LegHis Notes - Merryman the Civil Law Tradition

Merryman & Perez-Perdomo - Two highly influential legal traditions: common law and civil law. - Legal system v Legal tradition. - Legal system is an operating set of legal institutions; classified into groups such as common law systems, and civil law systems. - In former editions of the book, there is a third major legal tradition, the socialist law – which embraced the political and economic premises of state socialism. However most socialist law nations had previously been participants of the civil law tradition, to which they reverted when the socialist law superstructure collapsed. - The differences show that the world has been divided into individual states, emphasizing on national characteristics and sovereignty. Thus there’s no such thing as “the” civil law or “the” common law. Each system is different. However in classifying each into civil or common, they must have something in common – the LEGAL TRADITION. - Legal tradition – puts the legal system into cultural perspective (how laws are made, applied, and perfected. It is a set of deeply rooted attitudes about the nature of law. - Written in the common law world: civili law tradition is older, more widely distributed, and more influential. - Civil law and common law have not been isolated from each other. As components of a common Western history and culture, they have had multiple contacts and reciprocal influences. - There are many other legal traditions existing, and new ones are forming. The dominance of the two traditions resulted from European imperialism. - Civil law tradition is something that endures, even as particular elements of the legal systems hat share that tradition rise, fall, and evolve (change and permanence) Chapter II ROMAN LAW - The civil law tradition is a composite of several distinct elements or subtraditions. - Oldest subtradition is the Roman law, as compiled and codified by Justinian (CIC). The Institutes (Of Persons, Of Things, Of Obligations), substantially deal with the same sets of problems in civil law today. The belief that this group of subjects is a related system is one of the principal distinguishing marks of civil law.

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Justinian’s two principal motivations in making CIC: to rescue the Roman legal system from deterioration; and to codify the rules, that is to eliminate which was wrong, obscure, or repetitive. He was concerned of the number and the variety of juriconsults’ commentaries. He abolished the authority of all but the best juriconsults, and make it unnecessary for any more commentaries to be written. - Justinian made sure that references are to be made to the CIC alone, not to previous ones, saying it was already sufficient to solve legal problems. Manuscripts of previous commentaries were burned to avoid citation. - CIC also had other aspects (powers of the emperor, etc [public law]) but was less carefully studied. - With the fall of the Roman Empire in the West, Roman law lost dynamism. Less sophisticated versions were applied, invaders brought their own Germanic legal customs, so a fusion took about. - When the MEDIEVAL RENAISSANCE began, there was the BASILICA – an important source of civil law in Greece. - First modern university in Bologna – studied Justinian’s CIC, not the barbarized Roman law because a) it is far superior in force and range, and b) jurists recognized its high intellectual quality. - Bologna and other universities of Northern Italy became the legal center of the Western world. Glossators and Commentators released analyses of CIC. They taught the CIC. Those who had studied returned to their nations and established universities where they also taught and studied CIC. Jus commune, common body of law, legal language, and method for teaching. - Roman law and jus commune grew during the rise of the nation-state – intellectuals staffed the royal bureaucracies, which maintained jus commune. Roman civil law was received throughout a large part of Western Europe. - Roman civil law – oldest, most continuously and thoroughly studied civil law tradition. It is said to be the greatest contribution that Rome has made to Western civilization. CANON LAW - Beginnings in the Christian era, developed by the Church for its own governance to regulate the rights and obligations of its communicants. - Canon law was the universal law of the spiritual domain. - Distinction between diff types of law were less clear (overlap of Roman law and canon law in courts).

Study of canon law was joined with the study of the Roman civil law. - By the time ecclesiastical courts were deprived of their civil jurisdiction, the principles they had developed had been adopted by the royal courts. COMMERCIAL LAW - At the time of the Crusades in Italy - Merchants formed guilds and established rules for the conduct of commercial affairs. - Commercial law was the pragmatic creation of practical men engaged in commerce. Judges were merchants. - The needs of commerce and the interests of merchang\ts were the main sources of the law. Nevertheless, merchant judges still consulted educated jurists, thereby making Roman law language influence commercial law. - It then became international in character, and penetrated throughout the commercial world. Soon it was incorporated into the commercial codes adopted throughout the civil law world. These three subtraditions are the principal historical sources of the concepts, institutions, and procedures of most of the private law and procedural law, and much of the criminal law of modern civil law systems (five basic codes: civil code, commercial code, CivPro code, penal code, CrimPro code.) Chapter III: The Revolution - Much of public law (consti and admin law) were not present from historical sources. - They were the product of revolutions which were products of the intellectual revolution which overcame patterns of thought about govt and the individual. The guiding spirit of public law are of modern origin. - The IR also had influence on the content of basic codes, One of the driving intellectual forces: secular natural law. “Secular – not derived from religious doctrine” Men have natural rights, they are equal, etc. e.g. Fall of feudalism and aristocracy before the French revolution - SEPARATION OF POWERS – establishing and maintaining a separation of governmental pwers to prevent intrusion of the judiciary into areas reserved to the two other powers. - France – judicial aristocracy were targets of the Revolution. They fail to distinguish between applying law and making law.

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US and England – judges had often been a progressive force on the side of the individual against the abuse of power by the ruler. Age of Reason – reason controlled human activities. Existing laws and institutions could be repealed and new ones be put in place; importance on rights of men Glorification of the secular state, hence the primary allegiance of the individual to the monolithic state alone. Nationalism – the objective was to express national ideals and the unity of the nation’s culture. The authority (but not the content) of the jus commune was rejected. In the future, all law would be NATIONAL LAW.

Chapter IV: Sources of Law - Concept of sovereignty - Ultimate lawmaking power lay in the state – state positivism. - The legal unity that jus commune provides have been replaced by the emergence of the modern nation-state – national legal systems(sovereignty, advantages, etc) - Absolute sovereignty – where law is operative within the state only if the state itself decided that they should be (as per international treaties, etc) - Internal sovereignty - State positivism – state monopoly on lawmaking o Legislature has the sole lawmaking power o In contrast with common law’s stare decisis, court to base decisions on prior decisions. Judicial decisions are not law. - Only statutes enacted by the legislative power could be law, subject to limits and principles “written reason” - Legislature can delegate some of his power to the executive, and could give administrative agencies the power to issue regulations, but it was effective only within the limits provided in the delegating legislation, hence legislative supremacy still. - CUSTOMS – Where a person acts in accordance with custom under the assumption that it represents the law, that action will be accepted as legal in many civil law jurisdictions, so long as there is no applicable statute or regulation to the contrary. - CONSTITUTIONLALISM – superiority of a written constitution, which sets the powers of the legislature. - Initiative and referendum

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Hierarchy: Constitution – Leg – admin orders – customs Common law sources: accretion of statutes, judicial decisions, and customary practices No hierarchy of sources of law in common law jurisdictions.

Chapter V: Codes and Codification - Codes may exist both in civil and common law systems. It is thus not a distinctive identifying mark of a civil law system. - One must look at the ideology of codification. - FRENCH CODIFICATION: o Statism – attempt to repeal all prior law, and thus limit the effect of law to new legislation (glorification of the nation-state) o Nationalism – pre-revolutionary laws were European rather tan French in origin. o Rationalism – by reasoning from their basic premises established by the thinkers of the secular natural law school, one could derive a legal system that would meet the needs of the new society. o Make lawyers unnecessary – state the law clearly and in a straightforward fashion, such that ordinary citizens could read the law and understand what their rights and obligations were, without having to consult lawyers. FCC1804 was envisioned as a handbook for the citizen stated in straightforward language. o Separation of powers – if judges were required to decide a case for which there was no legislative provision, they would in effect “make law”, as well as it has conflicting provisions, and it was ambiguous. Hence it was necessary that the code is without gaps, no conflicting provisions and it should be clear. - GERMAN CODIFICATION o The proposition that Germany followed France’s lead was opposed (Savigny). It would be wrong to devise a civil code by reasoning from principles of secular natural law  the law of the people was a HISTORICALLY determined organic product. Consequently, a study of German law history would entail Roman civil law. o Scholars turned their energies to the intensive study of LegHis  RECONSTRUCTION OF German legal system accdg to its inherent principles and

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features provide the basis for German codification. o It was neither desirable nor possible to get rid of lawyers. The code they prepared should be responsive to the needs of those trained in law. Idea that the code be simply stated is rejected. German and French Codification similarities o Separation of powers o Code as unifying function o Emergence of the monolithic nation-state

Chapter VI: Judges - Difference between common law and civil law judges is due to the difference of judicial tradition. - Judges from the roman times were laypeople, discharging an arbitral function by presiding over the settlement of disputes. They were not experts of the law. - Judges had no inherent lawmaking power. Only “the law” was used in cases, stare decisis was rejected. Judges should always refer such questions to the legislature for authoritative interpretation. - Judge’s function: find the right leg. Provision, couple with facts, and bless the solution that is more or less automatically produced from the union. - Judges are as if operators of a machine designed by legislators. It is a mechanical function. - Substantial disparities in accepted roles of judges in civil and common law. - The image of a civil law judge is waning, toward increased judicial scope and power. Chapter VII: The Interpretation of Statutes - Principle: courts should be denied any interpretive function and should be required to refer problems of statutory interpretation to the legislature itself for solution. The legislature would then provide an authoritative interpretation to the judge. - Attempt of Frederick the Great to make Prussia judge-proof. - Prussia adopted a code containing 17,000 articles, providing a specific, detailed solution for specific situations, for the judges’ reference. - Cassation (French), as legislatures may be flooded with difficult requests for interpretation, it created a new governmental organ and given the power to quash incorrect interpretations by the courts. (Tribunal of Cassation). - The Tribunal of Cassation was not expected to provide the interpretations, but merely QUASH

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judicial decisions based on incorrect interpretations. Such cases would then go back to the judiciary for reconsideration and decision. Court of Cassation – the tribunal also indicates the proper solution to incorrect interpretations. Supreme Court of Cassation – assuring the correct and uniform interpretation by the lower courts. GERMAN revision – quash a lower court’s decision, instruct the lower court as to the correct interpretation, it has to be sent back to the lower court “remanded” for decision. JUDGES – merely interpret the law. However it poses a lot of problems, Judges have to fill gaps and resolve conflicts in cases with unclear, nonexistent (lacunae), and changing statutes. That in justifying a decision, the judge is somewhat “legislating”. This system still persisted. Italian Civil Code of 1942: 1) in interpreting the statute, no other meaning can be attributed to it than the actual significance of the words, and by the intention of the legislature – (some argue that it should be for the “intention, spirit, and objective content of the norm”) and 2), if it cannot be decided by a precise provision, it should consider provisions that regulate similar cases.  reason by analogy. If it can’t, it has to resort to “general principles of the legal order of the State” (natural law) In evolutive/changing interpretation, circumstances may have changed. If previous int is applied, it may be offensive to themselves, the parties and society. If it reinterprets, it will be making law.  Judges have the power to interpret evolutively. It should be proven that in doing so, the judge doesn’t make law.

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Judicial interpretation is a characteristic part of the civil law tradition.

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Folklore of civil law-common law persists: civil law courts do use precedents, and common law courts distinguish cases they do not want to follow, and sometimes overrule heir own decisions.

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The distinction between civil law and common law judicial processes does not lie in what courts in fact do, but in what the dominant folklore tells them they do.