Comparative Legal Systems and Legal Pluralism - Chapter 6 by Asma

7/28/2019 Comparative Legal Systems and Legal Pluralism - Chapter 6 by Asma

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Chapter 6

Sources of Law and The JudicialProcess in Civil Law Systems

Section 1. In General

There are 2 types of law :

- Primary = enacted law & custom ( sometimes general principles)- Secondary = case law + writing of scholars of law

However, today case law is becoming very important due to the fact that primary

law is interpreted by court.

Enacted law :

Laws adopted by :

1. Legislation2. Executive/ administrative agencies3. Popular referendum

Called authorities & is never bindingbut has weight when primary sources areabsent.


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Hierarchy of enacted Law

Federal state + rules concerning relationship of state to federal law + importance of

international treaties/ conventions. (In Eu, international treaties/ law may take primacy

over internal law)

Therefore in France -> constitution of 5th Republic:

- Article 34 , enumerated law-making domain of parliament- Article 37, matters other than those in article 34 are for executive

Therefore, executive administrative jurisdiction is the rule , legislative is exception

Constitution

Legislation

Executive Decrees

Administrative Regulations

Local Ordinances

Principle source of

law , growing body ofseparate statutes

draws attention from

codes.( civil etc.)In

France,

executive

power is as

powerful as

legislative

Goes against doctrine

of legislative supremacy

in France.

Constitutional Council

has power to review

ONLY parliamentary

legislation BUT council of

state reviews executive

legislation for conformity

to Constitution


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Custom :

Is primary law but sometimes dismissed as of slight practical importance

Spain -> (+ Spanish speaking countries) National civil Code doesnt apply in matterscovered by customary law.

Germany-> custom is in some case to prevail over written law

France -> custom can supplement BUT NOT abrogate written law

X custom plays greater role in Commercial / labor then Civil law

General principles:

Principles derived either from norms of positive law or from the existence of the legal

order itself .

AUTHORITIES: (secondary law )

CASE LAW :

- Emerges from necessity to interpret + apply written Law- Civil law is influenced by Justinians claim that only sovereign can make a

generally applicable rule ( today representative legislature )

- Judicial pronouncement are not binding on even lower courts

CIVIL LAW decisions have de facto weight because:

High courts tend to try to assure consistency in the output of the court therefore

doesnt decide similar cases differentlyInfluence of higher courts to lower courts is considerable

Germany + holy : decisions of Constitutional courts on compatibility of statutes

with constitution have force of law

Settled line of case have great authority everywhere => Spanishspeaking

world, they are made binding by legislation => some legal theorists claim that itbecomes eventually custom

Many bodes of law have been built up by judicial decisions

Eg. French tort law + French ( uncodified ) administrative law


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DOCTRINE :

The writing of legal science are authorities in Civil Law System Case law Vs Doctrine Case law assumes Consistency within a judicial Hierarchy Case law operated to settle the law Doctrine events its influence when there is no law on a point when in unsettled However , scholars have the task of organizing & analyzing case law therefore

indirectly controls judges understanding of case law

Weight attached to doctrine varies according to :- Reputation of author- Whether view look at & analyzes other respected writers

Scholarly opinions expressed in:-General + specialized treaties

-Commentaries on codes

-monographs + doctoral theses

-Law review articles

-case notes

- Expert opinions in connection with litigation

Persistent doctrinal criticism may lead to abandonment of an established judicialposition

Since case law isnt binding,there isnt sophisticated + comprehensive citationsfor direct access to cases therefore Periodicals & treatises which collect &analyze most important cases became main source of research

Computerized law finding devices affect civil law practice because now it iseasier to find cases+ more info. On cases !

Interpretation

Post-codification era scholars focused on :-language

-structure

- relations of the codes

Therefore voluminous literature on interpretation

Technique of interpretation became an art and it depends on the source oflegal norm involved ( codes or statutes or decrees)


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3 types of interpretation:1.Language interpretation => linguistically most plausible meaning to be

ascribed to the words used called law-finding because its meaning isautomatic & unconscious

2. Interpretation when there is unclear/ambiguous provisionInconsistency => when laws contradict each other, or provision is general

& ambiguous.

3.When there is a gap in a legislative text4.

when a law is completely silent on a matter- old law has become unsuitable

After adoption of codes, people thought they were self-sufficient and could beapplied to all cases arising.

The judge was thought of as someone who only interprets and derives solutionsfrom the codes

Interpretation was seen as the process of Enlarging the code our of Itself If a problem, not accounted for in codes, arose, judge would derive solution

from code

Although judges created judge-made norms, they were still not seen as law-making processes.

Interpretation was viewed as process of discovering the implied will of the legislature

Interpretation involves :

- Grammatical analysis-

Logical Operation: reasoning by analogy- Deriving an inclusive principle from a set of related sections

All

civil law

systems

have amethod

to help

clear

ambiguo

us texts

and fill

the gaps

in law

Although characterized as interpretation, it is in reality an act of developing the

law on their own. However, it is arguable the extent to which its openlyacknowledged.

In this formal interpretation, legislative history, called preparatory work, is

important to determine implied will of legislature


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BUT when all of the above lead to a dead end, the judge uses general clauses (that are wide in their interpretation) to modify the effect of more rigid code

provisions or to set the course of a new development.

In France

Article 4 of the Code forbids the judge to refuse a case because the law is silenton the matter

The chief drafter of the Civil code, Portalis, said:1. legislature could not and should not try to foresee everything 2. the science of the judge is to put the principles into actionto study the spirit of

the law --- and not to expose himself to the risk of being alternatively slave and

rebel

The court of Cassation cryptic opinion style:

1 long paragraph with recital of applicable legal provision brief description of factstherefore appears to emerge from a mechanical processes of applying the law to

the facts.

This uninformative nature led to many criticism today.

Genys libre recherch scientifique :

He argued that the judge should be free from limitations of textual exegesis but

should look at the entire social & economic context Not just custom, doctrine and

case law.

Some codes acknowledged relation between interpretation + legislation:

Austrian civil code : directs the judge to look at principles of natural law ifproblems arose. (1811)

Spanish civil code (1888) : deficiencies in law should be resolved by referring to general principles of the law

German Civil code: they believed that their code included these methods ofinterpretation but when problems arise, judge should look out general principles

+ principles that arise from the spirit of legal order .

Italian law : Article 12 says this as well. Swiss Civil code (1907) Article 1 if the judge can find no law in a matter he mustdecide according to : customary law ; if it fails; he would become a legislator

and adopt a rule that goes with legal doctrine+ judicial tradition.

Germany today had developed an opinion style similar to US because it pays

attention to facts and exposition of legal process of reasoning to arrive to the decision .

they exercise their creative function but always conforming to basic principles oflegal order.


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Therefore we can say that interpretation is often a form of law-making but to what

extent is it ?

Stability and Growth

Every legal system needs a mechanism to promote:-Predictability

-Flexibility

- Stability

- Growth

In common law : Predictability + Stability are provided by the doctrine of stanedecisis; Flexibility + Growth are provided by rules of equity and tecniques for

limiting precedent.

In Civil law : Predictability + Stability are provided by the written law andFlexibility + Growth is provided by general clauses tempering rules +

interpretation.

However, statutory law made case law less central to common law and codes less

central for Civil law .

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Comparative Legal Systems and Legal Pluralism - Chapter 6 by Asma