Lecture 4 | Civil law Flashcards
(11 cards)
What is the definition of civil law?
one of the two legal traditions most studied in comparative law
what does the main aspects of a civil law mindset include?
- systematization of the law
- the method of statutory interpretation: role of judges is limited
- the rol of legal authorities: rol van parlement is heel belangrijk
- the application of law: apply law created by parlement
- historical revolution creates legal systems
what are the main characteristics of civil law?
- statutory law: civil law is only written
- a strong connection with democracy: democratically elected legislature defines law in a particular community
What is the role of judge in civil law?
- Judgements are applications of law, not sources of law, because judges are not part of the legislative branch. this is different in common law
- it’s widely recognized that judges not only apply and interpret law but also develop it in doing so. they shape the law, not source of law
What does civil law as a system mean?
The main characteristic of civil law is not the existence of codes, that’s a myth, but rather the general desire (for connection of democracy + systemization) to codify. The characteristic of modern civil law is rather, a few basic ideas:
* The need to systemize the law.
* The need to base all legal decisions on laws – which may, in turn, stimulate the creation of codes.
What does the benefits of systemization and conceptualization of civil law mean?
- Consistent terminology: this approach makes the entire legal system begin to knit itself into a systematic whole.
- This is why civil lawyers often think in abstract terms and use consistent definitions
What does the German approach to interpretation of civil law mean?
- Makes a distinction between:
- Subjective approach: determines the intention of the legislature and what the legislature aims to achieve. You look at the goal of the legislature
- Objective approach: determines the intention of the statute itself. | You only look at the text and you think of what it means
- Criticism regarding the subjective approach:
- Unclear concepts
- Only the text of a statute matters: legislature speaks through law.
- Legal certainty and accessibility, transparency.
- The law must also be applicable to cases that the legislature has never considered.
At first there was a more subjective approach (looking at the aim of the legislator). However there was a lot of criticism on it containing; legal certainty, transparancy so they moved to a more pragmatic approach.
What does the French approach to interpretation of civil law mean?
In France it started with a more objective approach, more textcentured but overtime it developed to also, some subjective elements were added because in some cases the objective approach cannot answer in circumstances and changes overtime, and judges should have a bit more flexibility overtime in stead of interpretation to the text. Therefore France developed the pragmatic approach, so you interpret the law as it states, but the decisions the judges made are also in line with the current social, political, cultural context. But only if it is not clear otherwise you should stick to the text.
What does Roman Law mean and what impact did it have?
Roman law started in Rome. During the Roman Empire it spread to Europe. The law of the Twelve Tables was the first framework of Roman Law. Because of Caesar Roman law was spread more en used in several countries. In 6th century Corpus Juris Civilis introduced the first life of Roman law. 11th century Roman law was tought at universities so it came back to life. The study and adaption of Roman law provided a common legal framework and influenced the development of civil law systems in several countries Roman law provide a common legal framework and is the foundation of the civil law tradition in Europe
What does French (civil) law mean?
- Characteristics: Noted for its linguistic (taalkundig) elegance and adaptability, understandability, easy language, revered (vereerd) for its enduring influence on French society and law. French law is made for the people. It was made in a way to endure influence on society and law (longlastic). There are no gaps here.
What does German (civil) law mean?
Characteristics of the BGB: think about the comparison: German law has a completely different goal. It was made for lawyers, it is logical (so not made for the people).- Innovation and adaptability: the BGB didn’t aim to be entirely comprehensive, allowing for special statutes and judicial creativity in case of gaps. it allowed to have gaps. These gaps can be filled with judicial creativity/traditional interpretations
