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COMPARATIVE LAW

COMPARATIVE LAW. Spring 2003 Class 5 The Civil Law Tradition II. TODAY’S CLASS. More on the civil law tradition, viewed broadly (its underlying justifications, attitudes towards change, and civil law and comparative law)

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COMPARATIVE LAW

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  1. COMPARATIVE LAW Spring 2003 Class 5 The Civil Law Tradition II

  2. TODAY’S CLASS • More on the civil law tradition, viewed broadly (its underlying justifications, attitudes towards change, and civil law and comparative law) • A look at world legal systems: which systems are civil law systems and which are mixed civil law systems? • What percentage of world jurisdictions are civil law and mixed civil law systems?

  3. WRAP-UP: INFLUENCE OF JUSTINIAN’S GOALS • Last time we discussed the 12th century revival of Roman law, its reception into European legal systems and lasting influence on the civil law

  4. Development of Codes in Europe • France: French revolution, Napoleon in 1804 • German: 1900 • Other European countries developed codes, as well as other civil law systems • Expansion of civil law – growth in formal law as other forms of social cohesion (glue) decline (chthonic tradition, religion in public life)

  5. Underlying Justification for Civil Law • What is the underlying justification for civil law?

  6. Underlying Justification for Civil Law • What is the underlying justification for civil law? • Judeo-Christian Humanism - equality, liberty • Law as Reasons Instrument – logic, precision, consistency, instrument of building the modern state, protected judiciary but suspicion of independent judiciary

  7. Compare the following to the chthonic tradition • Civil Law of Obligations • Civil Family Law • Civil Law of Property • Civil Criminal Law

  8. Compare the following to the chthonic tradition • Civil law – more rights based • Civil Law of Obligations – will theory of contract (not a bargain theory), delictual obligation is fault-based or right-based • Civil Family Law – more consensual, more private • Civil Law of Property – more formal, less communal • Civil Criminal Law - inquisitorial

  9. Change in Civil Law Systems • Compare the attitude to change of chthonic law, Roman law, and civil law

  10. Change in Civil Law Systems • Compare the attitude to change of chthonic law, Roman law, and civil law • Chthonic law: didn’t contemplate change; fundamental core that did not change • Roman law: no machinery for effecting radical change but had a notion of limited change to the law (edict, formulary procedure, substantive law)

  11. Change in Civil Law Systems • Civil law - conceptual change permitting isolation of law within historical time; this permits major legal change. • Glenn claims civil law tradition has a positivistic approach to law and a systemtic approach to law

  12. Civil Law and Comparative Law • How has the notion of identity changed in Europe? • How does the notion of identity relate to the civil law tradition? • What is the place of comparative law in civil law thinking?

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