CLASS 1 Introduction and the Civil Law Tradition Sept.5

CLASS 1 Introduction and the Civil Law Tradition Sept.5

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  may be used to describe private vs. public law, or national vs. international
  
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  when we refer to civil law we mean romanic/germanic vs. anglo-american common law
  
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  Romano-Germanic legal system of Continental Europe as opposed to Anglo-American Common Law. We trace the traditions to their separate historical developments.
  

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  Started with 12 tables. (533/4 AD)
  
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  Then, Justinian’s compilation of law is created to capture sophisticated body of private law (developed over the century through dispute resolution system)  Corpus Juris Civilis (body of civil law).
  
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  Roman Empire brought its laws with them to everyone they conquered. Roman Empire (473 – 1500s (Byzantine)) fell over wide geographic area and time. After the fall of the Roman Empire, many European countries returned to pre-Roman (customary) laws. Roman law falls out of primary use until 11^th – 13^th C AD.
  
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  Roman law revival occurred with the opening of the first law university (Bologna). Primary disciplines were religion and law, but students were only able to study the ancient Roman texts. With professors, they restructure, interpret, & adapt them to the new ways. Roman law served as the base for Euro Continental law.
  
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  It furnished the common methodology of civil law. Graduates of law university went into world & gained positions of importance in church, government administration, etc, influenced the development of the legal systems in Europe.
  
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  Jus commune of Europe evolved (where “common” refers to a common underlying history and methodology).
  

A system of dispute resolution.

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  Each case decided by lay judge (nobleman or patrician) called iudex. But praetor limited access to the iudex. Very formalistic in structure.
  
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  Juriconsults were at the origin of reasoned learning characteristic of the civil law. There was no real legislation or formal judicial training. They decided cases by giving large latitude to opinions of jurisconsults (male only) who made law their specialty, but had no decision-making power. Still, very influential because they gave the decision-maker the reasoned judgment from which the decision would come.
  

1. 
   individual autonomy
   
2. 
   freedom of K
   
3. 
   private property
   

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  degree of abstraction of a code ensures stability and permanence
  
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  large animating themes, fundamental values, unlike statutes which have more precise/ specific objectives
  
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  Portalis (22): “principes féconds en conséquences, et non les détails particuliers”
  
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  you can’t predict everything
  
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  the code tradition presupposes that it’s possible to synthesize the legal system in a small space
  
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  there is a high degree of generality
  
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  Portalis predicts the large influence of the judiciary… if it’s stated at such a high level of generality, it seems to be inviting and practically ensuring judicial influence via “interpretation” and application
  

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  the CCLC used to have one article about consent, and all it said was that consent is either express or implied
  
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  the CCQ has 11 articles explaining offer and acceptance… some say this is too much
  

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  the idea behind a code is that it is the foundation of other laws – the use communes, the common thread underlying and running through the legal system
  
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  Brisson asks to what extent this holds true in Quebec
  
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  What sorts of things can undermine this?
  

1. 
   Other QC statutes
   
2. 
   Overlapping federal jurisdiction statutes (i.e. bankruptcy act)… how to mix civilian interpretations with federal statutes
   
3. 
   QC Charter: CCQ is to be read in harmony with the QC charter
   

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  Brisson says other statutes are inevitable, but the problem is what to do when those statutes contradict the Code, in that case it’s hard to espouse the idea that the code underlies and inspires all other laws
  
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  Brisson says in reality these other statutes inspire the Code, therefore the Code is the sponge
  

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  But, if the Code is supposed to be adaptable, flexible, does it really go against the code or does it just help direct the adaptation, isn’t charting the course of the code adaptation? Or is this a stretch?
  

Fundamental animating themes of code rest on 3 principles (recall that it was created post-Revolution):

1. 
   Individual autonomy (personhood)
   
2. 
   Freedom of K (lasted until mid-sixties in Quebec)
   
3. 
   Private property.
   

1. 
   That one can put forward all residual law, synthesizing all concepts of entire legal system in one compact edition;
   
2. 
   That this can be done comprehensively.
   

1. 
   Bring law to the people! Accessibility of the rules (clear and simple drafting of provisions). But, articles themselves don’t help you that much. See art. 1457. What it really means is what further jurisprudence tells us. To certain extent, accessibility is a myth. But at least any citizen can buy a code. Can’t do the same in Common Law.
   
2. 
   To create a jus commune. But there are portions that are overly statutory. See formation of Ks provisions. The CCLC only had 1 article that said “Consent is either express or implied”. That’s it that’s all! CCQ expands this area a lot to include 11 additional articles on details of K formation. Many feel it is not necessary for Code to go into such detail. It should leave off at general principle.