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Sources of Law

Sources of Law. Written law Constitution Codes Statutes Other sources Custom Case law Scholarly writings. Sources of Law. Classical civilian doctrine Only source is written law Positive law In practice, doctrine eroded What are advantages of case law?. Sources of Law.

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Sources of Law

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  1. Sources of Law • Written law • Constitution • Codes • Statutes • Other sources • Custom • Case law • Scholarly writings

  2. Sources of Law • Classical civilian doctrine • Only source is written law • Positive law • In practice, doctrine eroded What are advantages of case law?

  3. Sources of Law Al Franken, December 3, 1999"Non-Recourse Borrowing and Non-Recognition Transfers: A Case Law Analysis"

  4. Sources of Law • In practice, case law – • Simplifies judicial task • Increases judicial wisdom • Adds certainty and predictability • Assures equal facts  equal results • Provides for systemic conformance Where does case law stand in civil law?

  5. Sources of Law How would you measure a particular legal source’s importance?

  6. Sources of Law • Case law (jurisprudence) • Not necessarily “law” (compare US) • Not necessarily organized, reported • Usually line of cases (compare US) • Courts not acknowledge “make” law • Lower courts fear, not respect, precedent • Case facts, holding/dicta not relevant Compare this to scholarly writings …

  7. Sources of Law Pepo, Irnerius Corpus iuris civilis libri legales

  8. Sources of Law • Scholarly writings (doctrine) • Relied on by practitioners (annotations and commentaries) • If critical, lead judges to rethink (compare US “secondary sources”) • Swiss Civil Code: judge to be guided by “approved legal doctrine” • Influential in uncodified civil-law systems When is each used?

  9. Case law Open-ended code (“blank norms”) Social, economic upheaval Written opinions reported Scholarly writings Detailed codes (intestacy, corps.) Procedural law (courts not make) Latin America (inc. European authors) Sources of Law

  10. Code provisions __Austrian Civil Code (1811) __Spanish Civil Code (1889) __Louisiana Civil Code __Swiss Civil Code (1907) __Iraqi Civil Code (1953) A. “if no legislation or custom, court can proceed according to equity” B. “acting as legislator, judge guided by judicial tradition” C. “custom governs absent written law, complemented by decisions” D. “absent code or custom, principles of Shari’a E. “absent text or similar statutes, principles of natural justice” Sources of Law

  11. Code provisions E_Austrian Civil Code (1811) C_Spanish Civil Code (1889) A_Louisiana Civil Code B_Swiss Civil Code (1907) D_Iraqi Civil Code (1953) A. “if no legislation or custom, court can proceed according to equity” B. “acting as legislator, judge guided by judicial tradition” C. “custom governs absent written law, complemented by decisions” D. “absent code or custom, principles of Shari’a” E. “absent text or similar statutes, principles of natural justice” Sources of Law

  12. Sources of Law

  13. Sources of Law Usatorre v. The Victoria(2d Cir. 1949) • Facts • Issue • Holding • Analysis

  14. Sources of Law Usatorre v. The Victoria(2d Cir. 1949) • Facts: tanker ship (flying Argentine flag) torpedoed, abandoned, then recovered by crew • Issue: can crew recover for salvaging ship after abandonment? • Jus gentium: salvage recovery after good faith abandonment • Argentine law: crew cannot abandon ship unless “incapable of navigation” • Holding: Argentine law applies - remand • Analysis: Governed by “internal economy” of ship - matter of fact, to be determined from expert

  15. Sources of Law Usatorre v. The Victoria(2d Cir. 1949) Argentine law according to Cuban lawyer = expert • Code of Commerce: seaman contract ends if vessel “incapable of navigation” • Relied on uncited commentators, since little attention to court decisions Are you convinced? Was Learned Hand?

  16. Sources of Law Learned Hand • Harvard (1896) • U.S. District Judge (SDNY 1909-24) • Second Circuit (1924-51) • 2,000 opinions • “tenth justice of the Supreme Court” “There is no surer way to misread any document than to read it literally.”

  17. Sources of Law Usatorre v. The Victoria(2d Cir. 1949) Learned Hand: “In all civil law countries … much law is judge-made. “Both the slavish obedience of [civilian] judges to codes, and their freedom from precedent, are largely myth” “Influence by interpretive theory which derives from Aristotle, courts interpret “equitably” (fill gaps) by asking what legislature would do.

  18. Sources of Law

  19. Sources of Law A case of interpretation of Turkish code: “Fathers must claim paternity – • “Within a month after child’s birth • “Within a month after learns of birth, if there was fraud.” Q: What sources would you look to see whether father can amend complaint to add mother in suit naming only the child?

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