La common law est-elle différente du droit civil? (document en anglais)

COMPARED HISTORY

The common law is different from the civil law

1.INTRODUCTION

1.1 Definition of law

Set of prescription that are supposed to induce a behavior . If not respected = sanctions by public authorities. 3Types of behavior :

Forbids

Aloud

Obliges

It can be written: legislative norms, french constitution, contracts.

It can be oral: customs.

We need procedural. Law comes from

positive law

legislation

case law

1.2 Why should we study history of law ?

To understand why it's the way it is today. To understand better today's law, to give interpretations.

1.3 Civil law and common law

1.3.1 Civil law

A system of all based on written prescriptions, more legal security than with customs (able to see exactly what you're aloud to do or not)

Deductive method

law based on individual rights, ' I have a property right and I want to defend it ' (concrete applications) = substantive law (droit matériel)

2 branches of law: a) private

b) public

a) disputes between individuals (family, consumers..)

b) if there's a public entity (states..)

Special set of prescriptions for public entity (stricter) to promote general interests.

1.3.2 Common law system

Based on customs, oral prescriptions, case law and jurisprudence. Used in England and former colonies.

Looking at the relationship between two people, make compromise. Always adjust to a situation.

We talk about inductive method.

2.1 Same roots european law

2.1 Roman law

Applied by France and England, it still has an influenced on current law, has influenced more french law. France has been conquered in 50 BC

England has been conquered in 50 AC

During royalty, the middle class wanted more property, they wanted to move to republic. People wanted more power.

Republic: SENAT: permanent political assembly. SENAT + COMICES are going to take the

Comice : popular assemblies decisions

At the end of the republic, military take more decisions, they are going to start an empire .

2.1.1 Ancient period.

They start to use written laws for the most important issues to have more legal security because the roman are expending so it's easier to have written laws.

2.1.1.1 Sources of law during the Ancient period

Customs

Laws of 12 tables (written laws). Middle class asked for written laws, they decided to create an assembly , the decemvirs. People from Rome could write down the main important rules . It was in 451 BC, 2 other laws appeared in 450 BC.

They were focused on criminal and procedural law, written on marble table so everyone could see it .

2.1.1.2 Procedure

In Jure Phase: People have to explain their pb in front of a magistrate by pronouncing specific words called formalism (very strict)

The magistrate is going to judge if the case fulfill the conditions of the law of the 12 tables. If so you can accede to the next step.

In Judicio phase: people has to talk to a judge (picked from the neighborhood, he's not a professional) He's going to take a decision according to his moral and to the 12 tables. If you disagree you can't ask someone else to look at your problem.

It was only oral and formalist so it was more and more difficult to apply as the roman expanded.

2.1.2 Classic period

2.1.2.1 sources of law (classic period)

Written laws become more and more important, when you write down a law it's called: consuetudo.

Case law is going to become a political program. If a magistrate wants to be elected he has to do his own Actio Legis, to convince people to elect him. Magistrates are going to create more and more actio legis and become really important.

Jurisprudence. The jurist prudent (expert in law) is close from the power and educated. They wrote down 4 books that influenced law:

1. The responsa

2. Institute (books for students)

3. Libri ad edictum (comments on how to apply the actio legis)

4. Disputations (theoretical issues)

2.1.2.2 Procedure (classic period)

Now if you disagree with the judge you can ask another judge to have a look on your issue. Appeal is now possible.

2.1.3 Byzantine period

More and more laws are written, there's an excess of written laws, it's a sign of political issues and the beginning of the decline of the civilization

2.1.3.1 Sources of law (byzantine period)

The emperor gains more and more authority. The Senat does no longer have an effective power since the senate has to produce law decided by the Emperor. Decisions are no longer open and free. He is going to create himself written laws called Constitutions. There are 4 types of

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