Legal systems in Europe

October 18, 2018 ☼ history ☼ legal ☼ laws

Laws are the base of civilisation.
(unless you are a hippie/anarchist/[neo]marxist/pot-head, but then anyway you are not part of evolution)
I dug a little bit in this fascinating subject, therefore I was thinking to share here few info about the LEGAL SYSTEMS which influenced the world.

There are 2 main types of law systems: Civil law and Common law. Well, there are also Customary law and the religious law systems - but we will just briefly mention them. Just to make it clear: there are areas in which can be a combination of these, so not necessarily in a pure form. Please find here a map (CLICK to enlarge):

Main two legal systems

Civil law:

• is codified;
• countries with civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense
• distinguish between different categories of law:
   — substantive law - establishes WHICH acts are subject to criminal or civil prosecution
   — procedural law - establishes HOW to determine whether a particular action constitutes a criminal act
   — penal law - establishes the appropriate PENALTY.
• roughly 3/5 of world population

Common law (a.k.a. “case law”)

• generally uncodified, which means that there is no comprehensive compilation of legal rules and statutes;
• largely based on precedent, meaning the judicial decisions that have already been made in similar cases;
• functions as an adversarial system, a contest between two opposing parties before a judge who moderates, and before a jury of ordinary people without legal training, deciding on the facts of the case.
• roughly 1/3rd of world population (US, Canada, Australia, etc.)

Honourable mentions

Customary law

• a traditional common rule or practice (established pattern of behaviour) that has become an intrinsic part of the accepted and expected conduct in a community, profession, or trade and is treated as a legal requirement.
• “what has always been done and accepted by law.”, therefore a right enjoyed through long custom rather than positive law.

Religious law systems:

• the system of laws and legal principles made and enforced by the hierarchical religious authorities to regulate/order/direct the activities of the religious community
• e.g. : Christian - Canon laws (root: First Council of Nicea in 325 A.D.); Muslim - Sharia; Jewish - Halakha, etc.

Short history of Civil law - the main 4 codes which changed Europe and influenced the world

The Civil law is the more progressist, flexible and systematic one. Here the MAIN attempts to create a Civil law [in Europe].

1/ Corpus Juris Civilis | Roman law code | 6th century AD

Is the codification of Roman law ordered early in the 6th century AD by Justinian I, who was an Eastern Roman (Byzantine) emperor in Constantinople.

• 4 parts: Codex Justinianus, Digest, Institutes, Novellae Constitutiones
• published in Nov. 16, 534; took effect one month later
• consists of twelve books: book 1 concerns ecclesiastical law, sources of law, and the duties of higher offices; books 2-8 cover private law; book 9 deals with crimes; and books 10-12 contain administrative law. The Code’s structure is based on ancient classifications set out in the edictum perpetuum (perpetual edict), as is that of the Digest.
• rediscovered and restored around the end of the 12th century, and new civil laws were base on its skeleton until 16th century

2/ German Allgemeines Landrecht a.k.a. “Codex Fridericianus” of Friedrick The Great | Prussian civil code | 1746-1794

In a typical systematic German way, a comprehensive library of almost 17.000 paragraphs were written, aiming at a solution for every legal situation so as to avoid interpretation by judges.

• the primary golas was to avoid arbitrary decisions across the higher courts (around 14 of them in 1751).
• freedom of conscience and religion were granted (the latter as long the religion was approved by the State, though)
• criminal law: “prevent instead of punish”; therefore torture was abolished and death penalty applied just in rare occasions.
• however, the distinctions between social classes (nobility, business, peasantry) were carefully preserved in the interests of the state.
• Samuel von Cocceji provided the first draft in 1751 (“Projekt des Corporis Juris Fridericiani” a.k.a. “Codex Fredericianus”) but the political will required to implement such reforms were so substantial that it was abandoned. Although brilliant and comprehensive, it was way too complex and required too many global changes #learnfromhistory
• although it was updated in 1794, it was never truly implemented; compared with the chaotic English’ Common law, the Prussian’s Civil law system, although successful in its precision (compared with the former), failed due its complexity
• however, this is the first systematic attempt to provide a legal framework in modern Europe, and is reflecting the genius of Frederick The Great; also their efforts were not in vain: Codex Fredericianus became the base of Bürgerliches Gesetzbuch (German Civil Code) from 1900.

3/ Napoleonic Civil Code | French civil code | 21st March 1804

• the code was a must, as France was a dysfunctional combination of Roman law, Customary law, Canon law, and Case laws (by the ‘parlements’)
• The Code, written in less than 6 months by the outstanding lawman Jean-Etienne Portalis (1746-1807), brought into one comprehensive national legal code most of the gains of the Revolution such as equality before the law, individual liberty and freedoms and the lay character of the government; based but not limited on the Roman law it regulated much of private law matters such as property, wills, contracts, liability and obligations.
• class privileges are extinguished; civilian institutions are emancipated from ecclesiastical control; freedom of person, freedom of contract, and inviolability of private property are fundamental principles.
• it was purposely written in simple wording, easily understandable (not only by lawyers)
• it was followed in 1806 by “Code de procedure civile” and in 1810 by “Code criminel”
• the French Civil Code is regarded as one of the most influential documents in the history of the world and is was the base model for many legal systems (including and not limited to the later Germanic Code)
• the first book (“law of persons”) contains some clearly discriminative rules - e.g. subordinating women to their fathers or husbands - and were changed in the beginning if 20st century
• Napoleon: “My real glory is not the forty battles I won […] What nothing will destroy, what will live forever, is my Civil Code.”

4/ Bürgerliches Gesetzbuch | German civil code | 1900

• based on the German Allgemeines Landrecht; the Germans had 100 years to finish what Samuel van Cocceji started
• the first draft, in 1887, after 13 years of research, was invalidated and they started another draft, which was approved by the Reichstag in 1896
• the precision of this monumental work, which took the huge Prussian library from 18th century, combined it with Roman law basic rights (like obligations) and the socially complex laws within the Napoleon Code, is legendary
• speaking of precision and engineering approach: in the first book of their code they set out a whole set of general principles that applied across the board - unless special exemptions were later made in the code under specific topics. They basically indexed and defined the key-words, and applied general or specific rules for each context.
• German civil code, like the French one, is regarded as one of the most influential legal document in the world; being written almost 100 years after the French one, it may also be considered superior not only in terms of structure, but also more modern; also, due its meta- library of the key-words/principles in the first book, much easier to operate.

Honourable mentions:

“Introduction to Dutch Jurisprudence” by Hugo Grotius | Dutch law code | 1631

• synthesized Roman law and Dutch customary law into a cohesive whole (free ebook on google books)
  
  

“[Josephine] Code of Joseph II” | Austrian law code | 1786-1787

• initially based on the first unified crime code, the Penal Code of Empress Maria Theresa, enacted in 1768-1789; the former was a good step (equality before the law) but still far from civilised standards (torture was still allowed)
• humanitarian/enlightenment influence: “no crime without a law,” thus, an act not defined as a crime was not a crime; torture is abolished.
• the code was a good step but it had too many shortcomings

some bibliography I went through

https://en.wikipedia.org/wiki/Civil_law_(legal_system) https://en.wikipedia.org/wiki/Common_law https://en.wikipedia.org/wiki/Custom_(law) https://www.law.berkeley.edu/library/robbins/pdf/CommonLawCivilLawTraditions.pdf

https://en.wikipedia.org/wiki/Corpus_Juris_Civilis

“Introduction to Dutch Jurisprudence”: HERE
http://www.country-data.com/cgi-bin/query/r-924.html
https://is.muni.cz/el/1490/podzim2015/CZS51/um/59523953/Lecture_3_Fall_2015.pdf
https://www.britannica.com/topic/Prussian-Civil-Code
http://www.duhaime.org/LawMuseum/LawArticle-1297/1746-1794-Frederick-the-Greats-Great-Law-Reforms.aspx
http://www.duhaime.org/LawMuseum/LawArticle-1172/portalis-jean-etienne-1746-1807.aspx
http://www.duhaime.org/LawMuseum/LawArticle-1163/1804-Napoleonic-Civil-Code-France.aspx
https://www.britannica.com/topic/Napoleonic-Code
http://www.duhaime.org/LawMuseum/LawArticle-1165/1900-Burgerliches-Gesetzbuch–The-German-Civil-Code.aspx
https://en.wikipedia.org/wiki/B%C3%BCrgerliches_Gesetzbuch