Tunisian Legal System PDF

LEARNING OBJECTIVES After reading this course, you should be able to do the following: 1. Determine the Rule characters 2. Identify the sources of law and which laws have priority over other laws (Kelsen Pyramid). 3. Distinguish different sources and philosophy of law—schools of legal...

LEARNING OBJECTIVES After reading this course, you should be able to do the following: 1. Determine the Rule characters 2. Identify the sources of law and which laws have priority over other laws (Kelsen Pyramid). 3. Distinguish different sources and philosophy of law—schools of legal thought—and explain their relevance. 4. Identify the various aims that a functioning Tunisian legal system can serve. 5. Understand some basic differences between the Tunisian legal system (Civil Legal system and other lega 6. 7. l systems as Common law.  General Introduction Rules are everywhere, rules are managing individual lives, rules are destinated to manage human beings’ relationships, even the most private and intimates ones as relationships between lovers (couples) through engagement and marriage, divorce, faithfulness, unfaithfulness…custody…etc.. The rules are also managing the economic relationships, ties between individuals and the state or also between states. To summarize, the rules are highly linked to the existence of a society. In fact, once there is many people living together, immediately arises a need to order their behaviors and conducts. Rules are considered as living, since laws are borne, live and disappear as a normal person life. Chapter 1: Objective Law: Law has different meanings as well as different functions. Philosophers have considered issues of justice and law for centuries, and several different approaches, or schools of legal thought, have emerged. In this chapter, we will look at those different meanings and approaches and will consider how social and political dynamics interact with the ideas that animate the various schools of legal thought. We will also look at typical sources of “positive law” in Tunisia and how some of those sources have priority over  others, and we will set out some basic differences between the Tunisian legal system and other legal systems. Law is a word that means different things at different times. Black’s Law Dictionary says that law is “a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequence is a law.  Section 1: Characteristics of the rule of Law   The Obligatory Character of the Law: The rule of law is a command: it is binding/mandatory/compulsory. If it were devoid of this character, it would only be an advice left to the discretion of each one and not an order that must be respected.  General character of the Law: Traditionally, the rule of law has always been defined as general. The rule of law does not apply to a particular person, but to all persons or a whole class of persons. The generality of the rule is a guarantee against any personal discrimination, but it suffices to narrow the domain of the rule by a series of conditions to reach, at the limit, only one person (Hersant). Not that this generality would be exclusive of regimes specific to certain categories of individuals according to age, sex, profession, function, etc. For example, workers and employees are subject to such special regimes as regards the exercise of their profession.  The permanent character of the Law: The rule of law is permanent because once it has arisen, the rule of law is consistently and uniformly app licable to all the situations it regulates until it is repealed by the competent authority. The permanent nature of the rule of law means that it is made to last over time. This character does not mean that the rule of law is eternal, insofar as, the latter may be the subject of a revision (modification) or repeal (total abolition) following political, economic, and social transformations.  The Law has a social end The rule of law has essentially a social purpose since it will allow the members of a society to live well together. It can take two forms: order and security or justice. The rule of law aims to meet a need for security between humans.  Section2: The rules of law and other rules of conducts: The Rule of law provides a certain number of rules of conduct which are destinated to establish justice and progress. In fact, rules of law maintain close and a narrow relationship with religion, morality equity and customs. 1. Parag1: Rule of law and Religion The distinction between religious rules and the rule of law is established on the fact that the rule of law is a general norm presenting an abstract and obligatory character which aims to organize life in society, when the is a rule imposed by a conscience and its considered as a commandment from God. However, in Muslim countries like Tunisia, even there is confusion between the law and the religion, there is also contradictions between the rules of religion and the rules of law as for example in abortion, marriage, adoption. 2. Parag 2: Rule of law and Morality Open to the imperatives of conscience, morality may be more demanding than rule of law. The morality is individualistic, while the rule of law is managing the whole society and not an individual. However, A close relation exists between the rule of law and morality, since morality complements the rule of law. But it should still be considered a causal relationship, as laws are not made out of moral principles, rather, they are established and shaped by a “legal consensus of right and wrong” 3. Parag 3: Rule of law and customs While many laws arise out of customs, laws are more formal representation of rules than are customs. Customs also differ from laws in that: Laws are purposively established, whereas customs tend to grow naturally over time. Laws need a special agency for enforcement and often involve formal punishment; custom does not. Thus, law is symptomatic of the emergence of the state....Custom--spontaneous, traditional, personal, commonly known, corporate, relatively unchanging--is the modality of primitive society; law is the instrument of civilization, of political society sanctioned by organized force. Law and custom both involve the regulation of behavior, but their characters are entirely distinct Chapter 2: Law structures Commenté [IE1]: Semaine 6 In modern legal systems there are two primary branches of law, private law and public law. Among branches of law, two major fields can be distinguished: private law and public law. The difference between these two branches lies mainly in the parties of the legal relationship in question. Parag 1: Private law: signifies rules that regulate the relationships between private individuals (subjects of law who are, legally speaking, in an equal situation; for example, the legal relationship between a buyer and a seller, where both parties have certain rights and obligations). Private law covers civil law, commercial law, international private law as well as intellectual property (such as copyright, patent law). Parag 2: Public law: on the other hand, public law consists in rules where one party is the state, who participates in the legal relationship from a position of strength – thereby effecting its power. Public law also signifies principles that serve as a basis for the structure of the state and the relationships between the state and the citizens. In addition to constitutional law, public law also covers administrative, financial, criminal and procedural law as well as international law. Parag 3: mixed law: There are so-called mixed law rules because they create a combination of relevant rules, for some of public law, and for others, of private law. - Criminal law, also called "criminal law" is a mixed law, or Human rights law and Urban Law. Parag 4: International private Law: Private International Law deals with a variety of topics, such as (international) contracts, torts (lex loci delicti), family matters, recognition of judgments, child adoption and abduction, real property (lex rei sitae), intellectual property. Private International Law regulating relationship between Private persons (Natural or Legal) of two or many different States. Parag 5: International Public law Public international law is the body of rules that is legally binding on States and international organizations in their interactions with other States, international organizations, individuals, and other entities.