MAJOR LEGAL SYSTEMS IN THE WORLD TODAY, David and Brierley
(some of this is in ‘Pluralism backups’ and I think maybe better - NOPE I think it's JUST the ‘Socialist’ chapter. Probably want to just have both and use them as alternatives, until decide which is better)
Priyate international law
“conflict rules”
whether its courts are competent to hear a dispute with an inter-national element and then to which national1aw the dispute will be subject.
20 years in Switzerland and 18 years in the U.S.S.R.;one law admits divorce and another does not.,
all the rules in force during his time as student: that will be of little service to him in his later professional life when many of those rules will have changed.
the structure within
organized, the meaning of these categories and concepts, and the relationship of the rules among themselves.
has evolved,for historical reasons, as an essentially private law, as a means of regulating the private relationships between individual citizens; other branches of law were developed later, but less perfectly,
colonization
“reception”
where the need for moderniza-tion, or the desire to westernize,
even though they possessed their own civilizations. had their own ways of thinking
“Muslim law.” The old ways of thinking and acting peculiar to these countries may also mean that the application of the new law is quite different
who had to resolve individual disputes.
seeks to provide the solution to a trial rather than to formulate a general rule of conduct for the future. It is, then, much less abstract than
to re-establish peace rather than articulate a moral basis for the social order.
the intervention of roya\power. It seems, essentially, to be a public law, for contestations between private individuals did not interest the Common law courts save to the extent that they involved the interest of the crown or kingdom.
attention must be given to its transformation or adaption
largeJy auton-omous place within the family.
in recent years, to draw closer together. In both, the law has undergone the influence of Christian morality and, since the Renaissance, philosophical teach-ings have given prominence to individualism, liberalism and indi-vidual rights.
same idea of justice,
21. Family of socialist laws
The originality of Socialist laws is ... revolutionary nature attributed ... overturn society and create the conditions of a new social order ... means of production have been collectivized. As a result the field of possible private law ... private law has lost its pre-eminence-all has now become public law.
in the first group a greater persistence of characteristics properly Romano-Germanic is detected
All con-states have, it is true, taken over a number of western ideas either because it was necessary to preserve their independence or because it was useful in their internal development.
notion of law is rejected, and social relations are governed by other extra-legal means.
But law may also be seen as a model of ideal behaviour, one not to be confused with the actual rules ... universities, ... the model law 1 ... local custom (treated as a phenomenon of fact) ... decrees ... administrative.measures)
(ICC STORY) Law, then, ... is not in either case always necessarily observed by private persons or applied by courts. ... “just” men ... f equivalence ... justice, positive law and social manners. The same cannot however be said of non-western societies where “rules of law” (in the western sense) remain unorganized, fragmentary and unstable, and where there is a general feeling that true law is to be found else-where than in legislation,custom or judicial decisions.
West, a
basis for, society. Good social order implies the primacy of law
Law, a mirror of justice, is in this conception superior even to equity itself
arbitrary
disorder
must not concern
revendication
recourse
harmony and peace
Conciliation
mediation
dissolve
intimidation
model
applied
Scorn
n China
rejected the legal codes drawn up during the imperial along western lines and, after some brief hesitation, then repudiated the Soviet method
maintenance or restoration
veneer
artificial
PART ONE
THE ROMANO-GERMANIC FAMILY
technique
English law ... it has duplicated, though quite autonomously, the same Beneral evolution
with forw the same pedantry, the same roundabout means and make-believe transactions; and neither is there any lack of fictions,"
To establish order in this variety,
HISTORICAL FORMATION OF THE SYSTEM
incubation
synthesis and any idea of system were lacking.
universities
Justinian
Alaric
the social relationships we now consider to be governed by law
soon became too scholarly and complicated: it was a scholars' law and was modified and replaced by a vulgar law
Theodoric (500)
Fuero Juzgo
rejected ... Italy ... Spain ... (711). ... intervening on certain specific points,
Why, indeed, would such work be undertaken at that time?
the law of the time was made up of rules which individuals of different regions observed, more or less spontan-eously, in their personal relationships,
enforcing
[ jj sagas, distance of living, choice to obey or face society in conflict, no uberpowerful authority]
(Frankish rachimbourgs, Scandinavian laghrnan,Icelandic eosagari, Irish brehons, Anglo-Saxon withan)
Justinian's compiktions were neglected in favour of simpler and more accessible memorials of Roman law
arbitration
due according to fixed and pre-established rules
maintain the solidarity
rival groups
juristen, bose Christen
linked to the renaissance of the twelfth and thirteenth
evident in all spheres
cities and commerce, became conscious once again of the need for 1aw to assure
Christian
a private Canon law.4 In the thirteenth century religion and morality were no longer confused with civiJ order and law; 1aw was given a role of its own, an autonomy which has henceforth characterized the western mode of thought and civiliza-tion.
Philosophers and jurists demanded that social relations be based on law, and that the anarchy and high-handedness
which Reason had revealed;
democracy for the rule of personal power, [democ vs what?]
Marxist formula of social organization
permit the realization of order and progress in that society.
in no way a result of the affirmation of a political power,
Cormon law was bound up with the progress of royal power and the existence of strongly centralized royal courts. .
never founded on anything bu a community of culture.
t independently of any political ambitions
how law can conform to morality and how society can function properly,
telljudges how they should decide in justice. It prescribed the rules which just men must observe in their social behaviour.
Could one conceive of a teaching of morality which merely states the current morality of individuals in their behaviour, without bothering to instruct how life should be lived? The same thing seemed natural for law.
how would it have been possible
chaotic, uncertain, fragmented
no nationallaw;
no general sovereign
no more than chieftains of a precarious coalition
prestige, influence or resources,,
something other than the local law.
s A difference today, however, is that we tend to think of the law within the framework of “social sciences”-in its relation lo political science,economics, and sociology. ... therefore in its relaiion to philosophy, theology or divinity.
Latin. Roman law was the issue of a brilliant civilization extending from the Mediterranean to the North Sea,
Aquinas
confor-mity
“exorcising” Roman law.
I rejection of any pretension to build civil society upon an apostolic model dominated by the notion of brotherly love.
Roman law and Canon law alone were taught
1620
eighteenth
undisputed preponderance of Roman law in the universities
e the phenomenon of the renaissance
certain institutions (such as sJavery) that had disappeared or because certain subjects were ruled by Canon law (such as marriage, wills).
Roman law was expur-gated and underwent distortions and was used for entirely new developments (such as commercial law and conflict of laws).
no longer merely sought to rediscover the Roman
a citizeu rather than a subject
[The story of the common law. Is it so unusual? get a history of this]
with the frame-work,vocabulary and methods which oriented them in the search for just solutions.
The flexibility of this European ius commune and its purely persuasive authority should be noted as well. In England the rigidity of the Common law, a system of positive law linked to procedural considerations, made necessary the elabora-tion of certain rules, called rules of equity,intended to complete and correct the Common law. ... . The idea of a strict law which is not “equitable”' ran counter
The care once taken in the universities to respect Roman law gradually gave way to a concern for discovering and teaching the principles of a fully rational law. A new school, the Natural Law School,
“natural rights,”
dounated all legal thought
not so much a natural phenomenon, but rather the product of reason.
man as the only reality
declar-ing
Rome knew neither constitutional nor administrative law:
considered distinct.
not taught
n penal law
reconciled administrative and police powers with the liberties of individual subjects
Fourth Lateran Council
new ideas and feelings. It did not, however, indicate how the idea of law was to be rediscovered,
make something altogether new.
because English procedure, in particular, did not allow the law to be freely developed in virtue of moral and policy considerations.
the certainty nor the comprehensive character that it has acquired today. Its evolution was not directed by governments; their task at this time was essentially one of administration. Nor was law, conceived as the expression of what is just (id quod justum est), identified with the command of an often still-disputed sovereign. Because of this, the responsibility for the discovery and formulation of legal rules fell to the courts as guided by doctrinal writers.
confidence was placed in forms of conciliation and arbitration and in the search for a peaceful solution ... e universities ... .law is the very basis of civil order.
classification of rights as real and personal,
usufruct, servitude, fraud, prescription, mandate and the contract
became the divisions and notions which jurists, once trained in the Roman Jaw school, were to reason. [notions of reasoning]
Their work was one of persuasion only- ... ;'authority.' [Hitchens]
change the very circumstances in which that law existed:
Ito conform to justice, it was also necessary that the law be adaptable o the circumstances of a period of social change.
local
replaced, in practice, by the schoolmen's law of the
confronted by major statements of customary law
family relations,law and inheritance. In these areas the old rules could be retained.
In all those cases where a new law was s needed,
foreigners
customS_'vere the law of closed societies bound by tradition
law of an open society, one turned towards the fiture.
south of France
north
Castile
hampered by the existence of the procedure|
Scandinavian
writing on a national scafe
itinerant judges
selected from outside the locality
impartial
Roman
judges, uninformed about local custom,
Germany,a deeply divided country, Roman law was apphed in order to supply a common basis
merely fix the content of the custom, in which case their work made evident allits gaps, archaisms and insufficiencies. No one custom could purport to be the complete system needed to regulate the variety of new relationships
Siete Partidos.
harmonize
influence, outside its country
contributed to the Romanization
orthodox Christian
without universities
42. French parlements
bailiffs' and seneschals'
43. The Deutsches Privatrecht
ebreak- !up of the Holy Roman Empire
social decline
brought about a disintegration of centralized judicial organization.
conceded by the emperor
mmunities
no means of enforcing
princes,
school affirmed the need for a spontan-eous development of the law, similar to that in social behaviour and language, ;
stricter application of Roman law
prohibited judges from referring to the opinions of the doctors
freed judges from the strict duty of following the opinions of Accursius and Bartolus
right reason
“to essential, intrinsic and unalterable truth” from which both divine law and the laws of man drew the moral and civil laws of
for a law to be valid it must be confirmed through usage
well disposed towards custom
preserved.
the king did not consider he could change the law according to his will.
ready to see a legislator in the sovereign
a period in which the legislators took the ding role
CHAPTER II
THE PERIOD OF LEGISLATIVE LAW
46. Formulation of a public law
since the French Revolution
Now ... considered the locallaws no more than an archaic survival of an obscure past,
applied
to make a real law of the taught but ideal Iaw,
s power to transform the basis
two conditions
the work of an enlightened sover-eign,
[Compare with China before New Sch.]
a country powerful enough
reinforce the European community
adoption outside
law professors
attitude of legal positivism which was further ag-gravated by nationalistic sentiment.S Jurists now considered theit"national law to be the Law. They took refuge in their codes, aban-iing the idea that law, as a norm of social conduct, was in essence supranational.
This led to the virtual disappearance in Europe of the very idea of a ius commune. ... the German rejection of French codification.
Law ceased to be identified with justice
importance in these countries of judicial decisions
kinship
Positivism has taken on a new meaning;
that legislative texts alone suffice for a knowledge of the law.
powers
put the law, as a matter of fact, very much in a state of dependence upon the professed ideal of those who administered it
no interest in foreign writings. About 1900, however, this attitude changed;
provincialism
comparative law as the successor to Roman law and as the means of discovering and developing a European ius commune. The same
diversity
movements of change originate in one country or group of cou:tries before being generally followed or rejected by others in the family.
take the lead, by way of experiment for example,
“Germanic”
distaste for abstractions.
54. “Latin” and “Germanic” laws
in the last analysis exists between these laws, all elements considered: it is certainly possible to speak of a Romano-Germanic family.
no longer made up of only private law;
the greater intervention of the state gives more and more importance to the public law
go so far as to repudiate our basic philosophical concept of laW.
National Socialism,
Karl Marx and Lenin,
received their legal education in a country of Romano-Germanic tradition,
sees law as the expression of the will of the legislators, supreme interpreters of justice.
in decline in the West
CHAPTER III
EXPANSION BEYOND EUROPE
56. America
Spanish, Portuguese, French and Dutch colonies in America,
Primitive law
th, outside the towns
lack of established administration and in the absence of jurists.
doctrinal law taught in the Universities
mother countries,
Spanish or French domina-tion
(Louisiana, Quebec)
(Guyana, Puerto Ric, and the Panama CanalZone).
57. Africa andMalagasy (Madagascar)
fragmented tribal structure par-alysed any evolution.
TITLE II
STRUCTURE OF THE LAW
concepts unknown ?
categories.
the sphere of relations between those who govern and those who are governed
easier to impose respect for the law upon private persons,
arbitrator, [who is arbitrator?]
state itself.
welfare-state charged with many more functions affecting private individuals.
how, it was asked, could the state be bound by law when law itself is nothing other than an expression of the will of the state's leaders? 'I ?
courts
independent of it?
agencies
o submit
bow
difficulties or embarrassment
satisfied
doubt that much more could be without com-the relatively good social order
insufficient education of administrators and policy-makers and the lack of support which public opinion and jurists
France.
administrative law
restrict themselves to quashing illegal actions or decisions and recognizing that private persons involved are owed compensation.
Scandals
rare and mild in France, but one must not have any illusions. Their number and scope are limited by the sense of duty and the conscientiousness of an administration which is generally excellent; but administrative law, with its controls and sanctions, would by itself be insufficient to prevent them.
true core
Only through its study can the formation of a jurist be assured.
one immediately knows
the question asked or discussed is understood;its context and nature are grasped
affinity
uniform
profoundly changed certain other subjects (property and inheritance) by affirming the ideas of the Revolution of l789.
Christian countries a [what if Jerusalem was further?]
basis of a customary law which, even before codification, was international in character,
whole of commercial law, inland as well as maritime.
64, Law of obligations
Romano-Germanic family. Those trained in this tradition have great difficulty in under-standing that this legal category does not, as such, exist in other legal systems and, in particular, the Common law; their surprise is even greater at the fact that the very concept of “obligation,” so basic to the Romano-Germanic philosophy,is unknown in English legal thought and not susceptible of accurate translation in English legal vocabulary. “Obligation” in the Romano-Germanic system is the duty of one person, the debtor, to give, to do or not to do something to the benefit of another person, the creditor. The obligation may derive from the law alone, as in the case of the “alimentary obligation” between certain close relations; or it may p80
property law in socialist legal systems.
the same effect as, the trust
The first, an extra-juridical factor, is that a community of especially in philosophy and political science, has developed between these countries. Law very often only gives effect to ideas and tendencies first evident in other spheres. Montesquieu (1689-1755) and Rousseau (1712-I778), for example, had a considerable influence on the development of public law on the whole European continent. In criminal law, the Italian Beccaria (1738-
The second factor which explains the existence of a Romano-Germanic family of laws, even outside the private law where it originated, is the common formation of jurists. In order to translate new philosophical and political ideas into legal terms and develop new branches of law, recourse was had to jurists educated in the civil law. Very naturally, the new rules were established by taking .as a model,
The need to consider foreign experience was, moreover, greater in those subject matters requiring new development than it was in the civil law which had already arrived at some degree of perfection.
is remarkable that the first treatise on administrative law written in Germany was a treatise on French administrative law; it was only after this first treatise that its author, Otto Mayer, considered himself ready to write, on his own model,s s a treatise on German administrative law.
For jurists familiar with any one law of the Romano-Germanic system all these notions are relatively easy to understand because it is immediately seen to what end the new institution corresponds and the place it holds in the law.
they are also indispensable to jurists in providing the raw material for their work. But these compilations do not enjoy the high prestige associated with legal scholarship. The function of the jurist is to draw from this disorganized mass first the rules and then the principles which will clarify and purge the subject of impure elements, thus providing both the practice and the courts with a guide for the solution of particular cases in the future.
As a general rule, how-ever, it would be false to think of the laws of the Romano-Germanic family as detached from the reality of particular cases which the jurist or the judge has had to solve.
It was on the basis of specific cases that the jurisconsults of Rome formulated their opinions and it was on the basis of decisions rendered by the Parlemerus of France that the older French authors wrote their treatises; similarly, it is by considering judicial and extrajudicial practices that modern authors have
it is the product of reflection founded partly on an observation of practice but also on considerations of justice, morality, policy and consonance of the system, all of which may have escaped the judge. This work of reflection leads to the formation of a rule which implies a certain generalization: the rule must be general enough to provide a principle for the decision of concrete cases in the future.
It renders these elements more meaningful by showing how they help to assure better socialbjustice or a more stable economic or moral order. It allows public opinion and the legislators to intervene more efficiently in order to correct certain forms of behaviour and even to orient society towards certain goals.
. According to the Romano-Germanic notion, a code should not attempt to provide rules that are immediately applicable to every conceivable concrete case, but rather an organized system of general rules from which a solution may be easily deduced by as simple a process as possible.
71, Optimum generality of the rule
The Romano-Germanic legal rule is situated midway between the judicial decision in a dispute, which is seen as a concrete plication of the rule, and the more general principle of which the rule itself may be considered the application. In the Romano-Germanic countries, the art of the jurist consists in finding and formulating the rule at this point of equilibrium. It must not be too general, for then it would no longer be a sufficiently certain practical guide; on the other hand, the rule must be general enough to cover a certain series or type of situation rather than merely apply to some particular situation as does the judicial decision. It must also be added that this point of balance is neither necessarily nor in fact the same in all branches of law; a more concrete and specific rule may be desirable in such matters as fiscal or criminal law where it is desired that discretion be reduced as much as possible, Greater generalization, on the contrary, may be preferable in certain other and more fluid areas where it is intended that the rigour of legal solutions be less strictly imposed.
The criticism, encountered in various countries, that new laws are the result of poor legislative technique largely results from the fact that the legislators when legislating upon new subjects do not fix the legal rule at the right level of abstraction. Sometimes legislators |give way to an exaggerated casuistry and this defect becomes obvious in the many amendments later made to the original text; on other occasions, however, they express themselves in terms too general, and the meaning of the law is not understood it is “interpreted.”
72. Legal interpretation and the technique of “distinguishing”
The common concept of the legal rule and of its relation to both the principles and the solution of concrete cases is one of the fundamental-and insufficiently emphasized-points creating a close community of outlook and reasoning among jurists in countries adhering to the Romano-Germanic famiiy. It is one of the clearest and most important practical indications of this kinship.
interpreting
distinguishing
the same manner: in Common law countries the judge is expected to formulate, as precisely as possible, the rule which provides a solution to the dispute; in the Romano-Germanic countries on the contrary, because its function is simply to establish the framework of the law and to furnish the judge with guidelines for decision-making, it is considered desirable that the legal rule leave him a certain margin of discretion. No further attempt to spell out the detail of the legal rule must be made, because its author, be he jurist or legislator, is quite unable to foresee the variety of concrete cases which may arise in practice.
Thus although the applicable legal rule may have been easier to find, the certainty of legal relationships is not thereby increased; indeed, the reverse is true.
general a manner more specific by exercising a control, not only over the fact that the rule has been applied, but also over the manner in which it was interpreted and applied by the judges of the substantive question. The legal rule as formulated by the legislators, in these circumstances, is thus only the kernel around which “secondary” rules are built up.
The frontiers of law and of fact are everywhere largely artificial, and it is difficult to say to what extent the solution of a dispute brings into play either its particular facts or the interpretation of a legal rule.
The most one can say is that when a factual situation appears to be sufficiently typical, and therefore likely to arise frequently, there is the assurance that by one technique or another it will be covered by some legal rule, so that those concerned may know their position and how they are expected to behave.
Does one not return, indirectly by means of such “secondary legal rules” formulated in the cases, to a concept very close-if not identical-to that which places the legal rule at the level of individual cases submitted to the judge?
It is certain that many jurists in the Romano-Germanic countries have, more or less consciously, become more casuistic, more orientated towards merely describing the contents of judicial decisions.
Whatever in fact may be the number and importance of these “secondary legal rules,” as the judicial interpretation of legislative legal rules may be termed, it is certain that they are of a greater generality than the rule at which the judge arrives when he is not guided by the legislators at all.
Romano-Germanic family are still founded on principles, as the system implies; they are not casuistic, and because of this fact it appears that they have the advantages of simplicity and clarity.
It is very clear, however, that the legal rules in these countries,such as their jurists and legislators deem appropriate to formulate,do not suffice; to be complete and precise, they require secondary rules. Nonetheless, and this is not without benefit, they give the law a solid and unquestioned framework. In countries where the law is judicially created, there is sometimes hesitation about abolishing or changing a rule because the consequences in relation to the whole of the law are not clear. In countries of the Romano-Germanic system, such reforms are more easily accepted because it is more evident which rules will be affected and which unchanged. In particular, changes may take place more easily in the “secondary rules” of the law. Because they do not reach to the very foundations of the system, changes in the pattern of the decided cases do not present the same danger nor create the same uncertainties as they may in countries which do not admit the Romano-Germanic concept of the legal rule,
TITLE III
SOURCES OF LAW
ideas on the subject
written law;
look first of all to
discovering,
varied methods of interpretation,
now increasingly admitted that the absolute sovereignty of legislation is a fiction in the Romano-Germanic family and that there is room for other and very important sources of law.
universities,
new technique of codification it never intended to say that law and legislation were to be identified, or that the study of legislation alone might lead to an understanding of law.
jurists, cannot be sought exclusively in written texts; its definition and very nature would change if it were no longer regarded as the expression of what is just,but simply as the will of those who govern.
creative role
purely logical process
solution.
re-examined because of profound changes in economics and technology, legislators came to play a greater part in the enunciation of the law. It is a long way from this admission, however, to a complete repudiation of our traditional idea of law, such as implied by an acceptance of a dogma of absolute state sovereignty.
“the perfection of reason” a
exegesis
This supposed coincidence between law, which is justice, and ]legislation, which is the will of the legislators, did indeed enjoy acceptance at one time.
hypocrisy with which the latter purport to apply
serve
interests
activity
carried on.
invoke
to justify or support
The new social conditions at the beginning of this century required a bolder, more open approach.
law itself is something other than legislation. It is not to be confused with the will of legislators; it can only be discovered by the combined efforts
described as a jurist's law (juristenrecht). Legislation has become the principal though certainly not the only means of knowing the law, but it only has meaning when taken in conjunction with other elements. In France, Germany and Italy today, as in the past, the law can only be known through a search in which the legislators and all jurists participate. Even though the fact may be hidden by legal technique,the law is made up of other important sources in addition to enacted law.
whereas in the Rornano-Germanic family these solutions are sought by a technique which considers first of all legislation,in the Common law family the same results are sought by a technique which first considers judicial decisions.
LEGISLATION
mis-sion of law,
in our own time with the triumph of the idea of planned economies and the broadening of the role of the state in all areas.
the role of legislators is preponderant
democratic
, best placed to coordinate
legislation, because of the rigours of drafting involved, appears to be the best means
hierarchy.
At the summit of this hierarchy are constitutions
have a special prestige.
family
subjects
provide a systematic regulation.
all of its parts have been extensively amended.
. Do the generality of subjects which they cover, the anticipated permanence of their application and, above all, their mission of universal application, not require that they be considered differently from ordinary statutes with which they coex-ist in any given country? Does it not have to be acknowledged that they possess a special authority and that they therefore must be made subject to principles of interpretation other than those applic-able to “ordinary” legislation? It is in fact common for legal writers to deprecate new laws and to seek to restrain their application by qualifying them as “special” laws or laws of exception.
This attitude and this distinction can find some historical justifi cation if it be true, as it has been suggested here, that codes were laws which endeavoured to express a common 1aw of Europe Irans-cending any particular national characteristics.
This is especially the case today since the originalidea of the code-that is, a repository expressing the European ius commune-has been largely forgotten: many statutes are called codes which in no way purport to be the expression of universal and abiding prin ciples of justice. However, in the case of the older and most respected codes, it may very well be that their value js in practice considered to be superior to that of other laws: there is a natural tendency to attach a greater value to their established principles because they have been, for many years, the object of a more detailed study and for this reason they are geneFally taken to have been more appropriately inspired than ordinary statutes are,
cannot
. All that can be expected of them, at least in some areas, is a statement of principle and more or less general rules.
For some time the principal problem appeared to be the control of these admini-strative authorities and in particular what form of control would guarantee the supremacy of statutory law and the conformity of regulatory provisions made by the administration for its applica-lion.
Moreover private persons often hesitate to act when faced with ail the risks and inconveniences involved in an action taken against the admini-stration.
must also exist in order to impose on the administration a conduct conforming to the law and to redress the illegalities it commits. As in private law relations, the existence of good rules and the affirma-tion that they must be observed do not suffice; these principles are only valid if the people generally are knowledgeable about their rights and can in fact assert them
To enact statute law or regulations is the business of the appro-priate authority.
. The application of law supposes a process of interpretation,
Where, however, justice demands it,judges are able to find ways of freeing themselves from the strict letter of the texts, and different methods have been adopted for doing so.
terms such as “fault,” '"grievous injury," “impossibility of perfor-manee”
Nevertheless, in some instances this opening has been found insufficient; the courts, in order to render just decisions, have had to take greater liberty with texts in order to free themselves of the strict rules found unsuitable to new social conditions.
delach the text
A first technique is to detach the text from its historical context.
New textual meaning
. This approach has ?been adopted even in those countries such as Austria and Italy where a provision requires that judges interpret legislation strictly,according to its expressed intention.
he must say to himself that justice and reason require that the text be liberally and humanely adapted to the realities and requirements of modern life."83
“civil responsibility.”
corresponds to the emergence of this new approach. Several words of the text of article 1384 of the Civil Code-words to which the original draftsmen undoubtedly attached no particular significance84_have been given a new meaning by the courts in order to develop a law on the delictuaJ liability for things under one's care quite apart from the principle of fault.
applying general clauses or provisions
after World War I, ... . It was to <242 BGB, which sets up the obligation to act loyally and in good faith (Treu und Glauben)
and refused to admit that a debtor might dis-charge his debt by paying his creditor the nominal amount of the debt in marks which were then w,thout value. The general require-ment that loyalty and good faith characterize payment,as specified at 242 BGB,
mischievous
; “the conscience of an honest man is the supreme law”; “the good judge always knows how to decide according to the circumstances”; “one will consider as law that which proves to be most in conformity with the good of Man,even when the letter of the written law would seem to provide differently.”
. With the establishment of democratic regimes,the judges in Nordic countries, as on the Continent, have come to ' consider that their power to decide in equity is restricted and that,whatever their personal preferences, they must apply the rules for-mulated by the legislators. The interpretation of enacted law in Nordic countries is ruled by the same principles,
In appearances of course this method does respect expressed legislative intention: it is never said that a text has taken on a new meaning. And the technique employed is, indeed, a purely logical one-in the face of two texts, each of which appears to dictate opposite results, that one is made to prevail which permits the best solution for the day. It should hardly be necessary to state that this is no more than an artifice. The draftsmen of the German Civil Code certainly never imagined that their special provisions would,one day, appear unjust; and it was not to eliminate them, but only tointerpret and complement them,that they laid down a number of general principles.
run the risk of sub-verting the legaJ system.
rather than upon a true interpretation of the law
the ends of justice require it, depart from the formal texts
In the final analysis, despite all the various doctrines, the prac-tice in all countries of the Romano-Germanic family is to follow a middle course characterized by its empiricism but varying accord-ing to the judge, the times and the branch of law in question. The legislative texts are often treated as guides in finding thejust solu-tion rather than as commands which impose a strictly predeter-runed solution upon the interpreter. In all countries, a logical and grammatical interpretation is definitely preferred, and when obedience to the intention of the legislators leads to a just solution this approach is willingly acknow!edged.
framework which the work of interpretation will complete.
Some of them acknow-ledge that they first of all “sense” the just solution and ihen look for its justification in law; others indignantly repudiate this process as being against their conscience as judges.
Even the way in which Italian decisions are written and published is misleading: they are in general incom-pletely reported and it is often the part omitted (the omissis) which contains the true explanation of the decision
This will become more apparent upon an examination of the present role of the sources of law other than legislation.
CUSTOM
preponderant
legislators, judges and authors are, as a matter of fact,more or less consciously guided by the opinion and custom of the c*.nmunity.
Marxist
Custom is not the fundamental and primal element of law that the sociological school would like it to be; it is but one of the elements involved in establishing acceptable solutions.
? Legislation itself,in order to be understood, often has to appeal to custom for the necessary clarification of the ideas of the legis-lators.
The courts, it is clear, do not like to set themselves up against the legislative power.
but it has appeared necessary to find a justification for this.
even if, in doing so, custom must be falsely presented as being in harmony with legislation
-can be obtained if one ceases to confuse law and legislation.
must bring his criticism to bear on it
DECIDED CASES
distinguishes
appear to be more differences in detail rhan in principle.
, Obedience of judges to statute law
the creative role of judicial decisions is always, or nearly always, hidden behind the screen of an “interpretation” of legisla-tion.
This provision of the Swiss Code has not been a dead letter; it has even happened that Swiss judges have somewhat artificially discovered legislative gaps in order to invoke the article and avail themselves of the power it confers.
Despite this self-effacing position, are rules of law in fact created by judges?
reverse of that in the Common law.
In the second place, the “legal rules” laid down by the courts do not have the same authority as enacted legal rules. They are fragile and may be rejected or modified, at any time, upon examination of a new case.
Thus, the statement that the body of decided cases is not a source of law is not quite exact, but it does express a truth if it is under-stood to mean that judicial decisions are not a source of legal rules.
Ortaization of the courts
hierarchy.
a single Supreme Court
. Courts of first instance are especially varied,
according to the nature of the dispute and the amount involved.
In some jurisdictions.the Supreme Court acts as a court of final appeal, whereas in others it cannot substitute its own decision on the merits and may only annul or quash the decision of the lower court.
outside this hierarchy.
administrative tribunals.
labour law, social security matters and tax matters
socialinsurance law, military law and customs and excise.
judicial function
, a career entered at the beginning of one's profes-sional life.
-because of their tAning, in university and as judges, they are prepared to envisage the matters submitted to their adjudication in a large or general nanner and beyond the confines of the instant case; their yiew of the law is less technical, less insular perhaps, than their Common law counterparts.
{()} the magistrates of the ministere public whose function it is to argue the public interest aspect raised in a case.
The feeling runs deep among judges that they must not in any sense be the servants of, or take orders from,the government which itself has more and more been made subject to judicial review and control.
collections;
importance attributed to judicial decisions.
enable a distinction to be drawn ... between decisions of “jurisprudential” va7ue and those which are best forgotten.... publication of selected decisions should help jurists to understand the new law.... Germany, where only decisions of principle are published
Style of judicial decisions
reasons
viewed as one means of guarding against arbitraryjudgments and providing some assurance that the decision will be well thought out.
Dissenting judicial opinions
(discordias, votos vencidos).
ease the conscience of judges whose minority votes will be noted
processes used to ach-icve legal certainty
supreme court
to assure a uniformity of judicial interpretation. The existence of this supreme court may well threaten rather than guarantee the supremacy of enacted law. The legislators would hardly need to fear any competition from a series of scattered local courts whose decisions could only with difficulty constitute any kind of coherent or firm patterns of decision-making. The supreme court, on the other hand, endowed with greater prestige and inclined to see ques-tions from a more general angle (especially when as in France it is not allowed to review the facts) is inevitably tempted to become a complementary, if not a rival, authority of the legislators. In England, the concentration of judicial power was the condition and cause of the development of the case-law which is the Common law.
supreme court has often been judged insufficient,
Adunistrative practice
internal regulations and instructions which various administrative departments distribute to , their officers and agents.
not considered as sources of law
Sociological School, on the other hand, will consider them to be sources of law par excellence, because in the immense majority of cases it is certain that civil servants will observe the instructions received since often these form their only means of knowing the law. It is no less certain that in the immense majority of cases private persons will accept the application of the law as providedin such administrative directives.
recognize the auton-omous nature of that process of interpretation
One may, of course, define 1aw as only constituted by enacted rules. Nevertheless, for the person who takes a realistic approach and has a more comprehensive-and to our mind, ruore exact-view, doctrine is now, as in the past. a very important, living source of law. This is shown by the fact that it creates the legal vocabulary and ideas which legislators subsequently use; it is even more evident from the fact that doctrinal writing establishes the methods by which law will be understood and statutes interpreted. There is,further, the influence that legal scholarship can exercise on the legislators themselves; often the latter merely give expression and effect to tendencies that have developed doctrinally, or enact laws which have been prepared by legal writers.
the real relationship between legislation and doctrinal commentary, or lead us to believe in a “dictatorship” of enacted law. In reality, the matter is much more complex, much more delicate. Legal writing stimulates the legislators to action;here, then,it is only a mediate source of law. But it also plays a role in the application of enacted law; in this capacity, unless reality is distorted, it is difficult to contest its status as a source of law.
French and German law
Legal scholarship is then of fundamental importance because it creates in different countries the various working instruments of jurists. In many cases, the differences in the tools so created and used may very well be a source of difficulty for the foreign jurist;they may even create the impression that two laws, in reality very close to one other, are separated by basic differences.
Latin countries
ltaly and in Spanish and Portuguese
extreme dogmatism-
are also very often, in their own country, the most prag-matic of lawyers and legal counsellors and the owners of libraries largely made up of national collections of judicial decisions,
Law teaching is directed principally to the exposition of the basic principles and concepts of the legal system rather than to explaining to students how a problem is solved in practice. The immediate solutions to problems are of less importance, in this way of thinking, than the system itself; and the law,in this approach, is treated as though it were a wholly autonomous science, detached from any historical perspective--the Corpus iuris civilis,
CHAPTER V
SUPER-EMINENT PRINCIPLES
General principles of legislation
These are found sometimes in the enacted law and also, if need be, outside it. ... they bring to light the fact that in the Romano-Germanic family there is a subordination of law to the commands of justice, such as it is conceived at a given moment in a given period, and that this legal family is a jurists' law, not merely a system of legislative norms.
Some injustice in particular cases may be the necessary price for a just social order; but the jurists of this family are not prepared to accept a juridical solution which would be socially unjust. It is characteristic of the flexibility of legal ideas in the Romano-Germanic family that the concept of equity (equite) has at all times been part of the law, and that there has never been any necessity of correcting legal solutions by means of autonomous rules or courts of equity.
Article 281 of the Greek Civil Code similarly provides that the exercise of a right is prohibited if it manifestly exceeds the limits imposed by good faith or good morals or by the social or economic purpose of that right.
a kind of delega-tion of powers ... jurists have nevertheless con-sidered themselves to be so empowered by reason of the very func-tion they are called upon to exercise. This power has been sparingfy used, because it is thought that the best way to bring about justice in our society is to conform to the order established by the Iegal rules themselves. Nevertheless, there has been no hesitation about making use of it on occasion,
that a distinction is to be drawn in French law between law (droit) and enacted law (loi). This doctrine, initially used to construe, in a somewhat leading manner, legislation passed during the German occupation that was contrary to democratic principles,
Because of its history, France is probably the country where it was most natural for jurists to make their contribution to the evolu-tion of law by reacting against the propositions of legis7ative positivism. Since they were the first to be attracted by these arguments, it was only natural that they be the first to break away from them. It is interesting to note, however, that today the same tendency is being established in Germany and as a healthy reaction to the doctrine which, in the National-Socialist era, tended to sacrifice justice to politics and the racial myth or to seeio /aw only that which is useful to the state
law is not limited to fundamentallegislative texts but is also made up of "certain general principles which the legislators have not rendered in the form of positive rules
PART TWO
SOCIALIST LAWS
Origiality of socialist laws
Coercion, far from being banished, is more prevalent now than ever before because of the need for protection against attacks by the enemies of the regime and the further requirement that citizens be strictly disciplined in order to create the conditions which will make communism pos-sible. The state, before it can disappear, thus has enlarged spheres of activity and intervention, and is stronger than ever; until its becomes possible, it rules every aspect of society with an unprecedented rigour.
THE LEGAL TRADITION
Importance of subject
why the law exhibits a particular organizational style.
The Russia of Kiev: Russkaia Pravda and Byzantine law
Varangians,
, under the leader-ship of Riurik, established its domination over the Russia of Kiev in 892. The state thus created lasted until l236, when it was de-stroyed by the Mongols.
reflect in greater detail a more generally evolved society than that of the Germanic
territorial not tribal in nature
Byzantine
second period in Russian history
Mongol domination
1236
after a war of liberation lasting 100 years.
Moscow, rather than Kiev.
isolate Russia
by its Orthodox faith.
This domination explains the rise in the influence of the clergy and the development of Byzantine law because of the regrouping of the faithful around their cfergy.
' Peter the Great (J672-I725)
avoid anarchy and preserve its independence against aggression from the West.ln 159l serfdom was established.
: Byzantine law-
Weakness of the Russian legal tradition
technical backwardness
Russian people's attitude to law engendered by a differ-ent history,
natural complement to morality and one of the fun-danental bases of society.
university, that of Moscow, was only created in 1755, and the University of Petersburg in 1802.
' 1864
judicial career separated from the administrative.Until then no distinction was made between police power,justice and the administration. Written law moreover was altogether for-eign to the popular Russian mentality.
peasant
, only family owner-ship (dvor) or communal ownership (mir),to the exclusion of the individual ownership which was anticipated by legislation, existed for the peasants.
volost', made up of elected judges who were not jurists;
. The unification of the law was thus an impossibility. The law in general was not based on the social consciousness of the people,
arbitrary work of an autocratic sovereign and a privilege of the bourgeoisie.
Jurists were the servants of the Tsar and the state
that society could exist without courts and without law.
Leo Tolstoy wished for the disap-pearance of law and the advent of a society founded on Christian charity and love, The Marxist ideal
Countries of western tradition
Hungarian, Polish, Czechoslovakian and Slovenian and Croatian law
a large and respected body of jurists
The Balkan states Albania,Bulgaria, Rumania, Serbia,
attempted to retain it as much as possible in the buiiding of the new form of government.
in Russia, are explained more by the weakness in their legal tradition and the absence of jurists than as a necessary consequence of an adherence to Marxist teachings.
MARXISM-LENINISM
Marxism: basic doctrine of Soviet society
and more often than not rejected or transformed, in the light. of Marxism.Leninisn"
some-thing quite different from any philosophical doctrine in Western
not only erroneous but to constitute a subyer-sive threat to the social order.
reject, or even put in doubt,
the enemies of mankind
Evohtion and progress: historical materialism
materialism
evolution
consciousness is no more than a refiection of the material \ world
upset the traditional (metaphysical) concept
an order of absolute values
to-wards greater perfection
Marx and Engels believed they had discovered these laws, ... scientific socialism
All else is superstructure.
Law, in particular, is only a superstructure; in reality it only translates the interests of those who hold the reins of command in any given society; it is an instrument in the service of those who exercise their “dictatorship” in this society because they have the instruments of production within their control. Law is a means of oppressing the exploited class; it is, of necessity, unjust. To speak of a “just” law is to appeal to an ideology-
opposed to our traditional views. '
productive forces were free and at the disposal of all.
involves coercion, that is the intervention of the state
threat or the use of force,
The turning points of history are marked by the victories of the exploited class which in turn becomes the exploiting class.
more in line with
the general aspirations of society.
Strife, and even misery,
private ownership
must be abolished.
made the property of the collectivity;
only a few profiteers
defective organization
, a fraternal society will then emerge;
harmony
needs.
fascism which sacrifices any interest of the individual in order to exalt the role of the state.
he will no longer have to sell his labourpower to the profit of a ruling class exploiter.
. Public.services,such as health, education, transportation, communication and policing will be assured by all citizens in turn.
provided for,
free
no longer be democratic because it will not be subject to the rule of anyone, not even that of the people as a whole.
a reign over things, not persons.
members of the Communist Party
' a guide to political action and a technique of revoiution,
Bolshevik
intermediate phase-that of a socialist state,
it draws special support from Marxism, and remains completely faithful to it,
complements
corresponds to a necessary stage
, Soviet law
a means of transforming, and thus guiding, society towards the communist ideal
To endow society with the economic organization which conforms to these scientific laws is the aim of Soviet law and policy;
“bourgeois law” which blindly tries to establish order and morality, both of which are unobtainable in a world organized on the basis of a defective economic system.
admistrators and citizens alike possess a sure guide for the interpretation of law. Soviet Jaw, there-fore, is not a law like other laws; obviously, its study cannot be dissociated from Marxist-Leninist doctrines which fix its objectives and guide its evolution, interpretation and application.
(jj non-dissociable facts)
makes of man "a fighter capable
what one ought to wish to do."
, what he should want.
superior
. Their aim is to perpetuate an essentially evi] state of things, a social structure which carries with it an inadmissible and odious inequality.
(colonialism),
(imperialism). Coexistence is possible only on condition that the U.S.S.R. is stronger than they are.
suspect,
interpreted in the light
that a just law may be sought by jurists committed to the principle of private ownership.
revealed
one side considers economics to be subordinate to morality,
-these dif-ferences, however essential they may be in principle, are seldom perceptible when one is dealing with technica! rules.
The Bolshevik revolution
a victorious revofution brought the Bolsheviks to power.
Many points remained obscure,however,
how was society to be organized
rural
Russia remained the only
industrial workers
. It was agreed that a dictatorship of the proietariat would rule. But should the industrial workers alone be called the proletar-iat, after the revolution had triumphed in a country where that class was so small'?
Period of revolutionary communism, 1917-1921
revolutionary or militant
Russia was prey to civil and foreign wars and in a state of total disorganization.
enemies
a Declaration of the Rights of the Toiling and r i'Exploited People
addressed to all the Muslim workers of Russia and the East.The Church was separated from the State and a marriage code promulgated.Land,all nationalized, and private enterprise was forbidden.. It seemed as though money itself would disappear and that a system of sharing would be substituted for contractual bargaining, Inheritance was suppressed. The old courts and judicial procedures were abolished.Everything promised an immediate leap to the communist society without any transitional period. The newly established courts were asked to judge, with no formal procedures, according to revolution-ary conscience, the socialist feeling of justice and the interests of the workers' and peasants' gOvernment.
withdrawal. Concessions
to encourage
repudiated; that the regime was “settling down,”
values
the chimera of a society not founded on law.
tained control of industry and commerce; only with respect to agriculture did the regime accom-
serious transgressions of principle were made.
a return to true Marxist doctrine.
importance of law.
New Economic Policy (N.E.P.), 1921-1928
Return to legality
codes;
For the time being the regime re-the ideal of a society founded on simple equity and the natural sentiment of justice of a fraternal community. At the same time the judicial system was re-organized, a new principle of socialist legality was laid down and a new institution, the Prokuratura, was created in order to ensure its strict observation by both the administration and citizens.
Abandonment of the N.E.P.
interwoven; in particular the industrialization of the country demanded an increase in agricultural production which in turn could only be made possible by the mechanization and,there-fore, the collectivization of the rural economy. On the other hand,the class of kulaks, in whom foreign '"bourgeois" powers might have found an almost natural ally for the realization of designs hostile to the U.S.S.R., appeared to be a danger in view of the growing international tension of the time,
liquidation of the kulaks and by the com-plete collectivization of agriculture,
1937; at this time 243,000 kolkhozi, representing 93 per cent. of Soviet soil under cultivation, had replaced l8,500,000 farnily farms.
economic infrastructure required
are indeed “collectivized” in the sense that they are exploited according to a plan of economic development drawn up by the leaders and approved by the Soviet Parliament. The admitted exceptions to this principle are of limited significance; these are specially concerned with certain artisanal activities,
the crime of speculation.
“personal ownership”
needs
a means of producing income.
through an increasingly clear affirmation of the principle of socialist legality.
regulating new aspects of Soviet life.
"The dictatorship of the proletariat, hav-ing completed its work, is no longer necessary in the U.S.S.R.," but the communist stage has not yet been reached where "power will be exercised by the Soviets, the unions, the co-operatives and other people's organizations.'
no stagnation.
powerful
“capitalist encirclement.”
as long as it feels threatened
habits of the capitalist era
teaching
the state must continue in order to prevent anyone from so harming socialist institutions.
'abundance, is also required.
production is not pushed to the extreme, providing sufficient con-sumer goods for everyone.
ecaomic task
demands a far greater effort of its leaders .
Such a reversal of attitudes involves a total transformation of fundamental ideas about law.
. If the guiding principles established by Marxist-Leninist doctrine are clear, namely that "economic power be taken away from private interests, it does not specify how this power is to be exercised anew.
' according to a plan. But views differed,
man, during his time, was in effect sacrificed to production and to the state. Aithough the Stalinist era was a painful one, the Soviet people today are reaping its advan-tages: the economy has been compietely coJlectivized and the dan-ger of National-Socialism eliminated. Since then it has been pos-sible to condemn the excesses of the Stalinist era and to return to true Marxist teaching, which aspires to be a humanism. Marxist doctrine teaches that power and wealth are not sought for their own sakes but rather in order to liberate man and to promote his complete fulfilment in a society in which he is no Ionger oppressed.
to remove the mechanisms of force which the state represents,
necessary to change man,
lacks a profound faith.
that work has become a matter of honour, as much as of necessity.
sacred duty to protect.
that everyone assent
that the law be “popular.”
The Soviet court is thought of as a school. It admonishes, encourages, and gives advice as the law itself often does.
. A failure has curred if the condemned party does not approve of his sentence,and if opposing parties do not leave the court reconciied by recog-nizing the just character of the decision made
“the government of men will give way to the administration of things;”
even criminal law,
when there arises a new concept of social defence, dominated by a cluster of criminological sciences in which psychology, medicine and sociology are are associated.
OTHER SOCIALIST COUNTRIES
, the model provided by the U.S.S.R.could not simply be adopted in these several states whose tradi-tions, degree of industrialization, sociai structure and culture were different.
The desire on the part of some countries to build “a new model of socialist society” is not, however,looked upon favourably by the U.S.S.R. There is a real fear that, under the cover of such a formula, there will be a new interpretation given to the fundamen-tal doctrine
Respect for law
an essentially admini-strative technique. Marxism forecast the withering away of law and this so little shocked the Russians that they thought it possible,
a lack of jurists in whom confidence
a clean break with and to abolish in toto the existing law.
class characteristics
the national cultural heritage that. was worthy of admiration and confidence.
Collectivization
the nationalization of industry was easy and popular because capitalists whose position was compromised by reason of their as-sociation with the previous political regimes.
, private commerce
land and the collectivization
Poland and Yugoslavia, only followed the movement to a very limited extent.
more than fifteen
modalities
rigour or a suppleness
their own way.
criticize
Marxist-Leninist teaching, as seen by the Yugoslavs, requires that the means of production in fact-and not simply as a form of legislative fiction-be placed at the people's disposaL
nmediately
delay
the corps of Soviet leaders, which at one time came from the heart of the proietariat,has now become detached and separated from it; they have made of themselves an autonomous group with its own interests, different and sometimes even opposed to those of the proletariat. This group, now an extremely powerful bureaucracy, has brought the whole Soviet state under official control
“non-state.”
the greatest danger for the proletariat-the bureaucratization of the socialist state-it must be democratized-that is to say, the masses must participate in public administration as well as the management of national economy by removing from the state its former func-tions, one by one, for the benefit of society. Only in this way will the socialist state, so long as it does exist, remain a proletarian state and then wane, one day completely and finally to disappear.
Tito (b. 1892)
not a state but rather a social ownership
removing it from the state and its bureaucracy.
there is an as-sembly or committee of producers elected by the primary producers.'
Such an extension of universal suffrage is necessary in order to lessen the economK power of politicians and bureaucrats
Self-nagement of enterprises
famous industrial self-management of which Yugoslav leaders
naming of a director of the enterprise by an external authority
limits
A further, but temporary limitation of the wor-kers' self-management can also occur with the authoritarian “tak-ing in hand” of the enterprise if this is necessary for the protection of social interests
exercise of force, that are necessary for the maintenance of order and social peace. These functions are the last to be exercised by society directly; their transfer will oniy occur when all the persis'.-ing inegalities to which, precisely, all violations of peace and the social order are due, have disappeared from society.
defence of its frontiers.
intellectual life, public health, education and social security, For this reason attempts have been madein Yugoslavia to create a system without political parties.
not a political party but rather a diversified organization intended to include almost all citizens participating in the exercise of power in order to teach them how best to discharge this task.
the delays in official business, the excessive formalism and plethora of person-nel have all been denounced, The down-grading of the elective bodies which were unable to exercise any effective control,
crisis ... much less acute, now that experience has shown that even though it went its own way Yugoslavia has no intention of joining the capitalist camp.
capitalist encirclement
societies which, from so many points of view, are different and fully intend to remain so.
when it was thought possible to abolish immediately the principle of legality and replace Jaw by revolutionary con-science,
solidarity and social duty. At present, discipline
epithet “socialist”
legitimizes
When they demand on the contrary that citizens in the U.S.S.R.conform strictly to the legal order, they must justify this change of attitude.
“The economic structure of society and the material conditions of the ruling class determine the social consciousness, the will and the interests that find their expression in Jaw. To dissociate law from the economy, to analyse the legal system independently of the existing economic relations is therefore incompatible with the basic principles of Soviet legal science.” ... the order which it serves ... justification ... when subordinate ... a superstructure ... . infrastructure ... recalls
capitalist elements ...would attempt to use the existing laws for their own ends and to the detriment of socialism.
equivocal.
new functions
to express a certain concept of justice
not merely
nation depend upon it.
any viola-tion of the law interests the pubiic authorities and the state, quite apart from whoever is the immediate victim.
to a very great extent therefore, law is only obligatory in so far as interested citizens are disposed to act in order to protect their rights.
the law must not be divorced from its social context.
unfolding in an historical perspective, operates the “construction” of law. '
recognizes
Marxism is close to the idea of natural law, even though it attaches a new meaning to this term
does not free it from constantly seeking out a better concordance of law and morality.
provisional
is just from the point of view of a socialist society but unjust, on the contrary, from the point of view of the later phase of communism. (The present law of socialist countries)
must be convinced of the excellence
valid for all societies, is particularly true
guarantees ... . are manifold
widely recognized right to lodge complaints and claims which administrative bodies are obliged to investigate.
The role of general supervision
. It never makes a decision itself,
attends
therefore prevent illegal decisions or the passage of illegal resolutions.
must in law be obligatorily communicated to it before becoming executory.
. The 1aw also determines to whom the objection must be addressed-+either to the authority that has made the questionable decisions, to a higher authority
. effectively
jus-tified.
the review in which they are reported (Socialist Ixgality6Z)
(jj 50% of pay from press freedoms report status)
memoranda
person illegally detained
superintending the of justice rather than exercising,
Runanian Constitution of 1965 has anticipated this possibility and a 1967 law permits private persons to take judicial action against individual administrative
lists of legal experts who might either be employed
abandoned
a profes-sional bar
Thus, if the advocate is convinced of the guilt of his client, he must not attempt to hide it from the cOurt,6
, must always apply to a group of lawyers (Kollegija)
fees payable by the client ac-cording to a fixed rate.
offers only a mediocre income
most of the businesses which make it profitable in the West have in effect now disappeared in the U.S.S.R.
the need for consulting lawyers
, publicists, jour-nalists
(jj should expect friends + connected persons to act out of loyalty, against the system)
legislation in the laws of the Romano-Germanic family is purely factual and some-what accidental; only recently has it become the principal source of Romanist laws, and it is perfectly conceivable that this situation may change.
best means for bringing about a complete transformation of society,
{ declared
remains to be seen
Rejection of the separation of powers
between law in the formal and material senses.
, in the mater-ial sense it is any act
compliance
conduct.
achieve a balance of power. It is normalin these circumstances that rules of conduct prescribed by law should come from different sources and that the privilege of creating them is not exclusive to one of these powers.
,in the reality of the modern world, this principJe has increasingly weakened the role of statutes-measures enacted by the legislature -to the benefit of other “powers,” especially the executive or administrative.
being contrary to a true democracy,are not admitted;
against the sovereignty of the people,
result of the increased number of tasks assumed by the state and imposed by the necessities of efficient administration.
led to a fairly strict limitation of the autonomy of local authorities.
although in fact it is most often t.he creation of the Praesidium, the decisions of which are merely ratified by the Supreme Soviet.
that the Supreme Soviet can freely amend the U.S.S.R. constitution
The Secretary-General has become the chief of state,
While decisions are theoretically made by the Central Committee they are, in reality,the work of the Politburo
becomes rather arbitrary,
, to attempt to dis-Unguish clearly between different forms of “administrative” acts on one hand and “contractual” acts concluded by enterprises
-but because these are becom-ing less and less free-
measure of freedom
respect-ing their direction of development, the degree of expansion they hope to carry out, the location of their branch offices, the choice of clients with whom they will deal and so on. The freedom of the head of the enterprise and the principle of contractualIiberty are subject to increasing restrictions: they are nonetheless still the rule and this, despite all these restrictions, enables us le speak of free democracies.
, must fulfil the greater part of the economic role which in other countries is under-taken on the initiative of private enterprise. There is, therefore, a mass of different measures,
, the govern-nental administrative agencies in the free democracies are hardly ever concerned with the legality of the departmental instructions received; they apply them just as they would rules of law. '
con-tracts in the collectivized sector; but this is explained more by a desire for good administrative management than to allow for a sphere of free action to industrial leaders.
very difficult to gather satisfactory legal chcumentation on any point whatsoever of Soviet administrative or life.
The imper-alive rather than the rational side
Consequently the interpretation of legislation by the Soviet judge is not grammatical but logical
, when the bourgeois judge purports to be taking the needs of society into consideration, it is his own personal ideology that prevails.
The respect for socialist legality js of course still obligatory; but it is difficult for a Marxist to resign himself to injustice in the law. He tends to favour a legislative statement which provides some loop-hole when necessary,just as he favours the many provisions of the law which free the judge from fOrmaljsm.78 (judges)
institutions set up to provide an “authentic” legalinterpretation
U.S.S.R. Supreme Court, as we shall see,is more to give such instructions to judges than to revise decisions
. Yugoslavia created a Court of Constitutional Justice in 1963 and it is empowered to request that the legislature re-a statute judged to be contrary to the Constiturion. The law lapses if, within six months, the parliament has not amended it.
System for the election of judges
. not necessarily had any legal train-ing.
five years,
right of revocation
17 per cent. of the judges were eliminated.
seems natural in a country where so much emphasis is placed on the dogma of popular sover-eignty and where the law is defined as an instrument of policy.
voting by citizens or their representatives in the different Soviets is scarcely more than a ratification
The Soviet judge has no need to be a jurist: no qualifying condi-tions of special aptitude, training or apprenticeship must limit the electors' freedom of choice.
workman's salary.
collegiality
participate
, the judge is never alone except in cases specified by law:
assessors
random from predetermined lists, They complete the court for the purpose of examination and judgment.
elective process:
two years,
two asses-sors join the judge in the people's court, and a varying number in the other courts, so that the assessors will always form the majority.During the time they fill this post, the assessors are relieved of the employment which they normally hold; they cannot be asked to take on this legal duty for more than two weeks each year. When they are called to hear a case they are, for purposes of examination and judgment, placed on an equal footing with the judge; their voice has the same weight as that of the judge, whether in matters
ascendancy
as new peoples courtes may have as many or more than 15 judges.
. technical knowledge
aldermen,
popular sentiment
correct the professional bias
anticipates tomorrow's non-juridical forms. In the meantime it 2serves to educate the community by reinforcing the link between the court and the Soviet people; it associates a very large number of citizens
and been convinced of the eminently just nature of Soviet law.
penal infractions committed by enlisted men and certain crimes (espion-age, treason) affecting state security.
That a higher court could reverse the decision of judges in a court of first instance on questions of fact is easily seen to be anti-democratic, since the judge is elected and the case has been examined with the aid of peopJe's assessors.
demand in revision (nadzor),
. Disputes will not disappear in communist society. but such confiicts will no longer be "antagonistic:'
organizations destined to disappear -'
those who evade their social obligation to work or lead a parasitic way of life,
banishment
impose the obligation to work and the confiscation of profits unduly received.
where there is much concern that there be an effective sovereignty of the people through its representative legislative body, it is obvious that decided cases must be confined as much as possible to a role of strict interpretation of enacted law rather than the creation of legal rules.
"The court is an instrument of the governing class;
recognize that the legislative order necessarily has gaps. Laws are sometimes incomplete or insufficient
A Soviet author for his part would reply that by creating rules of law a French or an Englishjudge is changed into a legislative organ
specify the manner in which the application of a particular law must be conceived
provides judges with directives concerning the possible grounds for divorce (which the law does not specify)
right to submit draft legislation
that the role of the courts must be to co-operate in bringing about the success of the state policy.
and one that every honest citizen would be happy to accept.
They organize a corps of judges entirely devoted to the programme of social change set up by the government rather than a caste of jurists.
no heed had to be paid in countries where similar condi-lions did not prevail.
the repression of crime, the court does not limit itself to punishing the delinquent, but devotes itself to his reform and re-education.
DOCTRINAL WRITING
In the U.S.S.R. the law is nothing other than the putting into practice of this doctrine;
“doctrinal fathers”
the writings of Marx, Engels and Lenin whose complete works are the basis of any law library have first place.
leaders
their doctrinal author-ity
must refer to them constantly.
Professors of Jaw do not criticize the law; they are only expected to simplify its teaching and application, by clarifying the intention of the legislators; and, like judges, they must also seek to ensure the success of government policy by convincing citizens of the emin-ently wise and just character of Soviet law,
make no attempt to be original.
very often the work of a group ... headed by an editorial chief who supervises the collaboration.Before the work is published it is generaliy submitted to the mity to law and to the orthodoxy of the regime.
f detailed discussions within each section or at a higher level, but it is finally published under the name of the individual researcher who prepared it.
but at the present time, and in an atmosphere of greater freedom, they have been successful in their reaction against excessively conformist attitudes.
consulting the Polish Association of Junsts before promulgating new legislation.
the capitalist regimes have undergone great changes since the time of Marx and Engels.
western legal science continues to provide them with models
categories and concepts,
substance
the problems are not the same.
their real nature
Private law
socialist ownership,
difficult to protect
counted upon to defend
means of special institutions for the defense of genera! interests.
the types of questions raised
to protect the individual and affirm his rights against a government
I collectivization
are automatically protected
organiza-lion;
endeavour to multiply methods of control which will assure an ordered exploitation of such property and its protection from all kinds of wastefulness and encroachments.
({}) International of Legal Science
essential that the government's policy for building com-nunism be successful; and they replace judicial control with a new type of control exercised by the people's representatives and organ-izations.
that these countries have always considered private law to be the heart of law.
do not recognize anything ‘private,’
parts of public
There is one essential consideration which has led Soviet doc-trine to deny the distinction between public and private law. In the eyes of the Marxists the economic structure of society is the funda-mental factor for regulating social relationships. “Private law” is therefore wholly dependent on public 1aw because the latter gives legal form to this economic structure. To deny the distinction be-tween public law and private 1aw is therefore to affirm the unity of law; and this unity results from the fact that,law, in all of its branches, is essentially a reflection of the economic organization of society.
There is, too, a further consideration. Marxism-Leninism iden-tifies law with coercion. It does not consider rules conforming to justice or inspired by morality, and which men spontaneously fol-low in their mutual relations, to be rules of law atrall. According to this doctrine, only those rulesimposed more orless openly or hypo-critically by the ruling class and in order to protect its economic interests and perpetuate its own “dictatorship” are legal rules. '.::is only an application of policy, an instrument in the service of the ruling class. There is therefore, in this view, no more place for a private law which, independently of any political character or policy preoccupations-and that, after all,is the essence of the idea of private as opposed to publiclaw-purports to give expression to ideas of good organization and socialjustice.
reciprocally what is not policy is not law.
the member of a kolkhoz who does not accomplish the minimum amount of work due to the kotkhoz
“contract,”
owed by organisms
personal ownership, co-operative ownership and, most impor-tant and newest of all, the regime of socialist or state ownership.
personai needs
not in order to draw profit from it or to use it for speculative ends.
obliged to
industrial
state agricultural
fixed capital
raw materials
in a socialist regime the important thing is not so to know who is the owner but rather to know by whom, and how, such property will be exploited.
to the needs of production and consumption.
“flexible”economic planning that may exist in capitalist countries is quite distinct from the U.S.S.R. “rigid” planning, which is not limited to setting general objectives but establishes a specific task for each enterprise.
execute the plan
must produce x miles of railway track
suited t
profitable.
do whatever is necessary to accomplish the plan and they are not permitted to undertake activities or duties which are not connected to such plan. The particular enterprise which, according to the plan, must produce Y miles of railway track is bound to perform this planned task; it cannot manufacture in the place of or in addi-tion to such rails, metallic tubing or steel girders, on the pretext that it is better suited to such an activity or that it would be more profitable.
Socialist economic planning and bourgeois financial control
no more than a statement of
if it really hopes to reach these goals,the government will take various steps such as credit arrangements,granting of aid, customs and labour regulation and so on. It is hoped thereby that the outlined goals will be attained by making it advantageous for private industries
. Most often the administrative planning decisions do not enter into any great amount of detail; they leave room for the initiative of the enterprises themselves
Two hypotheses must therefore be distinguished: that, according to the Soviet terminology, of the planned contract and that of the unplanned cOntract.
quantity ... price ... delivery
A retail enterprise, for example, is in a better position than the admini-strative authorities to know the needs and desires of the public: the size of shoes required, the preferences for materiai of a certain colour and so on.
.If they do not agree on the terms
(of time, principally)
an arbitral organ; thus, these organs of public arbitration deal in many cases with a pre-conlractual dispute.
One party does not even have the right to free the other of such penalty; such a collusive agreement, con-trary to the interests involved in the strict execution of the plan,
: the contracts which occur “outside” the plan-contracts between commercial state enterprises and consumers and those between citizens-are very similar to the contracts known in bourgeois countries.
Meaning of the clause in a socialist economy
Foreign trade in the Soviet Union is the monopoly of about fifty bodies which specialize in different branches
necessary, or at least opportune within the framework of the plan,
terms
state secret.
, difficult for an outside nation to urge that its nationals have not been treated as they ought to have been under the most-favoured nation ciause.
THE COMMON LAW
royal courts of justice after the Norman Conquest.
the English influence on the manner in which jurists think has nonetheless been great-principally because the judicial and. administrative organization and the laws of evidence and procedure, civil and criminal, have everywhere been established and set out along English lines.
until the eigh-teenth century, the history of the law of England.
Geographical area
cirtinues to be, for many countries, a model law which may not, of course, on different points and in some areas, be actually followed but which none-theless is still generaIJy respected and taken into consideration.
a knowledge of history is indis-pensable for an understanding of English law.'I
'codification-
continuity
long
he sees in it, and with good reason, proof of the great wisdom of the Common law, its ability to adapt, its lasting value and those other qualities that correspond to the nature of English jurists and English peopfe generally.
four principal periods ... 1066 ... Tudors (1485) ... 1832 the modern period in which the Common law faces an unprecedented development in legislation and has to adapt itself to a society dir-ected more and more by the intervention of governmentaJ and authorities.
Barlwian laws
-no more traces
Iberian periodin Spain.
Celtic period in France
-became masters of England.
only very limited
but even though the country was ruled by a single monarch, the law in force was still made up of strictly local cus-toms;
Feudalism in England
They felt the need to band around their sovereign in order to maintain the caquest and defend their 'lands. .
distrib-ution of land
no very large fief
. Ecclesiastical
The creation of the comune ley,
Courts of Westminster,
Curia Regis, from which the king dispensed justice
certain parts
-autonomous organs;
barons
intolerable and contrary to what they considered the natural order of things
The royal courts, furthermore, were not really equipped to render justice,
royal finances,
'Iand
, affecting the peace of the kingdom.
other disputes were settled by the Hundred or County Courts, feudal courts, ecclesiastical courts-
conmercial or municipal courts.
fees
the solicitation of the people in whose eyes royal justice appeared superior
means to summon witnesses and to enforce judgments;
oath
jury,
become in fact the only courts of justice.
marriage and the discipline of clergy
Chancellor,
a writ (breve),
seized
was not such that the chancellor might issue a writ or the judges consent to render judgment in all cases. For some considerable time, each instance had to be indivi-dually examined to determine whether
list of established situations where writs were granted automatically (brevia de cursu)
actions of assumpsit, deceit, trover, negligence and so on.
procedure
“Remedies precede rights”
“wager of law” (the action would failif the defendant were able to produce the required number of witnesses who attested
the writ of “trespass,” which was regarded as the most modern and most satisfactory.
the continent turned their attention principally to the determination of the individual's rights and duties (i.e. substantive legal rules), English jurists concentrated on matters of form and questions of procedure.
although the substantive principle serving as the basis for the decision might itself be uncertain.
convince the court that it had jurisdiction
. What would the judgment be? Tha\question had no certain answer-the Common law was not based upon substantive principles defining individuai rights and duties.
the early development of the Common law was an obstacle to the reception of Roman law categories and concepts.
Emphasis upon procedure
a single purpose: the formulation of questions of fact to be put to the jury.
phrase of Sir Henry Maine, appears to have been “secreted in the interstices of procedure,”,3 -f he Common law was not so much a system attempting to bring justice as it was a conglomeration of procedures designed, in more and more cases, to achieve solutions to disputes.
(circa 1187/89) r Glanvilll
Bracton (in 1250),
Year Books,
trate principally on relating matters of procedure and often omit altogether whatever solution was given in the disputes themselves which they recOrded.
Exmple drawn from law of contract
Westminster did not hear cases on contract.
were no writs or any procedures for contractual matters through which, in fact, the royal courts could be seized. How was this to be solved?In Jome cases the notion of ownership sufficed.
detinue
perform a promise was linked to the form in which it was entered into, and the defendant was bound upon the writ of debt because he had de-scribed himself as a debtor in a formal document
“trespass”
wrongful
More than a century
courts accepted to sanction
non-feasance
It was a particularly delicate matter to admit an action on the case when the plaintiff could still act by using the action of debt
implicit
the decision of 1602which did make this step was considered a victory and it is really only from this date that the English law of contract begins.
s have now been abolished for more than one hundred years,
the obstacles which prevented, because of procedure, a fully rational development of its institutions.
Maitland,
they still rule us
“gratuitous contracts”
bail-ment or what in the Romano-Germanic laws are known as “deposit,” “loan for use”
torts,
liability for civil wrongs (delicts). English law never achieved a general principle linking this liability to the idea of fault or to the custody of property, but developed a series of special or nominate civil wrongs: deceit, nuisance, trespass, conversion,libel and slander, the “rule of Rylands v. Fletcher,”
an English jurist has difficulty in freeing himself from the way of thinking produced by these ancient procedures.
Disapearance of private law
enlarged their jurisdiction by developing the basic idea that their intervention was justified in the interests of the crown and kingdom.
. But these other courts gradually disappeared, and with them the very idea of private law disappeared
The writ was not simply the plain-tiff's authorization to act; technically it was an order given by the king commanding his officers to order the defendant to act accord-ing to the law by satisfying the claim of the plaintiff. If the defen-dant refused to obey the order, the plaintiff could then proceed against him; his action before the royal court would be justified not so much because of the opposition made to his pretentions but because of the defendant's disobedience of an order of the admini-stration.The English trial is a matter of public not private law. It was essentially a debate as to whether an administrative act, the writ, issuing fFom the royal chancery, was properly deLivered and whether the order it embodied to the defendant was to be main-tained.
development of a centralized royal power.
first of all political
resolve problems involving the interest of the king and the kingdom-in other words,the general interest-
Westminster could not apply local customs
new kinds of problems in view. And of course the overriding necessity that all questions be handled within the traditional procedural framework was a major obstacle to the reception of the rules and concepts of Roman Iaw.
elements derived from different local English customs,
some elements from Roman
origin was never divulged
as essentially a work of reason (resoun); it expressed the idea of justice and political expediency of the thirteenth century,
the so-called general immemorial custom
. But one must not be misled by such language:this general immemorial custom was a pure fiction; the only true customs existing in England in the twelfth and thirteenth centuries were local customs, It was in order to provide the Common law with a foundation in agreement with the traditional, canonic and
a posteriori, invented.
These procedures,from many points of view archaic and typically English,
A university formation based on Roman law might very well be of some help for meditating upon the just solution for a dispute; it did not help win a trial. In
trained essentially in the practice of law;
-GROWTH OF EQUITY (1485-1832)
, Need for reform of common law
not developing with sufficient freedom to meet the needs
conser-vatism
o a very great risk: the formation of a rival system
. This rival was Equity.
The limited jurisdiction of the royal courts may have been toler-able so long as other courts existed alongside them to decide disputes for which Common law offered no remedy. But the decline and disappearance of these other courts made it necessary to find a corrective for the insufficiencies of the Common law.
no just solution could be, or was in fact, found.
a direct appeal to the king, the fountain of all justice and grace.
could not the king remedy the mal functioning of his courts?
exercise his “prerogative.”
"to satisfy conscience
chancel-lor; as a member of the royal household and the king's confessor, he had the responsibility of guiding his conscience and would,if he thought it appropriate, transmit the request to him for judgment in his council.
when it was difficult for the king himself to sit as judge in his own council. Roses (1453-1485)
“Star Chamber”(camera stetlata), after having been usefufly em-ployed to re-establish order following the civil war, was a formid-able threat to the liberty of subjects.
chancellor
These principles, ... generally gave more satisfaction to the Renaissance ideas of social good and justice,
secret,
public
au thor.itarian
escaped joining the European continental legal family
because of the success
withering of the Common la w.
o T'nere was a risk that disputing parties would abandon the Common law courts and that these would fall into decay, just as the Hundred Courts were deserted and fell into disuse three centuries before when the courts of Westminster, then in their full glory, offered a more rodern justice administered according to a procedure superior to the traditional methods,
support
the Common law courts Iund an ally in Parliament.
a com-promise
Coke
James l
. The danger,however, had been serious and the chancellors were wise enough not to abuse their victory, and thereby disarmed parliamentary hostility.
1673 the chancellor
reason for the dual structure
it also has rules of Equity which com-plement and correct the Common law. I
special court,
became as strict and as “legal”
English Equity was originally the expression of naturaljustice such as it was understood in the fifteenth and sixteenth centuries
For them Equity is a body of rules which corrected English 1aw in the course of history and which today is an integral part of English law, The reasons formerlyjustifying the intervention of the chancel-lor no longer exist; if English law is in need of remedial measures,there is Parliament., The security of legal relations and the supremacy of the law would be threatened if judges were willing to bring the rules of established law back into question under the pretext of “equity”;
thirteenth
sixteenth
work of harmonization
eighteenth century,
when the unification
called “civil” law and commercial law was brought about. Com-mercial law was integrated into the Common law; its institutions were no longer a matter of privilege for the merchant class.
Littleton
Coke (
transformation
democratic ideas
Bentham
a veritable revolution took place. Until that time English law had developed within the procedural framework of the different forms of action. Once freed from these , English lawyers and judges, like tneir continental colleagues, paid greater attention to the substantive law and it was on this basis that Common law principles were henceforth systematically re-organized.
Judicature Acts
; all English courts
no author
Twe=tieth century: common law in the welfare state
The liberalism domin-ant until 1914 has been replaced by a socialist trend attempting to create a new social order.
the judicial and casuistic methods char-acteristic of its original development are no longer suited to the idea of bringing about rapid and extensive social change.
a host of regulations and other administrative measures inspired otherwise than by the traditional spirit of the Common law, have changed considerably the traditional bases
English and contin-ental
not so much its rules at any given moment but rather the structure of the law, its classifications, the concepts it makes use of and the type of legal rule upon which it is based.
vocabulary
constant concepts which will equip him to study any question, even though the rules he has learned will very probably change. The legislators may change or abolish any particular rule of present law, but they can change the language used or modify the traditional struc-tures within which our legal reasoning takes place.
concepts
, no divisions such as “civil law” and “commercial law”-
Common law and Equity, or that between real and personal property.
less general terms
elementary distinction found in the Rornano-Germanic family between imperative rules and suppletive rules
first
qualified to solve
know intimately;
e to render them logical and simplify their understanding.
quite apart from any realconcern for logic and within a framework that was imposed by procedures;
1758
(1800)
Because of the law's almost total domination by procedure, a complete divorce took place between law as applied by the courts and that taught in the universities.
historically the competence of the royal courts was onJy justified because of the Crown's interest in the dispute.
Equity is a body of principles evolved mainly in the fifteenth and sixteenth centuries and applied by the court of the chancellor in order to complete, and occasionally correct, the Common law system which had become insufficient and defective.
Origin of equity
courts were not able
request the king
, had the moral duty of assuring that his subjects would receive justice; his intervention was therefore jus-tified in cases where the legal techniques were deficient.
“Equity follows the law”
. But to “follow” the law did not necessarily mean that considerations of morality were to be put aside and it was in the name of morality that the chancellor inter-vened without, however, clashing with the law.
In other countries, the judges themselves could supply the required remedy
from the dictates of conscience and rnorahty were brought to bear as limitations upon or complements to
Cmmon law was not violated in any way; a remedy was simply granted that it was not able to provide.
unconscionably took advantage of their position
undue inJhence,
At Common law the person who received the property, the trustee, became the outright owner; his engagement to manageit in the interests of and to make over the revenues to a third person was not enforceable. The chan-cellor however gave effect to this agreement; he did not oppose the Common law rule by denying that the trustee was the owner of the property but complemented the rule by means of the effective sanc-tion he gave to the engagement which, in conscience, the trustee had assumed,
In all these cases, it cannot 'oe said that Common law, strictly speaking, was violated. Its principles were accepted (equity follows the law), but an equitable intervention took place in a number of instances-resulting finally in a number of complementary ruies called rules of Equity-so that the legal system applied by the courts was perfected in the interests of morality. It might perhaps have been preferable for the Common 1aw courts to have developed these complementary rules themselves, but for a number of reasons this was not possible and did not, in fact, come about. But this other authority, the Chancery, was able to do so.
“suit,”
“interests,”
“decree,”
“compensation;”
hout purporting to modify the legal rules
demands of conscience
became more systematic;
he, on his side, had to have “clean hands” and must have acted without undue delay (laches) in asserting his right.
to “guide” the chancellor in the exercise of the discretionary power
Since the chancellor was not bound by Common law rules, he evidentiary system entirely different from those of the Common law.
non-contentious
to give direc-tions
approve changes in by-laws
minor persons
discretionary.
became a body of truly legal rules
enabled Common law and Equity to be administered concurrently
The efforts of some judges to deveiop principies of “a new equity” are not favoured by
by Parliament.'
the error provoked by one contracting party without fraud).
Trusts
The trust mechanism
The concept of trust, unknown to the Romano-Germanic laws,is fundamental to English law and the most important creation of Equity.
was very much the owner
The restriction placed on his right of ownership was of a moral not a legal nature.
law, however, the cestuis had no right of action
generally enforced at Common law at the period
The concept of trust thus developed quite apart and remained entirely separate from that ofcontract, even though at the basis of a trust, there may be,in most cases, an aIVcement which the civilian jurist would consider lo be contractualin nature.
the chancellor was requested to intervene. In . In this event the chancellor ordered the trustee to perform whatever act
personal sanction
he may dispose of the property
', Equity intervenes in two ways.
subrogation
or is in bad faith (as when he knew or ought to know-has “notice”-that the trustee should not have disposed of
to have become the legal owner-the owner at law-becornes at the same time a trustee
Legal nature of the rights of cestui
In strict law, the answer is that they have no right; they only have an inter-est-a “beneficial interest”-
the trust appears to be a fragmentation of the attributes of ownership-the legal ownership belongs to the trustee, but the equitable ownership belongs to the cestui que trust.
three prerogatives vested
rudimentary
less arbitrary to group under the heading of abusus prerogatives as different as the right to destroy the thing in a material sense and that to alienate and dispose of it?
the difficulties encountered in the Romanist laws which prevent the recognition of a combination of proprietary interests
Joint tenancy and tenancy in common
two forms of co-ownership, joint ten-ancy and lenacy in common
judge who has been elevated to the bench from the profession of barristers, not the university professor.
what, in fact, is it worth to affirm the existence of a right or a principle if, in practice, there is no means of putting it into effect?
These authoritiesin England are, more-over, obliged to give reasons for their decisions.
due process
and one more concerned with the administration of justice, or so it often seems to the continental jurist,
The French jurist, on the contrary, thinks that the judge must be told what the just solution is and if he knows this solution then he must not be prevented from achieving it by an overly detailed regulation of procedure and evidence.
where there was no body of law to which to refer and where the judges were led to construct, empirically, the Common law.
they will direct
; they will also order
Spain and parts of Latin America,
English enforcement rocedures
, ignore the law is not admitted:
contempt of court
in bad faith who refuses to pay his debt, which implies a defiance on his part of the court order enjoining him to pay.
Concept of judge-rnade legal rule
mould of thought
is speaking obiter-he is giving an opinion which may be questioned and debated again because it does not constitute a rule of law. The English legal rule is situated at the level of the case for which-and only for which-it has in fact been found and enunciated. If it were placed at a higher level,it would make English iaw “doctrinal” and greatly distort it.
The English legal rule is capable of providing the solu-tion to a dispute immediately but it is not really understood and its significance cannot be measured unless one knows all the facts of the case in which it was enunciated.
in the eyes of an Englishman, the French regle de droit is situated at the level of a tegal principle (principe juridique); to him it appears to be more a moral precept than a truly “legal” rule.48 The English legal rule on the contrary,in the eyes of a French jurist, is situated at the level of a particular judicial application made of the rule;
Since the law has no abstract concept of fault, English jurists work with notions of different kinds of illicit behaviour, a series of various “wrongs” or torts, and in the case of the tort of negligence would ask whether in the given circumstances there is a duty of care upon the defendant.
consideration is given to the nature of the damage suffered, and different rules govern the case when the damage was to a person, or to property or the two together, and whether the damage was material or merely moral.
faute and prejudice
damages.
. Conversely the articulation of the English legal rule demands a case-by<ase and casuistic approach
“Open” and “closed” systems
resolved by an “interpretation” of an existing rule of law.
a method that can assure the resolution
begining
discovering the legal rule-
This step is taken by paying very great attention to the facts of each case and by carefully studying the reasons for distinguishing the factual situation in the case at hand from that in a previous case. To a new fact situation there corresponds-there must correspond in the English legal mentality-a new legal rule.
t their technique was one of making distinctions, rather than one of interpretation,
Abnormal character of legislative rules
legislative in origin-statute law-has traditionally appeared as somewhat abnormalin character. Whatever the care with which the English legislators formulate statutory provisions, so as to make them as concrete and casuistic as possible,49 they are not speaking from the same position as the judges (apart from the case of course where they are simply correcting an erratum of the Common law).It follows from this that the legislative provisions so formulated are not fully assimilated into the English legal system until they have been taken up and affirmed-and sometimes even deformed-by the courts in the course of the normal working processes of the Common law. This observation is of extreme importance because it means in fact, if not in theory, that it is impossible for a codifica-tion a la fran<aise to be achieved in England.
over-burdened
and detailed solutions , which, he would think, are better left to the discretion of the judge in each individual case rather than chaining him to a respect for them through the play of the rule of precedent,
laconic
The French rule providing that a businessman must not practise unfair competition (concurrence de7oyale) to the prejudice of his competitors would not be regarded in England as a true legal ruJe.It would be considered a vague principle only intended to provide judges with a general and equitable directive.
factual elements of the case, which alone enable its true meaning to be understood.
exces-sive growth of English law
“Imperative” law and “suppletive” rules
only conceivable if one takes up a doc-trinal or legislative perspective in which one envisages a series of typical cases in which a rule of law is to apply unless the parties have otherwise agreed or the law itself otherwise provides. The English judge, of course, does not have to concern himself with even the possibility of typical cases; his function is to decide a concrete case by taking certain precedents into consideration.
appear to be of doctrinal nature; situated at a level higher than that of the ratio decidendi of any one judicial decision, they cannot be legal rules.
the suggestion that all laws might not be mandatory or “imperative” to the same degree.
implied conditions
:no complete re-shaping of the law has ever taken place through the technique of codification,
, a judge-made law, a case law,
the situation today is reversed to a large extent. In England, statutes and delegated or subordinate legislation can no longer be considered as secondary;
Classes of courts
. Particular interest attaches
decisions having value as “precedents” are drawn, and it is through their study that the state of Englishlaw on a particular point can be established.
opinion
appeal is rejected if there'is no majority in favour of allowing it.
“petty” or “summary” offences are judged by magistrates, members of the community who enjoy the title “justice of the peace” but receive no remuneration. They are now about 20,000 in number; they have no legal training but are assisted by a legally trained clerk.. As a general rule at least two magistrates must hear the case and render judgment. The magi-strates' jurisdiction in criminal matters is not however limited to petty offences. For all major or “indictable” offences it falls to them, within the framework of a preliminary hearing, to decide whether there are sufficient grounds to send the suspected person to trial before the Crown Court.
, since the magistrates'powers are limited, he cannot be condemned to more than a six months' prison sentence,
only occur, however, when a guilty plea is entered; there is therefore never a jury trial in a Magistrate's Court.
is a real judicial authority
is on the same level as the legislative and executive authorities.
represent a real power.
; they have, therefore, created the law of England in its foundations.
t in England the courts themselves were the champions in the struggle for the creation and protection of English liberties.There are many who believe that the courts can continue to play such a role and that the existence of a realjudicial authority can be a useful counter-balance to the consummated alliance that now exists between Parliament and government.
have the effective means for ensuring that their decisions are respected.
Concentration of judicial power
in London
belong to one of four barristers' societies
centralization appears to be threatened.
assizes have been abolished and in their place the High Court itself may sit in the provinces as well as in London. The Crown Court now sits in all the principal English urban centres.
Rule of Precedent
Differences with continental Europe
quite independently of them there is a sufficient legal system.
not only been to apply but also to define the legal rules.
(stare decisis-"let the decision stand"), in other words to respect judicial precedents, is the logic of a “judge-made” legal system. T
only since the beginning of the first half of the nineteenth century that the rule of precedent, obliging prior decisions firmly established.
customary for an Englishjudge to explain
the parties
to instruct law students
discursive commentary on his own decision often goes beyond
distinction
what is a neces-sary basis to this decision-the ratio decidendi
obiter dictum, that is to say what the judge has stated without being absolutely obliged
. The ratio decidendiconstitutes the “judge-made”rule which is then part of English law
contract is formed at the time and in the place where the letter of acceptance is placed in the mail by the recipient of the offer.
UP TO P. 352
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