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Mixed jurisdiction in South Africa and Scotland
Both South Africa and Scotland are considered to be mixed jurisdictions, meaning that they have elements of both civil law and common law legal systems.
In South Africa, the legal system is based on Roman-Dutch law, which is a civil law system that evolved in the Netherlands and was heavily influenced by Roman law. The legal system in South Africa also incorporates elements of English common law, as a result of the country’s history as a British colony. In practice, this means that South African law relies on both statutory law and case law, with judges using judicial precedent to interpret and apply the law.
In Scotland, the legal system is based on a hybrid of civil law and common law. The Scottish legal system evolved from a mix of Roman law, feudal law, and customary law, and was influenced by the common law system in England. Today, the Scottish legal system is distinct from the legal system in England, and incorporates elements of both civil law and common law. Like South Africa, Scottish law relies on both statutory law and case law, with judges using precedent to interpret and apply the law.
Despite the similarities in their mixed legal systems, there are some important differences between the legal systems in South Africa and Scotland. For example, South Africa has a written constitution that is used to interpret and apply the law, while Scotland does not have a written constitution. Additionally, the Scottish legal system has a unique court system, with a separate High Court of Justiciary that handles criminal cases, while South Africa’s court system is more similar to other common law systems.
Overall, mixed jurisdictions like South Africa and Scotland are characterized by their blending of civil law and common law principles, resulting in unique legal systems that combine the strengths of both systems.
Legal Language and the importance of translation
Translation (trans-ducere): transpose, transfer a concept from one language to another, from one system to another → Contribution of
Comparative sciences: The comparison has highlighted how legal concepts are the result of a stratification of different meanings that have been developed by different legal traditions over time
Translation includes interpretation. Comparative lawyers should consider this problem. The comparison has higlighted how to get a concept as a result of stratification of different meanings. Another problem is English being the lingua franca because this may implies that we use terms that are considred something different in the common law systems and this creates problems of understanding.
So, being aware of the fact that there are some issues related to translation, we need to take into account that we need to learn the legal background in order to translate some term. A literal translation is never a good translation because it doesn’t translate most of that is behind. The legal translation imply the attitude of compariso n, the knowledge in a legal background of the legal system
what is a deed
A deed is a legal document that serves as evidence of a transfer or conveyance of an interest in real property, such as land or a building.
A deed typically contains a description of the property being transferred, the names of the parties involved in the transaction, and any conditions or restrictions on the transfer.
The purpose of a deed is to ensure that the transfer of property is properly recorded and documented.
what are legal formants
The elements that contribute to the formation of the system.
- LEGISLATIVE FORMAT: codified legal norms (written and compiled) by the legislator.
e.g., statutory laws
-CASE-LAW format: rules expressed in sentences delivered by judges (giurisprudenza)
-DOCTRINE: scholars’ work/elaborations and opinions – philosophy of law (jurisprudence)
what is a legal transplant and how does it work?
Moving a legal concept from a legal system to another.
We need to think as a transplant as an organ, in a legal system we can have a rejection, for example in Japan, the imposition of the concept of right, which is linked to the European legal tradition, to the idea of the citizen coming from the French revolution. Eastern societies are focused more on the community than on the individual, when the Japanese legal system was supposed to be adapted to the new situations they started checking and working on the French code.
It was almost a translation of the French code, but some concepts at the base of the French code were unknown in the legal background of the eastern countries, some concepts were created newly in order to translate these contents, but ultimately this lead to a rejection.
Because there was too little analysis in the context related to the concept.
what are the origins of common law, and what are its main features?
We can say that the common law is the result of political centralization.
The king delegated people of his trust (royal courts) for the resolution of all those quarrels that jeopardize the peace of the kingdom = in order to maintain the peace.
For this system:
- LAW is a REMEDY, a remedial system.
-The law is strictly connected with the remedy and the rule is connected with the decision criteria.
- The rules are the decision criteria. the criterion you use to solve the case. more specific to the case.
- The legal mentality starts from CASES, from FACTS, it is not a CONCEPTUAL mentality like in civil law.
how can a Binding precedent be circunvented(changed)?
Either by distinguishing the case or overruling the precedent.
- Distinguishing: Operation according to which the judge declares that he will not apply a binding precedent to the case to decide because there are no conditions of fact and law which justify the adoption of the rule contained in the precedent (the conditions in facts and the rule are differents)
- Overruling:
is another way to get off of a biding precedent by eliminating the precedent from the system and substituing an old one for a new one
it was created first in the American legal system
And aditionally in exceptionally cases.
PRACTICE STATEMENT (1966)
solemn declaration issued in 1966 by, the time House of Lords, which the House of Lords affirmed that from then on it would no longer be considered to be strictly bound by its precedents, while continuing to keep them in full consideration in order to preserve the principle of legal certainty
Tort Law in Germany
Typical approach a lists of factispecies
823: “anyone who intentionally or unintentionally, unlawfully injuries life, body, health, freedom, property or other rights of others is obliged to pay compensation for the resulting damage”
Unintentionally: reference to negligence
Unlawfully: due to the breach of law
It protects some rights specifically. And only absolute rights.
What is a writ and does it still exist?
■ Writ, also called brevis or writ of right, was the typical procedural scheme of protection of substantive rights that allowed access to the
jurisdictional protection of the English courts. Writ is a order issued, formally, by the king directly that will determine the procedure and
the court which will judge. The chancellor of the Court of Chancery materially issues this order. This is the scheme: the person who wants to access justice goes to the chancellor and ask for issuance of a writ.
■ Writs, these written orders, are issued by the chancellor after the payment of a sum. You needed to pay to obtain a writ.
- In the first 200 years, writs were created according to the case, so writs were created almost every day. However, it’s true that if the writ existed, if there was a case that was identical of a previous one, then the chancellor was supposed to issue the same writ following the same procedure.
■ It was necessary to find the correct writ to the chancellor and the choice of the writ would imply the choice of the procedure and the court that it would be accessed (competence).
- Writs must be chosen by the parties before starting the procedure.
■ Nowadays we have only one writ that is the writ to access the justice in US and English common law
What does binding precedent mean?
- The principle and the idea here is that the biding precedent is a principle followed by some centuries, first introduced in London Street Tramways Ltd. V. London County Council (1898)
It works in two ways: - Horizontal/internal: the precedent binds the same court that pronounced the decision, which must comply with what has been established in previous cases (the court perpetuates its influence and exercises a function of interpretation)
-Vertical/external: the lower courts are obliged to abide by the precedents of the hierarchically superior courts: corollary of the hierarchical relationship in the judicial organization.
What’s the difference between overruling and distinguishing?
- Distinguishing: Operation according to which the judge declares that he will not apply a binding precedent to the case to decide because there are no conditions of fact and law which justify the adoption of the rule contained in the precedent (the conditions in facts and the rule are differents)
- Overruling:
is another way to get off of a biding precedent by eliminating the precedent from the system and substituing an old one for a new one
it was created first in the American legal system
How does tort law works in the civil and in the common law system?
Source of law: In a civil law system, like Germany, tort law is primarily governed by a civil code or other statutory law, whereas in a common law system, such as the United States or United Kingdom, tort law is developed through judicial decisions.
Role of precedent: In a common law system, the development of tort law is heavily influenced by judicial precedent, with judges relying on prior decisions to determine the appropriate legal principles to apply to new cases. In a civil law system, judges are generally more constrained by the text of the law and may have less freedom to develop new legal principles through their decisions.
Damages: The types of damages available in tort cases may differ between civil law and common law systems. In a civil law system, damages are generally intended to compensate the plaintiff for their losses, while in a common law system, punitive damages may also be available to punish the defendant and deter similar conduct in the future.
Negligence vs. fault-based liability: In common law systems, tort law is often based on a principle of negligence, meaning that liability is based on whether the defendant breached a duty of care owed to the plaintiff. In civil law systems, tort liability is typically based on fault, which may include intentional or negligent conduct.
- what are “conditions” in contract and where does it appear , in civil law or common?
In contract law, a condition is a term or provision that is fundamental to the agreement and upon which the performance of the contract depends. A condition is a type of contractual obligation that, if not met, can allow the other party to terminate the contract and seek damages.
For example, in a contract for the sale of goods, a condition may be that the goods must be delivered on a certain date, or that they must conform to a certain standard or specification. If the goods are not delivered on the agreed-upon date, or if they do not meet the required standard, the other party may be able to terminate the contract and seek damages.
The concept of conditions appears in both civil law and common law systems, but the specific rules and principles governing the use of conditions may vary depending on the jurisdiction and the particular legal system in use. In general, civil law systems tend to rely more heavily on statutory law, while common law systems rely more on case law and judicial decisions to develop legal principles related to contract law. However, both civil law and common law systems recognize the importance of conditions as a key aspect of contract law.
Compare the English court system with US court system
Court Structure: The US has a federal court system and 50 state court systems, while the UK has a single national court system, with separate courts for England and Wales, Scotland, and Northern Ireland.
Judicial Selection: In the US, judges are often elected or appointed through a political process, while in the UK, judges are appointed based on merit and experience.
Jury Trials: Jury trials are more common in the US, where they are used in both criminal and civil cases. In the UK, jury trials are generally only used in criminal cases.
Legal Representation: In the US, it is common for individuals to have legal representation in court, while in the UK, it is more common for individuals to represent themselves in court, especially in small claims cases.
Compare French law system with German law system.
- French one it is basically an imposition coming from Napoleon (from the political power), there was scholarly work but it was minimal.
-The German situation is very different even from a political point of view, since they thought they were not ready for a centralized strong political power. So their code was approved thanks to the scholar’s work who understood that there was the need of a unitary called in order to support the transition of Germany to a modern state.
The role of custom and legal pluralism. in france there was big customary particularism because there was a regional disconect. separation in north and south and influence in canon law.
And in Germany it was not an important role for customs , due to scholars.
Differences in detail:
France
1) Primacy of written law as source of law (consequence of jusnaturalism)
2) Code as main legislation
3) Code civil (Napoleon Code) main source of law
4) Pyramidal organization of the courts with Cassation at the top
5) Separation between ordinary jurisdiction and administrative jurisdiction’
^ based more on proprerty
Germany
There were two attempts at codification.
Austrian Code, and Prusian code.
