Civil Law Tradition: Comparative Perspective

Question 1

what is comparative law as a field of research?

Answer 1

considers different legal perspectives and cultures

Question 2

what issues may arise when comparing legal systems and models?

Answer 2

the problem viewed may not be the same

difficult to directly compare considering differing contexts

requirement of sufficient translation of the legal system that is representative

Question 3

what areas can be compared between legal systems?

Answer 3

doctrinal vs socio-legal approach

considerations beyond rules and decisions - institutions, practices and cultures

Question 4

how does the Secret Barrister describe the common law?

Answer 4

‘rulings of the most senior courts have the force of binding law’

Question 5

what is the role of the judiciary in the civil law tradition?

Answer 5

judges function is only to find the right legislative provision, consider the facts of the case and provide the automatically generated solution

Question 6

how did the law exist in the Roman era?

Answer 6

laws existed in the form of imperial decrees/statutes

trained lawyers with different skills ex//Cicero writing opinions for clients

no law schools, but law was taught in private schools

Question 7

what was Justinian’s codification?

Answer 7

Emperor Justinian from 6th century was an Eastern Roman ruler

wanted to leave legacy of laws

asked civil servants to compile a book with pre-established laws/rules - Digests and Institutes

Question 8

what did the Justinian codification create?

Answer 8

Corpus Iuris Civilis

taught in schools by professors

Question 9

what was the Ius Commune?

who were the ‘glossators’?

Answer 9

the result of commentary and evolution of the Corpus Iuris Civilis

individuals who had annotated the original text who aimed to correct contradictions

Question 10

what has codification of laws been influenced by in its new content or method of relaying?

Answer 10

religion
philosophy
community and society
modernisation

Question 11

what is a ‘code’?

Answer 11

not just a book of rules, but linked to an ideal

comprehensive and accessible law

Question 12

what are the aims of a code?

Answer 12

put legal power firmly in the hand of the legislator

creation of general principles to govern specific cases

Question 13

what are the characteristics of a code?

Answer 13

pyramid of concepts with general principles at the top
complete and ‘gapless’ system
created by the State, professors and also the people
follows Cartesian logic with syllogism - ‘cogito ergo sum’

Question 14

what is the structure of the French Civil Code?

how can it be understood as ‘complete’?

Answer 14

divided into books
ex// of Persons, of Property, of the ways Ownership is Required

broad principles means its application is still relevant
HOWEVER, more specific ones risk not being representative

Question 15

what are the characteristics of proceedings in a civil court?

Answer 15

short judgements 
no dissent 
no policy concerns 
no precedent setting 
application of facts to the code

Question 16

what are the motivations for a civil law system?

Answer 16

supports democratic principle of SOP

ensures the law is clear and accessible to all

provides predictability

removes extensive judicial interpretative power

Question 17

how does Montesquieu describe the role of the judiciary?

Answer 17

‘mouthpiece of the law’

they have a passive role of simple application of the law in courts

Question 18

how do judges get their position under the common law system?

'’civil law?

Answer 18

in UK judges are ex-barristers, they have done bar training and are subject to the precedent that has been set by former judges

in France, judges go to ‘judge school’ and becoming a judge is seen as a profession, has strict training and standards

Question 19

what is the civil ‘pre-decision report’?

Answer 19

a consideration of earlier cases and principles
NOT published
only a report of the logical reasoning is published

Question 20

what is ‘la doctrine’?

Answer 20

academics notes that are published alongside a decision

academics help to shape the laws ‘normative content and impact’ (Lasser)

Question 21

how does the French Civil law system aim to overcome the problematic legitimacy of the judges?

Answer 21

radical bifurcation - split between published decision and substantive judgement

denial of judicial decisions as a source of law

creation of a judicial profession rather than authority of singular judges

Question 22

How does A. Tunc articulate the divide between the legislature and the judiciary?

Answer 22

‘there is a science for legislators as there is one for the judges; and one is not similar to the other’

Question 23

who has published a plea for more detailed and explicit judicial decisions under the French civil law system?

Answer 23

Adolphe Touffait

Question 24

how does A. Tunc argue that the deductive civil law method is beneficial?

Answer 24

saves time, money and areas of excessive contention

Question 25

what system does the European Court of Justice use?

'’Lasser argue?

Answer 25

conglomerate mode that uses both common and civil law approaches

‘ECJ carries its legitimation burden largely by argumentative, rather than simply institutional, means’
BUT ‘largely deductive documents’ that ‘tend to leave much - and at times, virtually everything - unsaid’

Question 26

how does Lasser describe the subject of the law?

Answer 26

‘law is instead treated as a special, high status category of norm that is reserved primarily (and intentionally) to the legislature’

Question 27

how does Lasser describe the French civil law judges?

Answer 27

‘elite, carefully selected and rigidly trained corps of magistrates groomed - or ‘formed’ - by the French state itself’

Question 28

how are judicial decisions decentralised?

Answer 28

rendering them uninformative

formulaic syllogisms

Question 29

how are US judges in their common law system kept under control?

Answer 29

intra-collegial critique

‘the threat of individual critique represents the American system’s primary external mode of controlling judges’ interpretative and normative practice’