Comparative Private Law PDF

Comparative Private Law Created @September 20, 2023 2:40 PM Reviewed Lesson 2- 19.09.2023 COMPARATIVE LAW Legal mentality of jurists who create and work with the rules (caustic or abstract rules approach)-each rule i...

Comparative Private Law Created @September 20, 2023 2:40 PM Reviewed Lesson 2- 19.09.2023 COMPARATIVE LAW Legal mentality of jurists who create and work with the rules (caustic or abstract rules approach)-each rule is the result of a combination of factors History matters:each rule is the expression of legal culture and mentality also the historical process.History is not a theory, it’s a reality. Culture matters: If we don’t know anything about cultures we cannot understand the others legal systems. Don’t stop at the surface of the law. Do understand where the rules come from. Indtroduction of world legal systems WESTERN LEGAL TRADITION Was born in Europe. There are one main and two subtraditions: common and civil law We share the same path in economics, similar values, the same historical path, legal values and some basic rules. Bu these rules formulated and applied in different ways. Starting points of the differences: Legal modules always do circulate. There is always circulations in the history of world legal systems. Why history matters? We have a common backrogun of legal values, a common path of economic development but different historical evaluations as well as consolidation of legal systems. They share the formation of legal systems between 11th -13th century, consolidation 14th-18th:transition period between middle age and modern Europe, starting from the French revolution, it’s the face of Comparative Private Law 1  modern states. contemporary age 20th-21th, supranationalities, the age of globalization, beyond the state. FORMATION ERA The common law is systems of royal and crown court. Writs and royal courts. Civil law: Corpus Iuris of Justinian and professors studying and teaching Roman Law Civil Law The subjects are c.i.c and professors Irnerius 9th century. The founder of civil law and. Professor of language before he became jurist. He started to translate corpus iuris civilis. He started to teach it. The roman law interpreted by the Italian jusrist and spread in all the legal systems (states, cities, autonomous and independent principalities) it became a common law for continental Europe cohabiting with local laws and local customs. (a few centuries this law the ones created by Italian jurists under the effect of c.i.c. named as ius commune in Europe.) Alma: soul the soul of al the studies Civil law is a legal system affected by roman law and italian professors. Our legal tradition has been developing around roman law which eas especially developed for private law-civil law part. MODERN AGE By the end of 18th century there were emergent nation states that daha çnce olmayan sistemde devletler çıkmaya başladı. Each state wanted to crate its own laws. Each state in continental Europe started to write civil codes. The first state in continental Europe that created first modern civil code was France- Code Napoleon (1804). There influences even in the modern civil code from roman law. It addressed the average citizen of France. These new codes have a different approach from ius commune and cic. They kept the influence of these but out modern expressions of civil law. Comparative Private Law 2  Code de Napoleon le Grand (in Italian) The other great model of civil law belong to German-German Buergeliches Gesetzbuch in 1871. Its late because the creation of modern centralized…. The german code is the code of 20th century. French is 19th. Italy had two civil codes. First 1865 it’s the translation of modern French vcivil code, 1942 italy recodified followed the French code but mostly effected by german civil code. COMMON LAW William the conquerer arrived from France to England he was a norman. In the battle of hastings we took the power ans started a royal family in england. Became the first norman king. The law was the result of new political establishment. In common law , lawyers are not legislator nor law professors. There are lawyers and judges. Lawyers can be judges later. The carriers can be combined. In civil law the carriers are separated. Inns of Court: starting from the 14th century, professional associations to train the lawyers were formed known as Inns of Court. The main point of the system was leading the procedure. Until 19th century the law student only studied near the royal courts teached by inns of court. In each court there were the place where student learnt procedures. In civil code there was students and professors. In common law they studied cases tried to find essential to solve the case, the precedents. No code, the precedents. In civil law code and legislator. 4 inns: All barristers must belong to a inn. At the end of the internship in the Inn, the student could be qualified to practice the profession with a special ceremony appointment as utter barrister. Civil law- legislators and professors Both in roman and modern time in Europe the professors are so important for civil law. Comparative Private Law 3  Common law- lawyers and judges Lord Denning: father of tort of negligence rule. (general rule on liability for fault) Judge made law. In civil law we have a legislator to make law, in common law a judge made law with a judicial decision with their own perspective (?) Lesson 3 - 20.09.2023 FOUNDATIONS OF PRIVATE COMPARATIVE LAW Religious Law/Religious Right-Based In civil and common law its easy to say they are legal systems. However, not all agreed that there is a legal system that we can call Islamic law. Besides civil and common law we have ie customary law, mixed law, socialist law, religious law, etc. Islamic law is a part of the family of Religious Law. Religious Law (Diritto Religiosso) The law or judicial system of a country can only refer to religious norms. Which means the religious norms are the law of that country such as Saudi Arabia (Islamic Law) and Vatican (Canon Law). Its named Religious Law / Religious Legal Systems. The religious law is the law of the country totally. The second kind of system is the law or jurisdiction system of a country can be based on religious norms alongside which we find secular norms. Its Religious Right-Based / Religious Based Legal System. The main religious laws are: Sharia in Islam Halakha in Judaism Canon Law in Christianity The religious law is not inspired by God but they are words of God. However, in Quran its the direct word of God. The most important between the Islamic law between other religious laws is the legislator in Islam is God. Due to the reason that the legislator is God, its not possible to change the law. Human cannot change what did God establish. However, there are some exceptions because Quran is not a law book even though it gives some idea about the law. Comparative Private Law 4  In Islamic law its divided to Sharia and Qanun (the law made by human). When Sharia says nothing about a topic, then humans are able to make law. Human cannot make a law against the principles of Sharia. Its the religious right based system Islamic Sharia Law especially fiqh jurisprudence is based on legal precedent and reasoning by analogy-Qiyas, thus considered similar to Common Law. (analogy, interpretation, precedent) What prophet did or decided or said is considered precedent. Exactly like in common law. -Revealed Sources of Islamic Law- 1.Quran-Allah’s revelation word of Allah 2.Sunna Civil and cannon law is coming from the inside of the country from people. However in Quran its outside of the country. Characteristics of Sharia: -Heteronomous : The law came from the outside of the country. From God. -Symbiosis between law and religion/law and morality: ie. Zina is sin also the violation of law. What is sin also the violation of law. -Unchangeable -Supranational: If someone does something that considered as sin in everywhere. (?) -On a case basis: In Quran and Sunnah the regulations are generated. Law created by the jurists (furuq) who extrapolate the general and abstract rule from the solution of the single case. The Islamic law system is defined as the legal system of God which in its application some of it involves the ability of human reasoning. The Sources of Islamic Law: Quran, Sunnah, Igma (icma- the correct interpretation of Quran and Sunnah), Qiyas (analogy) MUSLIM LAW SYSTEMS AND MIXED SYSTEMS WITH CIVIL LAW and CUSTOMARY LAW and COMMON LAW Comparative Private Law 5  ACTS CLASSIFICATION In legal systems of civil and common law, the distinction of acts is generally divided into 2 categories: -Lawful Acts - Illegal Acts In Islamic law there are 5 different acts classification: -Compulsory or Necessary : If you do it, you will be rewarded in afterlife -Recommended -Lawful: free to decide, neither punishment nor rewards -Reprehensible : You can do it if you want, but you will be punished in afterlife -Prohibited: punishable acts in the world and afterlife Lesson 4 - 25.09.2023 THE WORLD’S LEGAL SYSTEM Circulation of Civil Law Models Civil and Common Law: Eastern legal tradition Islamic law, Religious based legal systems Mixed legal systems CIVIL LAW: Irnerius: the first civil law scholar. birth of the university Bologna The great role of the roman law in the history is the determining basics of private and civil law. Civil law based on roman law that has strong influence of law professors Ius Commune as a European Law: The Roman law interpreted by Italian jurists spreads in all the legal system and it became a common law for continental europe. cohabiting with local laws and and local customs: first case of circulation of legal models and mixing legal rules Civil law=Civil codes the age of establishment for the civil law was modern age (19-20th century): the age of legal transplates: age of growing circulation of legal models, legal Comparative Private Law 6  transplates Justinian’s codification was interpreted by scholars and replaced by national codes. With civil code you supposed to regulate all the private legal branches therefore it requires something big to achieve it. therefore, the history crowns napoleon. scholars interpretations coming from the roots of roman law - established modern civil law: a high achievement of western legal tradition. they embodied the systemization of private law. The First Civil Code (The Napoleonic Code 1804): the first civil code in the world. It embodied the ideas of French revolution. modern society free from the social and limits of the Ancien regime, enjoying the new modern rights of property and contractual freedom) the first achievement was embodied legal rules that covers all social classes. bourgeoisie requested economic rights (ie access to the property) civil code was a great example of legal systematization. organizing legal rules is a product, address to the average citizen of France, presented the law in clear, concise and readily understandable language. The French civil code followed the Napoleonic conquest of Europe: circulation by imposition: a result of a politic and military conquest Belgium, Netherlands, Spain, A part of Germany (Rheinland), etc. Because of colonial compost of France, it also affected beyond Europe. (Quebec- Canada, Ius commune+paris customary law = when there was no civil code, this law was applied on the colonials British empire tried to apply common law however Quebec people maintained to apply French law. After that common law not successful in Quebec, French law became more powerful and after the enaction of Civil Code; it was adapted. (bu etki tamamen Fransızca sayesinde oldu) However today Quebec is a common law country. Because they followed the US common law model. Quebec: civil law Comparative Private Law 7  enclave within a common law system: mixed jurisdiction where civil and common law are combined Algeria: the most famous French colony in Africa. French tested their model of controlling from a legal point of view colony. The first real settlement colony which was a model for subsequent French colonial expansion. Family and personal law-Islamic law Tunisia Morocco MODERN CIVIL LAW : GERMAN CIVIL CODE Germany was more belated than the French experience. Law scholars have been the protagonists longer than their French colleagues. When French are more practical, German loves thinking. Germans have been developing radical approach of law and highesht systematization of private law. Savigny-Winsheid: Fathers of German Civil Code USUS MODERNUS PANDECTARUM: doctrinal in which roman law was rielaborated and systematized. Theoratical work that was the basis of German Civil Code Jurristenrecht: German Civil Code written by Professors Main distinction between French law is Book 1: General part (it does not contain rules. It contains: definitions and general rules applicable to private law: very abstract rules) The German scholars identified the fundamentals of private law Special parts: Book II- Law of obligations, III-real rights, IV-family law, V- inheritance law Allemegemeinter Teil: General Part of Civil Law Book I: Circulation of Model of BGB: Comparative Private Law 8  Not with a imposition, with prestige. Considered very sophisticated. Germany was the country of law professors. There is no emperor involved. Prestige of the German scholars and civil code. Nordic countries Dutch civil code China and Japan Latin America: Brasil, Argentina, Chile Peru ITALIAN CIVIL CODE MIX OF MODELS Italy had 2 civil codes. First one enacted after the unification of states. First Italian civil code (1895) After the 2nd world war 1942: the influence of French and German legal models. Before the unification, there was French influence in some states. The adoption of French civil code implied the adaptation of French “exegetic” legal methods and many French text book were translated. Exegetic: interpretations based on bible (?) o kadar kapsamlı bir metin oldu ki, onu yazan scholarlar bir noktadan sonra etkisiz hale geldi The lingustics of French civil code had similarities with bible. (Özellikle hitap şekilleri) From Germans “theoretical” approach of law was borrowed by Italian professors. The professors started to learn German and in 19th century new circulation of German law started in Italy. In 1920s represented the height of German prestige in Italy while in 1930s a new generation of scholars began to challenge the German paradigm of….. Hangi hukukun takip edileceğine dair tartışmalardan sonra yeni medeni kanun yazıldı. The code did not involve definition part. LEGAL TRANSPLANTS In every part of the world, legal evaluation is done by borrowings and mixing models. Contemporary legal systems are characterized by growing contaminations. Comparative Private Law 9  Lesson 5 - 26.09.2023 DIFFUSION OF THE COMMON LAW Colonial experience: -Emigration of British citizens (north america,australia) -Political conquest Circulation of Legal Models: By imposition: colonial experience and political conquest By prestige and imitation Common law- writs and royal courts CIVIL JUSTICE IN EGLAND 1.Supreme Court of the UK 2.Court of Appeal 3.High Court (King’s bench division) JUDICATURE ACTS (1873-1875) CIVIL VS COMMON LAW in civil law the creation of modern legal system was made the codes (legislator and law scholars, statutory law, codification) the creation of a modern legal system was made through the reform of the court system and the procedural law ( lawyers and judges, case law) there are two approaches of law but today common has more statutory law and civil law has been developing case law. they are predominant aspects. CIVIL VS COMMON LAW to follow past decision to be faithful to the past decision: Doctrine of stare decisis in civil law, judges are free ignore the results of the past cases. its not possible in common law. the system has been all creating around and developed around cases, the essence of the system is respect to the previous cases when judge is judging. COURTS AND JUDGE MADE LAW Comparative Private Law 10  In common law practitioners: lawyers and judges make law. Inns of Court: originated 14th century. created to train lawyers. The first class of english law at the university William Blackstone. (18th century) the first professor of law in UK. he wrote the commentaries of the laws of england. the book is consisted of: persons, things, private wrongs, public wrongs in 4 chapters. Cıirculation A. colonization -India, africa Calvins’s Case (Exchquer Chamber): which is the law applicable that the lnads occupied by the English people? Even if there is a political occupation, common law should be applied. UK (No scotland), US (No Lousiana), Australia, Canada (Not Quebec) all these coutries are the memebrs of commonwealth associstion. THE MOST RELEVANT CASE OF CIRCULATION circulation that led the original common law systems to the most powerful system of US. when there was declatarion of independence (4th july 1776), 13 british colonies on the west coast created a confideration of states. each of these colonies the common law was very well known. Cavin’s case (1608) consitution approved between 1787 and 1788 and federal state was created. The big element of differenciacion between the original model of common law and the new model of commo law. —- ORGANIZATION OF STATE Common in UK was created because it was centralized. In Us, there is a federal structure of sources of law. FEDERAL STATE SOURCES OF LAW: EACH AMERİCAN STATE HAS JURİSDİCTİON İT MEANS THAT EACH STATE HAS İTS OWN LAWS AND RULES IN PRIVATE LAW. Comparative Private Law 11  the federal states (the US Congress) only has jurisdiction on monetary and tax issues, on copyright maritime law, national defence and international commerce Each state has its own court structure. which is organised hyrearchialy which applies state law. but there is also federal court system. Supreme court of the united states at the top of the hyerarchy. when we deal about the private law cases each state has their own court system but the decision given by the higher courts must be followed by the lower courts. Diversity of law: if two states involved in a case, the case will be s….. Federal State: Complexities of sources of law (state law and federal law/state courts and federal courts) It developed the local version of doctrine of stare decisis COMMUNICATION BETWEEN COMMON LAW SYSTEMS: In Quebec case, the language kept a strict connection in common law systems. Donoughue vs Stevenson (1932, House of Lords): first case of product liability Lord Atkin referred to an American precedent in order to support his view. the previous cases save the norm so the judges can apply previous cases but the law needs to be updates in the period of time. RELATIONS BETWEEM LEGAL SYSTEMS Contemporary legal systems are charactarized by growing contaminations. Circulation of legal models Legal evolution is made by borrowings and mixing models be aware of this and look for connections and relations between legal systems, not only for differences. every system is a result of complex combinations. realize it and start communicating via it. , Comparative Private Law 12 Comparative Private Law 13 Comparative Private Law 14