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Comparative Law
University of Mississippi School of Law
Sinha, Hans P.

Comparative Law
Classes 1 – 4
Legal Families
Several different groupings
Some common themes
Civil Law
Romano-Germanic, carried along with Roman conquest and Catholicism.
–          Nordic, more independent development than other civil law regions
Common Law, evolved separately from Ius Commune, spread with British colonization
–          Anglo-English, Blend of Anglo-Saxon traditions and Norman importations. English trial by jury before Norman invasion.
Religious
–          Islam, Sharia law.
–          Hindu, Vedic law
–          Jewish, from the Torah and Talmud
–          (Socialist) Dirty filthy commies
Civil Law Origin
Emperor Justinian’s compilation of Roman Law
Corpus Juris Civilis  534 AD
Digest: Juridical texts, dating back to second and third centuries. Private opinions of legal scholars.
Codex: Imperial decrees dating back to second century.
Institutes: Law text for students, copied extensively from 2nd century’s Gaius.
Novellea: Justinian edicts
Important to note that written Roman law dates back to the Twelve Tables, in approximately 450 BC.
 
Revival of Roman Law
Roman law lost after the fall of the Western Roman Empire in 476 AD.
University of Bologna, Began revival, 11th century. Started the revival, with the study of Roman law by the Latin trained scholars.
Reception of Roman law
11th – 16th century
Ius Commune – spread of Roman law throughout Europe via the universities, and their education in Latin.
Common (sic) Roman law in continental Europe, meaning the underlying body of law that supports the civil law.
 
Codification
Nations forming, Legal nationalism. With the rise of the modern nation state came the end of Feudalism and the regionally peculiar system of feudal courts. Formerly, legal forms could change at the boundary of any fiefdom. The rise of absolute monarchies in the 15th century began the trend towards consolidation and centralization.
French Civil Code, Napoleonic Code, 1804. In keeping with goals of the French Revolution, the code forbade hereditary privileges and created a less nepotistic civil service system. The code also attempted to fix the abuses of revolutionary trial and punishment. The code spread along with Napoleon’s conquests.
German Civil Code, January 1, 1900. Despite nearly a century of desire for reform, a consolidated civil code was not possible before the unification of Germany in 1871.
Swiss Civil Code
Austrian Civil Code
 
Spread of Civil Law
Ready made portability. Frequently, customary legal practice proved tumultuous to the point where there was a lack of reverence among the educated classes. Roman law had a long pedigree of effectiveness, and Napoleonic law was laid out on rational principles. Wide bodies of Latin and French works were available for foreign study.
Spread beyond Europe. Portugal, Taiwan, South Korea, Red China, &c.
 
Conquest – The Napoleonic code’s spread in Europe
Colonization – Civil Law countries imported their codes to their imperial possessions.
Voluntary adoption – Many fledging nations desired a Westernized legal system.
Common Law
Ius Commune not reach England, though it was studied to an extent in English universities.
Developed legal system – England had customary Germanic laws dating back to the 5th century, and a history of selecting rulers and settling disputes through indigenous legal forms.
Westminster. – The royal court sent out judges to settle disputes on an ad hoc basis. They developed their own methods and traditions, such as a system of stare decisis. 
Common law, by binding judges to previous precedent, the Westminster system set about eliminating the regional peculiarities of pre-Norman law.
Case law vs Codes
Geographical barrier. The English Channel served as an effective barrier to the Ius Commune. The Norman invasion caused great upheaval, and there was a traditional Islander antipathy towards Continentalism.
 
 
Great Britain
England
Wales
Scotland, Mixed jurisdiction. Continental European ties 14th & 15th centuries. Christianity and Catholicism survived the Anglo-Saxon invasion better in the Scottish mountains than in England. The Scottish aristocracy found itself frequently allied with the French against the English, and its members frequented the Continent.
Common law spread
Not as readily po

ight, we must see them from a certain distance, as strangers”
Easier for legislative drafters to do comparative method and borrowing, than judges
 
 
Functionalism and Context
Transferability dependent upon context. Some comparative analysis more useful than others.
Polygamy example
Notary seal text, page. 21
NY look to Civil Law use of Notary seal to make valid no-consideration agreement
Paper law vs Context
Civil Law Notary drastically different from NY Notary. Requires far more education, responsibilities are much greater and more akin to an attorney’s in some respects.
Functionalism, philosophy of understanding based on cause and effects.
What is the rule / concept. The paper law.
What is rule in context. The application in real life.
Cannot compare rules without social context
Comparing “paper” institutions  of little use. Distinction similar to that between basic and applied research. Topics involve a bit of “anthropology, sociology, and history”
Differences and / vs. Similarities
Page 37
Tend to find differences
Also look for similarities
Similarities across systems
Deliberate harmonization through unification – EU, Germany, Napoleon
“Accidental” harmonization a misnomer, there is migration if ideas, legal transplants, “Universal truths.” “From the fact that in resolving a pervasive or perhaps universal problem several legal systems, independently of each other, have reacted in similar fashion and have given legal recognition to the same human needs and aspirations” – that sounds rather accidental
“Common core of beliefs all people agree upon.” A peculiar fantasy.
Common and Civil Law Jurisdictions Distinguished:
Nature and Significance of Distinction
In re Shoop, page 174