Comparative-Law-Varano-Sp04

Comparative-Law-Varano-Sp04 - Comparative Law Outline...

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Comparative Law Outline C OMMON L AW IVIL L AW – C OMPARISON OF M ETHODS AND S OURCES 1. Uses of Comparative Method Uses of Foreign Law in U.S. Courts: Even where foreign law is not controlling, it may be used as factual evidence (as in the case of defining a government official under the Foreign Corrupt Practices Act) to determine liability under U.S. law. A witness can invoke the privilege against self-incrimination if it can be shown that the answer to a particular question might give rise to a substantial risk of prosecution under the law of a foreign country. Knowledge important to select foreign counsel, compensate them, and instruct them in terms they will understand. Bridging differences across legal systems: In nearly all fields of law, there exists a common core of legal concepts and precepts shared by some or even most of the world’s legal systems. The resolution of international disputes and the formulation of rules of international law may depend on whether court can find a sufficient core of agreement among the legal systems of “civilized nations.” 2. Basic Nature of Law and Legal Systems Legal Positivism (Lex v. Ius) Most European languages make a distinction between “positive law” (e.g., lex, ley, loi, gesetz, etc.) and “law-as-such” (e.g., ius, droit, derecho, reicht). The first is the written form of the law, as it is found in codes and (in the common law, especially) cases. The second is a broader conception of law which includes ideas of equity and perhaps of natural law and justice. Nationalism It was not always true that law adhered strictly to national boundaries. This was especially true in the Middle Ages, when there was still a strong idea of a Christian empire. The idea that the State and not intermediate groups such as universities and churches should have a monopoly on the law is a relatively new idea. Civil law had a transnational character until the time of modern codifications. Varano points to extreme isolation that long existed within countries regarding law.
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Law Tradi tion Politi cs Varano’s Triad: Politics, Law, Tradition Questions facing any legal system: How to fill gaps: In the common law, gaps present opportunities to create new rules. In civil law systems, gaps are filled by creative application of the code. Sources of authority: Both the common law and codes act as the background against which later auxiliary statutes and regulations within their respective systems are read. 3. Some Distinguishing Features of Common and Civil Law In re Shoop (p.174) Held that the Philippines more closely resembled a common law jurisdiction than a civil law jurisdiction. Philippines DOES apply Anglo-American-style case law precedents when
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Comparative-Law-Varano-Sp04 - Comparative Law Outline...

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