Introduction And Natural Law

Question 1

Where does the word codification come from

Answer 1

Latin ->

-codex= book/law book
-facere= to make

Question 2

Who was the first person to mention the word codification

Answer 2

Jeremy Bentham

Question 3

Who was Jeremy Bentham (1748-1832)

Answer 3

he advocated for codification in England

Question 4

Who was David Dudley field

Answer 4

He was the first tho made a draft of the civil code which originally was supposed to be adopted in New York but eventually was adopted in california in 1872

Question 5

Define codification

Answer 5

Codification is a written law, to which the government gives exclusive validity on account of its authority; this exclusivity makes the legal record a complete one e

Question 6

What is the purpose of a codification

Answer 6

-legal certainty
-economic purposes

Question 7

What are the three requirements from a codification

Answer 7

1. A written law (every codification is an act of legislation, not all legislative activities are codifications)
2. Issued by an authority ( government *not in exile ) that exerts authority over its subjects -> for codification to be effective the majority of citizens will have to accept the government’s authority
3. Exclusivity (cant be given by a private person)

Question 8

How do codifications gain validity

Answer 8

Interpretation

Question 9

Who interprets codification

Answer 9

-Authoratitive author
-the legislator
-the judge ( authoratitive interprepreter of the text)

Question 10

Who was Rousseau

Answer 10

He came up with the social contract. This is where all members of society place themselves and their property under the authority of that society. Through this act, every individual gives up their natural freedom and gains civil freedom. Thus, the law can only be approved by the people

Question 11

Who was Cesare Beccaria

Answer 11

He came up with the principle of legality-> nulla poena sine Previa lege . In his view, the only way to punish was by limiting such punishment in a statute ( no penalty without law)

Question 12

Name some ancient stautes

Answer 12

-codification of antiquity, such as from Justinian (533-534)
-french civil code of 1804
-German civil code of 1900

Question 13

Why do codes dont need to be revised

Answer 13

Because judges, through interpretation update the law and make them applicable to Morden day society

Question 14

Give facts about legislators

Answer 14

-should be dry and avoid synonyms
- its the authority of the legislator that matters and not the quality of the content that makes codification so important
-limited functions: no power of future interpretations and explanations that may be given to the laws issued by him
-came give authoritative interpretation but the interpreter always has the final say

Question 15

Give facts about judges

Answer 15

-can deviate from the accepted meaning if he provides justification ( only possible in private law in the Netherlands)

-UK: limited interpretation competences , he cannot go beyond conventional meaning of every word, he can only utilise the English dictionary. If If the law provided is inadequate the English judge can put it aside and exercise the right of a minor legislator. The uniformity of the law in England is secured by the stare decisis principle, which forces the judge to keep his previous decisions (precedents).

Question 16

What does a continental judge have

Answer 16

‘unlimited’ interpretative possibilities

Question 17

What is a disadvantage about judges

Answer 17

Danger of freedom of interpretation-> the judge can explain the text
according to the political opinions of his time (e.g., Nazi Germany)

Question 18

What is the advantage of a continental judges who have unlimited interpretative possibilities

Answer 18

Advantage: the meaning does not become fixed (lex semper loquitur), but is always
adapted to the period and circumstances

Question 19

Who tried limiting the power of judges

Answer 19

Justinian and Frederick the great

Question 20

What are the ways in which attempts have been made to limit the power of judges

Answer 20

-ban on interpretation
-ban on commentaries
-authentic interpretation ( by legislator)
- refere legislative ( referral to legislator) -> judge not allowed to interpret the law by himself so he would ask for the legislator’s interpretation

Question 21

What are the two famous cases of interpretation

Answer 21

-people v. Nelson nov 2011

-nix v. Hidden, 149 US 304 (1893)

Question 22

What was the case People v. Nelson (California Court of Appeal – Nov. 14, 2011)

Answer 22

A man was driving his car until he stopped at the red light. Once still, he started looking at his phone; a police officer approached him and gave him a fine for using his phone. The driver ultimately went to court claiming he was not driving when he was given the sanction, therefore he could not have been sanctioned for using his phone while driving, since he wasn’t doing the latter. The court responded that the legislature was initially more concerned about the use of cellphones in motor vehicles not only when they are in motion. Hence, it could be said that driving may mean standing still.

Is standing still driving? -> yes

Question 23

What was the case nix v. Hidden, 149 US 304 (1893)

Answer 23

restaurant argues that they should not pay tax because the tomato is not a vegetable bus a fruit. The judge held that legally the tomato is not a fruit. Under US customs regulations the tomato should be classified as a vegetable rather than a fruit. The Court decided in favor of the respondent and it held the opinion that botanically, tomatoes are classified as fruit; nevertheless, they are seen as vegetables because they were usually eaten as a main course instead of being eaten as a dessert.

Is a tomato a vegetable or a fruit? -> a vegetable

Question 24

What are the intristic methods of interpretation

Answer 24

Grammatical interpretation or literal rule: explanation in accordance with the
ordinary or plain legal meaning of the words (literal interpretation).

Question 25

What does intristic mean

Answer 25

Taken from inside the text

Question 26

What does extrinsic mean

Answer 26

Taken from outside the text and not the text itself

Question 27

What are the extrinsic methods of interpretation

Answer 27

2. Systematic interpretation
3. Legislative interpretation
4. historical interpretation
5. Teleological interpretation
6. Anticipatory interpretation
7. comparative interpretation
8. Authentic interpretation

Question 28

What is natural law in roman

Answer 28

Ius naturale ( how the law should be)

Question 29

Define natural law

Answer 29

Natural law is the idea that mankind is governed by a set of rules that is valid always, everywhere and at any time and that do not need to be validated or written down by a special legislator or judiciary.

Question 30

What two explanations of law came about in a debate in Ancient Greece regarding what law meant:

Answer 30

Epicureanism and stoicism

Question 31

What is Epicureanism

Answer 31

-law is something PRACTICAL
-FORMAL concept of law -> law is valid if it is promugulated by the proper authority, regardless of context
-created by Epicurus

Question 32

What is stoicism

Answer 32

-law needs to be just and equitable
-Zeno + Cicero

-MATERIAL concept of law-> in addition to formal requirements law must be morally just to be valid

-Marcus Tullius Cicero upheld the Stoic position; one of his arguments was that not every legislation is a good legislation -> he argued that law doesn’t only has a formal criterion but it also needs to be materially just; the law has to abide to both the idea of justice and fairness.

.

-These ideas led the Americans to produce the Declaration of Independence on 4 July 1776.

Question 33

What did Gaius state which made it clear what according to roman law natural law is

Answer 33

Every people that is governed by statutes and customs observes partly the common law of all mankind

Question 34

What is ius civile

Answer 34

Rules of law specifically native origin; special law of the state (civitas)

Question 35

What is Ius gentium

Answer 35

Rules of the law of nations, the law that all nations have in common

Ius constitutum -how the law is

(Not international law, since it refers to the legal relationship between nations)

Question 36

What is ius naturale

Answer 36

Part of the law that is taught by nature -it has no legal connotation but rather a biological one

Question 37

What is divine law

Answer 37

Refers to a set of rules that believed to be derived from a higher power or a Divine source, such as God or a sacred text. These laws are often considered to be absolute and unchanging, providing a moral and ethical framework for how individuals should live and behave. The concept of divine law is often intertwined with religious teachings and seen as a guide for ethical conduct based on a higher, transcendent authority

Question 38

What are the two branches of divine law

Answer 38

1. Written (bible )
2. Unwritten (natural law)

Question 39

Define ecclesiastical man made law

Answer 39

rules and regulations formulated within a religious institution or church, often based on religious teachings, to govern the internal affairs and conduct of the religious community.

-Specific to a particular religious tradition it may address matters such as church organization, clergy appointments, rituals, and moral conduct. Canon law is derived from religious doctrines and is intended for the governance of the religious community.

Question 40

Why is canon law part of ecclesiastical man made law

Answer 40

Canon law is a system of ecclesiastical laws and legal principles developed and adopted by religious organizations, particularly within the Christian tradition. It is considered a subset of ecclesiastical man-made law because it is crafted by human authorities within the church and is specific to the governance and regulation of religious institutions.

The term “canon” originally referred to a rule or standard, and canon law comprises rules and regulations set forth by religious authorities to guide the internal affairs, structure, and conduct of the church community. Canon law addresses matters such as the organization of the clergy, sacraments, church administration, and moral and ethical conduct.

Question 41

Define secular man made law

Answer 41

Definition: rules and regulations created by human societies and governments to govern the behaviour of individuals and groups in a non-religious context

Secular laws are typically grounded in the values and principles of a particular society, taking into account cultural norms, ethical considerations, and the well-being of individuals within the community. They are not tied to any specific religious belief and are applicable to people of different faiths or those who may not follow any religion. The legal systems of many modern nations are primarily secular, meaning they are based on laws created by humans rather than being derived from religious texts or authorities. Secular man-made laws are subject to change through democratic processes, reflecting evolving societal attitudes and needs.

Question 42

Why is secular man made law written and unwritten whereas ecclesiastical man made law comes only in the form of canon law?

Answer 42

secular man-made law often includes both explicit written laws and unwritten common law, whereas ecclesiastical man-made law, particularly in the form of canon law, is primarily explicit and written. The distinction reflects the different ways legal systems are structured and the sources of authority in secular and ecclesiastical contexts.

Question 43

Canon law court had various hierarichal sources of law: the highest source was divine law, but what was it considered to be?

Answer 43

The bible ( written law) OR the Aequitas Canonical (natural law) -unwritten law

Question 44

What did canonist lawyers believe

Answer 44

-Wanted to get rid of secular laws ( such as customary and roman law) which were considered unjust.

-followed the stoic doctrine (content was of higher value) and believed natural law could put aside unfair or unreasonable man made laws

Question 45

Who was Hugo Grotius

Answer 45

Father of natural law. His aim was to emancipate natural law from canon law: he believed that natural law was an independent legal discipline, it comes from human nature and not some supranational entity.

Question 46

What was VERNUNFTRECHT - RATIONALISM

Answer 46

It was an intellectual movement and when the idea of natural law was completely secularized in the 17th century when specially in Germany there was an emphasis on logic (ratio) proposed by many professors (Puffendorf, Thomasius, Wolff).

Question 47

Rationalism was the era of codification. Jurists of natural law stressed the need for codification. However, the theory of natural law presupposes the existence of a set of unwritten rules of law that are valid when they are not written down in a code: so how would codification be necessary?

Answer 47

1. Intellectual economy = Even if everyone can use the brain to get to laws, some people have bigger brains (natural laws professors), so they could write them to make it easier for others
2. Montesquieu argued that law is not only universal, but it pays respect to local
   aspects such as the climate, local beliefs, religion and language -> law reflects local factors, therefore the law should be codified
3. Cesare Beccaria (Dei deliti e delle pene) stated that government could only punish
   when prior to the criminal behaviour there was legislation that prohibited such behaviour -> strengthened the idea of codifying penal law
4. Some rules need to be determined in a written statute in order to regulate (e.g.,
   age of majority)

Question 48

Summarise the ‘strange story-the bigamist of san Bernardino’

Answer 48

In 1872 California adopted the Field Code and gave exclusivity to this code (making it a codification) - 1873 article made up to show that the Field Code didn’t cover all aspects of law. Because of this story, the Supreme Court decided that the judges of California could use the Field Code but if it didn’t provide a solution they could use common law.
Therefore, the Field code it’s not a codification because it doesn’t have the exclusivity since judges may look at other sources of law such as common law.
Mr Oades lived in New Zealand with wife and two children, thought wife and children died, and transferred to US. He married another woman, but the first wife was alive, came to US and moved in. First wife can prove she was married to him, neighbors outraged.
Section 61(2) Civil Code: if five years have passed or spouse passed away, another marriage is valid. So, both marriages were valid and Mr Oades was legally allowed to remain married to his wives.
This case shows a loophole in the codes.

-Bigamy is the offence of marrying someone while already married to another person.

Question 49

5. In a more general level, this case(A STRANGE STORY – THE BIGAMIST OF SAN BERNARDINO) presents a problem that is present in the application of any rule of law. Explain which problem this is and which actors
   express it.

Answer 49

Interpretation and the principle of legality.
The intention of the law was simply to provide against the illegitimacy of the children of the second marriage, and it certainly never could have been intended to make bigamy lawful.
Two actors:
- The public prosecutor looked at the spirit and intent of the law (teleological)
- Oades’ counsel looked at the letter of the law (grammatical)

Question 50

What is a continental judge

Answer 50

Key characteristics of a continental judge or the civil law tradition include:

-Emphasis on Written Codes: Continental judges operate within legal systems where statutes and written codes play a central role. The law is codified, meaning that comprehensive and detailed legal provisions are compiled in written form, forming the basis for legal decision-making.

-Limited Role in Shaping Law: In contrast to common law judges, who often contribute to the development of law through the creation of legal precedents, continental judges have a more limited role in shaping the law. Their primary task is to interpret and apply existing statutes and codes.

-Inquisitorial Adversarial System: Continental legal systems often use an inquisitorial system, where the judge takes a more active role in investigating and determining the facts of a case. This is different from the adversarial system found in common law jurisdictions, where the parties involved present evidence and arguments, and the judge acts as a neutral arbiter.

Question 51

Define systematic interpretation

Answer 51

Interactions within the broader system of law

Question 52

Legislative historical

Answer 52

explanation in accordance with what
the legislator had in mind.

Question 53

historical interpretation

Answer 53

explanation taking into account the legal systems
from which the provision originates (e.g., ancient civil law, ancient French law,
Roman law).

Question 54

Teleological interpretation

Answer 54

explanation in accordance with the aim or purpose of
the law (purposive interpretation). Leads to extensive interpretation.

Theo-> purpose in greeek

Question 55

Anticipatory interpretation

Answer 55

an explanation that fits the meaning of a relevant
provision in a new, already established law that has not entered into force yet.

Question 56

comparative interpretation:

Answer 56

explanation, that ties in with the meaning of a relevant provision in a foreign legal system (e.g., German law, Anglo-American law).

Question 57

Authentic interpretation

Answer 57

Authorative explanation by the legilsator ( the legislator interprets his own law

Question 58

Who came up with the principle of legality

Answer 58

Beccaria, he explained that sanctions (especially in criminal law) should be foreseeable based on legal rules. For this reason the first codes dealt with criminal law

Question 59

Explain natural law vs positive law

Answer 59

Natural law → rules that are valid at all times and anywhere and which do not
derive their legitimacy from human institutions.
VS

Positive law → rules whose legitimacy is derived from institutions which
create and enforce them.

Question 60

Which three criminal trials attempted to deal with the case people v. Oades

Answer 60

1. Oades + Wife A → notorious cohabitation (*living together w out valid marriage)
   - Failed because their New Zealand marriage was never annulled
2. Oades + Wife B → notorious cohabitation
   - Failed because of Section 61(2) Cali Civil Code, which protects the
   validity of marriages which were concluded when a former spouse is assumed dead for more than 5 years.
3. Oades → bigamy (* having more than one spouse)
   - Failed because guilt was precluded if the above circumstances
   existed.

Question 61

What method of interpretation would a judge use to resolve the case people v. Oades

Answer 61

Teleological interpretation, interpretation based on the purpose of the law

Question 62

Lawyers who were adherents of natural law eventually came to accept the concept of codification. They offered various reasons for this acceptance, such as the idea by Montesquieu that law is a reflection of local circumstances (weather, landscape, belief etc.).
Explain whether this reason contradicts the concept of natural law.

Answer 62

The concept of natural law supposes that all rules of natural law are the same everywhere and anytime for all people. This presupposes that no local variants of natural law exist.
Montesquieu’s ideas, however, were quite influential in the eighteenth century, which led natural lawyers to accept a concept of relative natural law, as opposed to absolute natural law, a natural law which adapted itself to local circumstances and in that way was ideal.

Question 63

The relationship between Common Law and Equity is very similar to the relationship between two sources of Roman law. Explain which two sources are meant. You can choose from the following:

*ius civile and ius praetorium
• ius gentium and ius civile
• ius naturale and ius praetorium

Answer 63

Common Law and Equity are comparable to ius civileand ius praetorium. Just as equity is a system of rules developed to supplement the Common law or even correct it, both on the basis of Equity (in Latin: aquitas), so the ius praetorium, the rules issued by the praetor in his Edict, provided solutions to problems not solved by any Roman statute, the basis of the ius civile, and even corrected rules of the ius civile, which were found to be inequitable, but were not abolished by the legislator, by making contradictory rules in his Edict.