M2 T4 Characteristics of continental law Flashcards
6 characteristics of the continental legal system that countries across the globe share.
- Division of public and private law
- Law as the main legal source
- Constitution is hierarchically superior
- Shared terminological and conceptual identity
- Mode of legal reasoning is analogous
- Juridical education of legal practitioners is similar
Origin?
Western Europe
Geographical distribution?
All five continents due to colonization or voluntary transfer
Continental law in America
Spanish, French, Portuguese and Dutch colonies.
Some indigenous laws remain in these societies
Some areas were taken over by the commonwealth and now have mixed laws.
Continental law in Africa
French, Spanish and Portuguese colonies
North Africa maintain certain ties, but Islamic law prevails
Continental law in Asia
After the British mandate ended, there was a return to Roman/Germanic law. Strong presence of Islamic law.
japan, Thailand, South Korea, Philippines and Indonesia are mixed
7 common factors between the different countries practicing the continental law
- Historical evolution
Origin in the Roman Empire that evolved through schools of jurisprudence - Structure of law
Public and Private - Sources
Law is the principle even though others exist - Shared legal terminology and concepts
Some linguistic differences, but comprehensible to most jurists. - Mode of legal thought
Same law creating procedures. Set up abstract juridical constructions that are systematically articulated. - Codification
7.Constitutional control of laws
Mechanisms ensure that laws are constantly in accordance with the constitution.
5 Differentiating factors
- Level of reception of Roman Law
Became of bigger influence after the rediscovery of the corpus in the 11th century - Centralisation of legislation
Central authority or decentralized bodies with autonomous law-making powers - Type of administrative organization
some are strongly centralized, such as France. - Nature of legal education
Differences in manner of access to legal professions - Particular juridical concepts
Imperfect structural similarities. Certain categories of concepts differ between different places.
What is the structure of the law? Is it easy to demarcate each category clearly?
Public and private law. No, some legal disciplines contain both regulations
What does public law regulate? What is its origin?
the constitution and different state bodies in relation to each other and to citizens.
Ex: Constitutional law, tax law, criminal law, procedural law, international public law
originated in the 19th century
What does private law regulate? What is its origin?
legal relationships between citizens and among entities with a juridical personality.
Ex: Civil law, mercantile law, international private law
Origin: Roman Law
What is the principal source of law, and what are other recognized sources?
Law is the principal legal source.
Also recognized are custom and usage and general principles.
Why do we say that law is hierarchical and quantitative superior?
most of the legal system is made up of legislation.
Law, custom, or general principle?
An expressed legal rule promulgated by a body with authority to do so in the forms laid down in the legal system, which is to be imposed on those subject to it as a binding regulation.
Law
Law, custom, or general principle?
Conduct that is general, repeated, and uniform in a social medium that is defined geographically or in some other manner, the members of which regard such usage as being compulsory
Custom
When is custom applicable?
Only when law does not apply
Law, custom, or general principle?
Basic norms that show the convictions and beliefs of the society in relation to the fundamental matters concerning its organization and community living. inform the legal system.
general principles
What does the Kelsen pyramid show?
That the norms of a legal system can be arranged hierarchically
What is a Grundnorm?
Fundamental positive norm at the top
How is the Kelsen pyramid for the continental legal system structured?
- The Constitution
Some also add international law to the same level or just below. - Law
originated in parliament or issued by the government - Regulations
Issued by an organ with legislative authority
What is the value of case law in the continental legal system?
It is not considered a source of law. In the Roman/Germanic family, it has practical importance in interpreting and integrating law.
Questions regarding case law as a source is mainly terminological and conceptual.
What do we mean when we say that the continental legal system shares an identity of common terminologies and juridical concepts?
- Cultural identity and community of education derived from a common historical evolutionary process.
- Jurists can without problems comprehend legal problems from differences in norms and methods.
- Legal terms can easily be translated due to the concordance of concepts.
An example of a juridical transfer that has been facilitated by shared conceptual identity.
the Swedish ombudsman has been translated to the Spanish defensor del pueblo. A person appointed to defend the rights of citizens against authorities.
What does ex novo mean?
from scratch.
What is the mode of legal thought?
Reason about abstract juridical concepts from which general principles and norms can be derived, classified and systematized in codes.
What do we mean when we say that there is an overall idea of rationality and abstraction in legal reasoning?
Organizing, defining and systematizing law to make it more coherent.
What are the differences between the continental and the common law legal reasoning?
Common law: inductive method
make broad generalizations from specific observations.
Continental law: deductive method
Starts out with a hypothesis and works from there
Is the codifying tradition exclusive to the continental legal family?
no
Lawyer or Judge?
- technical knowledge of law and procedure
- Dogmatic training
- Differences in how access is gained to the profession
- Provide legal advice and assistance prior to litigation and assist counsel before the court.
Lawyer
Lawyer or Judge?
- Law degree. has been selected by way of open competition
- career (x) will not exercise professions apart from its judicial office
- Technical legitimacy but scarce democratic legitimacy(as they are not voted for)
- member of the judiciary, closed professional body organized hierarchically.
Judge
How can one gain access to practice as a lawyer?
Obtain a university law degree.
There are differences within the family regarding post-graduate qualifications
How can one gain access to practice in the judiciary?
Specific or general competitive examination
Specific: potential judge
general: legal practitioners in any legal profession
