Principle of Law

Legal Systems and Legal Families

(UK,USA)• Socialist families: are families with political and ideological dimension• Other systems: others residual category.Both legal systems and legal families are abstract and ideal concepts:

• Legal systems may seem homogeneous, but they are the result of diversified contributions.
• Consistency, completeness and uniformity are not a prior property of legal systems but a regulatory ideal which guides activities of lawyers and lawmakers.
• Legal family is an ideal type, there is no common law or civil law, there are many systems of common law and civil law how many are the legal systems that are part of these families. The classifications are based on ideological and cultural pre-conceptions.

THE CIRCULATION OF MODELS

The model circulation is the evolution within a legal system as well as among legal systems, due to the interaction between:

• Homologous formants of different jurisdictions.
• Non-homologous formants of the same order.

Legal transplants: imitation of

An institute or even an entire sector of law from one system to the other. The globalization of legal system determines the dynamism and the circulation of legal rules between the different national laws.

WESTERN LEGAL TRADITIONS

The laws of western societies are based on roman law. A certain influence of Greek thought on roman law is to be acknowledged but it seems to have been rather modest. The novelty roman law does not exclude, however that it could have been forged and historically developed thanks to the influence of other ancient cultures or civilizations.

The firsts trials in roman law as much akin to a religious sacrifice, but at the same time it marked the first step towards the secularization of law and overall society. As the sacrificial victim was killed, the condemned party was defeated because it was guilty. The law was also binding for the sovereign.

In the early stages roman law was confined to a number of fixed procedures with an extreme formalism, which however loosened.

CLASSICAL ROMAN LAW

Roman law cannot be depicted as a stable legal system which came to light once and for ever at a certain point in history, but rather it had been growing and evolving thought the centuries, his structure underwent a

deep and wide historical evolution. Therefore, what is called roman law has never existed as such, it representing an historical mixture of legal concepts belonging to different ages.

The western legal tradition rest on a tiny span of that very long history, namely the roman classic law flourished between the end of the first century and beginning of the third century. Our knowledge on roman law is inaccurate, because many books wrote by the most famous jurists of that time went lost in the middle ages, which followed the fall of the roman empire.

What remained of roman law and was transmitted to us is contained in a compilation made in the sixth century known as the Justinian compilation. This compilation worked as a rescue of the legacy of roman law from the disaster of the early middle ages, in doing so, Justinian contributed to foundation of the western legal tradition.

After acceding to the throne Justinian mandated a commission charged with drawing the codex and the digest. The first was a

A collection of laws and legal interpretation, it doesn't constitute a new legal code, but basically was a collection of the past laws and extracts of the opinion of the great Roman jurists. The second one was a huge collection of extracts from about 2000 writings of the most important Roman jurist of the classical age. It's important to underline that quite likely the works used for the Justinian compilation were not always genuine, several of them underwent a process of alteration during the post-classical period. In fact, Justinian himself ordered the commission to modernize some fragments of the collection, to adapt it to the modern society.

The foundation of the western legal tradition may be traced back to the renaissance Roman law between the end of the eleventh century and the beginning of the twelfth century. A jurist called Irnerius found a copy of the digestum in Bologna and started to use it for teaching in universities around Europe, disseminating it among the world. He

composed the glossarium that is a critical composition of all his comments written in the digestum.

IUS COMMUNE AND ENGLISH COMMON LAW

The work of glossators and commentators were not so much interested in what the authors of these texts intended to say in the past, but what the texts could still contribute in addressing and solving social problems after so many centuries. These two texts undertake to an attempt of adaption of the ancient texts to the modern society. Since these two texts had been active in Italy, their methodology became characterized as the Italian style.

The number of comments written in the glossarium grew over time to the point that they weren’t no longer written on the glossarium but published as work of their own. Rapidly the most widespread opinions rendered by the scholars of law became as authoritative as the one in the Justinian compilation. The combination of roman law collected in the Justinian compilation and the comments made by the scholars became the

General law (ius commune). So the ius commune is the roman law. In theory the ius commune was supposed to be used for filling the gaps of the property law (iura propria), in practice the ius commune was the supreme source of law. In many countries the ius commune wasn't codified and even if codified gave arise to some controversial cases, this led to the fact that the sovereign needed to interpret it, leaving much room to the interpretation. Meanwhile the catholic church, had been developing a law of its own, which was based on ancient rules called canons. Also, this law called canon law was based on roman thoughts, and later developed thought pope's decisions. The main collection of canons is grouped in the decretum gratiani. Civil law and canon law shared the same roman roots and were sensed as the two components of ius commune, which is the matrix of the western legal tradition. A jurist of that time was supposed to learn both the civil and canon law.

LEGACY OF ROMAN LAW IN

EUROPE

The jurisdictions of European law can be all included in the family of civil law, which is characterized as resting upon the medieval ius commune molded by roman canon law, and this formed the basis of most of the western Europe legal unity. On the contrary Anglo-American countries have remained immune to the roman law influence, and they developed what is called common law that is different from the continental ius commune. The English common law was not based on a fundamental book to be interpreted by scholars but developed though the rise of a royal and centralized jurisdiction which aimed to maintain the king's peace. For each type of controversy admitted to the royal jurisdiction a new writ was created by the royal chancery.

During the seventeen century the universalism of the ius commune was challenged by the growing complexity between the sources of roman law and many local laws, which was reflected in lack of legal certainty and unpredictability of superior courts, a cure to

This mess was acknowledged by the creation of a national law. The dialogue between the jurists and the circulation of ideas between civil law and common law have been remarkable over the course of history, as has the influence of Roman law exercised over them in a different manner. In the last decades, common law has been profoundly affected by civil law, due to the participation of the UK in Europe, making the two forms of laws more similar in some crucial areas of private law. This is also the reason for the increase of statutory law in comparison with traditional case law, which still continues to prevail and be a distinctive element of common law.

CIVIL LAW

Civil law is a family of legal systems typical of continental Europe, which finds its roots in Roman law. Civil law is mainly based on statutory legislation, written legal statues issued in accordance with certain forms and procedures, setting rules at a high degree of abstraction. These rules are written in the civil code.

The foundation of private law. Judicial decisions (in theory) play a less relevant role, since judges are supposed to be "only the mouth that pronounces the words of the law". The legal problems are addressed from the point of view of the normative proposition, which precedes and "establishes" the judicial decision.

The enactment of the French civil code is an historical event of extraordinary importance, because it paved the way for a major national codification, which sentenced the ius commune to death, by replacing it. After this also the other European nations followed the French steps, enacting their own civil codes. Instead of a universal law based on the roman law, there was from then on, a French, German, Italian law, and so on, each of them enacted by their own parliament. So, the ius commune was replaced by the national law, with systematic legislations enacted because and as an expression of the sovereignty of a single national state.

NATIONAL CODIFICATIONS OF

Towards the end of the eighteen centuries, the ideal of national law was decidedly embraced by the French revolution. Instead of the local mess and regional laws, enlightenment thought had affirmed the ideal of unique law intelligible to all men and easily accessible. Furthermore, the idea was to depart from the catholic religion and to enact secular law administered by the state. The secularization of private law was important also to marriage which turned into a civil contract, this move paved the way for permitting divorce, previously prohibited by the church.

The advent of the French revolution pleaded for the adoption of a codification of private law. Napoleon was the one who achieved this goal, issuing five codifications, the most important being that of civil law, this civil code entered into force in 1804 and was called the code napoleon. The code was drafted by a commission who were able to draw up the overall structure in four months.

The basic ideas of the code were to