Comparative Law II. The Common / Civil Law Divide. Unit 2: History of Common Law and Civil Law

Transcription

1 Comparative Law II The Common / Civil Law Divide Unit 2: History of Common Law and Civil Law

2 Unit 2 Overview Roman law and its influence on European legal systems Civil law codifications in continental Europe Evolution of common law o Parallels to the Roman actiones o Rivalry between common law and equity o Emergence of case law Recent Developments Martin Fries 2

3 Roman Law The most essential source of Roman law is Justinian s corpus iuris civilis, consisting of o Institutes of Justinian = an easy-to-read textbook for beginners o Digest/pandects = an opus of 50 volumes comprehending the major legal thoughts at that time o Codex of Justinian = a comprehensive statute book o New constitutions = a book of later statutes Roman law did not differentiate between substantive and procedural law à Any right was dependent on the availability of a suitable type of action (numerus clausus of actiones) Martin Fries 3

4 Roman Law and its Reception 528: Corpus Juris Civilis (Justinian I.) 11 th /12 th century: Glossators in Bologna rediscovered Roman law 14 th century: Postglossators = commentators brought Roman Law into practice and textured local laws with the means of Roman law From 15 th century: Establishment of Roman law as background law in many European countries à What was the current stage of political and legal development in European countries at that time? Martin Fries 4

5 Europe in the Late Medieval Times Continental Europe Scattered states without central political authority Politically instable conditions: Revolutions and new distribution of power just around the corner Europe needed an abstract idea of the law and thus developed national civil codes according to Roman archetypes England Rule, Britannia! Politically very stable conditions The Royal Crown with its claim to power provided a tightly controlled judiciary Martin Fries 5

6 Civil Law Codification in France Until the 18 th century, Roman law was quite influential in France o The Southern regions of France followed some sort of Roman law with French modifications (ius commune, droit écrit) o The Northern parts of France predominantly acted on consuetudinary law (droit coutumier) The first influential civil code in Europe was the French Code civil = Code Napoléon (1804) o Codification of principles and elementary laws o Role model for later civil codes all over Europe Martin Fries 6

7 Civil Law Codification in Germany The unification of Germany and the foundation of the German Empire 1871 gave the ultimate reason to create a German civil code (Bürgerliches Gesetzbuch, BGB) As the BGB did not evolve from common ideas of the German states it had to root back to the Roman law o Legal science in the 19 th century had already focused on the analysis and interpretation of Roman pandects o The German legislator aimed at a coherent system of abstract rules with far more details than the French Code civil Similar civil codes were later adopted in Switzerland and many Asian countries Martin Fries 7

8 The Common Law In the late 10 th century, Alfred the Great compiled the so-called Doom Book to lay the foundation for the common law in England The Norman conquest in 1066 was the last serious attack on the sovereignty of the still young English kingdom From now on, the Crown tightened its administration and sent royal judges to enforce the royal case law all over the country Thus, there was no need to recollect to legal ideas from Roman law; the only exception being an inspiration by the Roman actiones Martin Fries 8

9 Writs The early common law was enforced by so-called writs o A writ is a form which the king used to order his local judges to execute procedural measures against a defendant o Instead of bringing suit, a claimant requested a writ directly from the Crown o The claimant had to choose the right type of writ in order to preserve his chances to a successful judgment As the royal justice proved to be more efficient than the local courts, it gained more and more influence The leading principle for judicial decisions at that time was custom and practice, but not conformity with the existing case law Martin Fries 9

10 Equity Equity emerged as a second guideline for the resolution of conflicts, developed by the Chancery Division of the High Court of England o Equity was developed as a second layer of law aside from the common law o The principle of equity aimed at correcting unfair common law judgments o An equity injunction prohibits the enforcement of a common law judgment The Chancery Division could force defendants to appear in court by impending draconic penalties, i.e., put them sub poena o Until today, if someone is subponaed, he is compelled to appear in court or incur a fine Other than equity principles under civil law (e.g., 242 of the German civil code), equity constitutes a completely separate legal order Martin Fries 10

11 Two Meanings of Common Law Common Law Civil Law Common Law Equity Martin Fries 11

12 Judicature Act Judicature Act (1873/1875): Consolidation of English legal practice o One court system o Application of common law as well as equity o Writ of summons instead of choice between writs The Judicature Act facilitated the comprehension of common law (and equity) as real case law o Vanishing competition between different courts o Increasing accessibility of casebooks Martin Fries 12

13 Stare Decisis The concept of stare decisis et non quieta movere means that courts o have to stick with the decisions of the existing case law as far as there is no factual reason to make a distinction o should not needlessly disturb legal certainty Examples: o If a court has ruled that a landlord cannot claim storm losses from her tenant, a later court cannot hold the tenant accountable for earthquake damages as long as there is no essential distinction between those forces of nature o If a court has ruled that driving at only 5 mph cannot constitute negligence, courts are bound to this assessment in later cases Martin Fries 13

14 The Value of Precedents Medieval Royal courts in England referred to existing case law not as binding precedents but as evidence of customary rules o Before the Judicature Act, the decision guidelines rather resembled those in Northern France o Thus, binding precedents are relatively new and not characteristic for the old common law Even today, there are notable possibilities to evade obnoxious precedents o First-instance judgments often do not entail reasons which makes it easy to distinguish o Higher courts like the Supreme Courts in the UK and the US are not bound by earlier precedents Martin Fries 14

15 Separation of Powers The principle of the separation of powers dates back to the 18 th century (Montesquieu) It demands legislature, executive, and judiciary to be in separate hands In England, the separation of powers is subject to two distinct challenges: o In Medieval times, the king commanded the judiciary, so there was no independent judiciary o In today s case law system, the judiciary serves some of the functions that would belong to the legislator o However, Parliament corrects the judiciary and thus has the final say in legislation Martin Fries 15

16 Statutes under Common Law As common law is built on cases, statutes cover only insular fields of law Many of the existing statutes are based on common law jurisdiction and cannot be understood without prior knowledge of the respective case law Since 1892, the Uniform Law Commission has drafted more than 100 Uniform Acts to be adopted in all US federal states Examples for codes under common law o Civil Code in California (1900) o Uniform Commercial Code (2001) o Uniform Probate Code (1969) Martin Fries 16

17 See you next week! Wednesday, March 1, noon, EW 148 Feedback: martin.fries [at] jura.uni-muenchen.de