Comparative Law Mortimer Sellers Spring 2012
Final Exam Review Comparative Law
I. Civil Law- written codes deriving from roman law, germanic customs, and canon law. (French and German) More centralized than common law.
A. Legal Structures- Revival of Roman law to deal with the inconvenience of local customs
Codes:
French Civil Code (1804)- Flexible, general rules for the citizens based on revolutionary ideas. Freedom of contract, right to property, patriarachal family. Rational, well organized, but the gift of a dictator from Napoleon. Focus on citizenship and the soil of France. Ius soli.
German Civil Code (1896)- applying Roman law to modern day problems, based more historically because Germany was not united politically. Created by Auto Von Bismark. Liberty, equality, and fraternity but still given by a ruler. Focus on heritage, blood, ethnicity. Ius sanguinis.
Parliaments:
Parliamentary systems have the executive branch derived from within the elected legislative branch.
Legislative supremacy- the parliament has most of the power; they elect the executive branch, the judicial branch comes from within, judicial review is lessened by parliamentary supremacy.
Germany: Bicameral parliament bundestag- lower house by popular vote and Bundesrat- upper house elected by the Landers, state governments
Courts:
French Conseil D’Etat- in charge of protecting the constitution from legislatures. During French revolution there was fear of the role the judiciary played in the old regime. French seek to limit control of judiciary through review of legislation; give more power to legislation.
Assemblee nationale- French assembly to regulate judges
Judicial review- can preemptively rule on laws before put into action
Germany- abstract and concrete review; can send law back to legislature to fix instead of ruling unconstitutional. No dissenting opinions; unanimous votes.
Cour de cassation- ensure correct application of legislation, only review lower courts judgment. Considered guardian of the legislation.
Constitutions:
Germany: 1945 separation of Germany following Nazis.
Basic law (1948)- written with the understanding of a ratified constitution to follow. Federal government based on democratic principles with a guarantee of essential human rights.
Executives;
ced?
Appeals:
De novo review of law AND facts; completely new trial
D. Sources of Law- positivist theory that law comes from someone at a specific time, not just a compilation of customs and morals.
Primary sources:
Enacted legal codes through legislatures, executives, administrative agencies, popular referendum.
Parliamentary legislation is the principal source of law.
Codes; clear and just, a full recording of the law to be revised as a single unit by experts.
Secondary sources:
Case law
Writings of legal scholars
Hierarchy in civil law:
1)Code
2) Judges
3) Legislature and executive elected by them
4) Deference to authority
5) Loose procedure; judges can run the case how they want but not loosely interpret or apply the law.
*Civil law legal systems have people who are more similar to one another, making the law more cohesive and logical to the people.
