Comparative Legal Culture

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B2 slides on comp. jud. culture. NOTE: the part on Islamic law is incomplete. Please feel free to suggest further points/development.

Transcript of Comparative Legal Culture

  • 1. CL4 English Language and Culture for Business Module III B2 Comparative Judicial Cultures Dr. Peter Cullen
  • 2. A Comparative Approach to Understanding Law Why is a comparative approach useful? to offer other models of law, challenging our own to understand the structural contexts in which our and other societies function it is in our nature and tradition to investigate each others legal traditions Canon vs Common Law Roman vs Germanic Law A comparative approach allows better understanding of differences between LAW and RIGHT fundamental to national unification
  • 3. The Sources of Law and the Comparative Approach Law is created in tradition it is a social accord The structures applied to express this accord generate differences in law from one society to another. The needs Law must meet are different from society to society The languages used to express these needs are contextually defined A comparative approach must consider the sources that create law.
  • 4. Legal Sources Why is Law created? How is Law created? Law is created in society to establish, obviate and enforce conditions and limits on human behaviour, sanctioning violence and coercion to maintain social respect for the law. Law IS a social accord. The Rule of Law
  • 5. The Rule of Law Aristotle: The Rule of Law is better than the rule of any individual Law should be universal BUT People dont need to understand the rule in order to follow it Rules are not necessarily designed by Plato (left) and Aristotle (right) conscious intelligence debate the nature of reason (Raffaello)
  • 6. The Creation of Law Law may be created by perpetuated social behaviour and enforced according to custom i.e. Reciprocity, vendetta, feud = oral tradition The top of the stele of Hammurabis Law may be created through Code applied reason necessitating its (Babylon 1792 BC) dissemination in public knowledge i.e. Constitutions, modern law = written tradition
  • 7. Law and Legitimacy Rules of social conduct require social legitimacy Legitmacy takes many forms: reciprocity accord divine legitimacy constitutional legitimacy Law based on reciprocity is flexible and changes as social needs change Constitutional Law replaces the need Moses with the 10 for divine legitimacy Commandments
  • 8. The Social Origins of Law SOCIETY Conscious Conflicts desires STATE enforces makes Common Legislation Law LAW Public Private
  • 9. Codification of Law The Constitution of the Roman Republic Mos Maiorum was a body of customs perpetuated oraly in the Forum Complex political structures require a universal understanding of their legitimacy. Empire extension of political control beyond cultural boundaries consolidation of power Writing gives a permanent or semi-permanent quality to Law it reinforces memory and proof. Justinian I collected and standardised centuries of Roman Law in the Corpus juris civilis. Justinian I Codified Civil Law in the Western Roman Empire 529-534 AD
  • 10. Canon Law and Scripture Collection of texts (Canons) left by the Apostles after the Council of Jerusalem (50 AD) including: Acts of the Apostles which separated Christians (gentiles) from Jewish Law (on circumcision and food) and organised: Office and duties of bishops The qualifications and conduct of the Clergy The religious life of Christians External administration (excomunication, synods, relations with pagans and Jews) The Sacraments Gospels recount the lives of the Apostles 367-419: Synod of Hippo, Councils of Carthage creating the works included in the New Testament. St. Augustine presided over the later councils and considered the Canon closed
  • 11. Motivating Forces in Western Legal Tradition 533 554 Justinian re-conquered the Ostragoth and Vandal Kingdoms
  • 12. Law vs. Right Analysis of codified law became the principal subject of medieval universities Bologna formed in 1088 around a group of masters in grammar, rhetoric and logic began teaching points of the Corpus juris civilis 10 - 18 centuries codified law is legitimated by divine right of kings = bureaucratic centralisation of princely power English Civil war contrasts this. Thomas Hobbes (1588-1679) Leviathan, De Cive, law is rational. Social contract legitimating factor in the English Civil War John Locke (1632-1704) Two Treatises on Government, government must have the consent of the governed
  • 13. Modern European Civil Codes Napoleons conquest of Europe established this tradition in modern terms The Napoleonic Code (March 21 1804 The Code is based on French Revolution principles and aimed at rationalising old aristocratic law = pan-regional application Applies the Declaration of the Rights of Man (1789) to subjects but did not apply to the Emperor Napoleons Empire: France in dark blue (self-crowned Dec. 2 1804) and sattelite states in light blue
  • 14. The Modern Italian Legal System Problem how to create law for a fragmented group of independent regions The Napoleonic Civil Code offered a tradition and formula for super-regional administration allowing for the unifying presence of a king (house of Savoy) The 1948 Constitution draws on Civil Code tradition. Therefore it creates rules through legislation that judges must apply But It also reflected Christian ideals (DCs) and Communist Socialist ideals (PCI) and contains a Bill of Rights based on natural law
  • 15. Roman Law, Ecclesiastical Law, Common Law Today: Romano-Germanic countries base the application of justice on the disposition of existing law. Question: the formalisation of tradition. Western Europe and North American legal and legislative systems are based on Roman, Ecclesiastical, and Common law systems. These systems represent traditions in themselves. Roman law and Ecclesiastical Law share a tradition British Common Law diverges from that tradition
  • 16. The Law and State Formation Todays legal and legislative systems have been formed over time Western Europe: Application of the Civil Code (adaptation of Roman and Ecclesiastical legal tradition) Britain, English speaking British Colonies, USA Common law tradition based on historical compromises between ruler and subjects, since 1215 also affecting legislation as well as justice.
  • 17. The Law and State Formation What is a state? How have they been formed? States are formed by when the social accord is legitimately applied in a territory or region and is recognised by other combinations of social accord/territory How to legitimate the application of the social accord? force of arms armies, garrisons, fortresses = high competition (war, civil war) force of custom traditional affinities low competition force of law communications-based appeal to internal and external consensus requiring demonstrable experience = moderate or possible competition
  • 18. The Law and State Formation States are, and create, instruments designed to guarantee consenus Authority Obligation Legitimacy How do these systems Oligarchy create consensus? Monarchy