Comparative Legal Systems - Appunti completi

Comparative legal systems - Ioriatti all topics

Introduction

• What is law?
• The history of comparative law
• Legal systems
• Legal certainty
• Different types of legal systems' models
• Foreign and comparative law

Law and language

• Written law
• Legal language
• Translation
• Law and language
• The neologism
• Semiotics
• Homologation
• Additional lectures

English legal system

• English legal systems
• The regia curis
• The writ
• The making of the English legal systems
• Common law
• Duty of care
• The equity systems
• Books of authority

US legal system

• History
• The court system
• Legislation
• The USA supreme court

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• The general federal common law

The civil law legal systems

• History
• French legal system
• German legal system
• Legal reasoning
• Global law

Introduction

What is law?

Rules can be used to describe (a behaviour so there is no sanction) or prescribe something.

They can be: social etiquette, religious, moral, special organisation, legal.

There are some things that group all of those together so it is important to distinguish them.

How do you distinguish a legal rule? It can be enforced (by a court, e.g. magistratura) and it can have sanctions (pecuniary sanction, imprisonment, death penalty...) most times, but the best way to understand it is to know where it comes from.

Rules regulate how a certain group of people belonging to a social group should behave.

Is law effective? It depends on the societal conventions of the countries.

Sources of law

Anything (as a constitution, treaty, custom, or statute) that provides the authority for judicial decisions and for legislation.

The positivistic view of this concept is the one that is generally used, because when we use comparison it takes into account more particular aspects that aren't usually included into sources of the law.

Italian sources of the law: constitution, statute, regulations, decrees, customs (this last one is unwritten but has the same worth).

English sources of law: constitution (it is unwritten), case law (court decisions become laws as binding precedent, while in Italy court decisions are just an interpretation of the law, not a source), regulations, decrees, customs.

African sources of the law: constitution, statute (legislation), regulations, decrees, customs (people rely more on these than the statute, especially in villages and specific tribes).

So it's easier to group together similar legal systems based on opinions in things called categories (legal families).

Macro-comparison: comparison of entire legal systems.

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Micro-comparison: comparison related to specific concepts, rules, etc.

The primary aim of comparative law is knowledge and data are the norms, so it is needed to look at law from a very concrete point of view.

Law can be:

• Domestic law (national law)
• International public law (legal relations among States)
• European law (European Union law)
• Supranational law (law that isn't national but is applied in more than one country)
• Harmonised law (branches of EU national law made common within the EU)

The history of comparative law

In the 20th century it is defined as a science, this is because in the same period hard science all around the world is being established and is quickly becoming a new model.

The first International Congress of Comparative Law in Paris in 1900, Laboulaye's Société de Législation Comparée again in Paris and the London's Society of Comparative Law are what actually officially start the proper discipline of international comparative law.

The first goal (from 1800 to 1900) was to compare legislation (in the spirit of positivism) to discover common elements between systems and create a common law which was supposed regulate life for all of humanity, some other goals were:

• To determine which methods were most appropriate in analysing the different legislation
• The definition of the aim of comparative law role, also as a teaching method
• How to obtain information about foreign law sources and scholarships

After the war, in the 1950s the goal became unification, and with this in mind the European Union and the United Nations were created.

In the 1980s, due to its past history, positivism was forgotten and law and legislation were completely separated (the written component is not the only one in a specific environment, the world is quickly moving from an objective position to a subjective one) so comparative law has the goal of uncovering similarities and differences (just like science searches for data) (Gadamer, De Saussure, Sacco were the most prominent figures in this time).

In the 21st century: comparative law is starting to be seen with context, and as a way to improve some areas of society.

Important figures are:

• E. Amari (critica di una scienza delle legislazioni comparate), M. Cappelletti, G. Gorla, R. Sacco as the founders in Italy
• R. Saleilles, E. David, R. Schlesinger as the international founders
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• Aristotle, God's law for Moses, de Secondat, Montesquieu as the forerunners

Legal systems

• Subnational (regions, autonomous provinces, mafia but only in a technical comparative way)
• National (the nation's state) (domestic law: national law)
• Supranational (regulate the relationship between states) (international public law: legal relations among States) (supranational law: law that isn't national) (harmonised law: branches of EU national law made common within the EU)

For Rene David the classification is based on ideology and legal technique.

Ideology: value that the legal system gives the law as the main instrument on which the legal system in order to regulate social groups and social relations).

Legal technique: the way jurists are taught systemology, look up definition, used to research legal systems).

Western legal tradition: common law, civil law (Romanist-German family), post-socialist systems (countries in transition).

Common law: England, US (except Louisiana), Australia, Canada, Hong Kong, Israel, Ireland... its main source is case law and precedents. In Louisiana the law is a mixed one, based on French and Spanish Civil Law.

Civil law: Italy, Germany, France... the main source is legislation.

Post-socialist countries: Russia, Romania, Poland, Bulgaria, Hungary... strong link between law and economics, after 1987 these countries are in transition, with few exceptions, mostly towards the civil law family.

Other conceptions of the law and the legal order: islamic law (religious countries), hindu law, the law of the far east (China and Japan), african and Madagascar law.

Islamic law: Muhammad (570-632) who spread a religious doctrine based on a revelation written down on the Koran as Shari'a (which are the religious base for islamic law, so religion and legal system are conjoined in the same work) Sunna (behaviour of Muhammad) Igmà (consent of the Umma/muslim community).

Hindu law: (not based on geographical area but is linked to the social/religious groups, original cosmic order that must be maintained and protected) hindus, buddhists, sikhs, jains, Dharma Sastra (sanskrit text, different dharma for different casts, this was how it worked until the Britain came and implemented common law creating a mixed legal system) the link between law and individuals isn't as strong and stable as the western's.

Far east; China: confucianism based on the cosmic order maintained by the lü (confucian philosophy, which regulates the social relationship between certain individuals or individuals and something else) while the legal norm is the fa/law (originally just for criminal offences, therefore there's distance between the old and new).

Far east, Japan: during all periods jurists didn't exist but giri did (rules that were supposed to be followed spontaneously to avoid social shame) and western tradition was transplanted by the german tradition.

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Africa and Madagascar: layers of traditional law, religious law (Islam), colonisation law, modern law (post-colonisation) all regulating the same situation (legal pluralism).

Conclusion: law (positive law) is not the only way of handling social relationships or the unique form of control of the social group.

Legal certainty

There are 3 certainties in law:

• Certainty of the content of the law (the language must be hermeneutically interpreted by a court, the language must also be flexible)
• Certainty that the law will be enforced (the court, and therefore the state)
• Certainty that the law will be applied consistently (similar situation means similar consequences)

Customs

An unwritten norm, rules of behaviour that have grown spontaneously in a society (social group) in the form of mutual expectation; after some time, these expectations are accepted (considered) as binding (they can be enforced by the State) (mute and oral law are a quintessential part of this).

Different types of legal systems models

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Gumersindo de Azcàrate: for exposition (just European countries) neo-latin peoples, Germanic peoples, Scandinavian people, Slavic peoples, other peoples of Christian-European civilisations, other peoples from different civilisations.

Ernest Glasson: roman law heritage and influence. Strongly influenced, immune, combine it with German influence.

Clòvis Bevilaqua and (after) Candido de Oliviera and Enrique Paz: legal influence. Glasson + latin America.

Adhémar Esmein: history, general structure and distinctive traits. Latin group, German group, Anglo-Saxon group, Slavic group, Islamic group.

Georges Sauser-Hall: racial, ethnographic. Arian, semitic, mongol, barbarian.

Arminjon, Nolde, Wolff: centers of influence. French, German, Scandinavian, English, Russian, Islamic, Hindu.

René David (1950): ideology. Western law, socialist, islamic, hindu, chinese.

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Konrad Zweigert and Hein Kötz: styles. Romanistic legal family, Germanic, Anglo-American, Nordic, Far Eastern, Islamic, Hindu.

René David (1962): legal techniques/concepts, worldview and ideology. Romano-Germanic law, common, socialist.

Original model in comparative law taxonomy

What can be imitated or imposed, it can be a part, a case sometimes even entire systems which can travel from country to country e.g. with colonisation.

Looked at from outside in a dynamic way.

At the end they are composed by layers, due to them moving around countries (since there is always some type of different adaptation from country to country) making it hard to trace back the original model.

Foreign and comparative law

Foreign law is the object of (traditional) comparative law.

Comparative law begins with a detailed research into a foreign legal system.

Comparative law teaches how (object) and what (the right questions) to research.

In comparative law one understands the reality of the law in action in a legal system.

Law in the book (what is written and put in action).

Law in action (how written law is really applied and interpreted) which includes:

• Case law (in civil law legal systems)
• Formants (components so what influences a decision)
• Other legal mechanisms (prescription: the right is there but it is too late to enforce it/a time limit)
• Praxis (accepted practices in the different legal systems)

Other important elements are:

• Official law sources are not always accepted by the population (e.g. the Inuit not always apply Canadian law)
• Judgement of the higher courts rejected by the lower courts (not rejecting as much as not using the suggestion (not in civil law where precedent is binding))
• Bureaucracy (how long it takes how the procedure is structured)

Law and language.

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Law and language

Written law

A substantial part of the law exists in the written form, and that is a "norm" (better understood as rule) (however oral unwritten and mute law still exists, e.g. the majority of contracts are concluded orally, only a small part needs a written form).

Most norms have a prescriptive nature (so they describe how to act), so they describe an act that is generally thought as wrong and the punishment is often implied ("do not commit acts of terrorism" - anyone committing an act of terrorism will be severely punished).

"Do not steal" is a more moral than legal norm, but if we look at what the Canadian criminal code says on stealing, one sees that it is more explanatory and goes into more detail (the structure is different), so "theft" is the legal concept in itself (a sort of summary for the aforementioned rule) (stuff like tort, marriage, divorce etc are all legal concepts) but the explicitly written law can slightly vary from country to country, which is a huge problem for comparative translation.

Legal concept

The broad concept of legal idea in one or very few words, can be used internationally.

The legal system is created by norms, which are summarised by legal concepts, which are grouped together (the groups also may vary from country to country).

Norms aren't designated for any particular person or to regulate a particular situation, they are general and abstract and designated for the social group.

Legal language

There's a difference of legal words and subsequent concepts between different legal systems written in different languages due to the system itself.

Legal language and ordinary language are two different things, ordinary language can be present in legal language but not usually the opposite.

The legal language of common law in England: it, and its family, begins right after the Battle of Hastings (1060) and was gradually created in the courts and it is often composed by concrete expressions (e.g. tort, negligence) (while on the continent legal language is based on old Roman law and created by scholars in Universities since the XI century) and therefore is wordier.

English is an ambiguous language, which makes it perfect for things that need to have double meanings to appease both parties/countries - like diplomacy - which makes it a great lingua franca in the EU.

Translation

Decentralisation of public powers: federalism, devolution.

Gratuitous transfer of movable goods: contract, deed.

Marriage dissolution: talak (unilateral decision of dissolution), divorce (bilateral decision).

It is not allowed to use legally abstract concepts, so one should use legally relevant examples to describe a starting point that can be read and understood in the right way for everyone.

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The factual approach: national and general questionnaires (everyone can answer in their own way basing oneself on the specific original sources of the legal sources of one's country).

In different legal systems some parts coincide (not everything but sometimes somethings) so.

Functionalism

Tertium comparationis: object of the comparative activity meant for comparing 2 institutions to understand the same function of legal systems, so micro-comparison).

The aim is to find norms that were functionally equivalent, there is still a debate about it and it is used in private international law.

However it gives only a limited vision of cultural reality of a legal system.

Influenced by science, biology and philosophy, and the view of society as an organic whole, a living creature.

The father is Ernst Rabel, who said that the function of law is its social purpose, while Zweigert and Kötz attempted to find norm which serve a certain social function.

Structuralism and legal formants

Structuralism: focus on the structure and the relationship of the different components.

The different components of legal institution or "legal formants" existing within each legal system.

Legal formants: that concur to build any given legal system, even if they aren't officially part of said legal system.

You start from the source of the law and the legal formants (which sometimes coincide).

The group of norms sharing the same characteristics and providing answers to a specific legal matter.

Influenced by humanities, social sciences and economics.

Look at comodato d'uso: the part that was added by the judges on movable registered property is a legal formant and is a rule nowadays, even if it's not "official".

There are 3 types:

• Legislative formant (statutory rules)
• Case law (judicial decision)
• Doctrine (scholars' opinions)

All parts must be taken into consideration in a given country in a given moment: the norm contained in the constitution/legislation, the norm formulated by scholars and the norm applied to case law, often these are not the same.

The formant types can be compact or disjointed/dissociated.

Law and language

Natural/ordinary language: the way in which a language is used (spoken), it is not created or chosen by the people and it has unlimited use.

Legal language: artificial (not necessarily spoken, one must control it, it is an instrument and a method).

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Jurists do not have to respect the rules of the legal language, they are not simply "experts" but members of a group respecting a social practice, it is an administered language.

Words may not coincide with concepts (legal language) and many legal languages may coexist within one single ordinary language.

E.g. Quebec, which has a mixed language and therefore a mixed legal system look for example at the trust fund case: it is called "fiducie" but works just like the English trust fund).

At first translation was just a tool in this field of study, now it is studied itself.

Martin Luther himself was one of the first who realised that translation sometimes needed to not be literal but when the legal concepts were considered as with an objective m