Continental legal system
Overview of civil law system. History of appearance and development of the Roman-German legal family. General characteristics of civil law legal system. Sourses of the right. Distinctive features of the system. Soubgroups in the civil law system.
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1. Definition and overview of civil law system
2. History of appearance and development of the Roman-German legal family
2.2 Sourses of the right
3. General characteristics of civil law legal system
3.1 Law system and its structure
3.2 Distinctive features of the system
3.3 Soubgroups in the civil law system
4.Consept of civil law system
Continentual legal family - is the family which includes the countries in which the jurisprudence has developed on the basis of the Roman right. Here on the foreground norms of the right which are surveyed as the norms of behavior which are based on the requirements of justice and morality. the primary goal of jurisprudence is to define, what should be these norms. The doctrine which is absorbed by this problem, is interested in management questions, administration of justice and right application. Lawyers-experts are engaged in it. Н.И. Матузов, Малько А.В. ,Теория государства и права, -- Юристъ, 1997, -- с.158
The term "romano-German" is chosen to give due to the joint efforts applied simultaneously by universities of the Latin and German countries. The name «the continental right» and furthermore "civil law" (Civil Law), used in the English-speaking literature, causes the big criticism.
The goal of this course work is to observe civil law system, its peculiarities, to find the most optimal definition of civil law system, to consider the historical aspects of appearance and development of the continental law system, to distinguish it's main features, to examine it's structure, subgroups, concepts and other general characteristics of the civil legal system; to make an informative and constructive conclusion.
In the modern world each state has its own right, but sometimes in the same state operate competing legal systems. The right have also nonstate communities: the initial right, the Muslim right, the Hindu right, the Judaic right. There is also an international law, called to regulate in the world or regional scale interstate and foreign trade relations. Dавид Р., Жоффре-Спинози К. Основные правовые системы современности.: Пер. с фр. В. А. Туманова. --Междунар. отношения, -- 1997.
Apparently, scientists-jurists more and more actively start to develop one of the main directions of jurisprudence of our days. Thus the problem coordinates absolutely fairly with idea of human rights, personal freedoms, intensifying of socially-legal security of citizens, consolidation of legality, an order and stability in the country.
Value of concept of legal system is to give an additional analytical possibilities for the complex analysis of legal sphere of life of a society. It allows to tap more full, more contrastly the most essential correlation, subordinations Основы государства и права: Уч.пособие.Ростов-на-Дону,Феникс, --1995, -- с.37 and other communications and other relations between whole and its parts, and also to define a place and a role of each link of system in the general work of all legal mechanism the state. That is why the topic is actual enough.
Components entering into legal system are not equal on the value, legal nature, specific gravity, independence, influence degree on public relations, but at the same time they are subordinated to some general patterns and are characterized by unity.
Functioning of such system is the most complicated process. Therefore the modern theory of the right should rise on such level of generalization that it would be possible to analyze more deeply and to estimate comprehensively the new legal reality which has arisen today as an integrated phenomenon, as a system.
The largest work devoted to modern legal systems, the book of well-known French lawyer Ren David. and Jofre Spinoze ( R. David the Basic legal systems of the present / translation from french , 1988 Saidov A.H. Introduction in the cores legal present system. Tashkent, 1988.
In Soviet period has been let out the two-volume book in which was detailed characteristic of the existing socialist legal system. (Legal system of a socialism / Under the editorship of A.M.Vasileva. Т1. M. 1986; Т2. М, 1987) There was F.M.Reshetnikova's work «legal systems of the countries of the world».
Some of the most fundamental works of modern foreign scientist in recognition of civil law system are John Henry Merryman, Rogelio Perez-Perdomo (The civil law tradition: an introduction to the legal systems of Europe), Alan Watson (Legal origins and legal change), William Burnham, Gennadii Mikhailovich Danilenko, Peter B. Maggs (Law and legal system of the Russian Federation), Frederic P Miller, Agnes F Vandome, John McBrewster (Civil Law (Legal System), and others. Also, we can find material about civil legal system is the works of O, F. Skakun, Oborotov, Chrestovskaya, M.N. Mrchenko, V.M. Korel'skii, S.S. Alekseev, N. I. Matuzov, A.V. Malko and others Ukrainian and Russian scientists.
1. Definition and overview of civil law system
The legal system - ` is set of internally compounded, interconnected, socially homogeneous legal agents (phenomena) with which help the official power renders reguljativno-organizing and stabilizing influence on public relations, behavior of people (fastening, adjustment the permission, prohibition, belief and compulsion, stimulation and restriction and so on).1
The category "a legal family" serves for a designation of group of legal systems united on the basis of a generality of sources, structure of the right and other legal signs, and as historical way of its formation. This similarity grows out of their concrete historical and logic development.
More fractional elements presented by certain group of legal systems are possible within the limits of this or that
So, in the romano-German legal family is distinguished the group of roman right (France, Belgium, Spain, Switzerland, Portugal, Romania) the right of the Latin American countries, the initial right, and group of the German right which includes legal systems of Germany, Austria, Hungary, the Scandinavian countries and others.
The western comparativists at classification of legal families use various factors, since ethical, racial, geographical, religious and finishing legal technics and style of the right. Thereof there appeawred a set of various classifications.
One of the most popular classification of the legal families is given by Rene David. It is based on a combination of two criteria: the ideologies, including religion, philosophy, economic and social structures, and the legal technics with the encluded rights as the basic making sources. The idea trihotomi - allocation of three basic families is put forward: romano-German, Anglo-Saxon, and socialist. They are adjoined by other legal world which has received the name "religious and traditional systems". Матузов Н.И., Малько А.В. Теория государства и права. М.: «Юристъ», -- 1997, -- с.162
Civil law - is system of law having its origin in Roman law, as opposed to common law or canon law. Webster's New World College Dictionary Copyright --Wiley Publishing, Inc., Cleveland, Ohio. 2010. -- p.3-8
The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow. It is the most widespread type of legal system in the world, applied in various forms in approximately 150 countries and oldest surviving legal system in the world. "CIA - The World Factbook, -- Bibliolife 2010. --p. 38 Colonial expansion spread the civil law system and European civil law has been adopted in much of Latin America as well as in parts of Asia and Africa. Civil law (Romano-Germanic)". Encyclop?dia Britannica. -- Original, 1997. --p. 63
Also referred to as European continental law, the civil law system is derived mainly from the Roman Corpus Juris Civilus, (Body of Civil Law), a collection of laws and legal interpretations compiled under the East Roman (Byzantine) Emperor Justinian I between A.D. 528 and 565. The civil law systems in some countries are based on more than one code. "CIA - The World Factbook," -- Bibliolife 2010. --p. 81
The primary source of law is the legal code, which is a compendium of statutes, arranged by subject matter in some pre-specified order; "Glossary of Legal Terms",-- Jackson, County, MI, 2009. -- p. 17 a code may also be described as "a systematic collection of interrelated articles written in a terse, staccato style." Neubauer, David W.,and Stephen S. Meinhold. Judicial Process: Law, Courts, and Politics in the United States.-- Belmont: Thomson Wadsworth, 2007, -- p.28. Law codes are usually created by a legislature's enactment of a new statute that embodies all the old statutes relating to the subject and including changes necessitated by court decisions. In some cases, the change results in a new statutory concept. The two other major legal systems in the world are common law and Islamic law.
Civil law systems may be subdivided into further categories:
Countries where Roman law in some form is still living law and there has been no attempt to create a civil code: Andorra and San Marino.
Countries with mixed systems in which Roman law is an academic source of authority but common law is also influential: Scotland and the Roman-Dutch law countries (South Africa, Zambia, Zimbabwe, Sri Lanka and Guyana)
Countries with codes intended to be comprehensive, such as France: it is this last category that is normally regarded as typical of "civil law" systems, and is discussed in the rest of this article.
The Scandinavian systems are of an intermediate character, as they have a background of Roman and customary law together with partial codification. The laws of Louisiana and Quebec may also be considered as hybrid systems, in that a French-type civil code coexists with pre-revolutionary French customary law and considerable common law influence.
A prominent example of civil law would be the Napoleonic Code (1804), named after French emperor Napoleon Bonaparte. The Code comprises three components: the law of persons, property law, and commercial law. Rather than a catalog of judicial decisions, the Code consists of abstractly written principles as rules of law. Neubauer, David W., Stephen S. Meinhold. Judicial Process: Law, Courts, and Politics in the United States. -- Belmont: Thomson Wadsworth, 2007, -- p.28.
Civil law is sometimes referred to as neo-Roman law, Romano-Germanic law or Continental law. The expression civil law is a translation of Latin jus civile, or "citizens' law", which was the Late Imperial term for its legal system, as opposed to the laws governing conquered peoples (jus gentium).
2. History of appearance and development of the Roman-German legal family
The civil law system takes as its major inspiration Roman law, and in particular the Corpus Juris Civilis of Emperor Justinian, and subsequent expounding and developments in Medieval Roman Law. Law Encyclopedia , article Roman Law and Its Influence, -- Oxford, 2002, -- p.3 Roman law was received differently in different countries. In some it went into force wholesale by legislative act, i.e., it became positive law, whereas in others it was diffused into society by increasingly influential legal experts and scholars. Roman law was in place in the Byzantine Empire until its final fall in the 15th century. However, subject as it was to multiple incursions and occupations in the latter Middle Ages, its laws became widely available in Western Europe. It was first received into the Holy Roman Empire partly because it was considered imperial law, and it spread in Europe mainly because its students were the only trained lawyers. It became the basis of Scots law, though partly rivaled by feudal Common law. In England, it was taught academically at Oxford and Cambridge, but underlay only probate and matrimonial law, inherited by canon law when secularized, and maritime law, adapted from the law merchant through the Bordeaux trade. Consequently, neither of the two waves of Romanism completely dominated in Europe. Roman law was a secondary source that was applied only when local customs and laws were found lacking on a certain subject. However, after a time, even local law came to be interpreted and evaluated primarily on the basis of Roman law (it being a common European legal tradition of sorts), thereby in turn influencing the main source of law. Eventually, the works of Civilian glossators and commentators led to the development of a common body of law and writing about law, a common legal language, and a common method of teaching and scholarship, all termed the jus commune, or law common to Europe, which consolidated canon law and Roman law, and to some extent, feudal law.
Circumstances which have defined an important role of the law as the basic source romano-German, have caused also possibility, necessity of codification of the right. By codification the right is resulted in system, it appears as though penetrated by certain principles. Codification gives to the right definiteness and clearness, considerably facilitates its practical use and is logical end of the understanding which has developed in continental Europe of the rule of law and the right as a whole. Codification finishes formation of the romano-German legal system as complete phenomenon. O. A. Zhidkov, History of the bourgeois right. М, -- Кросс 1971, -- p.50-57
An important characteristic, beyond Roman law foundations, is the extended codification of the adopted Roman law, i.e. its inclusion into civil codes. The system of codification has its origins in the Code of Hammurabi, written in ancient Babylon during the 18th century BC.
The concept of codification was further developed during the 17th and 18th centuries AD, as an expression of both Natural Law and the ideas of the Enlightenment. The political ideal of that era was expressed by the concepts of democracy, protection of property and the rule of law. That ideal required the creation of certainty of law, through the recording of law and through its uniformity. So, the aforementioned mix of Roman law and customary and local law ceased to exist, and the road opened for law codification, which could contribute to the aims of the above mentioned political ideal.
Another reason that contributed to codification was that the notion of the nation state required the recording of the law that would be applicable to that state.
Certainly, there was also reaction to the aim of law codification. The proponents of codification regarded it as conducive to certainty, unity and systematic recording of the law; whereas its opponents claimed that codification would result in the ossification of the law.
In the end, despite whatever resistance to codification, the codification of European private laws moved forward. Codifications were completed by Denmark (1687), Sweden (1734), Prussia (1794), France (1804), and Austria (1811). The French codes were imported into areas conquered by Emperor Napoleon and later adopted with modifications in the Netherlands (1838), Italy and Romania (1865), Portugal (1867), Spain (1888), Germany (1900), and Switzerland (1912). These codifications were in turn imported into colonies at one time or another by most of these countries. The Swiss version was adopted in Brazil (1916) and Turkey (1926).Because Germany was a rising power in the late 19th century and its legal system was well organized, when many Asian nations were developing, the German Civil Code became the basis for the legal systems of Japan and South Korea. In China, the German Civil Code was introduced in the later years of the Qing Dynasty and formed the basis of the law of the Republic of China, which remains in force in Taiwan.Some authors consider civil law to have served as the foundation for socialist law used in Communist countries, which in this view would basically be civil law with the addition of Marxist-Leninist ideas. Even if this is so, civil law was generally the legal system in place before the rise of socialist law, and some Eastern European countries reverted back to the pre-Socialist civil law following the fall of socialism while others continues the use of the system, established during Socialism.
Several legal institutions in civil law are similar to institutions in Islamic law and jurisprudence during the Middle Ages, and some have suggested a borrowing. For example, the Islamic Hawala institution is the basis of the Avallo in Italian civil law and the Aval in French civil law. Gamal Moursi "Islamic Law: Its Relation to Other Legal Systems", The American Journal of Comparative Law, -- Badr, 1978. -- p.97
2.2 Sourses of the right
Marchenko M. N in his work defines the general sources of the right for the legal systems, which are entered into Romano-German a legal family:
Regulatory legal acts led by the law.
In Romano-German countries of a legal family, it is considered that for the lawyer the best way of an establishment of the fair decision corresponding to the right is the reference to the law. Давид Р., Жоффре-Спинози К. Основные правовые системы современности. - М.: Междунар. отношения, -- Кросс, 1996г.-- с.78
Even in judgements the importance of the law in the romano-German legal system becomes obvious that to the judge in decision-making the supporting role is taken away. Actions of the judge here is better are defined by the term "submission to the law, i.e. his tusk is reduced to search and application of that rule of law which in the best way describes a disputable situation. Дусаев Р.Н. Основные правовые системы современности. Учебное пособие по теории государства и права. -- Юристъ, 2000г. -- 75-80
In all countries of the romano-German legal family there are hand-written constitutions behind which norms the higher legal authority expressed and admits in establishment of judicial control over constitutionality . Саидов А.Х. Введение в основные правовые системы современности, -- «Фан», 1988, -- с.75
According to V.Knappa, some countries have refused judicial control over constitutionality of laws, for example the Netherlands, France where it was promoted by the reasons historical matters. Кнапп В. Крупные системы права в современном мире. М., -- Кросс1978, -- с.112
To estimate the practical importance of judicial control over constitutionality of laws, it is necessary to consider various factors. So, scales of this control it is, less, if the constitution concerns the category nonrigid, rather easily changed. These scales will be less and in those countries where the right to suspend the constitution is given executive power. Told concerns many countries of Africa and America.
In the majority of the continental countries are accepted and operate civil (either civil or trading), criminal, grazhdansko-remedial, criminally-remedial and some other codes. Теория государства и права: Учебник/ Под ред. В.К. Бабаева. --Юристъ, 2002г., -- с. 554
The concept of norms accepted in a legislative order recognizes that in this system of norms containing the norms not only in certificates, accepted by a legislature, but also in the certificates proceeding from “executive - administrative and administrative bodies. Марченко М.Н. Правовые системы современного мира, -- Зерцало - М, 2001г. -- с.103
In various countries of the Romano-German right character and the name of certificates far aren't identical. For example into France except laws in system of is standard - legal certificates enter the certificates published according to item 37 of the Constitution of France, on questions, “not entering into legislation sphere”. Besides to a kind of sources of the right concern ordonances- certificates Constitutions of France accepted according to item 38 the government (Ministerial council), Constitutions of the states of the European Union. According to item 76 of the Constitution of Italy legislative decreets concern system of regulatory legal acts. Also the decreets of the president which are valid the law, and regulations concern system of regulatory legal acts in Italy.
Custom - the rule of the behavior which has developed on the basis of constant and uniform repetition of given actual relations
The custom rare enough in the Romano-German right, in own way the unique phenomenon which not only isn't welcomed understandably, but, on the contrary, is in every possible way limited, and in some national systems legislatively it is forbidden. Марченко М.Н. Правовые системы современного мира, -- :Зерцало - М, 2001г. -- c100
As a whole position of custom in Romano-German system it is right rather originally.
It can operate not only “in addition to the law”, but also “except the law”. Situations when the custom occupies position “against the law” (for example, in the navigating right of Italy where the sea custom prevails over norm of the Civil code) are possible.
Thus the custom has lost character of an independent source of the right on right Romano-German modern development.
Judiciary practice, judicial precedents
Precedent is such legally significant behavior of the power which took place at least one only time, but can be an example for the subsequent behavior of this power. Differently, legal precedent is a decision юрисдикционных and administrative bodies on concrete business which is accepted subsequently to the general obligatory rule at the permission of similar affairs.
Any judgement based, for example, on analogy of the law or on the general principles, can be perceived by other courts after decision passage through cassation instance as actual precedent. В.В. Лазарев. Общая теория права., -- Манускрипт, 1994г. -- с.359
Many researchers give particular attention to the granted kind of a source of the right.
It is caused, on the one hand, by the practical importance of precedent as source of the continental right, and with another - discrepancy, is more exact - uncertainty of its position, a place and a role of system of other sources of the roman-German right.
The same Marchenko M. N allocates three groups. The first group includes the countries which completely support precedent. In other legal systems precedent isn't perceived at all. And in the third group - Romano-German to system precedent takes rather uncertain place in right sources.
Considering precedent as one of right sources first of all it is necessary to pay attention, “on historically developed in Romano's countries - the German right rather inconsistent traditions and customs”. Марченко М.Н. Правовые системы современного мира, -- Зерцало, 2001г. -- с 103
The international contracts
With development of international communications the great value for systems of the right of the separate countries gets international law. In some states the big validity, than to internal laws is given to the international contracts. The constitution of Germany (1949) For example, establishes that “the general norms of international law” have advantage before laws and directly generate the rights and duties for inhabitants of federal territory (item 25).
As to interpretation of norms international the contract that it can be carried to the competence of supranational jurisdictions. In these cases at serious doubts in how such contract should be interpreted, national court it is necessary to refuse its interpretation. The state of affairs with Roman and Parisian contracts by which in 1951 and 1957 different European communities have been created is that. Давид Р., Жоффре-Спинози К. Основные правовые системы современности.-- Междунар. отношения, 1996г. -- с.89
In Romano - the German right the term the doctrine is used widely enough. In Marchenko's work as the doctrine understands the following: as the doctrine, the filosofsko-legal theory; as opinions of scientists-lawyers on those or other questions, concerning essence and the maintenance of various legal certificates, on questions of lawcreation and lawunderstanding; as proceedings of the most authoritative researchers in the field of the state and the right; in the form of comments of the various codes, separate laws, “the annotated versions» (models) of various regulatory legal acts.
The doctrine develops receptions and methods of an establishment, interpretation and right realization. Besides creators be right can't be free from influence of legal doctrines: more or it is less realized, but it should take the part this or that legal concept, to perceive its offers and V.K.Babayev's recommendation.
In the countries of the romano-German legal family as it is possible to allocate the simple administrative circulars, specifying as the administration understands the rule of law and as she intends to apply it. Administrative officials frequently know the right only under office instructions which they receive in the form of circulars; and more often they prefer to be limited to these instructions not to have troubles from the higher heads.
3. General characteristics of civil law legal system
3.1 Law system and its structure
The system of right for the continental countries of Europe has the structure which is folded, as well as in the Roman law, from two subsystems -- public and private. Imperative (categorical) norms which can not change participants of legal relationships prevail in the subsystem of public law. Non-mandatory norms prevail in the subsystem of private right, and only in that part in which they are not changed the participants of relations. Industries of subsystem of public law: constitutional, criminal, administrative, financial, international public, judicial industries, basic institutes of labour right but and others.
Industries of subsystem of private right: civil, domestic, point-of-sale, international private, separate institutes of labour right (on the whole the mixed character has a labour right) and others.
All norms of right have clear connection with concrete industries and institutes of right, which are the result of influence of legal doctrine which accents attention on the necessity of account of object and method of the legal adjusting. The fields of law are acknowledged the most considerable structural element of the system of right.
In most countries of continental Europe classification of the fields of law is similar with German (Switzerland, Spain, Austria). In some countries (Italy, Belgium, Netherlands) the French chart of classification predominates yet. The result of this is that Netherlands, for example, name «legal daughter of France»
The different fields of law in different countries have a different degree of developed and codification. Considerable part of private right is codificated, what can not be said about a public law. Especially it touches an administrative law. It it was developed in France, whereupon entered other European countries. True, an administrative law on the whole is not codificated even in France. Only part of relations which are regulated an administrative law entered in the created collections of legislative and normative acts.
In some countries (To the German federal REPUBLIC, Austria, Belgium, Italy, Switzerland) the creators of administrative law were administrative courts which decided conflicts of administrative law questions, that, naturally, influenced on originality of forming of this field of law in the noted countries.
Abstract character of legal thought of lawyers of continental Europe (unlike concrete, «precedent» thought of common law) allowed to work and systematize the institutes of right. O.F. Skakun, “Theory of government and law”, -- “KONSUM” 2000.-- p.574 -576
3.2 Distinctive features of the system
Main features of the Civil Law system:
· The uniform hierarchically constructed system of sources of the written right, dominating place in which occupy statutory acts (legislation);
· The leading role in right formation is taken away to the legislator who creates the general legal rules of behavior;
· Law applier (the judge, administrative bodies, etc.) urged to realize only precisely these general norms in concrete law applying certificates;
· There are written constitutions possessing the higher validity;
· High level of standard generalizations is reached with the help codificated statutory acts;
· Powerful position occupy underlaw statutory acts (regulations, instructions, circulars, etc.);
· Division of system of the right on public and private, and also on branch;
· The legal custom and legal precedent represents itself as auxiliary, additional sources;
· On the first place there are not duties, but human rights and the citizen;
· The legal doctrine has special value. It is developed and developing at universities main principles (theory) of construction of the given legal family .
3.3 Subgroups in the civil law system
The term "civil law" as applied to a legal tradition actually originates in English-speaking countries, where it was used to lump all non-English legal traditions together and contrast them to the English common law. However, since continental European traditions are by no means uniform, scholars of comparative law and economists promoting the legal origins theory usually subdivide civil law into four distinct groups:
Romanistic: France, Belgium, Luxembourg, Quebec (Canada), Louisiana (U.S.), Italy, Scotland, Spain, and their former colonies;
Germanic: Germany, Austria, Switzerland, Greece, Brazil, Portugal, Turkey, Japan, South Korea, and Taiwan (Republic of China);
Skandinavian : Denmark, Finland, Iceland, Norway, and Sweden.
Chinese (except Hong Kong) is a mixture of civil law and socialist law. Hong Kong, although part of China, uses common law. The Basic Law of Hong Kong ensures the use and status of common law in Hong Kong.
Portugal, Brazil and Italy have evolved from French to German influence, as their 19th century civil codes were close to the Napoleonic Code and their 20th century civil codes are much closer to the German Burgerliches Gesetzbuch. More recently, Brazil's 2002 Civil Code took inspiration from the Italian civil code, aiming at the unification of private law; legal culture and law schools have also come near to the German system. The other law in these countries is often said to be of a hybrid nature.
Some systems of civil law do not fit neatly into this typology, however. The Polish civil law developed as a mixture of French and German civil law in the 19th century. After the reunification of Poland in 1918 five legal systems (French code civil from the Duchy of Warsaw, German BGB from Western Poland, Austrian ABGB from Southern Poland, Russian law from Eastern Poland and Hungarian law from Spisz and Orawa) were merged into one.
Law in the state of Louisiana is based in part on civil law. Louisiana is the only U.S. state partially based on French and Spanish codes and ultimately Roman law, as opposed to English common law. "How the Code Napoleon makes Louisiana law different". -- LA-Legal. 2006.-- р.10-12 In Louisiana, private law is based on the Louisiana Civil Code. The current state of Louisiana law has converged considerably with US law. http://www.city-data.com/states/Louisiana-Judicial-system.html The law of Quebec, which is similarly a civil-law jurisdiction in an otherwise common-law country, has developed somewhat similarly, although the relative size of the province relative to the rest of Canada has reduced the degree of convergence considerably.
Several Islamic countries have civil law systems that contain elements of Islamic law. Civil Law. Microsoft Encarta -- Online Encyclopedia, 2009. -- р.1 As an example, the Egyptian Civil Code of 1949--which remains in force in Egypt is the basis for the civil law in many countries of the Arab world where the civil law is used-- is based on the Napoleonic Code, but its primary author Abd El-Razzak El-Sanhuri attempted to integrate principles and features of Islamic law in deference to the unique circumstances of Egyptian society.
4. Concepts of civil law system
civil right family
The Concept of the State
Leviathan (Hobbesian) concept of the state
o Authority or sovereignty is the true and only source of law and justice. The main holder of sovereignty is the legislature as the only law maker.
o The “pouvoir constituant” instituting the state can be seen as the “big bang” out of which the universe of justice, law and legitimate state authority including the rule of law and human rights is evolving. This universe is defined by the territory of the state and its authority. The state is conceived as a collective unit containing all elements of justice and law and established by the social contract.
The Concept of the Constitution
Rousseau's « volonte generale »
o The French revolution established the parliament as the sovereign power which enacts the statutes and the statutes implement the “volonte generale”.
o Art. 6 of the Declaration des Droits de l'Homme 1789: „La loi est l'expression de la volonte generale. »
o Continental European constitutions changed the government but not the state.
o Constitutions are not only conceived as instruments to limit governmental power but they are also seen as the tools to set up, organize and empower the governmental branches in order to establish the liberal state and the social welfare state.
The Swiss Constitution :
o Article 5: “The law is the basis and limitation for all activities of the state”.
The Concept of Human Rights
o Human rights are created by the constitution.
o Rights are given by the state or the political authority.
o The continental Europeans believe that the pursuit of happiness depends on the common welfare and thus depends on the policy of the state.
Article 2 of the Swiss Constitution provides welfare to be considered as common endeavour to be achieved with the support of the political community that is the state.
The Concept of the Rule of Law
Concept of « Rechtsstaat » (« Etat de droit »)
o The rule of law limits the government to the normative decisions of the sovereign established in the constitution. Rechtsstaat only guarantees the correct application of the constitution by the state authorities.
o Continental Europeans are more inclined towards substantial rights. Substantial rights influence the legislature and are important tools for the constitutional review of statutes.
The Concept of International Law
o The concept of implementing international law differs between continental European countries, depending on the provision in their constitutions. The states belonging to this legal system can embrace either of the two concepts implementing international law (monistic or dualistic concept).
o According to the Swiss tradition, international treaties are directly applicable as part of part of domestic law. Thus, without requiring further domestic legislation, they can be enforced by domestic courts (monistic conception).
The Concept of Federalism and Legislative Power
o Federalism is mainly designed along the legislature. The main concern with regard to federalism is the distribution of legislative power.
o The legislature (parliament or “assemblee nationale”) is the only law maker.
o The court is only the body to apply the law.
o The source of the law is the authority of the sovereign.
o Public law is perceived as a hierarchy of norms developing out of the constitution and depending each on its mother-statute. Public law is not under the jurisdiction of the traditional courts.
o Statutes already contain rights and obligations.
o The idea of a unified legal system, which includes all possible legal
rights and obligations, is based on the Napoleonic Public Law Concept.
The Concept of Authority
The Hierarchy of Norms
o It is the higher instance, which is closer to the roots of justice than agencies on a deeper level of state-hierarchy that guaranties legitimacy, “good law” and justice.
o The level of the authority to issue norms, or administrative decisions or even judgements is even more important than the content.
o What is important is not what has been decided but who has decided. This is the notion of hierarchy in the sense that higher instances decide better, know better understand better and judge more justly.
o The one who is right should win the case and the judge has to know what the rights and obligations of the defendant are.
o This comes from the tradition of the authority of the Catholic Church. The highest authority is the closest to God. As soon as the King by the grace of God was replaced by the people, the authority representing the people became the highest sovereign body.
o Rights and obligations are given by the law.
o The making of a new constitutional basis is easier. The constitution can establish a legislature, which can design and establish a new legal system from scratch.
The Concept of Administration
Concept of public law / the power of administration
o Napoleon separated public law from private law.
o The state according, to Napoleon, could only be an efficient instrument for social engineering if the state administration was not under the jurisdiction of the traditional and conservative courts and judges. Since then administrative courts have been established but they still have very limited power with regard to their jurisdiction over the state administration.
o Public law should not be under the jurisdiction of the conservative courts. With this new public law, the administration has the power to execute statutes without being accountable to the traditional judges.
o Administrative decisions have thus a value similar to a sentence ruled by the judge as they are enforceable. The “public law” gives to the administrative authority the power to issue unilateral decisions or administrative acts with almost the same obligatory force and authority as court judgments.
o A tax bill can be enforced by the bankruptcy office on the same bases as a sentence of the court.
o The fact finding is inquisitory as it is up to the administration to decide what evidence is necessary and proper in order to know the truth. This power to decide on the facts gives administration a privileged position in with regard to any legal decision.
o The French concept of administrative law historically, and does even today, gives the power
to decide on administrative law complaints to the administration itself. Thus in some instances, the administration itself has the power to decide ultimately on complaints and in some instances, it decides as first and second instance with the possibility to have a final appeal to the conseil d'etat or to the tribunal administratif. This concept is based on the idea that the principle of separation of powers requires only the administration to review the legality of its proper decisions. In particular when a decision is sued by the subject at least in the first
instance it should be reviewed by the administration. This system which has been largely followed by the Swiss is called “ministre juge” as it gives to the minister or its administration in fact judicial powers and judicial functions.
o In Switzerland, the administrative procedures provide some principles of natural justice for the subjects with regard to the fact finding of the administration. According to these principles, they have the so called “right to be heard”. This does not mean a guarantee of oral and public proceedings. It only gives the subjects the right to propose evidence, to know the relevant documents and to submit their view of the facts to the administration.
o However the principle nemo judex in causa sua does NOT apply in these proceedings.
o Those who are subject of the decision have the right, but also the obligation, to complain and to require the decision to be reviewed either by a higher authority or by an administrative tribunal or administrative court. If they do not question the decision within a certain time limit, the decision becomes valid although it may have been unlawful or ultra vires. The system is based on the fiction that the administration as protector of the public interest enjoys in principle the benefit of the doubt.
o According to Swiss procedure on the decision whether a asylum seeker is granted the status of a refugee, the relevant statute has even enlarged the benefit of the doubt on behalf of the administration as the authority does not even have to investigate whether the asylum seeker is in danger, but only to establish whether the defendant claiming the status of a refugee is credible or not. Thus when asylum seeker makes whatever contradictory statements in the proceedings, the statute empowers the administration to deny their credibility and to refuse the status of a refugee.
o In Switzerland, there was no constitutional guarantee of court protection in all cases in which rights might be violated. It took the Swiss development of administrative law a long time to adapt to the modern requirements of a general protection against misuse of administrative powers and general right to have access to a court with regard to administrative disputes.
o When a couple of years ago, the security council in Turkey decided to put Kurdish members of parliament in jail, one of the defendants was accused of having contacts with the PKK in Syria. He pretended that all telephone calls were made with his son, who is studying in Syria. He proposed witnesses to prove that this fact is correct. The court refused this evidence, on the ground that it does not need further evidence as it believes to its secret services. This is typical procedure based on the inquisitory system contrary to the adversary system.
The Relationship Between Citizens and the Civil Service
On the continent, the courts had never been given the power to order or to prohibit special measures or activities of the civil servants. The authority of the state could not be sued in a traditional private law court except for damages if the authority acted as a private person. Even today, the administrative courts can not issue any order to a civil servant or a public body.
Citizens are still perceived as subjects of the administration
o However, today, the main principles to be observed by the administration in the common law and in the Continental Administrative Law courts have developed in quite a similar direction, due to major international human rights documents.
The Concept of Police
o The police as the prolonged arm of the executive have much more powers with regard to the subjects then in a common law tradition. It can arrest, investigate, and use force according to its own assessment of the situation. It does not need a court decision in order to arrest people or to use force. In many civil law countries the right use of weapons by the police is regulated either by interior directives either by the special statutes on the police.
The Concept of Criminal Cases
The basic difference between procedures is the totally different approach to fact finding.
Inquisitory system of the finding of the facts
o The continental law system is based, for criminal trials and also administrative decisions, on the idea that the administration and in particular the prosecutor are defending the higher state interest. As the defender of public interest, he/she should have special status as plaintiff in the proceedings, privileged with regard to the status of the defendant. As the protector of the public interest, the prosecutor has to include in this public interest also the interest of the defendant. Thus he should have already established the facts before the trial which then can be reviewed in the proceedings before the court. This concept of fact-finding by the state prosecutor is called the inquisitory principle.
o Additionally, the prosecutor can not on their own decision abstain from the prosecution of a specific crime. All crimes are to be officially prosecuted. Thus the prosecutor can not propose either a deal with the defendant to release him or her if he/she accepts to be a witness in another case or threaten the defendant with high punishment if he/she does not confess the facts according to the assumption of the prosecutor.
o Based on the credibility the law gives to the prosecutor as protector of the public interest, the procedure provides more or less privileges to the plaintiff representing the state in criminal procedures. However, the European Convention on Human Rights has provided some basic principles which have substantially improved the right of a defendant in a criminal and in some instances also in an administrative law case.
o European Court of Human Rights:
The European Convention on Human Rights provides a general right to have access to the court in all cases in which civil rights have been violated (art. 6).
The Concept of Legal Education
o Continental European law schools have to teach the students, what the law is and how they can find the law with regard to concrete cases.
o The party, which is in its rights, should win the case. Thus the rules of the procedure before the court have to help the judge to find justice and to let those parties who are right win the case. Justice is not considered as a result of the case but as the source of the rights to be found by the judge. Violaine Butty, Thomas Fleiner, Tip Sheet Common Law and Continental Law, -- Fribourg, 2005, -- р.7-20
Roman-German legal system includes such countries as France, Germany, Austria, Belgium, Holland, Denmark, Spain, Iceland, Italy, Portugal, Norway, Luxembourg, Monaco, Sweden, Switzerland, Finland. All East European countries, former socialist, come back to the given legal system, understand perfection of the given system and its centuries-old history.
It is possible here to carry the countries of Latin America. As to the majority of the countries of Black Africa (the former colonies of Belgium, Germany, Italy, Spain, Portugal and France), influence of this legal family has concerned them also. Influence of the Roman-German legal family considerably and in the Asian states, for example in Turkey.
Romano-German legal system - a majestic building, erected the European science - aspires to show to lawyers of the purpose of their activity, the dictionary and methods, to focus them in search of fair decisions. These characteristic features of the Roman-German legal system are especially interesting for noting presently when we again began to speak about Europe and about the European right. Romano-German the legal system has united the people of Europe, respecting thus and distinctions existing between them without which Europe wouldn't be what it is, and that what we want it to see.
During this course work I observed civil law system, its peculiarities, found the most optimal definition of civil law system, considered the historical aspects of appearance and development of the continental law system, distinguished it's main features, examined it's structure, subgroups, concepts and other general characteristics of the civil legal system and made an informative and constructive conclusion.
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