic]: use of comparative method deciding these national cases **US House of Representative, Resolution 568, 17 March 2004\ **Because of the huge debate on the comparative method several resolutions have been introduced but none of them passed and came up for a full board. The resolutions adopted by conservative politicians had a main content: they do not want to use the comparative method, at the end there is a big closure: This is the sense of the House of Representatives that **judicial determinations regarding the meaning of the laws of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements are incorporated into the legislative history of laws** passed by the elected legislative branches of the United States or otherwise inform an understanding of the original meaning of the laws of the United States. This is a very conservative way to look at the Constitution and at the comparative method, from this perspective there is no space for comparative methods. This solution has been adopted but didn't come up for a full vote. Therefore, there is no state that forbids this. This resolution has a political meaning. Legal families {#legal-families.Style2} -------------- **The legal family's approach**: useful to enable comparatists to take the first steps in exploring and analysing foreign legal systems, but classifications are a mean and not an aim! [Remember]: any classification has a relative character (especially history, subject matter) and is imperfect. Legal systems are often complex and layered (Schlesinger) or have different legal formants (Sacco). Legal families are also known as legal traditions. *Ex. English system is one of the few systems with no written constitution, whereas the US has the first written rigid constitution of the world like every civil law country. Both countries are in the same legal system family!* **Definition of great American comparative lawyers J.H. Merryman**: a deeply rooted, historically conditioned attitudes about: [the nature of law, the role of law in society and the polity, the proper organisation and operation of a legal system and about the way law is or should be made, applied, studied, perfected and taught].\ **= group of systems that share these characteristics** **Attempts of classification:** comparative law scholars have proposed various classifications, based on different considerations. In the 1950s a group of scholars tried to classify the legal systems of the world. **Arminjon, Nolde and Wolff** distinguished 7 legal families based on the intrinsic content of legal systems independent from external factors *ex. geography, ethnicity*: 1. **French** group: its autonomy derives from the [Code Napoleon] 2. **German** group: [Austrian ABGB, German BGB, Swiss ZGB] 3. **Scandinavian** group 4. **English** group and derived systems: [prominence of case law] 5. **Hindu** group 6. **Islamic** group 7. **Russian** (soviet) group **This classification was revised by Rene David**, the father of the modern comparative method. He updated in 1967 the classification based on ideology and legal technique: 1. **Romanistic** **German** 2. **Common** law 3. **Socialist** family 4. **Other systems**: these have [philosophical and religious roots in law]\ (Islamic, Hindu, Jewish, African law, far eastern) [Critic]: no more socialist family, Eurocentric **Zweigert and Koetz** suggested another classification based on something they called legal style. Legal style is the result of five elements: [historical development, characteristic mode of thought, same distinctive institutions, the types of legal sources, ideology]. The new classification: 1. **Romanistic** 2. **Germanic** 3. **Nordic** 4. **Common** law 5. **Socialist** 6. **Far eastern** 7. **Islamic** 8. **Hindu** [Critic]: old and too fragmented classification There was need for a new classification at the end of the 1990s. A good classification which can be used today was suggested in 1997 by **Ugo Mattei**. Law, politics and traditions are the three main tools of social organisation. Therefore, there are three big groups, patterns of law based on taxonomy and change in the world's legal systems: 1. Systems where the main way to solve social conflict is trough **professional law**\ *ex. Western legal tradition* 2. Systems where the main way to solve social conflicts is trough **political law**\ *ex. China or Cuba systems* 3. Systems where the main way to solve social conflicts is through **traditional law**\ *ex. Hindu system or the Islamic systems* ! it does not mean that in one system the other tools are not used, but not mainly. There are also **hybrid or mixed legal systems** = legal systems with more than one legal tradition coexisting within one jurisdiction. Professional law, political law and traditional law in *ex. Israel, Scotland, Quebec region in Canada (official language French, civil code), Puerto Rico, the Philippines, South Africa (peculiar recent history, civil law and common law features), Louisiana (last territory sold by France to the US, features of civil law like civil code, only state in the US).* These mixtures can be explained by history. Cases and materials {#cases-and-materials.Style2} ------------------- [Book: ] 1. **House of Lords, White vs Jones** (1995) 2. **U.S. supreme court, Muller vs state of Oregon** (1908) 3. ~~**Supreme court of New Jersey, Greenspan vs Slate** (1953)~~ 4. **U.S. supreme court, Lawrence vs Texas** (2003) [Class: judicial dialogue ] 1. **~~From Canada, Supreme Court, United States vs Burns, 2001~~** 2. **From England, House of Lords, White vs Jones, 1995** 3. **~~From Italy, supreme court of Cassation, 2007, n. 21748 (Englaro case)~~** **White vs Jones** [First premise]: in the United Kingdom, until a very important reform that happened in 2005, the court at the apex of the judicial hierarchy was the Appellate Committee of the House of Lord. This is also one of the two houses of Parliament, which is made of two different houses: the House of Lords and the House of Common. However, it was very strange that **the Supreme Court was a part of the Parliament,** because in civil law there is a very rigid notion of the separation of powers. This section was separate anyway. A constitutional reform in 2005, separated the Appellate Committee of the House of Lords from the Parliament and it also changed name to the UK Supreme Court. [Second premise]: in Italy, Spain, France, Germany, Sweden and most of the countries of the EU and not only, when referring to the decision of a court there is a number and a date ex. [Corte di Cassazione, sentenza 245/1994], decisions do not carry the name of the parties. The decision also comes from the court as a unique document with no distinction between the single judges, it is the court itself that decides. Whereas, in **common law countries that is completely different**, because there is only one Supreme Court that decides everything, it is also different the way they decide and how they make the reference to the decision. Firstly, the decision is named after the parties: White v. Jones. In the decision of a Supreme Court of a common law country there are many opinions, because the decision is not the decision of the court itself, but it is made of the sum of the single opinion of every judge. Traditionally the panel of the UK Supreme Court was made of 5 judges and on the decision was written the opinion of all 5 judges. It is hard to extract from the decision the core, the ratio decidendi. Nowadays this has changed, now it is more like what happens in the US or Canadian Supreme Court. In the decision there are: **the majority opinion** written by the majority of the judges, where they agree completely and **separate opinions**, other opinions, of two different kinds:\ - **dissenting opinion**: written by who does not agree both in the results and the reasoning\ - **concurring opinion**: written by who agrees with the final outcome, but not with the reasoning. [Example]: **case of succession**. There was a rich old man, who in his will left nothing to his two daughters. In common law countries each person can decide in a completely free way. In continental law countries the notary is entitled to receive the will, whereas, in other countries there is the solicitor, who is a kind of lawyer. The solicitor drafted the will leaving nothing to the daughters, but the old man, the last day before dying, called the solicitor because he had changed his mind and wanted to leave something to his daughters. **However, Mr. White died, and the solicitor did not change the will.** Fortunately, **the daughters had a letter from the father to the solicitor asking him** to change the will. This was a very difficult case, because there were precedents. In common law countries previous decisions have almost the same value as law and the **previous decisions established that the daughters had no rights to receive the money**. The case reached the House of Lords. The most important opinion was the one of **Lord Goff of Chievely**, because it solves the problem by looking explicitly at what **other countries had decided in similar cases, by applying the comparative method**. He looked at the experience in other countries (the title of a paragraph) like Germany, New Zealand, Canada, Australia, US, France, etc. where the trend is going towards the **liability of the solicitor**. In his decision he looks at common law countries but then he looks into detail of **the German solution** (section: "the German experience"). Before describing the German solution, to see if this could be the best solution, **he warns about the importance and the risks of the comparative method:** by looking outside one can realize what is typical, right or wrong of their system and so by comparison illuminate the understanding of our own law. **This is one of the best examples of how the comparative method is used and how it must be handled with care.** **Muller vs state of Oregon** **Muller was the owner of a laundry shop, making women work more than 10 hours per day.** Women were the weak party in the contract. In this case it was **asked about the constitutionality of a statute of the state of Oregon**: this statute limited the working hours of women, prohibiting in fact Mullers contract. The case went to court, and the court appealed the law because it considered the law unconstitutional. **Mr. Louis Brandeis** was the lawyer defending the state of Oregon. Years later he was nominated judge at the US Supreme court. Mr. Brandeis wrote a brief to demonstrate the need for a particular law limiting the working hours for women, he included the statues of foreign countries *ex. many states of the US, UK, Austria, Switzerland, Italy and Germany*, which restricted the working hours for women. To improve the health of women, it could be very dangerous to work more than 10 hours a day for women! **Justice Breyer**, writing the majority opinion, remembered Brandeis\' brief. There was a main reason to limit the hours: **women\'s physical structure**. The court reached its solution also thanks to the brief and by mentioning the statues of foreign countries. The comparative method was used to solve this case. **In 1908 references to foreign statues were more common than references to case law.** **Lawrence vs Texas** The Supreme Court addresses the validity of a statute of Texas. In this case Lawrence was the plaintiff and **Texas** the defendant, **making it a crime for two people of the same sex to engage in sexual activity**. Two men were fined 200\$ because Texas prohibited deviant sexual activity. **The Supreme Court had to decide the constitutionality of this law**, because it prohibited any kind of sexual conduct, even in their private homes. The US Supreme court invalidated this law. Most member states had statutes that prohibited sexual intercourse between people of the same sex until 2003. **Justice Kennedy wrote the majority opinion**, and his opinion is important because he reaffirmed the constitutional protection for privacy. **Private consensual homosexual sex activity must have a right to privacy, that had been affirmed in previous judgments.** This sentence is important because of two reasons: - in the US Supreme Court's opinion there is a citation of the European court of human rights (ECHR) [= comparative method] - the use of foreign case law is discussed in a dissenting opinion **The majority opinion is based on the use of the comparative method**, when the court refers to the ECHR: almost five years the ECHR considered a case with parallels to today's case: Bowers vs Hord. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The **laws of Northern Ireland** forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights (Dudgeon v. United Kingdom) authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization. **Because the US is not part of the ECHR it is a horizontal judicial dialogue. The sodomy law of the state Texas was a violation of the US constitution.** CIVIL LAW {#civil-law.Style1} ========= The western legal tradition {#the-western-legal-tradition.Style2} --------------------------- *In the western world globalisation is even deeper and closer: societies, economies etc. are similar. Even though there are two different legal system: civil law and common law. Why? History explains.* **The end of the western roman empire** (AD 476): the western Roman empire fragmented into several roman barbarian reigns including Ireland and UK. The main features of western Europe in the early Middle Ages were: - **no strong centralised state/power** - **forms of local government and self-sufficiency** - no unity but **legal pluralism** The main custodian of the roman legal tradition was the **church**, that kept the roman legal tradition. At this point in history roman law was mixed with barbarian law (customs, traditions and irrational procedure), there were several compilations of roman barbarian law, in practice vulgar law. **XI-XII century**: England and continental Europe took different paths. There are two symbolic dates: - [1066 for common law battle of Hastings:] William known as the Conqueror defeats the Anglo-Saxons and brings on the other side of the channel the Norman kings. The military conquest changed the legal system. [ ] - [1088 for civil law founding of the university of Bologna ] **Meanings of the term civil law**: also known as Romanist/Romano Germanic legal family. It is one unique tradition starting from the beginning of the millennium. - As opposed to other branches of substantive law *ex. criminal, military* - As opposed to common law: civil law comes from the [corpus iuris civilis]\ its roots are therefore in roman law, rediscovered and restudied in Bologna at the beginning of the new millennium! **Particularism:** is the term to indicate the feudal structure of society in Europe in the Middle Ages. It was an an impediment to the formation of a centrifugal force at the political level at the beginning of the new millennium. In Europe there was a **lack of a strong central power** and a lack of **distinction between public functions and private property**. The situation in England was different: there was no full feudalization of public functions and there was a unitary structure of public power in London. This was the great new strategy of the Norman kings. The beginning of the differences between civil law and common law were political, administrative and legal. **The rediscovery of roman law**: In the Bologna university roman law was rediscovered again in the 11^th^ -- 12^th^ century. Society and economy were developing after the anno mille = economic and social development, order, regulation and rules were needed to govern the new complexity that was becoming reality on the European continent. Jurists were lost figures in the centuries before, but they became again important private figures through the rediscovery of roman law. *Which roman law was rediscovered?* **The corpus iuris civilis** (529 -- 534) was enacted from Justinian I, eastern roman emperor (527 -- 565 AD). It is made of 4 different parts: [codex, digesta, institutions and novellae]. This was the **first step for the development to civil law** or roman legal family. The main features of civil law tradition are: - **Break with the past**: the corpus iuris civilis is made of rules written in a book, this is important also later with the code napoleon. - **Rules are interpreted by legal scholars**: jurists are the interpreter of an authoritative text. - **Doctrine is a main source of law**. The development of civil law meant the beginning of a specific style of law in the European continent.\ **Common law has the opposite features**: - no break with the past -\> there is no authoritative unique text - not the jurist but the judge is the interpreter of the law (strong royal courts and strong administration of justice in London and decisions were law) - case law is the main source of law [These differences were there from the very beginning! ] *Why was roman law rediscovered?* Roman law: 1. could provide **the legal techniques** that could promote and strengthen commercial life which was developing again. 2. it was **a universal model**, it could help overcoming the plurality of local legal systems, because roman law was written in Latin, the lingua franca of the European continent and from the elite. 3. it was the **expression of an authoritarian concept of law,** strictly tight to the imperial ideology = idea of strong legal empire. 4. It had also a **great** **accessibility**, because it was written in book form and in Latin 5. it had **prestige**, a product of Justinian, a Holy roman emperor and a relic of Rome in its hey-day. *Where was roman law rediscovered?* **The bologna university** was founded as the first university in **1088** by **Irnerius** as a school where students could learn law. The name university comes from the **expression universitas** = a group of students with the same scope of learning law in the corpus iuris civilis. The university was **dominated by approximately 2000 students**, hiring the best professors and coming from all over Europe. The common language was **Latin**. The bologna model was **exported all over Europe** through the knowledge of the students. Other great universities were established by these students and the corpus iuris civilis was studied. Scholars of the Bologna university: 1. founder **Irnerius** (1055-1130) 2. **Accursius** (1182-1263): he took notes explaining page after page the literal meaning of the corpus iuris civilis. The first school of jurists were the **glossators**, they gave a strong authoritative idea of roman law. After the glossa ordinaria (1220-1240, approximately 96 000 glosses), others came about developing and bringing over the meaning and importance of the corpus iuris civilis. 3. the **commentators** or post glossators, since the 14^th^ century. The main difference: glossators took strictly notes of the literal meaning and understanding of the text, commentators were more interested in application of roman law, they were less interested in the text and more in practical usage. 4. **the legal humanists** in the 16^th^ century especially in France. They advanced a new way of interpreting at corpus iuris civilis. They had a historical and philological approach to roman law, rationalising and systematizing attitude. The legal humanist school had a great success throughout Europe, their idea was exported to Netherlands and trough colonialism in South Africa. Colonialism has brought the expansion of legal notions and sometimes entire codifications. **-\> our tradition has a certain approach to law, coming from the study in universities** *Which are the components of the civil law tradition?\ ***Civil law tradition = roman law + canon law + merchant law\ **These roots and tradition make the way we think about law unique. The consequence of French revolution was codification. It is a break with the past and has a great impact. Civil law countries are codified systems. **Canon law**: the importance of the catholic church among the fragmentation and pluralism in Europe is evident, it was the only, strong and central religious authority. The **sources** of canon law were [the bible, decisions of church councils, the opinions of church fathers, decretals of popes, fragments of roman law]. These fragmented sources came up in the 12^th^ century in a very short time, and the sources were collected in a great compilation made by Gratian between 1139 and 1142. This great compilation was the **decretum magistri gratiani or Concordantia Discordantium Canonum**, and the main source of canon law until 1917. After that the new codex was enacted. Canon law contributed to the **development of ius commune** in continental Europe = it is a Latin expression for a body of common law (not a formal, unified code) used in Europe by legal scholars and courts for various jurisdictions. It provided a basis for legal reasoning and helped shape the development of modern European legal systems. The key elements of ius commune include roman law, canon law and customary law. In particular the contribution was about: - Canon law **favoured the reception of roman law**, because part of roman law was made of canon law. Roman law was received trough scholars in universities and trough canon law. - Canon law **developed subjective and equitable elements**: those concepts that in canon law were drawn to roman law, were **moral precepts** in canon law *ex. notion of good faith in private law almost everywhere in Europe or nude pact, innocent mistake*. - Canon law **contributed to the development of procedural law:** almost all over the European continent the procedure trough which disputes were addressed and eventually solved, is primarily *written*, *secret* (no public) and *inquisitorial* (no holy inquisition, the procedure is conducted by a professional person) *ex. Italy, judge has the main role in conducting the procedure*. The model is generally called **Romano-canonical model or inquisitorial model**. This is a main difference to common law model: the procedural model in London is an adversarial one: *oral, necessarily public, jury with lay people* since the beginning. **Merchant law**: a third component of the formative period of the civil law tradition in addition to roman and canon law is **lex mercatoria (XI -- XIV)**. After the new millennium, societies started to move again, towns were raised and a great economic development started. In this age there was a rebirth of markets, fairs and banks. It came to an expansion of maritime and overland trade. **To manage the fair development, rules were needed**. Law was developed by the merchants. Merchants were in associations, guiles. Law was administered by merchants' courts, tribunals. Lex mercatoria had no boundaries, in fact it was transcended political, and merchants' courts are present **also in England!** This was a **first idea of globalisation**. *-\>\> informality, fairness\ * The reception of Roman law {#the-reception-of-roman-law.Style2} -------------------------- **Ius commune**: it is a mixture of Roman, Canon law and customs, that is typical of the European continent. It is applied by the courts to decide cases. *How did it come about?* Those trained in universities became judges and in 1215 the fourth Lateran council took place, clerics may not take part in judicial tests and ordeals, which means that clerics started to discover a new way of solving disputes. The moment and the extent of this reception varies across Continental Europe, also as a consequence of the situation of the other sources of law: the penetration of Roman law where local costumes were strong was not as strong as parts with weak local costumes. There are two steps into the process of rediscovery of Roman law: 1. [revival of roman law in universities] 2. [reception of roman law], roman law becomes positive law and is used by judges to decide cases. **The sources of law in continental Europe in the 13^th^ and 14^th^ centuries favoured the reception of roman law.** Customary law was local and uncertain, it survived only if and insofar as customs were collected in written compilations *ex. Sachsenspiegel 1220-1235*. But to write them down, legal concepts were drawn from Roman law and once written, customs lost part of their original nature! **The lack of a strong central power meant that legislation played a modest role.** [Legislation did not deal with private law] (because it was regulated by customary and roman law) but eventually with administrative law, administration of justice (procedure) and criminal law. [Case law had a secondary role] because the multiplicity of courts was weak, unable to resist the reception of roman law. In England the situation was opposite, because there was a strong central power and decisions of English courts were collected in books, transmitted to others. **France could be seen as a laboratory**, because it is the country where certain events happened before than in other European territories. France is divided into two territories: **pays de droit coutumier**, in the north, mostly areas governed by local customs of Germanic origin, but roman law was not rejected altogether *ex. contracts* and **pays de droit ecrit**, in the south, where customs still carried some traces of the barbarised roman law. **Roman law was accepted non ratione imperii sed imperio rationis** (not because of the power of the empire, but because of the power of reason), this statement refers to the authority of Roman law and its widespread acceptance. It implies that Roman law wasn\'t merely imposed through the force or authority of the Roman Empire, but instead, it was accepted because of its inherent rationality, fairness, and reason. Roman law was based on principles of justice, logic, and equity, and over time, it gained recognition. **Germany** at the end of the Hohenstaufen dynasty in the mid-13^th^ century was an imperial power weakened. It had [no central administration, no central court, no strong national legal profession and no unitary legal science]. It had no resistance to the reception of roman law. The reception of roman law was late, the contact with Roman law was not before the middle of the 15^th^ century. = 1495 Reichskammergericht, first central court applying roman law\ But it was very strong and happened on a wide scale! *How were legal traditions and texts transmitted and incorporated into the German legal system during the reception of Roman law?*\ A white background with black text Description automatically generated\ **Italy** was fragmented but roman tradition was so strong that it cannot be said that there was a reception.\ **Spain** had a strong reception but there were tensions with local customs in compilations (*fueros*). The premises of codification {#the-premises-of-codification.Style2} ---------------------------- However [roman law never became the only law], it mainly provided: - **the legal categories** - **the methods of legal reasoning**, same way of addressing legal problems - **the canons of interpretation** **Legal particularism:** in most of the territories in the European continent there still were many local customs (codified or not), in some regions there were imperial orders. The situation was very complicated (legal particularism, pluralism is neutral, particularism is negative), there was a multiplicity of overlapping laws like [local customs, legislation (by princes, lords, towns), case law, ius commune, merchant law]. There was also a multiplicity of competing jurisdictions, there were [ecclesiastical courts (canon law), feudal courts (especially questions on land), traditional community courts (local customary law), mercantile courts and royal courts. ] Law was even applied according to **personal qualities**: the law is different for the different social classes *ex. France Nobility, Clergy, Third Estate,* and **the subject matter**: the law is different for different subject matters *ex. marriage (Canon law), matrimonial regime (local customs), effects of contracts (Roman law), evidence (royal decrees).* Pluralism got at its worst as a result there was great confusion, inconsistency of rules, arbitrariness and uncertainty. All of this was for the European continent, because in England it was completely different, there was no overlapping jurisdiction, there was a strong central authority and strong central courts. However, England had its crises, but different, that did not bring to extreme situations like the French revolution. **Crisis of the medieval order from the 15^th^ century:** - crisis of the [traditional scientific methods], legal science is no more capable of adapting the legal system to the changing circumstances. - crisis of the [political and social order], which brought a new trend: a new form of absolute and centralized government. People wanted a more simplified and unified system of rules. There was a simplification of the source of law by: control on the administration of justice and increasing the role of legislation. This was the situation in the decades before the French revolution. **France was the first modern state in continental Europe.** *Why?* a series of factors tended towards the creation of a unified French law. - [customary law]: was codified in **compilations,** it was put in a written form - [case law]: there were **parlements** (French word for courts, before the French revolution no legislative bodies) with strong written decisions - [legal practitioners and legal scholars] (humanists), they were the last big school of legal thought. - [kind of legislation]: **ordonnances**, they were coming from the king and governing specific sectors of law. **Coutumes:** are local customs. From the 13^th^ -14^th^ century they were put in a written form. An important ordonnance was the [Ordonnance de Montils-lès-Tours]: in 1454, Charles VII empowered it and established that all customs should be written down or drafted anew with the help and cooperation of a royal commission of experts. If these customs are put in a written form, they become more stable and certain. This reception was an obstacle for the deep reception of Roman law. An important compilation is the [Coutumes de Paris] (1510), because it was the basis for influential decisions by the Parlement de Paris, when the Parlements had to decide cases, they made references to it as it was put down in a codified way. This compilation was commented on by a very important author named **Charles Dumoulin** (1500-1566), who was the first jurist to state the view that there was such a thing as a common law of France, which was something similar to common law, common to the whole country. The Coutumes de Paris had harmonizing and unifying functions in France. **Parlements**: sovereign courts. They were not bound by Roman law or customs. Their judgements were collected in digests and their judges later acquired the right to sell and inherit their positions = noblesse de robe. **Arrest de reglement**: a solemn declaration of general principles binding on the lower courts. -\>\> aspects of the ancient regime **Ordonances**: are the expression of the legislative power, there was a strengthening in the 16^th^ and 17th century. They regulated mainly very specific branches of law, especially on procedure and administration of justice: the King organized procedural law. [Code Luis (1667)] was a very important piece of legislation coming from King Louis about the procedural rules when it comes to solving criminal and civil disputes. Kings were not interested in regulating private relations (private law), because their aim was to keep peace in the country. However, they were interested only in very particular areas of private law, to reorganize pre-existing rules (D'Aguessau), these were: [donations] (1731), [wills] (1735), [substitutions] (1747). Kings enacted rules in the 18^th^ century regulating these matters. **To sum up a series of factors contributed to the unification of French law but before this idea could become reality, something was still missing: the French revolution!** The French revolution in 1789 (symbolically the storm of the bastille on 4^th^ July) wanted to abolish the ancient regime and took to the unification of the subject of law! The French revolution brought to the [declaration des droit de l'homme et du citoyen in 1789]! [Remember]: almost contemporarily another revolution was going on, on the other side of the world the first 13 colonies were fighting against England. The American revolution brought to the declaration of independence of 1776! French codification {#french-codification.Style2} ------------------- **= result of a philosophical, political, social movement** The French civil code enacted in 1804 is the first modern codification in the western world. It gives one of the imprinting of the civil law tradition. The code civil represents a break with the past. It is different from the codifications in the 18^th^ century. *Why is the code civil the first modern code?* - **simplification**: one feature before the revolution was pluralism of sources and subjects of law. The code civil simplifies and gives more certainty. The idea of law is much simpler: [from droit with a plural meaning to loi], a much simpler idea of law. This shift is not only about language, but also of mentality. - **state monopoly** (territorial principle): the law is the only one coming from the state. Law became a territorial one: law as an authoritative phenomenon and state monopoly. When we think about **codification**, we think about a **source of law with some features**: *complete (***completeness***), self-sufficient (***unity***), exclusive (***exclusivity***).* Common law never entered this phase of codification. These features should be common in every code: *civil, penal, commercial, civil procedure, criminal procedure*. **The roots of the code civil**: the French revolution was possible and had the result it had, because there was a whole historical, philosophical, legal movement that pushed. There was an economic class, the bourgeoise, interested in a movement. The code is the result of the revolution and of the new patterns of thought that developed during the 18^th^ century. The code is also the result of developments of French law in the previous centuries. **= the enlightenment, the French revolution entrenched a new way of conceiving humanity, society, and the economy** **Intellectual basis of the revolution:** the philosophical bricks at the basis of the revolution and the code are:\ 1. **Secular natural law** (no religious one)\ 2. **Separation of powers** (Montesquieu) the general will is the parliament\ 3. **Rationalism**: law must be rational\ 4. **Liberalism**: freedom of economy, the bourgeoise must be free to make contracts\ 5. **Statualism**: the force of the French state\ 6. **Nationalism**: code of the French people\ There was no room for law different from the one coming from the parliament. No importance of case law! It was a kind of revolt of parlaments as a product of the ancient regime! The law in the code is a systematic, easy way to understand relations between people. The intellectual basis prepares codification by discrediting case law as a source of law and systematizing the law. **The story and results of the US** were the US constitution, which has a different way of thinking about separation of powers. *The French revolution happened 1789, but the code civil was enacted by Napoleon in 1804. What happened between 1789 and 1799?* **The droit intermediaire**: two principles came out as the product of the revolution: 1. the importance of the individual 2. the importance of a central and national state Society is based on these two pillars. One of the main features of the ancient regime was pluralism and feudal, ecclesiastic and family ties. The revolution aimed to get rid of them. One of the founding documents of thinking about fundamental rights came up: the **declaration de droits de homme.** [No longer does man have to deal with the intermediary status groups of the ancient regime, but only with the state itself]! 1. **Liberty**: consists in the freedom of doing everything which injures no one else, hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law. -\> limit: force of the law, coming from the general will of parliament 2. **Equality**: men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good. **In the US constitution there is no principle of equality**. Jefferson, who wrote most of the constitution, was himself owner of slaves. The principle was difficult to dispel out. The principle of equality came out in the 14^th^ amendment right after civil war between northern and southern states. 3. **Fraternity** During the droit intermediaire, there was some **abolition**: of feudal regime of land, provinces (great centralisation), of the old tax system and court system. The French revolution was also against the judges of the ancient regime. There was also: - **nationalisation of the ecclesiastical property**, so the land was free again, a secular state was established! - **reform of succession law:** it governs who takes property in the family when the head of the family dies. The rule of equality among the heirs was established. Family ties broke! - **reform of family law**: it came to the abolition of patria potestas, marriage was no longer a sacrament but a contract, divorce was introduced, equal treatment of legitimate and illegitimate children. **The birth of the code civil:** during the droit intermediaire there were the bricks, but only with some political power the code civil was made. 3 attempts were made during the droit intermediaire: 1793,1794,1796. In 1799 Napoleon reaches power: **coup d'etat**. The code civil came out with the political force, he nominated a commission of four members, after four months there was a draft and 1800 the code civil was enacted. In 1803 -- 1804 there was a passage of the bills. **Napoleons contribution**: - **political will of Napoleon** to enact the code, first draft in 4 months and opposition by the Tribunat. Napoleon withdraws the bill and introduces it again in 1802 after purging the body of his opponents. - **substantive contents**: especially for family law (Napoleon was interested to get divorce) - **language**: Latin was no longer the lingua franca by the bourgeoise and the cultivated men. Napoleon knew that he might new power and battles, but he knew also that the code civil would last longer than himself if it would be good. [Legend about him confined in Saint Helena]: *my real glory is not to have won forty battles: Waterloo will erase the memory of all these victories. What nothing will erase, what will live eternally, is my Civil Code.* The first Italian code civil is just a translation of the French one. Today in Italy there is a civil code that is part of the French heritage. **The structure of the code:** 1. [Introductory chapter (titre preliminaire)] **\ **is about the position of the judge in the system!\ [art. 4] the judge can't deny a decision: *a judge who refuses to give judgment on the pretext of legislation being silent, obscure or insufficient may be prosecuted for being guilty of a denial of justice*.\ [art. 5] the judge can't decide using general and regulatory provisions. The judge can't make law, only apply it! The judge becomes the mechanical applicator of law made by parliament. His role is separated by other powers of the system. 2. [First book (livre I): of persons] **\ **[art. 8] every Frenchman shall enjoy civil rights. 3. [Second book (livre II): of property and the various modifications of ownership]**\ **[art. 544] property is the right of enjoying and disposing of things in the most absolute manner. 4. [Third book (livre III): of the various ways how, ownership is acquired] **\ **-\> successions, gifts inter vivos, contracts and obligations (including torts), matrimonial regimes **The style of the code:** ideally the code is addressed to the ordinary citizen **= literary style** (apparently clear). It consists of general and concise provisions and has technical inaccuracies [ex. art. 778] *an inheritance may be accepted either with an authentic or private act or by means of an act that clearly shows the intention to accept.* **The adjustment of the code civil to changing social reality:** 1. [by the legislator]: outside the code, especially limits on freedom of contract and in the code reform of family law (1970s), fourth Book on Securities (2005) and reform of the law of contract (2016). 2. [by the courts] especially civil liability. 3. [by the doctrine]: école de l'exégèse (19th century) and école de la libre recherche scientifique. **The circulation of the code civil:** the French civil code has been exported or imported in other countries around the world. It is not the only important codification in Europe. This is the reason why the 19^th^ century has been known as the codification era in Europe. The code civil was imposed by the French empire (ratione auctoritatis) in Belgium, Italy and in the French colonies *ex. South Africa or Louisiana and Quebec*. But the code civil was also used due to the intrinsic values (auctoritate rationis) for its language, flexibility of its expression, legal unity and equality of citizens, centrally organised national state. German codifications {#german-codifications.Style2} -------------------- Spain and France can be considered in the 17^th^ century unite states, the other countries are politically fragmented. There are two leading states after the [peace of Westphalia] 1648: - **Prussia**, 1794: allgemeines Landrecht (ALR) from [Frederick II] (1712-1786) - **Austria**, 1811: Austrian civil code (ABGB) from [Maria Theresa] (1717-1780) -\>\> they are not considered as the first modern codifications of the European continent, because [they are not the product of a political revolution], but of two enlightened sovereigns. They are more compilations, because they have not the features of the French civil code. ### The Prussian civil code: ALR {#the-prussian-civil-code-alr.Style3} **The unsuccess of the ALR:** - not adopted or imitated outside the Prussian borders - remained in force until the enactment of the German BGB - was appreciated by some scholars (for instance Thibaut) for its technical qualities, but others considered it "garbage" (Savigny) - the drafters of the Code civil were familiar with the failure of the ALR -\> Portalis: *a constant realistic concern to avoid the extremes of rationalist ideology* **Differences between ALR and the civil code**: [ALR]: aims to encapsulate the whole legal system, 17.000 paragraphs to regulate every aspect in detail, rooted in the Prussian class structure = **paternalistic** [Code civil]: regulates only private law, general and abstract provisions, product of the revolution = **individualistic** -\>\> common feature is that judges are not allowed to interpret the law ### The Austrian civil code: ABGB {#the-austrian-civil-code-abgb.Style3} **The Austrian codification is more like the French one, but it had not the same success.** *Why? similarities*: it provides for unification of the legal sources, equality of all citizens before the state, it regulates only private law, and it inhales the idea of Statualism and liberalism. *§ 354: Property is a right and consists of the power of free and exclusive disposal of the substance and the profits of a thing.\ *But it is in contrast with the social reality of Austria at that time. There was a mismatch between the Austrian society and the codification. It became a code in harmony with the social and economic reality of Austrian life in the 1870s-1880s. **The structure of the ABGB**: 1. **Introduction**, gaps can be filled by analogical interpretation or with the principles of natural law (§ 7) 2. Part 1, **Law of persons**, legal capacity, marriage, guardianship 3. Part 2, **law of things**, property, succession, contracts, torts 4. Part 3, **common rules**, sureties, limitation etc. It is a short code, gaps can be filled by legislation, especially three Novels = **Teilnovellen** adopted in 1914-1916. About 180 provisions were drafted or repealed, they affected all parts of the code, and they were based on the model of the German BGB. ### The German civil code: BGB {#the-german-civil-code-bgb.Style3} **German codification**: in German speaking areas the situation after 1815, the congress of Vienna, was politically fragmented, that reflect a fragmented legal situation. There were still 39 states in the German speaking area, coming from the dissolution of the Holy Roman Empire. The unifying function is performed by legal science. The German codification is the product of scholars and universities. [In 1814 started a codification debate in universities]: two great scholars talked about the French civil code and about whether to introduce a code. - **Anton Friedrich Justus THIBAUT (1772-1840)** was a [professor of law in Heidelberg]. He was in favour of codification and a supporter following the French model. Means of furthering the process of political unification of Germany. - **Friedrich Carl VON SAVIGNY (1779-1861)** was a [professor of law in Berlin]. He was against codification, a code could not be successful, because it would not reflect the history of the people following it. The law is [not the product of abstract principles of natural law], but, like language, is part of the culture of a people, it would be dangerous. The law needs historical context to be understood, a code would be premature. **Law is the expression of the genius of the people** (*Volksgeist*) in the same manner as language, customs and practices.\ **For a long time, Savigny's theory was followed!** There were two law schools, thinking about the introduction of codification, that represented the debate between Thibaut and Savigny: **Enlightenment:** the legal system is a deliberately planned and purposive creation of an official legislator guided by reason. **Historical school**: law is a historically determined product of civilization, having its roots deep in the spirit of the people and maturing there in long processes. [Legal science not legislation has the task of unifying German law!] The historical school divided in two different branches: - **the Germanist**: medieval German law is the expression of the German Volksgeist. The primary source of a code should be customary law. The main scholar representing this idea was von Gierke. He studied Germanic customs. - **the Romanists**: the spirit of the people is not based on Germanic custom, but expressed by the cultural elite, the professors in universities. For Romanists the true law was to be found from the reception of Roman law. Von Savigny was the main scholar representing this theory. He studied Roman law. **The Pandectist school:** it is part of the **Romanists** thought of the historical school and the school that emerged. The name comes from the corpus iuris civilis. The pandect is a part of this code. Roman law is the basis of a new thinking about law.\ [Aim]: order the legal materials systematically and dogmatically. The main aim was the construction of a **new, strict, scientific methodology**. The task of a jurist is to offer a new structure for these rules. It is not to create legal rules to fill in the gaps of German law, but to offer the instruments of knowledge = **to** **define legal concepts.\ Characteristics of the method:** - **conceptual:** identifying the constituent element of a concept - **dogmatic:** no exceptions - **systematic:** principle of coherence **Law is a sophisticated science!** **Unification of the German empire 1871**: the Pandectist school became important after the political unification. **The legal doctrine and the political unification brought to the drafting of the BGB!** [Steps]: in the mid-19^th^ century there were the first laws unifying German law:\ - 1848: Wechselordnung (on credit instruments)\ - 1861: Deutsches Handelsgesetzbuch (commercial code)\ - 1873: constitutional amendment → lawmaking in private law matters to the emperor.\ - 1874: First commission, among the members: **Bernhard Windscheid** (Pandectist) - 1890: Second commission\ - 1896: promulgation\ **The BGB was enacted on 1^st^ January 1900.** **Ideology and style:** the German code is the last code of the XIX century. It closes a time of codifications, because it is not revolutionary but conservative, it did not recognize any social task to law. But society changed already; the industrial revolution happened, and the condition of women was changing. The code is back looking. It proposes a closed system characterized by completeness (the code pretends to be complete), exclusivity and finality. The safety valve of this system are **the general clauses** (Generalklausen), those expressions must be fulfilled by the judge e*x. public morals (gute Sitten) or good faith (Treu und Glauben).* The code is not addressed to the citizen, but rather to the professional lawyers that need to interpret it. This is a huge difference to the French civil code. **The structure of the BGB**: 1. **general part** (allgemeiner Teil), general clauses and definitions, the concepts were elaborated by the Pandectist 2. **law of obligations**, contracts and torts 3. **property of law**, possession, property, other rights relating to movable property and real estate, and how those rights can be transferred 4. **family law**, conservative and patriarchal conception of family, subordination of women, discrimination of illegitimate children 5. **law of succession** **The subsequent developments:\ 1900 -- 1918,** until the end of the World War I, fall of the Hohenzollern dynasty and proclamation of the Republic**.** Positivism, strict adhesion to the text!\ **1918 -- 1933,** Weimar Republic, significant interventions by the legislator and by the judiciary. **1923**: economic crisis and inflation! the Deutsche Mark collapses, the Supreme Court (Reichsgericht) overthrows the nominalist principle (with reference to good faith). Reforms in labour law and property law.\ **The nazi period**: on 30^th^ January 1933 Hitler appoints as chancellor. This is the beginning of national socialism. National socialist ideas affecting the legal system: - the law is a means of [safeguarding the racial community] - a new theory of sources of law -\> [refusal of the primacy of legislation], the primary source of law is the race - [Führerprinzip]: the person who proclaims the law deriving from this source is the Führer. There was a denigration campaign against the BGB to replace it with a popular civil code. The BGB survived. **End of World War II, Constitution of 1949**: Grundgesetz (Fundamental Law), decisive role of the Federal Constitutional Court (Bundesverfassungsgericht)\ **Interventions by the legislator**: social legislation, egalitarian spirit *ex. family law*, humanitarian spirit *ex. criminal law*. The last big reform: [Act on the Modernization of the Law of Obligations], in force since 1 January 2002 → reorganization and introduction of new rules **Eastern Germany (DDR)**: the BGB remained in force until 1976 when it was replaced by a socialist civil code → BGB reinstated in 1990. **The success of the German model**: 1. Prestige and influence of the Pandectist school and its method all over the world, even in England. English philosopher John Austin about German legal science: *a world that seems the region of order and light.* 2. A more limited circulation of its product the BGB, only auctoritate rationis in Portugal, central Europe, Japan, Greece (1940). ### The Swiss civil code: ZGB {#the-swiss-civil-code-zgb.Style3} **Swiss** had an early independence from the roman empire, therefore there was no reception of roman law. The Swiss legal system was mainly about customary law administered by lays judges. In 1789 happened the Napoleonic conquest and this brought to a unitary state and the idea of codification. In 1815 after the congress of Vienna Swiss became a confederation of 22 cantons. **The drafting of the ZGB**: in the first half of the 19^th^ century each canton adopted its civil code following one of the three models: [French, Austrian or the historical school with the germanist branch in Zurich]. In 1848 Swiss became from a confederation a federation and in 1874 the federation acquired competence to regulate commercial law. In 1881 there was enacted a law of obligations. In 1898 the federation acquired also a competence to regulate civil matters. **Eugen Huber** (1849--1923) was a Swiss jurist and legal scholar, best known for his work in civil law, particularly in the development of the Swiss Civil Code (Zivilgesetzbuch or ZGB), which was approved in 1907 and came into force in 1912. **Ideology and style**: the ZGB follows the Germanist branch of the historical school. It is adressed to the ordinary citizen (not as the BGB). It is deliberately incomplete and has no general part but general clauses are widely used *ex. art. 2 each person must act in good faith in the exercise of his or her right and in the performance of his or her obligations*. **Structure of the ZGB**: 1. **Introduction** (just 10 articles) 2. **Law of persons** 3. **Family law** 4. **Law of succession** 5. **Property law** [Art. 1] **in the absence of a provision**, the court shall decide in accordance with **customary law** and in the absence of customary law, in accordance with **the rule that it would make as legislator**. In doing so the court shall follow [established doctrine and case law. ] -\>\> considered in all subsequent codifications and **legal transplant in Turkey** (1926) Sources of law in civil law {#sources-of-law-in-civil-law.Style2} --------------------------- *Which are the differences in the sources of law between civil law and common law?* Before codification there was a **dominance of the legal doctrine** as an important source of law. After codification there was the **shift from the pluralism to the monopoly of legislation**. Statues were the expression of the popular sovereignty and of the birth of national legal systems. **The sources of law changed from the pluralism to the statues!** Other [differences came out diving common and civil law]: - distinction between **private and public law** (not true for common law) - the idea of how a legal norm is drafted, since the French revolution the legal **norm has a special semantic value** (general, abstract that are drafted in a brief way) -\> between principles and judgements - **the role of legal professions**, throughout the entire history in common law the main protagonist is the judge (the person who decides cases in courts, that are sources of law), whereas on the European continent the main role was the one of the scholars (jurists). Their role diminished after codification; the main source of law became the legislator. The parliament was the only subject entitled to make laws -\> **deductive reasoning** *Are these differences also today that strong?* Looking carefully at the present situation of sources of law**, the differences are still there but are not so deep and strong like 30 years ago**. *Why?* The system developed and there are some trends that make common law and civil law still different but not as different as they were. [There is a convergence between civil law and common law! ] **Recent developments in civil law**: legislation is not the only source of law, growing importance of case law. The decisions of constitutional courts and of supreme courts are becoming extremely important in civil law countries. There is a great attention to case law called **jurisprudence**. Also, the decisions of the European court of justice! **Recent developments in common law**: even **statues** are becoming important in the common law countries, this phenomenon is called **staturotification of law** or growing importance of legislation. There are also several techniques elaborated to relax the doctrine of binding precedent. **The hierarchy of sources of law after the French revolution**: we can imagine a kind of hierarchy in the sources of law **= the entity who produces rules that must be obey\ ***ex. art. 1 of the Italian civil code is about provisions on the laws in general*: 1. Statues (are enacted by parliament) 2. Regulations (are enacted by the administration) 3. (corporative norms) 4. Customs [But today the situation is much more complex!] After World War II, starting from Italy, Germany and Austria (first wave) then Greece and Spain (second wave) and then the new constitutions of the central European countries (after the fall of Berlin, Slavic countries, third wave), **constitutions, EU law and international law** started to develop, changing completely the hierarchy of sources of law. **The hierarchy of sources of law**: 1. **Constitutions** 2. **International and EU law** 3. **Legislation** 4. **Regulations** 5. **Customs** 6. (?) **case law and legal doctrine**: formally case law is not a source of law, but some decisions are binding. In these cases, it is source of law! 7. Legal globalisation **= expression that reflects the complexity of the present economic system.** Some rules are soft called rules which a big enterprise follows, because they are part of the global economy. It is in continuous development by means of practice and it takes away from the state part of its law-making power. Now we are going to analyse every source of law... ### Constitutions {#constitutions.Style3} **Civil** **law countries have only written constitutions**. There is only one example of unwritten constitution: the English one! But England has a common law system. Nowadays on the European continent constitutions are rigid, they cannot be changed by ordinary legislation. To be changed they need special procedures and majorities. The first rigid constitution of the world was the US constitution. [Characteristics]: **written or unwritten** (English constitution), **flexible** = based on the idea of legislative supremacy (European constitutions of the 18^th^ and 19^th^ century *ex. statuto albertino 1848*) or **rigid** = they need a special or aggravated procedure for constitutional amendment, there is a judicial review of legislation (US constitution, European constitutions after World War II). *What does special procedure for constitutional amendment mean?* parliament is not able trough ordinary legislation to change the constitution. The German constitution is even more rigid. **Constitutional amendment procedure in Italy**:\ [art. 138] **procedure for constitutional amendment**, *laws amending the constitution and other constitutional laws shall be adopted by each house after [two successive debates at intervals of no less than three months] and shall be approved by [an absolute majority of the members of each house in the second voting]. Such laws are admitted to a [popular referendum] when within three months of their publication, a request is made by [one fifth of the members of either house, or by 500 000 voters, or by five regional councils]. The law submitted to referendum shall not promulgated if approved by a majority of valid votes. No referendum may be held if the law has been approved by a majority of tow thirds of its members.* [Art. 139] **limit to constitutional amendments**, *the republican form of government may not be changed by way of constitutional amendment. This article can not be changed!* The constitution provides also **a system of judicial review of legislation** = ordinary legislation is controlled; it cannot violate the constitution. It is a revolutionary idea of the dogma of parliament as the only source of law **= control of ordinary legislation, to protect the constitution and the fundamental rights in it.** Italian and German founding fathers had two examples: - **Centralised model** of Austria adopted in 1920 and revised in 1929. Also known as Kelsenian, because the Austrian constitution adopted a system of judicial review that came from the ideas of **Hans Kelsen**. One body in the system has the power to check the validity of ordinary legislation! *Ex. South Korea, Latin American countries.* Only in the Scandinavian countries there are systems more like the decentralised model*.* Kelsen defined the specialised court as a negative legislator, because unconstitutional statues are abrogated trough the decision. In many European countries there are differences in the features of the judicial review of legislation e*x. Italy added a concrete way of judicial review put by ordinary judges deciding in ordinary cases.* [Main features]: Austrian or Kelsenian, a **specialised court**, **abstract norm-control, principal**, judgment: **constitutive effect** = the judge invalidates the unconstitutional law, it has **erga omnes effect**. - **Decentralized model** of US, geographically and historically far system. Born in 1803, it was the first system of judicial review of legislation. This system is not written in the US constitution. The system was defined by chief justice Marshall **in the decision Marbury vs Madison**. For the first time, the idea that ordinary legislation coming from parliament (congress in the US), must not violate the constitution as the higher law of the land. The idea was theorised before, but for the first time review of legislation was applied. A revolutionary idea! The power of checking is given to every judge, but the effect is only applicated to the real case! [Main features]: American or diffuse, **any judge**, **concrete control, incidental**, judgement: **declarative effect** = the judge declared the pre-existing nullity, **retroactivity**, the judgment: **inter partes effect**, non-application of the law in the case. **England has no system of judicial review of any kind! -\>\> they are the product of the French revolution and the US revolution!** **There are also hybrid systems:** - **Direct access to the constitutional court**, constitutional complaint: any citizen showing interest *ex. Verfassungsbeschwerde in Germany or recurso de amparo in Spain.* - **Incidental access**: ex. Austria 1929 or Italy [art. 1 of constitutional law 1/1948]: *a question concerning the constitutional legitimacy of a statute or of an act with the same force, raised by the judge on his own motion or upon request of one of the parties [in the course of a judicial proceeding] and considered by the judge to be [not manifestly unfounded], must be referred to the constitutional court for its consideration.* **France**: originally it did not provide for judicial review of legislation, as a result of the historical mistrust towards judges and the French concept of separation of powers, providing that judges could not meddle with the legislative power. Whereas all other European countries had Constitutional courts, France did not. In France, the Parliament is sovereign. In 1958 a judicial review was made by a political body, the Conseil constitutionnel. In France, it is called **Political review of legislation**: constitution of the Fifth Republic, Charles de Gaulle. However, the power was conferred upon a political body, called **conseil constitutionnel**, which is political because in order to become a member there are no requirements of legal training. [It is a preventive review of legislation: it happens before legislation enters into force, and not after]. It was some kind of additional step to the legislative procedure because once legislation had entered into force, nothing could be done. The system has gradually evolved:\ [Decision of 16 July 1971, n. 71-44 DC], broadening the basis for constitutional review: [the Preamble of the Constitution] which invokes the Declaration of 1789: **bloc de constitutionnalité**. The very conseil constitutionnel stated that the basis for its decision could also be the part of the constitution regarding fundamental rights: enlargement of its jurisdiction. [Constitutional Reform in 2008 new Article 61.1]: *If during proceedings in progress before a court of law, it is claimed that a legislative provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be [referred by the Conseil d\'Etat or by the Cour de Cassation to the Conseil Constitutionnel] which shall rule within a determined period. An Institutional Act shall determine the conditions for the application of the present article*: **exception of constitutionality**, possibility of ex post control once the provision has entered into force on the basis of the incidental access. ### Legislation {#legislation.Style3} It was at the top of the hierarchy of sources until the era of constitutions. Now this absolute supremacy does not exist anymore. **Code**: formally an act of the parliament as any other with no superior position but they have a special position: longevity, at the centre of a branch of law, containing principles and general rules. **Code: special legislation = common law: statutory law** In case of doubt or a gap the special legislation should look at the code. ### Regulations {#regulations.Style3} They are immediately under legislation, **secondary sources** produced by the government. The difference is not the kind of technical style but the organ that produces them. Regulations must be consistent with legislation in order to be valid.\ **France**: the French constitution of 1958 (V Republic) introduced a review of legislation of a political kind, it's a French peculiarity. The reason behind this choice is the peculiar feature of regulation under the citizen. [Art. 37, par. 1]: *Matters other than those coming under the scope of statute law shall be matters for regulation* (règlement). According to art. 37, **regulatory provisions enacted by the executive have the same position in hierarchy of sources as legislation**. The difference is that [there are some subjects which are a matter of competence of the Parliament to produce legislation, in the other areas the regulation must be produced by the executive]. *Who can check whether the limits between legislation and regulation are respected?* **The conseil constitutionnel** has this task: the aim of that political review of legislation was not to check the executive, but to check the parliament: strong executive and reduce the pre- eminence of the parliament. If regulations are the primary source in some areas, meaning that in those areas only regulation may establish the rules, a problem of guaranteeing human rights in those areas may arise. The conseil constitutionnel can only check legislation, so *is there an entity that checks whether the government does not infringe human rights in issuing regulation?* There is and must be judicial review of regulation, but it is not the task of the conseil constitutionnel, but rather of the **Conseil d'Etat**, apex court of the administrative court structure that decided that it had the power to review regulation from the perspective of constitutionality. ### Customs {#customs.Style3} They have minor importance as a source of law. As a result of codification customs still have a role only within the limits established by the code. It is impossible that customary law can be used for the decision of a case against the law. Sometimes the provision in the code may do explicit referral to customs, and in these cases, they can be used to regulate that situation. *What happens when there is a legislative gap? Can customs be used?* The Swiss civil code (par. 1) explicitly gives judgment in this direction, but in other systems this may not happen. There are three types of customs: - **contra legem**, in this case, customs can [never] be a source of law - **secundum legem**, in this case, it [can be considered] as a source of law - **praeter legem**, it [varies from case to case] ### Legal doctrine {#legal-doctrine.Style3} *Can it be considered a formal source of law in the civil law tradition?* When approaching this topic, the break is fundamental: **historically legal doctrine had a preeminent role** for centuries, starting from the roman experience in the evolution of the civil law systems, from the roman jurisconsults to the exponents of the schools of law in the European universities. If we look at the situation **after codification, legal doctrine is not considered a source of law anymore**: there have also been rules prohibiting judges from quoting legal doctrine in their decisions. There are indirect ways in which legal doctrine continues to perform a significant role: - [legislation]: all the codes and important pieces of legislation such as reforms, have behind them the work of law professors. Often laws are drafted by scholars! - [case law]: Scholars also influence the subsequent implementation of legislation, in a dialogue with the courts, especially supreme courts, through the comments on the decisions: if **their criticism is repeated and well grounded, it can lead to a change in the vision**. They influence the development of case law! - [legal material]: they also perform an important role as the first point of access to the law: scholars\' systematized attitude makes legal material accessible. ### Case law {#case-law.Style3} To understand the value of case law, it is necessary to know something about the\ **judicial organisation**: as one of the legal products of the French revolution, in every European country, judges are career judges. They are civil servants, they have guarantees. In principle case law cannot be a source of law in our tradition (a decision can be binding only for the parties of the case: provisions in the preliminary part of the code civil). Judges are only those who apply the law, they can\'t make the law. However, practically speaking the situation is way more complex. **It is useful to have a general look on the general principles of the judicial organization in the civil law system**. Overall, the model for the court structure may be traced back to France again: under Napoleon there was the adoption not only of the code, but also of a fundamental act concerning court organization, which is the basis for a model that circulated outside France. The structure can be understood only in light of the hostility and mistrust against judges of the ancient regime. During the period of droit intermediaire (1789-1799), the establishment of a body named **Tribunal de Cassation** (1791) took place. This was not a court but was conceived as an auxiliary body of the legislative power, whose task was to check the decision of the courts and, to quash them, if they violated statutory law. Napoleon promoted the adoption of [the Judiciary Act on 20.04.1810], jurisdiction is structured on three levels (**pyramidal structure**):\ 1. **a court of first instance**, not just one but one of general jurisdiction and other jurisdiction (specialized in some fields);\ 2. **court of appeals**, because the idea of fair trial includes a second instance where a review of the case is guaranteed: stable element. In the common law there are cases of lack of appeal;\ 3. **supreme court**. There is a plurality of jurisdictions as opposed to the single general jurisdiction in the common law. There are differences among the court structures in the various civil law countries: - **France**: there are three levels + different jurisdictions. At the apex for civil and criminal cases there is the **Cour de Cassation** + different system of administrative courts: **Conseil d'Etat**. There is more than one Supreme Court, while in England every issue (civil, criminal, constitutional, administrative) is brought before the UKSC. A diagram of a law Description automatically generated - **Germany**: the German constitution provides for five courts: civil and criminal, administrative, federal finance court, federal labour court, federal social court + constitutional court.  **Supreme jurisdictions**: - [In the Romanic area], cassation model: the court can either affirm the decision rendered by the lower instance court or quash it and send back the case to the lower court for a fresh assessment. The court cannot replace the lower court's decision with its own. - [In the Germanic area], revision model: if the questions of facts are sufficiently ascertained, the court may enter a judgement on its own, replacing the decision of the lower court. But **other features are common**: - High number of members - Complex structure (chambre, senat, sezione) - Plenary sessions - No discretionary power to select cases - Style of the decisions = the decisions of higher courts are [not personal], but [strongly collegial], they are announced as the decision of the court - Separate dissenting or concurring opinions are not published **The judge**: becoming judge is one of several possibilities open to students graduating from university **= career judiciary**, [steps]: graduation from law school -\> state examination -\> special school for judges -\> appointment as a junior judge -\> rising to higher levels of judiciary at a rate dependent on some combination of demonstrated ability and seniority. Lateral entry into the judiciary is rare!\ **The judicial function**: doctrine of stare decisis was rejected after the French revolution because of the strict separation of powers. The judicial process is a routine activity, the judge is a kind of expert clerk, who has to fit into the formal syllogism of scholastic logic: 1. **Major premise**: [find the right legislative provision] 2. **Minor premise**: [couple it with the fact situation] 3. **Conclusion**: [bless the solution that is more or less automatically produced from the union of provision and fact situation]. = it is a mechanical function; the judge is a civil servant who performs important but essentially uncreative functions. **The role of precedents in civil law**: precedents are not officially source of law [art.5 of Italian civil code] but in practice no one dispute the rule-making function of courts. There is no doctrine of binding precedent, but case law does perform a fundamental function in practice, especially in decisions of the supreme courts: - **in France** although a decision that does not make a reference to a legislative provision can be quashed, it might also be based on constant case law (jurisprudence constante) - **in Italy** (living law, diritto vivente): the constitutional court also refers to the way in which the provision of living, is applied in the system - **in Spain** legislative provision in the civil code saying that case law is not a source, but it settles the legal system, if there is a series of decisions establishing an interpretation of a legal provision that interpretation is binding (doctrina legal). There is a **convergence with common law**, but some **important differences** remain: - Deductive (civil law) vs inductive reasoning - Plurality of supreme courts (civil law) vs single supreme court - Internal complexity vs compact and manageable structure - Discretion to select cases - Career judiciary vs oracles of the law, valued oriented decision makers COMMON LAW TRADITION IN ENGLAND {#common-law-tradition-in-england.Style1} =============================== Introduction {#introduction.Style2} ------------ Discussing legal families, we use the term common law as the opposite legal family to civil law. **The meaning of the expression common law depends on the context**: - **Vs civil law**: common law is **a legal family and tradition** starting from 1066 - **Vs equity**: common law is made of two branches; the first part is called technically common law which is **case law from the royal court** and another part called equity which is case law from the court of chancery. - **Vs statutory law**: common law means **case law generally**; statutory law is the other source of law coming from the parliament! **The expansion of the common law**: the same as civil law. Primarily for British colonisation, *ex. US or most of Canadian provinces (not Quebec), India, Australia*. But also, because the system is efficient and prestigious *ex. Japan.* The map shows how common law born in England expanded in many other parts of the world. The penetration of English common law was deeper were there was not much local tradition and less when there were more stable local traditions.\ **= different levels of penetration of the common law** Common law has still today something that makes countries more compact: the English language as a common language and case law. The decisions of judges are the main source of law and make the circulation easier. The common law tradition is pretty much compact and extended! Common law has its roots in England, but the American one had gained a considerable force; we can imagine two different common laws with same features but different historical development. American common law has expanded trough imperialism, for a long time the US had a strong economic role and US institutions have been exported.\ **= leading role of the US** **A geographical explanation:** 1536 Union England + Wales 1707 Union England + Wales + Scotland = **Great Britain** 1801 Great Britain + Ireland **= UK** 1922 independence of the Irish Republic UK = Great Britain + Northern Ireland Since 1988 **devolution** = acts of the British parliament giving much autonomy to Scotland, Wales and Ireland Origins: the royal courts and the writ system {#origins-the-royal-courts-and-the-writ-system.Style2} --------------------------------------------- **William the conqueror** coming from Normandy defeated the Anglo-Saxons in the battle of Hastings in 1066. He established **the Norman government in London**. He is known as the great centraliser and administrator. He retained local customs and preexisting institutions keeping Anglo-Saxons traditions. It was possible because feudalism in England was different from the feudalism in continental Europe: all men in the country had to swear devotion to the king directly even if there was a feudal system. The king was at the apex of the pyramid of the feudal system. He was the Lord Paramount or Lord Tenant in Chief. **The English feudal pyramid:** The relation between classes was different and all the land belonged to the king, giving it to the lords and them giving it to the knights. There was a direct connection between the knights to the king in the military service. There was no intermediate power. The feudal system was differently conceived! The first Norman king was also one of **the first great bureaucrats in Europe**: he knew the lords and their territory to collect taxes. William I ordered **the Domesday book**: it is a general census in 1086 for tax purposes. He started to administrate the country from the royal seat in Westminster. From the 11^th^ century the administration was made together with its most loyal lords. He used to govern his country together with its chiefs. **The administration of the country was strictly connected to the administration of justice.** There were three different elements that brought to the administration of justice and to common law for the whole country: 1. **royal courts in London** (centralisation) 2. **the writ system** used in the royal courts 3. **travelling justices** in the different areas to render justice suspending the authority of the local courts **The royal courts** = also known as common law courts or Westminster courts [Members]: **king and lords = curia regis** By the 13^th^ century the curia regis divided in two different councils: the **great council** is the little seed from which the British parliament will grow and for solving political issues, and the other was the **permanent council** for solving ordinary issues about the regular administration of the country and it was the little seed from which the three common law courts would come up. **The common law courts** are: 1. **The court of exchequer**, has the jurisdiction for deciding tax matters, extending the jurisdiction with the time to debt controversies by fiction. 2. **The court of common pleas,** lawsuits between commoners, controversies between ordinary people (the jurisdiction was very large) 3. **The king's bench,** for the longest time in history it was presided directly by the king. This court has jurisdiction essentially for criminal matters to keep the peace in the country. It became also important for civil cases and to enact prerogative writs to controls the other courts. **Since 1234 the court of common pleas reported its decisions** and were collected in rudimental books. There were also other special courts besides the royal courts in the country for a long time: - **Ecclesiastical courts** applying canon law - **Mercantile courts** applying merchant law - **Maritime courts** applying maritime law These courts have a common feature: they apply rules deriving from Roman law. **There are traces of roman law in England!** **The writ system** A writ **= written command issued in the name of the king, direct to an official ex. sheriff or a local or royal court**. This command is written on a piece of parchment, is very brief and states the question under dispute. **Par