Legal traditions and comparative law

POLITICS TRADITION

1. Humans are mortal

{ } 2. I am human

SYLLOGISM

ANALOGY: deductive comparison Aristotle 3. (then) I am mortal

Arabs applied it in every field, LAW as well

In the 6th century BCE according to legend, the Greek lawgiver SOLON, faced with

the task of compiling the laws of Athen, gathered together the laws of various city-

states. similarly, in the 5th century BCE a Roman commission in Sicily before giving

2

Papa

Rome the famous Laws of the Twelve Tables. Aristotle, in the 4th century, is said to

have collated the constitutions of no fewer than 158 city-states in his effort to devise

a model constitution. Thus, from ancient times it would seem that those wishing to

set up a just system have sought inspiration and examples abroad. The true

expansion of comparative law, however, was hindered by a number of obstacles -

such as the parochialism of social groups, contempt for foreigners, or "barbarians",

}

and belief in the sacredness or everlasting inviolability of inherited legal rules.

- 6th century: SOLON the first legislator

he compared all the state-cities laws to create the best one

- 5th century: LAWS OF THE TWELVE TABLES COMPARISON

he consulted Greek philosophy

- 4th century: ARISTOTLE

he collated the constitutions of 158 state-cities

CONTRATTO

Some words can’t be translated: (reciprocal obligation and duties)

ZAR RAHBAR

means Deal but not really; with the words and happens the same

thing.

Purpose of Comparative Law:

First of all, there has been a tendency to view comparative law from the standpoint of

its value to the historical study of decision making - a consideration that was

responsible for establishing the first chairs of comparative Law in 19th-century

Europe. Ideas regarding the place of law in society and the nature of the law itself -

whether divine or secular, whether dealing with substantive or procedural rules -

obviously become appreciably clearer when comparative law is joined to the

historical research. Indeed, to some of the extend historical background may aid in

forecasting the future of certain national systems.

LAW AND LEGAL TRADITIONS

Third Lecture 01/10/2018

3

Papa

1900 First International Comparative Law Congress

Belle Epoque

- science= Darwin and Lamarck

- ☞

- language= Esperanto goal: to uniform the law

UNIFORMITY

1920 Lyon First Chair Assigned

Right after WWI

- return of Nationalism CODE NAPOLEON

It was written in easy French so that everyone could understand it and also because

everybody needed to be submitted to the law ! This was a Revolutionary idea

thought by Napoleon himself. Because of the prestige of Napoleon’s regime and

code, many other countries replicated the same code⇥ OTTO MAYER

In the European Union there is a division between Administrative and Civilian

code, whilst in the COMMON LAW SYSTEM such division doesn’t exist.

COMPATIBILITY is needed, for example in a transplant, and also in the circulation of

legal models in this case:

• ! English law was forced in the Commonwealth

• " French law in Africa, Vietnam, Madagascar, Birmania, Quebec, Ontario,

Louisiana

• # $

Swiss law was used in Turkey by Mustafa Kemal in 1926

Mustafa wanted Laicity, he abolished the

Caliphate and he introduced the, politically

talking, simple Swiss civil code. With this law

Mustafa changed the family law according to

the Western model.

GLOBALIZATION: interconnection of markets = HARMONIZATION, UNIFICATION

International

Contracts for the Sale

Goods

of (CISG); these laws can’t be

touched by the State and needs

consensus from both parties.

4

Papa MACRO

By considering the perspective, Law is a social science useful to govern

society that constantly uses comparison (even by translating from one language to

another we are comparing something).

% US EU&

based on evidence criminal law; justice

PRIVATE-PRIVATE PRIVATE-PUBLIC

CLASS ACTION ——————————— —⌲

- we got it

A group of people who gather thanks to globalization, from the

together who have the same common law system. Although it

issues: in this way they can already existed in Ancient Rome

divide the expenses and they “ACTIO POPULARIS”

have more chances to be heard

by important institutions

LEGAL TRADITION: trader

TRADITION- :to carry from one

The way in which law generation to another, but with

should be applied, transformations, adaptations and

studied and thought variations given by time! TRADITION

IS NEVER STATIC

LAW AND LEGAL TRADITIONS

Fourth Lecture 02/10/2018

CIVIL LAW is anglo-saxon and it derives from Roman.

wrote in 528-534 was the codification of law for the Roman

Corpus Juris Civilis

Empire of Justinian. These laws were organized in a systematic order based on the

topic. It was considered the best version of Roman Law because it was issued by

an emperor and because it was conceived as a God given order *DEO AUCTORE*

⇥Roman Law was brought to attention once again in the Middle Ages by

Azzone Irnerio, a glossator scholar who interpreted Corpus Juris Civilis; it became

5

Papa

popular in those years because of the importance of Church and because of the

fight between this last one and the State.

1. DECREES

2. DIGESTA/PANDECTA: composed by 50 books; PAULUS ULPIANUS

☛

(fragments of scholars’ doctrines therefore there are FREEDOM of

THOUGHT and INTERPRETATION)

3. INSTITUTES for example the school of Beirut (Roman Law school)

☞

☛

4. NOVELLE compilations of new imperial decrees by Justinian himself

Roman Law altogether with Canon law (law of the church) and customs created IUS

the law of the Middle Ages.

COMUNE, CIVIL LAW

CIVIL comes from the Justinian CORPUS JURIS CIVILIS, and JUS CIVILIS means

law of the citizens.

Instead in the JUS HONORARIUM there was the PRAETOR PEREGRINES, the law

and the EDICTUM the remedies for foreigners.

LAW AND LEGAL TRADITIONS

Fifth Lecture 09/10/2018

In Civil Law legal systems the law is almost codified, structured and

supported by a body of GENERAL PRINCIPLES.

The most important civil codes used as inspiration in the whole world are the Code

of Napoleon 1804, therefore the" French code, the B.G.B 1900, the' German

code and lastly the Swiss# code. The French code is understandable while the

(

German one is more difficult, the Swiss one is a mixture. Japan used the

German code because of its principles and because of history(asset Ro-Ber-To).

6