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Comparative Law Outline ii

Comparative Law Outline ii - The Comparative Law and the...

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The Comparative Law and the Civil System 1. Roman law and its revival (revival is where the influence comes from) 2. Canon Law 3. Commercial Law 4. French Civil Code and 5. Rejection of the French Civil Code Merryman: One significant feature of the civil law system is that competing legal traditions were engulfed, transformed, and absorbed by the scholars who have been the main custodians of the civil law tradition. Talks about how civil lawyers worry about things that common law do not worry. In civil they worry about public and private law It is a fundamental distinction in code systems so that it would not seem strange to have an entirely different set of rules in a public area instead of a private area Merryman says that these distinctions in kinds of laws are an important part of civil law lawyers o The notion is that the distinctions are very sharp in a civil system are often meaningless to the US. US does not like to put parts of the law in categories b/c it affects the fundamental function to analogize prior experience, to decide case w/out worrying too much about the theory of the law. Public and Private distinctions in France? o He says the importance of the distinction is starting to decline 1. the social function of property for example is something he talks about: Civil code was very liberal in recognizing and protecting ownership of property over time. Limits of property are conceived. For various needs of the state, property has had to be reduced o So, there has been a mixing of private and public law concepts 2. French courts try to come out with the right answer; clear answer They took the position that if you work hard enough, the right answer exists b/c the law is clear. US it is different. We have an approximate notion of the law saying that is probably the right answer giving a distinction of the notion of law. The Civil Law Tradition Roman Law Intro: Influence of Roman Law : Roman civil law legacy from the time of the Republic and the Empire; revival of Roman law after the Dark Ages in the 12 th century at the universities and elsewhere; and reception of the Roman part of the jus commune throughout continental Europe. Jus commune -common refers to Roman and canon law prior to national codifications. Constitutional History: Barry Nicholas and Intro to Roman Law:
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Time of the Republic: largely devoted the intern struggle b/w the two Orders or classes into which the citizen body was divided: the Patrician nobility and the Plebeians who formed the bulk of the population. Relevant Features of the Republic : Magistrate: inheritors of royal power Full executive power subject to three limitations: 1. full power of office for one year; 2. veto power; 3. power might be limited by legislation. Magistracy most vitally concerned the private law and was the Praetorship
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Comparative Law Outline ii - The Comparative Law and the...

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