Legal Families

1. Legal Families Prof. dr. sc. Hana Horak

2. Introduction • Why 'Basic Law' course? • Objectives of the course • Topics to be covered • Reading suggestions

3. Classifying legal systems of the world • No two national legal systems are the same, but there are sufficient similarities between some of them to allow classification; • Different criteria have been used for the purposes of such classification, incl. historical background and development, ideology, sources of law, division of law in the legal system, etc.; • Most authors agree on existence of two major legal traditions: • the Romano-Germanic civil law tradition; • the Anglo-American common law tradition.

4. Then, there are so-called 'religious legal traditions', such as: -Muslim law, -Hindu law, -Jewish law, -canon law (the law of the church); • Some authors also distinguish African (indigenous) customary law. • However, many legal systems are mixed, they have elements of more than one legal tradition.

5. Civil law tradition -1 • The most widely distributed and arguably the oldest one; • Dates back to 450 B.C., and Justinian compilation of Roman law -Corpus Juris Civilis; •Corpus Juris Civilis is a collection of fundamental works in jurisprudence issued by order of Justinian I, Byzantine Emperor, approx. 529-534 A.D.

6. Civil law tradition – 2 • Rediscovery of Roman legal science took place in XI century, with University of Bologna being the principal legal center; • Development of civil law tradition was guided and shaped not by law practitioners, but by legal scholars, professors who tried to reconstruct and explain the Roman law (Corpus Juris Civilis)

7. Codification • 17th-18th century -Scandinavian countries; • Later on -codification in Bavaria, Saxony, Prussia and Austria; • 1804 -French civil code; • 1896 -German civil code. The last two codes served as the models for many other countries, i.e.: • French civil code was brought by Napoleon to Belgium, the Netherlands, parts of Poland, Italy, west regions of Germany; was followed in former French colonies; • German civil code influenced Austria, the Czech Republic, Slovakia, Greece, Hungary, Italy, Switzerland, former Yugoslavia, Brazil, Japan, Korea.

8. Common law tradltlon-1 • England never experienced a reception of Roman law, or movement for codification; • » The origins of common law tradition can be traced back to 1066 - Conquest of England; • » Creation of highly centralized legal system, matters of royal concern were resolved by the king who exercised judicial, executive and legislative powers;

9. Common law tradition-2 • Local issues (except of an extraordinary nature ) remained in the local courts (courts of the shires and hundreds); • ... Later, judicial powers were assumed by three royal (unified, or 'common') courts: • (i) tax disputes; • (ii) disputes between subjects which did not involve a direct interest of the king, such as title to land; • (iii) disputes with a direct royal interest. • Local courts started to lose their jurisdiction.

10. Writ system • » However, jurisdiction of the common courts was limited by the writ system. • » Writ (form of action) -'a command of the King directed to the relevant person (official, judge), containing a brief indication of a matter under dispute and instructing the addressee to call the defendant into his court and to resolve the dispute in the presence of the parties' (Zweigert and Koelz, 1998, p.184); • » Writs were issued in the name of the King by the highest royal officials, later -by the Chancellor, on payment of a fee by the plaintiff, without hearing the defendant.

11. Further evolution -'equity' • » A plaintiff unable to obtain a proper writ was left with no remedy. To counter this problem and provide relief other than money damages, in 15th century a formal Court of Chancery was created with jurisdiction over pleas in equity; • » Law of equity introduced the rules of trust and provided for such remedies as injunctive relief and specific performance; • " Reforms throughout the centuries, such as solving issues of overlapping jurisdiction, structural changes, fusion of rules of law and equity, abolishing rigid forms of action, introduction of more uniform procedure, etc.

12. Vocabulary • Trust-property, either real or personal, that is held by one party for the benefit of another party. Property held in trust comprises two interests: a legal interest and an equity interest. The legal interest is held by the trustee (person who holds the legal title to property which is administered for the benefit of someone else) and the equitable interest is held by the beneficiary (the one who is intended to benefit from the property, even though she is not the legal owner); • Injunction - an order of the court prohibiting a person from doing something or requiring to do something; • Specific performance - a court order to make a party perform her obligations under the contract .

13. Distribution of the common law • Most of the Commonwealth countries belong to the common law family: Australia, Canada(Quebec has civil law system), India, New Zealand , South Africa (later partially accepted civil law tradition (Roman – Dutch later), therefore, now mixed system); • The United States (Louisiana rests on civil later) • Pay attention: Great Britain (England, Wales and Scotland) has no common legal system. While many English statutes are applicable in Scotland, the Scotish private law is based primarily on Roman law and tehrefore represents a mix of common and civil law.

14. Sources of law in civil law countries • Where one has to look to determine what legal rules are applicable to govern the relationship; • (i)primary sources (binding), such as enacted law and custom for a number of countries, sometimes, also general principles of law and • (ii)secondary sources (not binding, may have weight when primary sources areabsent, unclear or incomplete), such as case law and the writings of the legal scholars; • Enacted law is the main source of law , includes legal rules adopted by the parliament, as well as issued by executive and administrative agencies; • Court decisions are not binding in a subsequent cases.

15. Sources of law have different legal force, they form so-called 'hierarchy' of legal acts: • constitution has greater legal force, • it is followed by legislation (laws produced by the parliament ) • executive decrees (acts of the government ), administrative regulations, etc. • In federal states – special rules concerning correlation between federal and state law; • Besides, international law rules have special effect on national law of the country.

16. Sources of law in common law countries • Case law (as a primary source of law); • legislation; • Customs, conventions, royal prerogative, etc. • In common law countries precedents exist separately as law to be followed; • In general, the decisions of a higher court are binding (i.e. must be followed) upon all rower courts ('doctrine of binding precedent'); • Decision which interpret legislation become a source of law (as much as the law they interpret), thus, judges create new law; the statute alone may be viewed as incomplete until it has been interpreted.

17. Precedents have been characterized as being precise and flexible; • Decision based on particular facts gives some assurance that in subsequent indentical fact situation a similar conclusion will be reached; • Common law lawyers have become ecceptionally skillful at distinguishing fact situations (in order to acquire different decision); • The statute World not be able to include all these factual varioations and possible solutions to them; • In civil law countries precedents also have value since they may provide assistance in determining how statutory laww is interpreted (teaching function), but the courts do not need to follow earlier decisions.

18. Legislation – acts of principal legislative body, judicial interpretation will follow; • Custom plays important role in many legal system (e.g. in England): initial establishment of custom requires proof that it existed uninterrupted for a long period of time and that it existed by common consent (not by the use of force) • Conventions (influential source of English law) – unwritten source of law (together with custom) .

19. 1. The civil law emerged from Roman law a. The coomon law was created by English courts 2. Civil law has been codified in most continental countries b. The common law is still largely case law Civil law vs. Common law: two major differences

20. National law, International law and European law • National law - the law of certain country (law of the Netherlands, Belgium, Sweden, etc.); • International law - usually we mean 'Public International law‘ ,i.e. that law that regulates the relationship between the states, and international organizations. As opposed to Public Intemational Law, 'Private International law (or 'Conflict of Laws') rules allow to determine which national law has to be applied to situations crossing over the borders of one particular state and involving so called 'reign element'; • European law – most of the time we mean 'law of the European Union' (to be discussed further in the course).

21. Sources used: • M.A. Glendon, MW. Gordon, C. Osakwe, Comparative Legal Traditions: Text,Materials and Cases on the Civil and Common Law Traditions, with Special Reference to French, German, English and European Law(2nd ed., St. Paul, Minn.: West Pub. Co., 1994) • Glendon, MW. Gordon, C. Osakwe, Compatative Legal Traditions in a Nutshell/(Sp. Paul, Minn.: West Pub. Co., 1982) • Zweigerl and H. Koetz, Introduction to Comparative Law (3rd ed .. Oxford [etc.]: Clarendon Press, 1998) • Gubby, English Legal Terminology: Legal Concepts in Language (Den Haag: Boom Juridische uitgevers. 2004)

22. Divisions of Law Prof.dr.sc. Hana Horak Siječanj, 2010.

23. Public law and Private law • Distinction is very important for civil lawc ountries, and much less important in common law countries; • However, no unifomity exists among civil law countries in distinguishing public and private law; • Generally speaking , public law is the law that governs the relationship between the individuals (physical or legal persons) and the state . Thus, in public law state is directly involved as a legal actor; • Public law includes at least : • constitutional law • administrative law, and • criminal law.

24. Public law and Private law – 2: • By contrast, private law governs the relationship between private individuals without intervention of a state or government. In this areas of law state is not directly or primarily a party; • Private law includes at least: • civil law, and cemmercial law. • Or, depending upon legal system and accepted classification of branches of law, one can say that private law includes the following branches: contract law, tort law, family law, property law, etc. (see next slides).

25. Distinction is ambiguous, besides, even such 'traditional' private areas as family law are increasingly regulated by the state; • Classification of some areas is disputable: • e.g. civil procedure-included either in private, or in public law, depending upon legal system; • labor law, agricultural law, social security law -sometimes referred as 'mixed' public and private, sometimes described as sui generis (Glendon, Gordon, and Osakwe, p.266). • Occasionally, public law would mean the law of general application, as opposed to private law, which concerns only a small class, or group, or even a single individual.

26. Public law Private law • defines the state or governs the relationship between the state and its citizens, • tends to be more general, may involve multiple parties or interests, • more likely to be prospective (forward looking), • in some cases goes beyond awards of monetary damages (e.g. imprisonment) • governs relationship between citizens, • often retrospective, concerns with resolving secific disputes about past conduct between identified parties, • rarely has public policy implications. Public law vs. Private law

27. Administrative law • When one speaks about public law often what is meant is administrative law; • Consists of norms that regulate the organization, functions, interrelation of public authorities (other than political and judicial), and the norms governing the relationship between the administrative authorities and the citizens (Glendon, Gordon, and Osakwe, p.267); • E.g. -Tax law.

28. Civil law • In civil law countries the norms of private law are divided into two groups – civil law and commercial law; • Civil law - applies to everyone, basic provisions can be found in civil codes; • Commeroal law- concerns specific groups of persons and/or specific typesor activities , in most civil law countries the norms of commercial law have been codified in separate ccmmercial codes; • The term 'private law' is often used to designate civil law(in fact, the terms 'private law‘ and ‘civil law‘ are often used interchangeably).

29. Civil law includes: • The law of persons (governs the status of individuals and legal entities, includes legal rules relating to names, domicile, civil status, capacity and protection of persons under legal incapacities of various sorts); • Family law (regulates formation of marriages, legal effects of marriage, termination of marriage by divorce, separation, and annulment; family support obligations); • Marital property law (norms establishing and regulating so-called ‘legal regime‘ i.e. the system that governs the property relations of all spouses who do not choose an alternative regime by way of entering marriage contract: also, norms that concern procedure for entering and altering marriage contracts);

30. It also includes: • Property law (distinction between movable and immovable property (in common law: personal and real property), protection of the right of the ownership, etc.); • Succession law (rules of disposition of property upon death by will or by intestate inheritance); • The law of obligations (covers all acts or situations which can give rise to rights or claims, divided into three parts: the law of contracts, the law of tort (delict) andthe law of unjust enrichment).

31. Vocabulary: • An 'obligation'-in civil law countries is the duty of one person (the ‘debtor') to transfer the ownership of property or create a right over it/ to do or not to do something to the benefit of another person (the 'creditor;). • May arise: • from the law alone(e.g. 'alimentary obligation'). • by contractor by reason of unilateral undertaking of one person; because of a delict (e.g. a person has committed a fault,or must compensate for a damage caused by a thing under his care,or by a person for whom he must answer); • from the fact that a person is, by reason of various circumstances, unjustly enriched at the expense of another person who has suffered an impoverishment; • The concept of 'obligatlon‘ is unknown is common law tradition (David, Brierley, p.B7).

32. Contract law: • In civil law countries the code will first include the rules which are applicable to all contracts, and then – the rules which are special for particular types(sorts)of contracts, such as sales, leases, agency, loans; • Contract is an agreement between two or more parties that is binding in law, i.e., contract is a legally enforceable agreement (Gubby, p.166); • Contract creates rights and obligations that maybe enforced in the courts; • In general, no special requirements as to the form in which a contract has to be concluded (can be concluded orally, in writing, can be inferred from the conduct of the parties);

33. Contract law - 2: • However, some contracts require special form and will be invalid if the form was not observed; • Formation of contracts: • offer and acceptance; • intention to create legally binding relationship; • for common law, the presence of consideration. • An 'offer' shows a willingness to enter into agreement without further negotiations (parties involved –offeror and offeree); • Acceptance -unconditional assent, communicated to the offeror by the offeree, to all the terms of the offer; • Notions of 'counter-offer', 'battle of the forms';

34. Contract law -3: • 'Postal rule'- in English law: acceptance is complete when the letter is posted, even if such a letter never reaches offeror; • Consideration (common law requirement!): in a contract each party has to give value to the other either by exchanging promises or by a promise given in exchange for an act; • Therefore, as opposed to civil law, in the common law one-sided promises, such as gift, do not contribute binding contract (they are unenforceable);

35. Contract law – 4: • Excuse for non--performance: • Frustration (impossibility) and force majeure clause, • Frustrating event - an event beyond the control of the parties, that has made it impossible to carry out the contract or commercially pointless to do so; • Force majeure clause – a provision of the contract that lists events considered to be outside the control of the parties and for which the parties cannot be considered to be in breach (Gubby, p.154). Ex. war, fire, flood, acts of God, labor disputes, compliance with the law or governmental order, accident, etc. • Remedies for breach of contract: • -damages, specific performance, injunctions .

36. Tort law • 'In modern civil codes much of tort law depends on short, general provisions that say that a person is liable for harm (or certain harms) that have been causes through his fault' • J. Gordley and A.T. von Mehren, An Introduction to the Comparative Study of Private Law: Readings, Cases; Materials (Cambridge [etc.]: Cambridge University Press, 2006), p.234

37. To give an example: • Art. 1382 of the French Civil Code states: "Any act of a person which causes harm to another obligates the person through whose the harm occurred to make compensation for it". Art. 1383: "A person is liable for the harm that he causes not only by his acts but by his negligence or imprudence:' • § 823(1) of the German Civil Code: "A person who intentionally or negligently unlawfully injures the life, body, health, freedom, property or similar right of an other is bound to compensate him for any damages that thereby occurs"

38. Torts in common law: • Common lawyer will ask whether the defendant committed a particular tort for which common law courts give relief, such as: • tort of negligence (the defendant is liable if he negligently harmed the person or property of the plaintiff), • tort of battery (the defendant must make contact with the body of the plaintiff, something that is not acceptable, e.g. bashing the defendant on the head),

39. Torts in common law – 2: • tort of assault (the defendant must have done something that makes the plaintiff to believe he may imminently be the victim of a battery, such as pointing the gun), • tort of false imprisonment (the defendant is liable if he confined the plaintiff, it may be in any space, large or small, no matter how confinement is affected, by force or threats, or fraud; there will be liability of the defendant even if he mistakenly but reasonably thought he had the right to confine the plaintiff), etc.

40. Commercial law: • Developed from mercantile customs into well-established separate branch of private law; • Generally speaking, includes corporations and other business legal entities, securities, banking, and negotiable instruments; • Civil codes are frequently brought into fill the gaps in the commercial codes and their supplementary laws since commercial codes lack the general principles and internal coherence of the civil codes (Glendon, Gordon, and Osakwe, p.273)

41. Commercial law – 2: • Commercial law has increasingly been affected by a body of legislation regulating commercial and corporate activity(requirements of special permits, licenses, etc.); • Sometimes it is hard to distinguish commercial law from administrative law; • 'Commercial law' => 'commercial and economic law'(economic law-'regulatory law of the administrative state').

42. Other branches: • Corporate law; • Competition law (or Antitrust law); • Distinction between substantive and procedural law.

43. Sources used: • M.A. Glendon, M.W.Gordon, C.Osakwe, Comparative Legal Traditions: Text, Materials and Cases on the Civil and Common Law Traditions-with Special Reference to French, German, English and European Law (2nd ed., St Paul, Minn.: WestPub.co., 1994); • R.David and J.E.C. Brierley, Major Legal Systems in the World Today: Introduction to the Comparative Study of Law(3rd ed., London: Steven & Sons, 1985); • H. Gubby, English Legal Terminology: Legal Concepts in Language (Den Haag: Boom Juridischeuitgevers, 2004).

44. Basic EU Law Prof.dr.sc. Hana Horak Siječanj, 2010.

45. Structure of the lecture • Why EU law? • Summary of the European Integration • The European Communities and the European Union • The Institutions • The Doctrines, Principles and Sources of the Community Law • Conclusion

46. The birth of the European Communities • 1951 -the Treaty of Paris establishing the European Coal and Steel Community (ESCS) was signed by six countries Germany, France, Italy, the Netherlands, Belgium and Luxembourg • The ECSC received international legal status and separate and autonomous institutions, control over production and distribution of coal and steel, legislative and administrative powers in the area concerned • 1957 -the same six countries signed two Treaties of Rome establishing the European Atomic Energy Community (Euratom) and the European Economic Community (EEC, now -EC), the latter one with a view of creating a "common marker'

47. The three Communities: • Remain legally distinct (the ECSC was created for 50 years, it therefore expired in 2002); • Originally each of three Communities had a set of autonomous institutions, but in 1967 institutions were merged (a single Council, a single Assembly, and a single Commission were created); • The powers and functions of the institutions depend upon provisions of the Treaty under which they act. Further we will mainly discuss the European Economic Community (now the 'European Community'). Most of the times we will refer to it as the 'Community'. The Treaty establishing this community will be referred to as the 'EC Treaty'.

48. Further growth: • 1986 - signing of the Single European Act (with objective of completion of 'internal market', i.e. 'an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured', Art. 14(2) of the EC Treaty)

49. The birth of European Union: • 1992 - signing of the Treaty of Maastricht (the 'European Union Treaty', or the 'EU Treaty'), entered into force on November 1, 1993; • Provided for a European Union with main objectives being the establishment of an economic and monetary union ultimately including a single currency, a common foreign and security policy, the introduction of the citizenship of the European Union, co-operation in justice and home affairs, the maintenance of the acquiscommunautaire, etc.

50. May 1, 1999 the Treaty of Amsterdam entered into force (in particular, changed the numeration of the Articles); • 2001 -the Treaty of Nice (amended the EU Treaty, and the Treaties establishing the European Communities); • July 18, 2003 -draft Constitution was presented to the European Council of Rome (later ratified by the Parliament and by ten Member States, but rejected at referenda in France and the Netherlands. In July 2005 the ratification process was temporary suspended as the Member States decided that they needed a 'period of reflections' to unable a broad debate in each country).