Civil vs Common Law

Question 1

Common Law Characteristics

Answer 1

1. 3% of systems world wide
2. Court/judge = source of law in common law
3. Consistency matters: stare decisis => cross-reference to previous judgments.
4. Reliance on parties to investigate.
5. Judges have the power to strike down the will of a democratize majority through constitutionalization, judicial review over administration action.

Question 2

Civil Law Characteristics

Answer 2

1. Most common legal system
2. Civil law is contained in civil code. Rationale = public accessibility.
3. Heart: public manufacturing and distribution of law by legislature.
4. Court investigates itself.
5. No cultural idea that you can overturn the will of the majority

Question 3

Three points of conversion

Answer 3

1. Growing role of constitutionalization in civil law countries. Major point: EU Covenant on Human Rights -> judges can tell states that their policies violate Human Right. Germany + France Constitutional Courts increasingly important.
2. Common Law: where we increasingly codify. Standardization and codification in separate statutes (not one civil code).
3. Civil Law: legislature can’t always keep up with new developments (product liability in France for example) => courts as policy makers/judge-made law.

Question 4

Civil Law in Mexico

Answer 4

Idea that when admin agency is not enforcing law to go to court -> not there. Accessibility of courts are narrower.
Since NAFTA= more of a culture of recourse through the courts than has previously existed.
Courts in Mexico are more about private party disputes or law interpretation than vindication of civil rights.
Exception (new): Amparo.

Question 5

Amparo

Answer 5

Amparo activating court in policy decisions -> court may exercise judicial review of gov’t and admin decisions.
Three situations:
1. Gov’t agency acts in a way that violates a Constitutional right;
2. A state acts in way that violates federal power; or
3. Federal gov’t trespasses on state power.

Question 6

Ways to bring an Amparo claim

Answer 6

Three ways:

1. Direct: Individual can challenge court decision;
2. Indirect: Individual can challenge actual conduct by government authority; or
3. Against a law: challenges law that violates Constitutional right.

Question 7

Defined Jurisprudence in Mexico

Answer 7

If five courts in five separate cases: a specific agency has acted in a constitutional violative way and enunciates a reason for that => those rulings crystalize into a legal norm, called “defined jurisprudence” = legal precedent = there is a constitutional imperative for the agency not to do what they have done before. Make “no go zones” -> judicial function has grown in Mexico.