Legal Systems

[Michael]

For all intents and purposes, there really are only two types of legal system used in the world today. One of them is the Common Law (aka Case Law), which originates in England about 1000 years ago. That system is used in Britain and the Commonwealth (Canada, Australia, NZ, India, etc.) as well as the USA. All other systems of law used around the world (most notably in Europe) are based on Civil Law (aka Code Law). The key distinction between the two systems may seem arcane, but it is extremely important for establishing the nature of laws.

Civil Law

The Civil Law originates in principle with Roman law (Justinian Law Code). Under Civil Law, the law is (ultimately) whatever the government (or civil authority) says it is. The state may have various different ways or processes for establishing new laws, but the establishment of all law comes from the state authority, usually ratified (or created) by a legislature with sovereign or constitutional jurisdiction. This system of law is often called 'Napoleonic Code Law' as this was the legal system instituted by Napoleon in his conquests of Europe. As Napoleon removed the established aristocratic ruling system in each conquered country, he instituted a new legal system by fiat. That is the foundational core of most European legal systems. The statutory legal code is the whole of the law.

Common Law

The Common Law originates in the ancient and traditional customs of the people. Many laws thus were understood to exist prior to being written (or codified). The system was developed prior to the existence of sovereign legislatures. As such, many laws are 'discovered' or 'revealed' by studying and applying rulings consistent with previous rulings (case law, or legal precedents).

In many ways, under the Common Law, the law is what the law is. The Common Law system originates and can function without any input or involvement from a sovereign legislature. Certainly sovereign legislatures can and do enact statutory laws and these laws become part of the Common Law system, but they constitute only one part of the Common Law.

The Difference

The operational difference is that in Civil Law systems, legal statutes passed by the government are the primary and authorative source of the law. In Common Law systems, case law is considered equally, if not more authorative, than legal statutes passed by the government. Legal statutes are always 'interpreted' in light of legal custom.

The other key difference is in the courtroom where the Civil law system sets up the dynamic of an 'inquisition' - where the Court inquires as to the 'facts of the matter'. Once the 'facts of the matter' are known, then the Court can apply the proper statutory ruling. In contrast, in Common law systems, there is an 'adversarial' dynamic in place where the lawyer for the prosecution and the lawyer for the defense confront each other with not just rival interpretations of the 'facts of the matter' but also about the character of the law to be applied, according to previous cases.

* * *

So that's my brief statement of the key difference between the Common law and Civil law systems. I think this has huge implications for our ongoing discussions about rights, given that under the Common law, 'rights' are much like 'laws' - they may exist without actual legal statutes passed by a legislature. Under Civil law, the legislature (or the state) has a monopoly on granting/creating 'rights' and 'laws'.

Any thoughts or comments on this issue? Do you think one system is better than the other?

[The Drunk Guy]

For all intents and purposes, there really are only two types of legal system used in the world today. One of them is the Common Law (aka Case Law), which originates in England about 1000 years ago. That system is used in Britain and the Commonwealth (Canada, Australia, NZ, India, etc.) as well as the USA. All other systems of law used around the world (most notably in Europe) are based on Civil Law (aka Code Law). The key distinction between the two systems may seem arcane, but it is extremely important for establishing the nature of laws.

Civil Law

The Civil Law originates in principle with Roman law (Justinian Law Code). Under Civil Law, the law is (ultimately) whatever the government (or civil authority) says it is. The state may have various different ways or processes for establishing new laws, but the establishment of all law comes from the state authority, usually ratified (or created) by a legislature with sovereign or constitutional jurisdiction. This system of law is often called 'Napoleonic Code Law' as this was the legal system instituted by Napoleon in his conquests of Europe. As Napoleon removed the established aristocratic ruling system in each conquered country, he instituted a new legal system by fiat. That is the foundational core of most European legal systems. The statutory legal code is the whole of the law.

Common Law

The Common Law originates in the ancient and traditional customs of the people. Many laws thus were understood to exist prior to being written (or codified). The system was developed prior to the existence of sovereign legislatures. As such, many laws are 'discovered' or 'revealed' by studying and applying rulings consistent with previous rulings (case law, or legal precedents).

In many ways, under the Common Law, the law is what the law is. The Common Law system originates and can function without any input or involvement from a sovereign legislature. Certainly sovereign legislatures can and do enact statutory laws and these laws become part of the Common Law system, but they constitute only one part of the Common Law.

The Difference

The operational difference is that in Civil Law systems, legal statutes passed by the government are the primary and authorative source of the law. In Common Law systems, case law is considered equally, if not more authorative, than legal statutes passed by the government. Legal statutes are always 'interpreted' in light of legal custom.

The other key difference is in the courtroom where the Civil law system sets up the dynamic of an 'inquisition' - where the Court inquires as to the 'facts of the matter'. Once the 'facts of the matter' are known, then the Court can apply the proper statutory ruling. In contrast, in Common law systems, there is an 'adversarial' dynamic in place where the lawyer for the prosecution and the lawyer for the defense confront each other with not just rival interpretations of the 'facts of the matter' but also about the character of the law to be applied, according to previous cases.

* * *

So that's my brief statement of the key difference between the Common law and Civil law systems. I think this has huge implications for our ongoing discussions about rights, given that under the Common law, 'rights' are much like 'laws' - they may exist without actual legal statutes passed by a legislature. Under Civil law, the legislature (or the state) has a monopoly on granting/creating 'rights' and 'laws'.

Any thoughts or comments on this issue? Do you think one system is better than the other?
Which one does the Thunderdome fall under?



:rofl:


Sorry....it just popped in my head and I had to get it out. :angel:

[Michael]

Which one does the Thunderdome fall under?

Common law certainly. Though I suppose one could create a Thunderdome Code. ;)

Don't laugh. The English Crown traditionally maintained a Knight Champion to fight challenges (as this was an option to jury trial) right up to the 17th century. Trial by 'ordeal' mostly disappeared by the 13th century. :D

[Greendruid]

In case anyone who has a penchant for Monty Pyton was wondering, under both systems I still do not weigh the same as a duck! :D

[SMadsen]

Which one does Sharia fall under?

[SMadsen]

The other key difference is in the courtroom where the Civil law system sets up the dynamic of an 'inquisition' - where the Court inquires as to the 'facts of the matter'. Once the 'facts of the matter' are known, then the Court can apply the proper statutory ruling. In contrast, in Common law systems, there is an 'adversarial' dynamic in place where the lawyer for the prosecution and the lawyer for the defense confront each other with not just rival interpretations of the 'facts of the matter' but also about the character of the law to be applied, according to previous cases.
Are you saying that, say, in each case of murder, a ruling in favor of the plaintiff in a Common Law system is an establishment of a right not to be murdered rather than a statutory ruling according to the 'facts of the matter' and the statutes given by criminal codes? Or, asked in another way, since a Common Law system is able to put non-legislated rights into existence, is a Common Law system also able to establish a right to the contrary, namely a right to be murdered?

Theoretically (and you'll most likely argue practically as well, in light of history :) ), it has such an ability but what if the constitution of a state sporting a Common Law system also includes a right to freedom under the expressed claim of equality? Isn't that a contradiction to the system?

[Michael]

Which one does Sharia fall under?
That's kinda tricky question, and I'm no scholar of Islamic law. Many articles say that Sharia Law is a 'third' category of legal system, but I don't accept that at all.

Sharia Law (on the surface) seems to be a bastard or mixed system, neither one nor the other in practice. On the one hand, Sharia Law functions in practice like the Common law (with case presedence, traditions, customs, etc), yet follows the Civil-European 'inquisitional' format for structure.

However, Sharia Law itself is entirely derived from and subservient to the Koran, which makes Sharia Law have the same foundational status as "Code Law" (which is civil).

Bottom line is that Sharia law is identical to European Civil law from the perspective of legal foundation. The law is what the Koran or the Civil authorities say it is. There is no other source of law permitted. Thus, I must say that Sharia Law, for all intents and purposes, shares the same legal philosophy as European civil law (just a different source).

This is fundamentally different than the Common law with respect to the origin and status of law and rights.

[Michael]

Are you saying that, say, in each case of murder, a ruling in favor of the plaintiff in a Common Law system is an establishment of a right not to be murdered rather than a statutory ruling according to the 'facts of the matter' and the statutes given by criminal codes?
Your terms make this question confusing since in a murder case (under Common Law) there is only a prosecutor and a defendant (and a judge and a jury) - there is no "plaintiff" in criminal law cases.

Private litigation between two private parties is handled in separate court system here (called a Civil Case, just to confuse everyone!). This is of no direct concern of government. These courts could function entirely as a function of the private market (as is their origin in Merchant Guilds of the medieval period).

Or, asked in another way, since a Common Law system is able to put non-legislated rights into existence, is a Common Law system also able to establish a right to the contrary, namely a right to be murdered?
I think you are missing a key element of the philosophy of law here. The Common Law does NOT create laws or rights. It only DISCOVERS them as existing (extrapolated from previous rulings). There is a very important distinction there.

Theoretically (and you'll most likely argue practically as well, in light of history :) ), it has such an ability but what if the constitution of a state sporting a Common Law system also includes a right to freedom under the expressed claim of equality? Isn't that a contradiction to the system?

A statutory law mandating "equality" by government fiat would be rejected by the courts in a properly functioning Common Law system. This is where Common law courts "strike down" government laws.

Btw, no constitution mandates a right to freedom. That's a meaningless term.

[SMadsen]

Pounding on my poor language abilities is nothing more than pedantry. For example, if I meant private litigation then I had neither used murder as an example nor mentioned criminal code. Likewise, I didn't say "create" but very carefully said "put into existence" or "establish", by which I of course mean "DISCOVERS" or "recognizes" or whatever term except that, apparantly, of creation.

What I meant, pedantry put aside, is simply that if Common Law is able to DISCOVER a right not to be murdered then, by the same logic, it must also be able to DISCOVER a right to be murdered. All it takes is case law. However, since the state has already granted its citizens an unalienable right to live and that right has been claimed to be the same, qua another thread, as "a right not to be murdered", Common Law is not allowed to DISCOVER any other right, lest it contradicts the constitution.

But forget it, Michael. Clearly a poor command of the English language is more of an issue :)

[Michael]

Pounding on my poor language abilities is nothing more than pedantry. For example, if I meant private litigation then I had neither used murder as an example nor mentioned criminal code.
1. Plaintiff is a very specific legal term and is quite relevant to Common Law legal disputes and also applies in issues of murder (wrongful death lawsuits).

2. Historically speaking, murder charges were handled by a plaintiff under the Common Law - suing the alleged perpetrator for damages to property.

Ergo, I was not playing pedantic games or attacking your poor language skills. On the contrary, I was trying to be exact with repect to technical legal terms being used here since the topic is by nature, confusing.

Likewise, I didn't say "create" but very carefully said "put into existence" or "establish", by which I of course mean "DISCOVERS" or "recognizes" or whatever term except that, apparantly, of creation.

Creation implies something created and is very different from the concept of how the Common Law recognizes law.

When the common law 'discovers' a law or right to be existing, it is held to be pre-existing all along, not something "new". Only the discovery is new, the law or right is not.

What I meant, pedantry put aside, is simply that if Common Law is able to DISCOVER a right not to be murdered then, by the same logic, it must also be able to DISCOVER a right to be murdered.
Indeed. And the State has been fighting an aggressive rear-guard fight to keep assisted suicide illegal.

By principles of Common Law, such statutary laws are not likely to hold up for long.

So yes, I would opine that the Common Law is quite likely, over time, to determine that one does indeed have a right to murder one's self.

Just like the way Common Law has 'discovered' gay marriage rights.

All it takes is case law.
Not really. One single case decision doesn't automatically become an authorative case. It has to be upheld and applied consistently to become precedential.

However, since the state has already granted its citizens an unalienable right to live and that right has been claimed to be the same, qua another thread, as "a right not to be murdered", Common Law is not allowed to DISCOVER any other right, lest it contradicts the constitution.
I don't see how the state has granted an unalienable right to live. In USA for example, the State retains the right to kill citizens found guilty of certain laws. Ergo, American citizens don't have an unalienable right to live.

But forget it, Michael. Clearly a poor command of the English language is more of an issue :)
I'll ignore this out of courtesy.

[SMadsen]

That's kinda tricky question, and I'm no scholar of Islamic law. Many articles say that Sharia Law is a 'third' category of legal system, but I don't accept that at all.

Sharia Law (on the surface) seems to be a bastard or mixed system, neither one nor the other in practice. On the one hand, Sharia Law functions in practice like the Common law (with case presedence, traditions, customs, etc), yet follows the Civil-European 'inquisitional' format for structure.

However, Sharia Law itself is entirely derived from and subservient to the Koran, which makes Sharia Law have the same foundational status as "Code Law" (which is civil).

Bottom line is that Sharia law is identical to European Civil law from the perspective of legal foundation. The law is what the Koran or the Civil authorities say it is. There is no other source of law permitted. Thus, I must say that Sharia Law, for all intents and purposes, shares the same legal philosophy as European civil law (just a different source).

This is fundamentally different than the Common law with respect to the origin and status of law and rights.
Yes, Sharia is exactly what the authorities say it is. Considering the "third chamber" of legislation in a democracy with a Common Law system is not a direct result but only a derivative of democratic processes, it can be reasonably argued that there is very little difference between a clergy deciding upon the interpretation of holy scripture and 9 people (incidentally also wearing black robes) deciding upon the interpretation of legislature.

Adversarial law doesn't mean, as the root 'verse' could suggest, that public assemblies discuss back and forth and come to terms with a compromise. Neither as assemblies nor through elected representatives. It means that there are two or more antagonists and one authority, the decision of whom becomes law. And that authority is in cases of both the Sharia and Common Law given to the judiciary.

[SMadsen]

Not really. One single case decision doesn't automatically become an authorative case. It has to be upheld and applied consistently to become precedential.
Yes, that's case law.

I don't see how the state has granted an unalienable right to live. In USA for example, the State retains the right to kill citizens found guilty of certain laws. Ergo, American citizens don't have an unalienable right to live.
Dammit, I've been talking with Americans for so long that I also make their mistakes.

You're right and I stand corrected. There is no unalienable right to live. But, still speaking of USA, is there a right to live? If so, how could Common Law ever 'discover' a right to be murdered? And if not, how does the non-existence of a right to live correspond to the existence of a right not to be murdered?

[Michael]

Yes, Sharia is exactly what the authorities say it is.
Which is "civil" or "code" law by definition.

Common law is what the common law is - regardless of the opinion of the authorities (who often don't like it).

Considering the "third chamber" of legislation in a democracy with a Common Law system is not a direct result but only a derivative of democratic processes, it can be reasonably argued that there is very little difference between a clergy deciding upon the interpretation of holy scripture and 9 people (incidentally also wearing black robes) deciding upon the interpretation of legislature.
Yes, I agree that there is a high level of similarity between a 'coven' of black-robed clerics and 9 supreme court justices interpreting the scriptures and/or statutes.

However, I must point out that the Common law itself long predates democracy in England. That is to say, that democracy is more a derivative of the Common Law than Common Law a derivative of democracy!

Indeed, I can see the English Parliament growing out of the 'jury' principle and both appear to originate with the ancient Anglo-Saxon customs of 'folkmoot' and 'frankpledge'.

Adversarial law doesn't mean, as the root 'verse' could suggest, that public assemblies discuss back and forth and come to terms with a compromise. Neither as assemblies nor through elected representatives. It means that there are two or more antagonists and one authority, the decision of whom becomes law. And that authority is in cases of both the Sharia and Common Law given to the judiciary.

You appear to be giving the role of the Jury to the Judge here in Common Law. The Judge is meant to ensure that the rule of law is followed. The Jury is the one to decide the merits of the adversarial arguments. The Jury is the penultimate symbol of the Common Law. Without it, the system makes no sense.

Ergo, there is a fundamental difference here between the Common law and Sharia law systems. For all intents and purposes, Sharia law is more like European-style civil law systems - neither of which utilize the democratic principle of the jury.

[Michael]

You're right and I stand corrected. There is no unalienable right to live. But, still speaking of USA, is there a right to live? If so, how could Common Law ever 'discover' a right to be murdered?
It would be far more likely to recognize a right to kill one's self (which is ordering one's own murder).

That could be 'discovered' to be implicit in a right to privacy or a right of control over one's body.

And if not, how does the non-existence of a right to live correspond to the existence of a right not to be murdered?
Property rights! One's own body is one's property and property rights are protected.

Indeed, one only has to look at the institution of 'weregild' to see how murder and property are closely related.

[Sucre]

* * *

So that's my brief statement of the key difference between the Common law and Civil law systems. I think this has huge implications for our ongoing discussions about rights, given that under the Common law, 'rights' are much like 'laws' - they may exist without actual legal statutes passed by a legislature. Under Civil law, the legislature (or the state) has a monopoly on granting/creating 'rights' and 'laws'.

Any thoughts or comments on this issue? Do you think one system is better than the other?
That's interesting that you bring this topic up. Most people are not aware that there are differences between legal systems.

It is not just that the detail of the law is different, but the entire conception of the legal system, its understanding with important political consequences, which are often misunderstood or misrepresented in the media (due to the lack of understanding of the underlying concepts)

I would like to add one comment and one correction.

My comment is simply that there are other systems of laws as the two you describe. The Sharia for example is another one, probably affecting more countries than the two above.

My correction is that, personally, I would not underline the difference the way you do in your last paragraph.

As I see it the main difference is a formal one : Common law is based on Tradition - therefore the importance of Case Law in common law countries or concepts such as "fair practice". Historically, it is an inheritance of the middle ages and the first eleborated systems of law in Europe. It is practice and custom which determine the laws or the rights.

Example in modern politics (hot potato): Practice and customs may vary greatly though and this is the reason why it is potentially acceptable in the UK for Moslem women to have less rights than British women if the customs of the community allow for it.

Civil law on the other hand is based on a written text. Drawing from the example of the Romans, the concept of a rational (and democratic) legal basis is a product of the Enlightment - at best exposed in Montesquieu's work : The Spirit of the Laws.
http://www.rjgeib.com/thoughts/montesquieu/montesquieu-bio.html
and
http://en.wikipedia.org/wiki/De_l%27esprit_des_lois

The assumption is that laws exist like Platonian Ideals. The task of the Legislator is to find out the "rationale" of these Eternal Laws and fix them on paper. The role of the Jurisprudence will be subsidiary, as interpretation of the texts, in view of common sense, custom or in relation to other laws or existing texts.

Napoleon was not the brain of the Civil Code but his hand : he brought to completion a project dear to the heart of the revolutionaries, giving France one single code of law replacing the hundreds different "regional laws" in effect in 1789.

Continuation of my hot potato example : This understanding of what "rights" and "laws" is one of the reasons why the controversy of the veil could flourish in France as it did. If Equality is a Right, and we are all equal in rights, existing for ever like a Platonian ideal, and equality of gender and of treatment a "sub-right", then all women should be treated equally with same access to education, divorce etc. and not as second rate citizens with limited rights.

My last remark is that I don't quite understand the difference you are making Michael between "Rights" and "Laws".

[Michael]

That's interesting that you bring this topic up. Most people are not aware that there are differences between legal systems.
I raised the topic because of how it impacts on several ongoing discussions about the nature of rights and where they come from. The principles of Civil law vs Common law seems to have a very large impact on how laws (or rights) are understood - particularly with respect to the origin of these laws (or rights).

It is not just that the detail of the law is different, but the entire conception of the legal system, its understanding with important political consequences, which are often misunderstood or misrepresented in the media (due to the lack of understanding of the underlying concepts)

I would like to add one comment and one correction.

My comment is simply that there are other systems of laws as the two you describe. The Sharia for example is another one, probably affecting more countries than the two above.
The particular example of Sharia law has already been raised.

From an earlier post:

That's kinda tricky question, and I'm no scholar of Islamic law. Many articles say that Sharia Law is a 'third' category of legal system, but I don't accept that at all.

Sharia Law (on the surface) seems to be a bastard or mixed system, neither one nor the other in practice. On the one hand, Sharia Law functions in practice like the Common law (with case presedence, traditions, customs, etc), yet follows the Civil-European 'inquisitional' format for structure.

However, Sharia Law itself is entirely derived from and subservient to the Koran, which makes Sharia Law have the same foundational status as "Code Law" (which is civil).

Bottom line is that Sharia law is identical to European Civil law from the perspective of legal foundation. The law is what the Koran or the Civil authorities say it is. There is no other source of law permitted. Thus, I must say that Sharia Law, for all intents and purposes, shares the same legal philosophy as European civil law (just a different source).

This is fundamentally different than the Common law with respect to the origin and status of law and rights.

My correction is that, personally, I would not underline the difference the way you do in your last paragraph.

As I see it the main difference is a formal one : Common law is based on Tradition - therefore the importance of Case Law in common law countries or concepts such as "fair practice". Historically, it is an inheritance of the middle ages and the first eleborated systems of law in Europe. It is practice and custom which determine the laws or the rights.
Tradition and custom are only one component of the Common law. Statutory law is also a very large part of it (probably the larger part).

In other words, statutory laws make up 100% of Civil Law. In Common Law, statutory laws make up maybe 90% of Common Law. Statutory law is common to both and is the majority of both. To say that one is based on statutory law and the other on 'tradition' just isn't a viable distinction here - it is 'true', but it conceals as much as it reveals, since statutory law represents the majority of the law in both systems.

Example in modern politics (hot potato): Practice and customs may vary greatly though and this is the reason why it is potentially acceptable in the UK for Moslem women to have less rights than British women if the customs of the community allow for it.
Yes, this is theoretically true, but quite unique to UK system. Canada and USA for example have Bills of Rights that have constitutional authority that prevents this kind of theoretical result.

Indeed, I suspect that such a result woulds much easier to legally establish under Civil Law than the Common Law (given the legal precedents already established). I doubt if most immigration or laws of citizenship on the books in Europe could withstand a North American style 'court challenge' (with the goal of having the law 'struck down').

It might be a interesting theoretical debate to determine which western country would be the most "able" to legally institute a discriminatory practice against a Muslem woman. I'd seriously have to give this one some thought (and probably a bit of research too!).

Civil law on the other hand is based on a written text. Drawing from the example of the Romans, the concept of a rational (and democratic) legal basis is a product of the Enlightment - at best exposed in Montesquieu's work : The Spirit of the Laws.
http://www.rjgeib.com/thoughts/montesquieu/montesquieu-bio.html
and
http://en.wikipedia.org/wiki/De_l%27esprit_des_lois

The assumption is that laws exist like Platonian Ideals. The task of the Legislator is to find out the "rationale" of these Eternal Laws and fix them on paper. The role of the Jurisprudence will be subsidiary, as interpretation of the texts, in view of common sense, custom or in relation to other laws or existing texts.
Yes, the assumption.

Everyone is just supposed to assume that the laws are good ones and that the illustrious [legal] founding fathers were all-wise and all-seeing and totally just.

Maybe that's true, maybe that's not true. I prefer not to take such things on an assumption.

The Common law, on the other hand, holds every law up for rational justification every single time that it is applied (and able to be legally challenged, every time it is applied). That practice may be more expensive and time consuming, but I think it is a good one in the long run (and with hundreds of years being the lifespan of many laws, the long run is important).

Napoleon was not the brain of the Civil Code but his hand : he brought to completion a project dear to the heart of the revolutionaries, giving France one single code of law replacing the hundreds different "regional laws" in effect in 1789.
I never suggested that Napoleon invented this system - only that his name is commonly associated with it because he was the one who spread it around Europe (at the point of a sword).

As for Napoleon, I've never been a fan of anti-democratic military tyrants - and especially epic failures in so doing. I will grudgingly give respect to successful anti-democratic military tyrants (but they are too few to talk about - that discussion probably starts and ends with Alexander). :)

And Justinian (Eastern Roman or Byzantine Emperor) earned praise for doing the same thing back in the 6th century AD. He is the real 'father' of the civil code system, but even still, he didn't invent the idea. The classical Greeks always venerated the man who was credited with tabulating the law code of the day (Solon and Lycurgis are two such famous ancient Greeks). Writing down the whole of the law code is certainly a darn good thing to do. One can have many different reasons for wanting to see the law code 'codified' on paper - not all of them are noble ones.

Continuation of my hot potato example : This understanding of what "rights" and "laws" is one of the reasons why the controversy of the veil could flourish in France as it did. If Equality is a Right, and we are all equal in rights, existing for ever like a Platonian ideal, and equality of gender and of treatment a "sub-right", then all women should be treated equally with same access to education, divorce etc. and not as second rate citizens with limited rights.

My last remark is that I don't quite understand the difference you are making Michael between "Rights" and "Laws".
Indeed! That's one of the reasons for this thread. :)

And I can't figure how your example here shows the benefit of civil law at all!

As far as I understand the matter, the controversy is quite fitting to France because it is within the power and authority of the French state to enact such a law. Thus, the topic is one that can be rationally debated in French society and politics (because a choice or decision on the matter can actually be made in a substantial way).

However, the very idea of even raising the issue in Canada or USA is laughable. There is no way in hell that any kind of 'veil' law could stand in our courts for one minute. Everyone knows that. Our courts strike down any kind of law like that, no matter what. So anyone who even suggests that kind of thing is immediately dismissed as some crackpot and ignored. Thus there is zero discussion of such topics in Canada or USA political society. Such a controversy couldn't happen here (though, we do have lots of crackpots who will suggest it!)

As noted above, the UK is quite unique in having no 'Bill of Rights' with the legal standing of constitutional authority. It may be possible to pass a 'veil' law in UK, but I suspect that it would be legally quite difficult due to the courts. Heck, the House of Lords which includes the Law Lords themselves would properly throw out that kind of law - though the Blair screwed with the magnificent House of Lords and I'm not sure if they've been entirely neutered yet or not.

(An eternal pox on the House of Blair for screwing with the illustrious history and perogatives of the House of Lords!) :mad:

[SMadsen]

However, the very idea of even raising the issue in Canada or USA is laughable. There is no way in hell that any kind of 'veil' law could stand in our courts for one minute. Everyone knows that. Our courts strike down any kind of law like that, no matter what. So anyone who even suggests that kind of thing is immediately dismissed as some crackpot and ignored. Thus there is zero discussion of such topics in Canada or USA political society. Such a controversy couldn't happen here (though, we do have lots of crackpots who will suggest it!)
I think you're right that statutory laws against wearing veils would never see the light of day in USA. But wouldn't a system of case law make it quite probable to enact 'veil' laws?

Say an employee for some reason filed a suit against an employer for getting fired due to wearing a veil at work and that, again, for some reason, the employer won. Also say that such cases would work their way up the courts system, each time in favor of the employer, wouldn't it result in case law that would put workers at risk of getting fired for wearing veils?

[Michael]

I think you're right that statutory laws against wearing veils would never see the light of day in USA. But wouldn't a system of case law make it quite probable to enact 'veil' laws?
Not if those cases violate a constitutional ban on discriminatory practices.

Constitutional law trumps all other laws - always. Those lower court rulings would stand only until a case made it to the Supreme Court where the rulings would be thrown out based on the Constitution.

Say an employee for some reason filed a suit against an employer for getting fired due to wearing a veil at work and that, again, for some reason, the employer won. Also say that such cases would work their way up the courts system, each time in favor of the employer, wouldn't it result in case law that would put workers at risk of getting fired for wearing veils?
For the precendent to stand, the ruling would have to specifically cite the fact that an employer has the right to fire someone wearing a veil at work. If the employer merely won such a case based on the plaintiff violating the law or committing perjory, then that would be a different story entirely. For a precedential citation, it is the 'ruling' that it cited, not the outcome of the case.

[Sucre]

I was trying to answer this afternoon and, because I was doing several things at the same time, took too much time and was thrown out.

A bit discouraged.

Will come back to this thread a bit later.

[Michael]

I was trying to answer this afternoon and, because I was doing several things at the same time, took too much time and was thrown out.

A bit discouraged.

Will come back to this thread a bit later.
I compose ALL of my serious posts off-line. I find that so much easier and eliminates this potential problem. Sometimes, I might get halfway through making a post and run out of time, so I just save it on my desktop and come back to it later.

[Dominick]

I was trying to answer this afternoon and, because I was doing several things at the same time, took too much time and was thrown out.

A bit discouraged.

Will come back to this thread a bit later.
You're never 'thrown out', Sucre. After -I think- 45 minutes you're no longer 'online' at the site but you can still post your work. You'll just get an intermediate screen to fill in your handle and password again.

[Sucre]

Tradition and custom are only one component of the Common law. Statutory law is also a very large part of it (probably the larger part).

In other words, statutory laws make up 100% of Civil Law. In Common Law, statutory laws make up maybe 90% of Common Law. Statutory law is common to both and is the majority of both. To say that one is based on statutory law and the other on 'tradition' just isn't a viable distinction here - it is 'true', but it conceals as much as it reveals, since statutory law represents the majority of the law in both systems.
I may have not expressed myself well. Yes, I am aware of all you write.

I did not mean that Common Law does not rely on written texts. Of course it does, there is no way around it. But a great part of these texts "fix" what is "practice" or losely regulate practice.
In Case Laws, judges do nothing else then interpret what was done before and the "understanding" of the law. Interpretation takes precedence over the statutory text.

This is why it is not necessary to re-write the US Constitution : the detail of its text is just a question of interpretation by future generations of judges. Amendments are sufficient.

Not so with French Constitutions for exemple, where the detail of the text bears all its importance and each comma is weighted. A new Republic will need a new constitution for its fundament.

In a Civil Law system, the text has precedence because it is the reference : for courts and for citizens. (In theory) there is no need for an intermediary to understand the text, unlike in Common Law systems, with its armada of well paid attorneys.

(My exemple) The most famous article of the French civil code is its article 2. "Nul n'est censé ignorer la loi". Nobody should ignore the law and to make this possible, the reference text needs to be as clear and as straightforward as possible. (Which is the case of the Civil Code and the reason why it was copied in several countries afterwards)

The text is reference not the tradition (or pratice if you prefer)


Yes, the assumption.

Everyone is just supposed to assume that the laws are good ones and that the illustrious [legal] founding fathers were all-wise and all-seeing and totally just.
I should have used the word "postulate", not assumption.

It is a philosophical rational concept. This is why I refered to Plato's ideals. Let us not forget that Civil Law as we know it is a pure product of the Enlightment.

The postulate is the belief in Reason.


Everyone is just supposed to assume that the laws are good ones and that the illustrious [legal] founding fathers were all-wise and all-seeing and totally just.
No this is innacurate.

It should be formulated this way :

Everyone should assume that his MIND is good enough to find out what is right and what is wrong. Everyone, each single citizen, not just the "founding fathers".

Seen in an historical perspective, the philosophers of the 18th century were intelligent men (and a few women) and they were suffering under the artbitrary and the privileges of the Monarchy which was run by a dumbass.

The concept of Civil Law was developed therefore to empower all men and women able to think rationaly and critically.

[Sucre]

I never suggested that Napoleon invented this system - only that his name is commonly associated with it because he was the one who spread it around Europe (at the point of a sword).

As for Napoleon, I've never been a fan of anti-democratic military tyrants - and especially epic failures in so doing. I will grudgingly give respect to successful anti-democratic military tyrants (but they are too few to talk about - that discussion probably starts and ends with Alexander). :)

And Justinian (Eastern Roman or Byzantine Emperor) earned praise for doing the same thing back in the 6th century AD. He is the real 'father' of the civil code system, but even still, he didn't invent the idea. The classical Greeks always venerated the man who was credited with tabulating the law code of the day (Solon and Lycurgis are two such famous ancient Greeks). Writing down the whole of the law code is certainly a darn good thing to do. One can have many different reasons for wanting to see the law code 'codified' on paper - not all of them are noble ones.
Napoleon's name may be associated with the Civil Law system, rather with the introduction of the Civil Code in France, the Code Napoléon, but this tells us nothing about the nature of the Civil Law system which is more than just the French Civil Code. The fact that he introduced the Civil Code does tell us something about him : it shows that he was not only a bloodthirsty dictator hated by the English but also a clever politician who understood the needs of his time and the spirit of "modernity"...

Besides, your description makes it sound as if the Civil Law system had been forced upon innocent populations by conquest. This is not the case. The ideas of the French Revolution were welcomed by the populations in Europe so that the monarchs who took over after Napoleon's final defeat were obliged to comply : there was no way back.

The Latin American countries which adopted the Civil Code were never invaded by Napoleon's armies. The German Civil Code was promulgated in 1896, Napoleon was long dead, the Romans and Justinian as well but the ideas spread by the French Revolution, the ideas of the Enlightment, were fully alive and made their way by themselves all along the 19th century and all over the world.

There is at least one noble reason to want to write the laws on paper : it is to create one single reference available for everybody to read. It is this very simple "noble" reason which has made codification of law so popular from the 18th century on.

A description of the origins of the Civil Law system which makes no mention at all
neither
- of the 18th century and the ideas of the Enlightment
nor
- of the French Revolution
is innacurate at best, biased at worse, misleading in any case.

Philosopher Montesquieux is for "advanced learners". His work should be mentioned in a thread devoted to comparing Legal Systems as The "Spirit of Laws" is by far the most comprehensive work on the issue.

[Sucre]

My last comment on the subject.

I fully agree with Smaden (previous post)

As I see it legal systems have no effect on the content of the laws. The content of the law are determined by general politics and reflect the state of a society at a certain period of time. Legal systems are only the "carriers" of this content, with their own rules and their own pace.

In this respect, I don't see either why one system would be "superior" to another.

The only faulty systems are the ones in which Law has become a tool in the hands of a repressive State to legitimate its power. This was the case in the former Communist countries, in several dictaroships in the world and in Russia now for example. (I have the Khodorkovsky trial in head ...)

The law on the veil in France simply shows that the legislators - and for that matter the overall population - do not trust Islam. The veil is seen as a deeper symbol of the backwardness of a culture and as demeaning for women, not just as a piece of cloth. Then , the concept of Equality is important to French people in in French politics. Women are discriminated by the veil, not islam discriminated by having their women not wearing the veil in schools.

If the religion would have been the issue, and not the status of women, it was very easy for legislators to refer not to the concept of "equality in rights" or the separation of the State and the Religion but the concept of "non decrimination for religious beliefs" which is as much part of the Declaration of the Human Rights (Ar. 4/ Art.10) as it is in the Bill of Rights.
(Politics steps in at the moment where rights are prioritized.)