Chapter CIVIL LAW TRADITION

CHAPTER CIVIL LAW TRADITION SUMMARY * On the name of this legal family * Main contents of Chapter II I II III IV Historical Formation & Development of CiLF Structure of the Law Sources of Law Typical legal systems of CiLF (Lecture on: I, II, III) Roman Law Corpus Juris Civillis • Bản chun luận có hệ thống luật (Institutes) • Tuyển tập quan điểm pháp lý (Digest) • Bộ pháp điển (codex) • Bộ sưu tập đạo luật Hoàng gia (Novel)  Law schools which researched Roman Law  Glosstator  Commentator  Legal - humannist  The natural law  The codification CÁC DÒNG HỌ PHÁP LUẬT TRÊN THẾ GIỚI Civil law Common law Hồi giáo I Historical Formation & Development of the CiLF Historical Formation of the CiLF in Continental Europe a Fundamentals of Roman Law (RL) - The term “RL”: understood in different ways: (1) RL: Entire Roman legal output of nearly a millennium (from the 12 Tables [450 BC] to Corpus Juris Civilis (CJC) [534 AD]) (2) Justinian times present, except to specialists, RL= as it appears in the 6th century CJC of Justinian (3) RL included: CJC & the fruits of scholarly study of CJC from XI-XVIII  Which one is correct? - Basic components of RL: Twelve table; Institutes; CJC (1) The Twelve Tables - Created: 450 BC,1st unequivocal landmark in RL history Authors: + 1st commission of 10 men (455 BC) 10 tables  not satisfactory, especially to the plebeians + 2nd commission of 10 men (450 BC) tables - Contents: Latin custom (main) & Greek Law (some) - Features: + only basic legal rules + not a comprehensive/ definitive piece of legislation  12 tables: starting point of Roman legal history - Applied law: after the 12 tables being created:  Great deal of the law remained unwritten  Custom played an important role - TABLE I Proceedings Preliminary to Trial (Procedure: for courts and trials) - TABLE II Trials - TABLE III Execution of Judgment (duration of time for payment of debt) - TABLE IV Paternal power (Rights of fathers over the family, iclud his children & wife) - TABLE V Inheritance & guardianship(Legal guardianship and inheritance laws) - TABLE VI Ownership & possession(Acquisition and possession) - TABLE VII Real Property(Land rights: boundary b/t pieces of land; width of road; prune tree branches) - TABLE VIII Torts and delict(Laws of injury) - TABLE IX Public law - TABLE X Sacred law (funeral matters) - TABLE XI Supplement I (forbidden marriage b/t a patrician & a plebeian ) - TABLE XII Supplement II (sanctions for violation of law) Note: T.1-10 made in 455 BC; T.11 - 12 made in 450 BC (2) The Institutes - Form: book (a palimpsest, found: 2nd century BC) - Author: adopted name - Gaius (lived: 3rd century BC - Value: + 1st systematic compilation of RL/elementary introduction to law + a priceless direct testimony to the state of classical law - Role: enriched us with knowledge of RL - Content: + sets out RL (rudimental terms but extremely well organized & accessible manner) + RL is threefold: persons; things; actions + Explains the scope of each of headings & further gives subdivisions/sub-classifications  Hard to understand Justinian’s later codification without this book 1.4 Similarities & differences b/t Laws of Ci.L countries - Difference: Laws of Ci.L countries differ in their substantive legal rules + PL: varies according to each country’s political options & the degree of centralization it has attained + Pr.L: each Pr.L branch has reached different development stage & comprises, in some countries, concepts unknown to others - Similarities in structure of the law: (1) In all countries, same division b/t PL & PrL can be found (2) PL & PrL are arranged/classified into different law branches (3) Each law branch consists of legal rules Reasons: + PL: 1) a community of thought in philosophy & political science has developed b/t European continental countries (Montesquieu, Rousseau); 2) common method used in law teaching generating common mode of legal thought for jurists + Pr.L: 1) almost drafted based on Ro.L, Germanic custom (lower level) & Law of merchant (commercial custom in Europe in mid age) 2) some countries adopted Canon Law Eg.: The uniform structure of Pr.L - Similar to other CCs, the French CC’s subject matters are not of Roman origin: CC has adopted some institutions from Cannon law (marriage, filiation) & other from customary law (matrimonial property regimes) It has profoundly changed certain other subjects (property & inheritance) by affirming the ideas of the Revolution of 1789 - Each national law has an originality, manifested by its particular institutions, in its own private law - However, a definite affinity b/t them does exist: evident in the subjects developed on the basis of Ro.L & even on the basis of Cannon law (of Christian countries); the subjects derived from customary law where a distinction might be made due to national or regional nature of the custom but in the end they might be linked to a limited number of definite types (or rules of the code may be drawn up from custom which even before codification, was international in character, so the affinity b/t different codes reappears PL & Pr.L arranged into law branches - In PL & Pr.L of Ci.L countries, same fundamental branches be found: const’l; admin.; Pulbic Inter’l; crim’l law; law of procedure; civil & com’l law… - Same correspondence of established categories, found again at a lower level in their institutions Eg.: + Civil law: law of persons; family law; marital property law; succession law; law of obligation (but 1/ France: family law law of person; 2/ Switzerland: Ci.Code & Obl.Code) + Commercial law: corporations, banking, securities law; negotiable instruments law Law branch constituted of Legal rules - Definition: + law branch: body of legal rules governing… + legal rules enacted by state authorities such as….; ≠ Com.L legal rules, made by judges/courts while hearing cases) - Features: + made by law-makers through a law-making process: drafted by jurists/practitioners (neither by theoreticians nor by judges…), approved by legislature + highly abstract & generalized (deemed as rule of conduct, endowed with certain generality & situated above the specific application which courts or practitioners may make of it in any concrete case) subordinated legal rules play important role - How to be arranged: grouping into different categories to govern different groups of social relations  law branches III SOURCES OF LAW IN CI.L COUNTRIES Two types of law source: - Primary sources: binding legal rules (legislation > custom > general principles of law) -Secondary sources (authorities): may have weight when primary sources are absent, unclear or incomplete, but they are never binding, neither necessary nor sufficient as the basis for judicial decision (case law; legal writings) Primary sources of law: legislation; custom; general principles a/ Legislation: constitution, international treaties, codes & statutes, administrative regulation & decrees a.1/ Constitution: - Prior to XIX: (1) in some countries, const’l provisions enjoyed a special, political prestige  its provisions may be adopted or only properly modified according to special procedure but in law they have no more authority than ordinarily enacted laws; (2) in others, const’n was a means of controlling the constitutionality of other laws although the manner & character of such control may vary - Nowadays, const’n ranks first among legislation principle of judicial control of the constitutionality of ordinary legislations has been established courts have set aside laws violated fundamental rights protected under the constitution a.2/ International Treaties International treaties enjoy similar place to constitution : - In theory: some constitutions declare int’l treaties being superior to any enacted law  which one is superior? - In practice: domestic courts declined to exercise judicial control over a law enacted after the coming into force of a treaty & incompatible with it  Eg.: difference b/t constitution’s & international treaty’s ranking in theory & in practice! a.3/ Codes & other statutes - Which one is superior? codes not enjoy any special preeminence over other statutes except for some prestigious codes (Eg.: …) - Similarities? (both constituted by…, enacted by…) - Differences? (longer, more comprehensive, govern various groups of social relation; legislative technique ) a.4/ Administrative regulations, decrees - Admin regulations, decrees (≠ directives: indicate the manner in which the government understands the law & intend to apply it; not establish legal rules) + Who enact? # Regulation Administrative organs; # Decree president / prime minister / monarch + Why enact? To implement statutes (too generalized & abstract  need more detailed provisions to clarify)  in Germany, decrees must be adopted within the scope of & furthering the purpose of regular legislation  in France no such restriction since executive branch has enjoyed considerable autonomy to initiate measures by way of decree that escape control by the legislative branch (under French constitution, regulatory power is not subordinate to executive power but is autonomous) b Customary law - Custom = norms that have a long-standing practice, public approval & consent & be recognized as binding - In all legal systems, custom plays a preponderant role In developing / applying the law, legislators, judges & authors are more or less guided by community’s opinion & custom - In continental Europe: + In theory: custom listed as primary source of law but not have much practical importance except for in some countries & in some areas (plays a greater role in commer’l & labor law than in ci.L) + In practice: binding force of customary law varies amongst countries: France < Germany < Spain  Eg Of role of custom in the above countries? Examples: # France: - General & local custom within the scope of the Ci.C were abolished But in some areas, legislation preserves custom; in others, custom supplements or even contradicts legislation - types of custom: + Preserve (Secundum legem): Custom applied according to law (Art.1135 Ci.C) + Supplement (Praeter legem): Custom applied when law in question is not codified + Contradict (Contra legem): Custom contradicts the law: court often refrain from mentioning the statute that is contrary to custom they approve instead of saying that the statute will not be applied Eg: privilege of repair & replacement permitted to the seller in commercial sales, contrary to the rules of 1184, 1610, 1611 of the Ci.C # Germany: in certain cases, custom prevails written law # Spain: in some provinces, national Ci.C does not apply to matters governed by local custom c/ General Principles (GPs) - Definition: GPs are those principles which are widely recognized on municipal or international sphere - Origin: derived either from norms of positive law or from the existence of legal order itself, or created by the courts/jurists  resulted from or outside enacted law - Role of GPs: fill in statutory gaps of both PL & Pr.L in Ci.L systems + PL: was neither codified nor legislated upon GPs were necessary to create a backbone for the development of rules governing the action of the administration; some GPs taken from the constitution to protect human rights & freedom (princ of equality), or from EU Charter of Fundamental Rights (Eg: no one shall be tried twice in criminal proceedings for the same criminal offence) + Pr.L also recognizes GPs, Eg.: princ of unjust enrichment led to the recognition of a remedy not included in the French Ci.C (even merely “moral enrichment” may suffice: Shop Owner case, 1960: shop-owner fled before the invasion of German Army 1940 Later successfully claimed an indemnity for his losses due to a local councilor ordered to distribute food and other goods in the shop to local population for a charge & s/t for free) Secondary Sources of Law: a/ Case Law - CL plays enormous role in every day operation of Ci.L systems (necessary to interpret & apply the written law)  a sign of convergence with the Co.L systems - In theory, Ci.L judges must not make law  higher & highest court verdicts are not binding on lower courts in subsequent cases This theory, however, subject to a No of qualifications: in fact, judges make law 1) to assure consistency among judicial decisions 2) to avoid future reversal: in a bureaucratic judicial systems, the de factor influence of higher court decisions upon the lower courts judges is considerable; 3) some courts’ decisions are binding: highest court; constitutional court (in some countries on the constitutionality of statutes have the force of law) 4) a settled line of cases has great authority everywhere, even somewhere is made binding by legislation It is said that, a line of cases can create a rule of customary law which is then binding; 5) some law branches uncodified: entire bodies of law in Ci.L systems have been built up by judicial decisions (similar to that of Co.L system)  Eg: tort law & substantive admi.L in France are largely un-codified; - Force of CL varies from country to country: Eg: CL in France has weaker force than in Germany but decisions of the Council of State & of Court of Cassation reliable precedent  de facto sources of law b/ Legal writings (Doctrine) - Significance: similar to CL, LW is considered authorities in Ci.L systems - Role: differ from that of CL: + CL authority operates to settle the law & to assure a degree of consistency within a judicial hierarchy + LW used to be the fundamental source of law for long time in Ci.L systems Its primacy has only recently given way to enacted law But: + LW is, as in the past, an important, living source of law b/c: # creates legal vocabulary & ideas which legislators subsequently use; # establishes the methods by which law will be understood & statutes will be interpreted; # influences on the way the legislators draft the law & stimulates them to action; # has a role in the application of enacted law IV TYPICAL CIVIL LAW SYTEMS The French Legal system a/ Civil Code b/ Court system c/ Legal education & profession d/ Sources of law The German Legal system a/ Civil Code b/ Court system c/ Legal education & profession d/ Sources of law ... contents of Chapter II I II III IV Historical Formation & Development of CiLF Structure of the Law Sources of Law Typical legal systems of CiLF (Lecture on: I, II, III) Roman Law Corpus Juris Civillis... + Civil law: law of persons; family law; marital property law; succession law; law of obligation (but 1/ France: family law? ?? law of person; 2/ Switzerland: Ci.Code & Obl.Code) + Commercial law: ... Ci.L (law of persons; family law; marital property law; property law; succession law; & the law of obligation (contract; tort; unjust enrichment) Note: in France, family law is included in the law