European Legal Thought Flashcards
Why do we call English law a common law?
Because political authority is so fragmented under the feudal system, law cannot operate based on any single political authority.
How did political authority become centralised?
King Charles VII introduced central taxation, which allowed him to build a central standing army.
Political authority becomes a normative homogenity. Political authority is exerted equally and totally across a fixed physical boundary.
What is the French Revolution?
The people murdered the King and his wife, and set-up a new government that did not have a King or Christianity.
What justified the French normative homogenity after the French Revolution?
The new French state was defined as a creature of rationality, with law being a device to articulate that rationality.
What are the distinctive elements of the French Civil Code?
It was intended to erase French legal history and start a new utopia.
It stands alone: There is no need to refer to any authority outside the code itself. All legal problems can be resolved by interpreting the code.
Synthesized from French legal practice, primarily from Southern France’s Roman law and Northern France’s customary law.
How did the French Civil Code reunify the 3 strands of law?
Reason: It invents the idea of law as a product of reason and autonomy.
Social order: Since it is derived from French legal practice, there is an element of social order
Will/expression: It is a nationalistic expression of a distinctive, autonomous French state.
Why did Carl von Savigny disagree with Thibaut?
What was Carl von Savigny’s view on Germany’s desire for codification?
He believed that Germany should not codify the law simply by reasoning from secular natural law.
The law is a historically determined organic product of the German people, an expression of the Volksgeist.
Before any codification, the Germans must first study Roman law, old Germanic law, and recent elements of the contemporary German legal system to extract the relevant principles, before applying them to the modern era to develop the German Civil Code.
What is the Romanist branch of the German historical school?
A scholarship based on Savigny’s historical focus on the need to study Roman law.
What is the Germanist branch of the German historical school?
Have to study German sources, not Roman sources.
- Believed that if the law was an expression of the volksgeist, then German, rather than Roman, sources should be the main object of German legal study.
Influenced by the emergence of nationalism in Europe
Who is von Ihering and what was his view on German jurisprudence?
Believed that law is primarily a system for reconciling conflicting interests in society
Purpose is the creator of all law; Jurists took into account the competing interests in society as they shaped the law to achieve the best social objectives.
Believed that law is based on and serves social interests in society.
Law enables the individual to desire the common interest as well as his own individual interest.
What is the Berlin School?
Associated with Max Weber, who was influenced by von Ihering’s legal sociology
The predominant theorist of modern capitalism and the modern industrial state
Identifies modern emphasis of rational-legal authority
Identifies bureaucracy as modern industrial ideal type
- Bureaucracy is important to governing the modern industrial state
Identifies modern notion of rule of law
What is Kelsen’s Grundnorm?
The ultimate basic norm from which all other norms are derived. All laws under a hierarchical structure stems from this basic norm.
For example, we have a statute that tells it is illegal to jay walk. That statute is valid because we have another statute that tells us it is legally valid. And finally we have a Constitution that tells us that that statute is also legally valid because it was passed in Parliament. And the legislative supremacy of Parliament is established by the Glorious Revolution of 1688.
What was Kelsen’s theory of the state?
The State is a purely legal construct. The State is nothing but law.
Its foundation is Parliament. But it is nothing but law.
Who is Carl Schmitt?
He felt alienated by society’s transformation into a modern industrial state and was nostalgic about the past. This led him to emphasize on German ‘roots’.
He took Weber’s ideas and reshaped them into a more authoritarian vision of society.
What roles did Kelsen and Schmitt play in the German historical school of jurisprudence?
Kelsen was a descendent of the Romanist branch.
Schmitt was a descendent of the Germanist branch.
