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Comparative Law: Civil Law

Comparative Law: Civil Law - COMPARATIVE LAW Spring 2006 I...

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COMPARATIVE LAW Spring 2006 I. CIVIL LAW A. History 1. Roman Law (533 A.D.) (a) born when Justinian codifies the corpus juris civilis in Constantinople (b) codification puts the entire Roman law into an orderly space (c) attempts to create order during extreme disorder due to Germanic invasion (d) lost during the religious fervor of the Dark Ages 2. Glossators and Commentators (1000 – 1300 A.D.) (a) re-born during Renaissance in Bologna with creation of Italian universities (b) new code derived from commentary on corpus juris civilis and canon law (c) students came from all over Europe to study both civil and canon law (d) professors returned home and set up own universities to study the code (e) creates a jus commune which becomes the common European civil law (f) lost again during the feudalism of the Middle Ages 3. Napoleonic Code (1804 A.D.) (a) re-born after French Revolution when Napoleon creates civil code in 1804 (b) creates order in response to extreme disorder in Revolution’s aftermath (c) structure largely parallels the corpus juris civilis and French jus commune (d) intended to be simple enough so that every citizen would understand (e) separated creation of law from judges by making code supreme where the legislature creates law and judges only apply, never interpret, law (f) spread throughout Europe, Middle East and North Africa by conquest (g) codes become laced with nationalism and become unique to each country (h) further refined with German civil code created in 1900, not intended to be understood by the lay person, but by lawyers (i) lost again during WWI, WWII and the Cold War to some extent 4. European Union (future) (a) next rebirth will be codification of a new jus commune for EU B. Problem of Judicial Interpretation ( Merryman ) 1. civil law minimizes responsibility of judges to interpret Code because of a historically conditioned fear of judges derived from Revolution where judges were bad guys 2. civil law designed to deal with problem of judicial interpretation via Code, but there is a problem of how to interpret the Code when gaps or ambiguity 3. focus on certainty of law overlooks that judicial interpretation needed here 4. reality that judges interpret, hiding behind opaque structure of their opinions 5. ultimate result is that civil law does not achieve the intended certainty C. Case #0 (French Civil Code) 1. quashing lower court decision: (a) quash – judgment overrides a lower court decision and requires a remand, but it does not decide the matter on the facts or revise the lower court judgment (i) French word for quash is “casser,” or “to break” (ii) French supreme court is Cour d’Cassation (i.e. quashing court)
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2. multi-tiered hierarchy of courts: (a) at least three levels as court overturning appellate court (b) presence of “Cass.” in citation means that supreme court decision, and must be Cour d’Cassation because references “court of appeals of Potiers” 3. one proceeding for both criminal and civil law:
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Comparative Law: Civil Law - COMPARATIVE LAW Spring 2006 I...

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