* Scopes of comparative law: * Macro-level: - Comparing families of law to each other - Comparing International legislation with national legislation - Comparing among national legal sys
Trang 1HOC KY II, NAM HOC 2023 — 2024
(Lưu hành nội bộ)
Trang 2LESSON 1: OVERVIEW AND ROLES OF COMPARATIVE LAW
I Name of this discipline
i In Vietnamese:
- Using the same name with the French and English — Luat So Sanh - Also using the same term from Germany — So Sanh Luat
- Luat hoc so sanh— more academic
ia Groups in legal science: 2 groups
- Criminal law, Civil law — their content and influences on their relative
area
- Theory of State and Law, History of States and Law — their content and influences on the whole of a legal system
Where about the comparative law belongs to?
* Scopes of comparative law:
* Macro-level:
- Comparing families of law to each other
- Comparing International legislation with national legislation
- Comparing among national legal systems
- Comparing law fields such as criminal law, crvil law
* Micro-level:
- Comparing groups of legal articles (IP rights, marriages )
- Comparing legal articles
* Groups in legal science: 2
- Criminal law, Civil law
- Theory of State and Law, History of States and Law, Comparative law
II Research Object, Methodology and the concept of Comparative law 1 Research Objects:
-Making a comparison among different legal systems to confirm their
similarities as well as differences
Analysing those similarities as well as differences to explain (1) why they are similar or different, to evaluate (2) solutions which are applied in various legal systems to solve a certain legal issue, and to classify (3) a national legal system
in to its proper family of law and to uncover (4) common roots of different legal systems
- Solving issues relating to methodologies which are used to study, to
explain, and to evaluate similarities and differences of various legal
Trang 3system Specially, to deal with issues concerning studies of foreign legal system
-Setting up and developing methodologies to study transplanting legal rules and values among families of law in the world
2.Research Methodologies
* Comparative method of history
* Comparative method combining statistics
* Comparative computerizing method
* Comparative method of function
3 The concept of comparative law
ia Rabel
“Comparative law can free the kernel of legal phenomena from the husk of
their formulae and superstructure and maintain the coherence of a common
legal structure ” (page 5, Comparative in a Changing World) i Watson
“,,.the study of the relationship between legal systems or between rules of more than one system in the context of a historical relationship [a study of] the nature of law and the nature of legal development”
(page 6, Comparative in a Changing World)
There are many points of views to define the comparative law as either a science or a scientific method or both of them
- The Ist viewpoint: Comparative law is a scientific method
- The 2nd viewpoint: Comparative law is a science with its specific method
- The 3rd viewpoint: Comparative law 1s both a scientific method and a science
III Comparative law and the study of foreign legal systems
* The aim of the study of foreign legal system
* The aim of comparative law
— the mutual relation between them IV
History of comparative law
* Ancient time:
- Naturally and deliberately adopted foreign law just because it came from more powerful states < the activity of comparison nearly appeared but not clear
Trang 4Thanks to comparative activities they discover the truth that Roman 12 Tables was influenced by Greek Law
* The Middle Ages:
- There was a change from personalities of law to territorial law
- Content: Roman Law and Cannon Law occupied the greatest authority
— No interest in comparative activities
ia The Renaissance:
- There were several works relating to comparison between Roman law and native countries’ laws (due to the development of the school of national jurist)
— Comparative law was still dim in this period
* The 17th and 18th Century
* First half of the 19th Century
- High Rank Law Research Institution (London)
- Paker School of Foreign law and Comparative Law — Columbia
University
* Specialized legal periodicals concentrating on comparative law:
- The American Journal of Comparative Law (USA)
- Revue internationale de droit compares (France)
- International and Comparative Law Quaterly (Great Britain)
LESSON 2: ROLES OF COMPARATIVE LAW
I To the legal culture
* Equipping students and researchers with basic cultural and legal
background
* Increasing the knowledge of national legal systems as to be a social phenomenon
II Creating basis to understand our national legal system
* Comparative law brings students better understanding on their national
legal system
Trang 5* Legislation of one country is usually promulgated from its certain special or
specific event — different from other legal systems
* There may be discovered that many laws in other legal systems are more effective to adjust legal relationships than that of our legal system
* Transplanting foreign legal experiences need to be studied seriously due to
the nature of each legal system
* Current theories of Legal transplants
- Watson’s theory
- Kahn Freund’s theory
IV Legal Transplants
* Comparative law brings knowledge of legal transplants to serve legislative
process
* Variety of terms:
-‘legal transplant’, ‘legal transplantation’, ‘diffusion’, ‘transposition’, ‘legal
irritant’, ‘legal borrowing’, ‘imitation’, ‘legal transfer’
i@ Current view points on theories of legal transplants
V To Harmonization and Unification of law
ia Challenges in those processes: Differences in legal concepts, legal thinking,
culture, economic, social and political circumstances
Trang 6VI To legal interpretation and application
* Law as the result of the harmonization and unification of law
* Law as the result of the transplants of foreign law
VII To Public International Law
* Sources of Public International Law
* Contribution of comparative law in developing types of sources of Public International
VIII To Private International Law
Methods of adjusting of Private International law
Substantive method
Conflict method
Contribution of comparative law Private International Law
LESSON 3: SOME ISSUES RELATING TO STUDY FOREIGN LEGAL SYSTEMS
I Overview
* Habits in studying foreign legal system
* Acommon and effective method to study foreign legal system
II Values of sources of information
fm Values and how to use sources of information
III Rules of Using and interpreting sources of law
* Respecting the order (level) of sources of law
* Studying sources of law in their relationship
* Studying a foreign legal issue completely
* Interpreting sources of law as they are in their home legal system if The way of translation in studying foreign legal system
LESSON 4: SOME MAJOR FAMILIES OF LAW IN THE WORLD
I Concept of national legal system and families of law if
National legal system:
Trang 7This concept refers to a collection of legal articles promulgated by the state which have an inter-unified relation It is divided into legal groups and fields and performed into various forms of law
i@ A family of law
This concept refers to a collection of national legal systems with many similar
characteristics defined by certain criteria
H.Criteria for classifying a national legal system into a family of law
- The ancient English law
3 Making-law role of the courts
4 Roles and the balance between substantive and procedural laws
5 Recognition of division of public and private law
3 The Socialist legal system
4 The Islamic law
im The Countries that use Islamic Law as their Basic Laws are
1-Kingdom of Saudi Arabia
2-Republic of Yemen
3-Islamic Republic of Iran
4-Sultante of Oman
Trang 85-United Arab Emarties
6-Algeria
7-Islamic Republic of Afghanistan
8-Islamic Republic of Mauritania
9-Republic of Sudan
10-Somalia
11-Nigeria (Muslims Areas)
LESSON 5: ENGLISH LAW
I Overview
1.Terms
- United Kingdom of Great Britain and Northern Ireland Commonly called
Great Britain or Britain — UK
- UK: The United Kingdom is a state consisting of several legal jurisdictions: (a) England and Wales, (b) Scotland and (c) Northern Ireland
- English law = the legal system of England and Wales— applies within the jurisdiction of England and Wales
2 Several features of the English law
- There are 1/3 mankind in the world having their legal system to be based on
* Inconsistent legal system
* Not influenced by Roman law
From 1066 — 1485
Trang 9* King Edward passed away
« Norman conquest
* William’s claim to the English throne
* Judicial reform
* Forming of Common law
« 12" century: Common law and the consistent legal system
* Common law succession of:
— Acourt system (King’s Bench, Exchequer, Common Pleas)
— Professional careers of judges and lawyers
— Case law reports From 1485
* The development of “capitalism”
* Crisis of Common law courts
Features of common law
* Separated from legislative power
* Formed by the internal background
* Continuity and succession of history
* Principle of stare decisis
¢ Rigidity — flexibility
+ Sanctioning compensation for money
II Equity Law
- Equity follows Common law
- The doctrine of “Clean hand”: the exclude of equitable remedies caused
by common law’s reliefs
3 Equity and Common law today
Judicial reform 1873 — 1875: merger of Chancery court and common law courts
IV The English court system
* Overview of the English Court system
- Abnief history of establishment of the English court system
- Anotice on names of the English courts
Trang 10* Courts
County Courts
High Court of Justice
Magistrates’ Courts Crown Court
V Some issues relating to judicial precedents
* Appearance of a judicial precedent
- In civil cases Moorgate Mercantili v Twitchings [1976].1.QB, 225, CA -
In Criminal cases
Her Majesty’s Advocate v G.Q and M.M [2013] HCJAP 23
* An Order of a judicial precedent in its name
* Components of a judicial precedents
* Validity and ending validity of a judicial precedents
* Law report
VI Lawyers in English legal system
* Solicitors
* Barristers
LESSON 6: US LEGAL SYSTEM
1.History of The Federal State & Law
1.1 The federal state:
1.1.1 The Immigrations from Europe to North America:
* The discovery of Americas: milestone of Christop Colombus in 1492
* The aggression of the countries:
Trang 11* Political perspectives:
* Religious perspectives:
* Legal perspectives:
1.1.2 Results of the immigrations
- The formation of the 13 colonies of Great Britain in North America
- The monopolies of Great Britain
- The development of the colonies
1.1.3 The independence of the colonies
* 1773: The tea party in Boston
» 1774: First Continental conferences
+ Commercial dispute settlement of the interstates
1.2 History of the legal system:
On the objective perspectives
* The most and first coming to the North America were English immigrants
* They have implanted the common law into the new England from 1607 (the formation of James Town)
* For the legal backgrounds: Case Calwin (1608)
* Requirements on the applying of English common law
On the subjective perspective:
* The will of English immigrants to refuse applying common law in North America
* The effect of English features such as ethnic, religion, language, culture and law (the legal culture)
The US legal system:
* The selective absorption from common law
* The development of the US legal system
1.3 Features of the US law
1.3.1 The structure of the system:
Trang 12- US legal system includes the federal legal system + the states’
legal systems
- Conflict of law has been developed in high standards: +
Among the states
+ Between federal law and states’ law
1.3.2 The features of the sources of law:
* Precedent: stare decisis
* Legislation
* The supplied sources
2 US Constitution
2.1 The drafting process
* The historical situations
+ Demanding of basic law
8 May 23, 1788 South Carolina 149 73
9 June 21, 1788 New Hampshire 57 47
12November 21, 1789North Carolina 194 77
13May 29, 1790 Rhode Island 344 32
The eternity of The US Constitution
* The capitalism of infrastructure
Trang 13¢ The Constitution 1787
» The amendments of constitution
* The precedent of the Supreme Court
2.2 The content of the constitution
2.2.1 US Constitution — the interstates agreement and also the dividing of
power between the federal and the states 2.2.2 The US Consttution - a social contract
2.2.3 The US Cons — The doctrine of three branches of power
* Law applied in federal court
— Judicial Act 1789 (of US Congress)
— (1842) Swift v Tyson
— (1938) Railroad Company v Tompkin
3.1.4 Special courts * Legal background * Special courts:
+ Federal Claim court;
+ Court of International trade;
+ Tax court 3.2 States’ court systems
* Court of first instance
— Limited jurisdiction
— General jurisdiction
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Trang 14Gradual expansion (in fits and starts) of centralized royal political authority
Expansion of royal power never results in abolition of different regional
laws and regional courts
2 general families of regional laws
Let’s look at all this in more detail:
Germanic settlement of Gaul
In the 3rd and 4" centuries A.D., Germanic tribes start to move into northeastern Gaul (now France)
By the fall of the Roman Empire (476), much of Roman Gaul was controlled by Germanic tribes such as the Salic Franks, the Burgundians, and the Visigoths
The “Dark Ages”
In the 5"century, as Rome collapsed, invaded and plundered by Germanic
tribes, Europe entered what some term the “Dark Ages”, from which it
would not emerge until at least the 10 century
Widespread poverty, illiteracy, intellectual stagnation
What was law like in what is now France during this period?
Tribal Law
Each Germanic tribal group applied its own customary laws For example, the Salic Frank kingdom was subject to Salic Frank customary laws, the Burgundian kingdom to Burgundian laws etc
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