Comparative Legal Systems (CEILS), Appunti di Sistemi Giuridici Comparati

Scarica Comparative Legal Systems (CEILS) e più Appunti in PDF di Sistemi Giuridici Comparati solo su Docsity! 1 Comparative Legal Systems 20/09/2022 Jurist → professional figure Comparative Law → science System → system of norms (we do not talk about country, but legal systems) Legal rules → a way of informing people on what to do or not to do. The technical word for “rule” is “norm”. How do we know if it is a law? The origin is oen moral or social but not always it results in a sanction. SOURCES OF LAW, Italian hierarchy: 1. CONSTITUTION 2. STATUTE (legislation) 3. REGULATIONS 4. DECREES 5. CUSTOMS (unwritten norms, they can be enforced by the law) All of the norms are produced by the sources of law, organised in hierarchy (Constitution, Legislation, Regulations, Decreed, Customs). In Italy the Constitution is at the top of the hierarchy of sources of law. Customs are important because they are what the majority of people regulate their life on. In the African experience custom is a fundamental source of law. ENGLAND → Common law legal systems are based on case law (enacted by judges, =giurisprudenza). ITALY → Case law is not an official source of law. 27/09/2022 Laws are legal rules norms that can be enforced by courts so judges who decide and their decisions result in what we call a judgement) all the decisions of a specific legal system, all the judgements compose one of the sources of the law, case law. We bump into the first translation problems because for example judgement = sentenza; not “sentence” which means “frase” in Italian. Clearly, the linguistic aspect does not always coincide with the legal one but the latter one is technical but draws inspiration from the everyday language. In the Italian legal language the term “giurisprudenza” describes all the decisions of the Italian courts of every level and importance up to the Corte di Cassazione, the Supreme Court. So “giurisprudenza” (all decisions of the Italian courts) is the typical Italian legal concept that cannot be translated with the English word “jurisprudence” (=academic , legal and scientific discipline teaching the general principles of law, translated in Italian is “teoria generale del diritto”). The second example is “sentence”, in Italian “sentenza” has a legal and technical meaning while in anglophone systems it simply has an ordinary meaning (=frase). Legal norms are enforced by courts and altogether they form a very important source of the law in the English legal system which is case law. So this means that a legal system is based on a country or a social group whose principles derive from the respect of some specific norms that are provided from collective institutions. These institutions are expected to enforce these legal rules. So a legal system is formed by norms and courts. The shape of the legal system is different because if we refer to norms and a social group we can observe that there isn’t a perfect coincidence between the legal system and a country. The most important example of a legal system is the State (Italian legal system, Spanish etc). But there are many other and different legal systems if we think not only in terms of sources of the law. Sources of the law → producers of a legal norm. ITALY: - Constitution - Statute (legislation) - Regulations - Decrees - Customs These are the official sources of the law and the same goes for England BUT the difference is that in England, case law is officially considered a source of law while in Italy, giurisprudenza is not officially included in the list of sources of the law. But of course judges produce norms because they give interpretation and by doing that they create norms. ENGLAND: - Constitution (?) - Statute - Case law - Regulations - Decrees - Customs EXAMPLE: No vehicles are allowed to enter the park. But what about push scooters? If a judge decides to give a fee to a person crossing the park with a scooter then the judge is creating a norm because the result of the fee is that this scooter is qualified as a vehicle. Therefore, certainly courts produce norms. In the English legal system courts are officially qualified as sources of the law, not in Italy. CIVIL LAW LEGAL SYSTEMS 2 The legal world is composed of a huge amount of legal systems and some of them belong to the civil law tradition of legal systems (Italy) whose main characteristic is the legislation at the top of the sources of law. In Italy, Spain, Poland, France etc most of the laws are of a legislative production. COMMON LAW LEGAL SYSTEM A huge part of the world is composed of legal systems qualified as common law legal systems. Common law legal system originated in England and in that case the main source of the law is case law, the rules English citizens are supposed to respect are of case law production. All what we find in the sources of the law, regardless of the fact they might be different depending on the different legal systems, is qualified as positive law. Positive law (diritto positivo) → norms explicitly created by means of legislation are judiciary decisions. They represent the main part of the world of law, they are written norms created officially by the State, by means of legislation or case law (judicial decisions). The origin of Positive Law is Latin, “positus” means “placed, laid down” and it is a way of informing the people that the law is valid here and now, it is written black on white and it is what is going to be enforced in a specific legal system. Looking at the sources of the law, we find norms that are qualified as part of Positive Law. Norms are classified into sources of the law in order to grant legal certainty (=certezza del diritto) because if I am supposed to behave according to a norm I want to know the content and the way it is enforced just in case I breach it. So legal certainty gives a clear message to the citizens about the content of a specific norm and of course if the norm is written it is much easier to understand it as such. Legal certainty guarantees: - Certainty about the content of the law → clearness about its content; - Certainty that the law will be enforced → a judge will punish whoever breached the norm; every legally relevant material fact and, once a norm is violated, breached (for example the law that prohibits homicide), is supposed to lead to a legal consequence. - Certainty that the norm will be applied consistently → Legal consistency application, every material fact which is legally relevant (=it has legal consequences), once violated, leads to the same sanctions, to the same legal consequences independently by how many times the law has been breached by the same individual. The same sanctions are applied to the same legal and material fact. Legal certainty is very important in the Western legal systems’ tradition. Things change quickly and there are a lot of rules which are not classified in the official legal sources, the non-state rules are becoming increasingly important. NON-STATES RULES Customary law → it is classified as a source of the law (in Italy for example) and its norms are unwritten so you can’t have a clear idea of the norm because it's not black on white. A norm is qualified as customary law when it is a rule of behaviour that has grown spontaneously in a social group as an expectation from others, the product of habits and expectations in society. This form of expectation becomes increasingly binding, which means that if the rule is breached there is the likelihood to bring a case to court, this kind of norm is created directly by society and is difficult to visualise. EX: The lands where we go skiing belong to different owners but, regardless of the fact that I am not the owner of the land and that in the Italian civil code there is a rule stating that I cannot enter into someone else’s land without permission, I can ski there (customary law). The custom gives the possibility to ski regardless of the fact that entering into someone else’s land is forbidden. But what if the owner claims that we cannot ski because it is THEIR land? It is possible to go to court because I have paid a ticket and customary law makes it possible for everyone paying a service to ski in a land. The court will condemn the owner of the land and you will have the price of the ticket reimbursed and a compensation for the damages. This is an example of non-state rules, they are difficult to visualise because they are directly created by the society and are not written but if you live in a social group you know they must be respected in order to not encounter any kind of sanction. African law is organised upon customary law and very oen it goes against written norms. Supranational law → another example of non-state rules, the law that is enacted outside the State and this type of non-state rules is becoming more and more popular because of the phenomenon of globalisation. - Domestic law: national law - International law (public): it regulates the legal relations among States - European law: European Union Law - Transnational law: law not enforced by the States - Supranational law: law not national - Harmonised law: it is a way to refer to the act of the EU in terms of regulations; branches of EU national law made common within the EU. The EU is regulating some aspects of the law and the main sources are ??? and regulations. - Uniform law: law made common (ex: uniform law on commerce negotiated by different federated states of the US) - Unified law: law made common *officially called this way, official branches of the law, all these are supranational norms having an official definition. The other ones are not specific disciplines and the definitions are not stable. As the legal world is changing the definitions are too. Some definitions are stable (European Law is positive law, written black on white) but others (such as Transnational Law) are very technical terms that could have different meanings. LEGAL SYSTEMS - National legal system → State - Supranational legal system→ European Union or the United Nations - Subnational → municipality, regions In comparative law, legal systems are systems of norms provided by a system of enforcement and they have different shapes. 5 We have a lot of proposals and sometimes the terminology is not even clear: for example, from a comparative point of view, a mixed legal system is a system where you find at the same time the legislation in the form of the code, main source of the law of the Common Law legal systems together with case law and the rule of binding precedents. Mixed legal systems are few around the world such as Louisiana (code enacted but the rule of binding precedents is a source of law), South Africa, Scotland. Israel is sometimes qualified as a mixed legal system but it is a hybrid one, composed by different layers of sources of the law. WESTERN LEGAL TRADITION Common Law → the main source of law is case law Civil Law → the main source of law is legislation, much easier to import than case law. As a matter of fact, most of the post-socialist countries are going towards the civil law family. Post-socialist countries → before the fall of the Wall of Berlin, they had a specific form of economic and political structure and there was no comparative activity between the Western legal tradition and these countries because the idea was that the two blocs of systems were too different from one another. Over time comparative scholars started to become interested and also moved to Russia. Aer 1989, these countries were qualified by comparative law as countries in transition in the direction of the Civil law family because they are trying to imitate codes and not the case law of England, for example. All these countries needed new legal instruments. OTHER CONCEPTIONS OF THE LAWAND THE LEGAL ORDER (Religious legal system) Islamic Law → a body of general norms and principles, existing independently of any individual state, applicable to people belonging to the Islamic religion. The point is that there is an overlap between law and religion: the main source of the law is the Quran, also a religious book, a revealed source by the Prophet and it is immutable and incomplete at the same time. The Quran is immutable because it was revealed by God, so the content cannot be challenged or changed. In Italy, there are religious norms, influenced by the Vatican state, but the Bible is just a religious text not a source of the law. Whereas the Quran is the main source of the law and the main religious source, as well. The Quran is immutable because it was revealed by an omniscient god to Mohammed, so the law is final, timeless and perfect. One of the main differences of the Western legal tradition, if compared to the Islamic law, is that part of our sense of democracy is to listen, from a legal point of view, to the needs of the people. For example, in Italy in 1970 with a referendum the legislational divorce was introduced in the legal system and is now incorporated in the civil code. The need was transferred into a new norm. In the Islamic legal system the context is very different and so is the outcome: the law was once chosen by God and the necessities of the social group is not taken into account. The problem is that verses in the Quran are incomplete and most of them are not dealing with legal issues. Furthermore, most of the verses are purely religious so the Quran must be interpreted through other sources which are not put in a hierarchical level. They have to be written in accordance with one another but the problem is that sometimes they overlap or contradict each other. - Shari’a → arabic term denoting a path to be followed, a guide for the Muslins towards the right direction, it refers to Islamic commands and prohibitions. - Sunnah → a set of behavioural information and expression of divine will through Mohammed’s words, immutable. - Igma → which is the consent, based on the phrase by the prophet “my people will never agree in error”, when the people agree on a norm, they will never make a mistake. This is the philosophical background of the idea that the Islamic law is interpreted by the legal community, people trained in the Islamic law. The jurists. When there is a contrast between norms among the interpretative sources, the position of the scientific community is important. - Qiyas → analogy, when a new material fact is regulated according to a norm because the previous material fact, quite similar, was regulated in the same way. A possibility to make the norm flexible and applicable to as many material facts as possible. Islamic main source is immutable and analogy means modifying a bit the law, so the analogy is much more similar to a fiction. For example the loan for interest is forbidden by the Quran but it is used in the Islamic world. So by analogy, this institute is enabled but it is qualified as a double-sale (“I buy money from you, you buy money from me”). What in the western tradition is called “interests”, is qualified as the price of the previous sale. So the analogy is a way of updating the Quran without breaking the norms, which are notoriously immutable. Quran, Shari’a, Sunna can be contradictory and not clear. EX: “Forbidden to you is carrion” , there are different interpretations on whether it is possible to eat meat or not. Part of the Sunnah opens to the possibility of eating meat but another part underlines that “carrion” is to be intended as a dead animal. There is a third chapter of the Sunnah that clarifies that the skin of the carrion can be eaten once it is tanned, once the animal has been exposed to the sun, then it is possible to eat it. Hindu Law → it is not a territorial law, it is the law of different Hindu communities. The main source of law is a religious text, the Dharma Sastra. What Islamic law and Hindu law have in common is that even Dharma Sastra was recorded and revealed. In the Dharma Sastra there is a coexistence between norms and religion. The manuscripts are sources of the law and provisions to be written together with the original source of the law. Again, there is an overlap of social, moral and religious norms. 04/10/2022 Africa and Madagascar From the comparative law perspective we observe Africa as a legal family even if there are differences between the states since the classification is not meant to go into details of every single system. With regard to Africa we analyse the southern part of the Sahara desert but South Africa, mixed legal system, is excluded from this classification just like countries that belong to the Islamic legal system (Egypt). South Africa is excluded because it is a mixed legal system and also the upper part is excluded because these countries belong to the Islamic legal family. 6 The African legal system separates substantive law into different levels: - Traditional law → unwritten law and oen composed by rules not expressed openly and verbally, rules regulating the social life of any village. They are very similar to the expression “customary law” but these rules have specific character in the Western legal system. In the Western legal context, in order to be qualified as customary law, a specific rule has to be provided with a subjective element (the convention of the people to behave in accordance with the rule) and the objective aspect (the fact that this rule has been carried on and respected for a long time). Traditional law is much more nuanced than customary law because the norm can be quickly created and equally suddenly repealed. Nonetheless, traditional law is the most important source of the law of the African legal system. Paradoxically, some African countries rely on traditional law but custom is not recognised as an official source of the law. - Religious law (mostly Islam) → Islam has a huge influence on legal matters while the other religions do not. Christianism was spread around Africa by missionaries (who were not lawyers) and the Christian religion has not the task to train people on legal issues. So when we speak about religious law, we refer to the Shari’a, the Sunna and the Quran. - Colonisation law → the rules enacted in the period of colonisation (public law, administrative law, private law in the form of the codification). Most of the African legal systems during colonisation imported European codes, such as the French “Code Napoléon”. Exceptionally, Somalia imported the Italian civil code whereas in other countries the Common law model was adopted. - Modern law → some African legal system decided to maintain the European legal model, to enact new constitutions and imitate Western legal models and modern law has had an impact on Africa. All these layers of the law are interrelated. For example, in the context of Religious law, it is applied by specific Islamic courts in which the Islamic judge decides the cases according to the Shari’a Quran whilst considering some small corrections because of the presence of untraditional law. Ex: Marriage → an Islamic woman is bound to marry a man who belongs to the same religion (Shari’a); at the same time, according to African traditional law, women are asked to marry a man of the same cast. These two rules are inter-related when a Qadi has to decide with regard to the validity of marriage. The same happens with traditional law, modern law or the law resulting from the period of colonisation. Ex: The civil code of Mali is on the model of the French Code Napoleon, on which the Italian “Codice civile” is based. So there are similar rules with regard to tort law. Acte illicite = responsabilità extra contrattuale → rule providing that someone causing a damage to someone else is obliged to pay the damage. At the same time, in traditional law these aspects are regulated in different ways. In Western legal tradition, when a duty is regulated in a norm (ex: duty to compensate damage), this duty is enacted to protect the right of the individual. What in Italy we qualify as “diritto soggettivo” for the right in general, in the Western legal tradition is enacted to protect individual rights. In Africa, laws are enacted to protect the unity of the group so the typical way to solve situations, which in the Western legal tradition are qualified as tort law, is the so-called vendetta (or revenge). According to traditional law, when a homicide is committed or someone was injured by another, the damage was suffered not only by the individual but by the group (because every individual belongs to a group). The consequence is that, according to traditional law, the group has the right to commit the same fact towards a member of the other group. Nowadays, in the modern legal tradition, vendetta has been ritualised so the damage is converted into a sum of money. The point is that, there is a civil code enacted and providing a technical legal way in which the situation should be handled but according to traditional law the real norm applied is the vendetta (“la norma del codice è disapplicata”, “the norm of the code is disregarded”). The traditional features of the African legal system is the presence of layers of norm and the interaction of these different layers Far East: China, Japan and Korea China The most interesting feature of this legal family is that the legal and social systems have been based on the philosophy of Confucius. Confucius was born in a noble family in 551 b.C. He worked as a civil servant of the Chinese before opening a private school that later became very successful. His doctrine later became the official philosophy of the Chinese State. fa [法] is limited to the few norms mostly belonging to the discipline of criminal law; there are rules that aim at solving crimes and sanction are very hard. For the rest, because of Confucianism, the basic idea of the legal system is that social relationships have to be handled on the basis of the social respect and harmony. Confucianism postulates the existence of a Cosmic order and the balance and the protection of it has to be maintained by means of the lü [律], which consists in respecting a series of relationship, five are the most important ones: FATHER - SON HUSBAND - WIFE OLDER - YOUNGER FRIEND - FRIEND RULER - SUBJECT These relationships have to be carried on in accordance with three social duties: loyalty, honour and respect. This is the background of the social order of the legal systems. This means that in the past the main feature of the culture of the people was not the protection of their own interests but the aim at maintaining the harmony of the social relationships and at protecting the social order since disputes are not tolerated. SOCIAL INTEREST > INDIVIDUAL RIGHTS Social harmony is based on harmony, comprehension, help and respect. The consequence is that the legal world (the legal order, the figure of the judge and of the lawyer) is not part of the Chinese cultural background. 7 Japan Giri is very similar to the Chinese lü, so the social norm prevails over the legal norm. Of course nowadays the legal institution has enormously improved but the reputation of lawyers and courts is very different from the one in the Western legal tradition. The conclusion is that it is clear that positive law is not the only way to handle social groups. History of Comparative law It is not a discipline of positive law, a norm of comparative law will never be enacted in an official source of the law. There could be reference to comparative law in a court decision, for example. Within the decision of the court, there is the opinion of the advocate general that makes reference to comparative law. There could also be judges making reference to other systems or there could be articles of scholars in which comparative law is used. Comparative law was also employed in the past, this science used to be an activity spontaneously connected with the activity of individuals, initially the activity did not follow any organic evolution. People are always compared in history. Ex: Aristotle collection of Greek cities constitution → comparative law God’s law for Moses → comparison between Roman and Jewish law Montesquieu, in order to write L’Esprit de Lois, observed different institutions of different legal systems. Is this comparative law? No, these examples show the attempt to single out specific characteristics. Comparative law was created between the end of XIX century and the beginning of XX century. The famous Solvay Conference of Physics, in Brussels at the beginning of last century, was organised by scholars in order to reflect on possible methodologies through which the discipline of physics should have carried on in the future. At the same time, the first congress on comparative law was organised in Paris and the scholars that attended the event started discussing different matters such as the methods which were most suitable for analysing different legislations or the aim of comparative law as a teaching method. How is it possible to produce knowledge (first aim of comparative law)? How can we obtain data? Nowadays there is a tremendous amount of scientific work about comparative law, since the interest in this science has been constantly increasing. The leading scholars were Rodolfo Sacco, Gino Gorla and Emerico Amari. Foreing law is the subject of comparative law, the latter discipline teaches how to learn, which object and what are the ways to obtain specific information about a specific legal system. The reality of the law in action (how law is applied in the legal system, which is the aim of comparative law) is not always based on positive law and there are a lot of problems concerning translation. One of the basic notion in the comparative law discipline is the difference between: - Law in the book → laws written by scholars in articles but also the legislation, case law, general and abstract provisions. - Law in action → how is a case solved? What are the social consequences of a norm? EX: Law in the book → the norm in the civil code regulating tort (responsabilità extra contrattuale, acte illicite). Law in action → result of the vendetta process. Law in action in the Italian legal system: - Constitution - Legislation - Regulations - Decrees - Custom NO CASE LAW - NO DOCTRINE Doctrine (in English law) = part of the motivation of a judgement. When a judge decides a case, he/she writes a judgement containing both the rule and the motivation (part of the motivation is qualified as doctrine, the “doctrine of the neighbour principle”). Doctrine = the work of scholars. Art. 1083 (Italian civil code) → A contract by which a party delivers to the other a good (movable property) under the obligation to return it to the owner. In Italian = contratto di comodato. EX: I (owner) have a mobile phone that I decide to loan to a friend who can use it on the condition that he/she returns it, when I ask for the mobile phone back OR on a specific date which was decided by both parties = contract which is concluded orally. According to the Italian civil code, the object of the comodato is only movable property. EX: Alfred, who lives in a village, needs to assist his mother, who is hospitalised at Trento hospital. Alfred asks his friend Paul for permission to use his motorcycle. Aer one week, Paul needs the motorcycle back but Alfred also needs it because his mother is still at the hospital. Quid iuris? (How would a judge solve this case?) The motorcycle, according to the Italian law, is not movable property. It is registered movable property. According to the Italian law there are three kinds of good: - Movable property - Immovable property - Registered movable property (motorcycles, cars, trucks etc…) ITALIAN LAW Legislation → art. 1803 civil code (gratuitous loan for use, bail, commodatum) Case law (Corte di Cassazione) → art. 1803 is applicable to registered movable property, too. Doctrine → the scholars agree with the position of the Corte di Cassazione. The Supreme Court has created a new norm regardless of the fact that case law is not an official source of the law in Italy. It is a norm because it has an impact and practical consequences, it is enforceable. 10 From a cultural point of view it would be complicated to see the Talaq transplanted into the Italian legal system. The limit of functionalism is that of going straight to the social function leaving out the cultural aspect of a legal institution (reason why the debate on functionalism is still going on up to now). ( have a look here → The Oxford Handbook of Comparative Law ) Very oen many methodologies of comparative law are used simultaneously in order to find a solution. Structuralism → it refers to various theories across the humanities, social sciences, and economics. When we refer to this approach in law, we focus on the structure and the relationship of the different components of legal institutions or «legal formants» existing within each legal system. The very first science in which structuralism was created is the linguistic discipline. Ferdinand De Saussure, a linguist and father of structuralism, realised that in every single language there is no natural link between the world and the object. Ex: “telefono cellulare” and “mobile phone”, there is a linguistic social implicit convention in calling this object these ways. Structuralism looks at the language from its different components, language is a dynamic organism (formed by different components) relying on the implicit agreement of convention of society. In law, all the different legal systems of the world have different components (= legal formants). How was the expression “legal formant” created? It was created by Rodolfo Sacco. Already when he was writing his final dissertation as a student of the Turin Faculty of Law, he thought about the different legal systems composed of different components. At the time the environment was that of a rigid positivism: all the main Italian universities used to teach law strictly on the basis of the sources of the law (Italian law was created by the Italian legislation, period). However, Sacco was starting to open his mind and to think that there was something other than the sources of the law in Italy for example. He began to use the word “component”. One of his brothers was attending, at the same moment, a PhD in Language under the supervision of one of the most famous linguists in Italy. Under the suggestion of his brother, professor Sacco started naming the components “formants”. “Formant” was a technical word borrowed from linguistics but the formant of a language is very different from the legal one. Formant in the legal environment: in Italy case law and doctrine are not sources of the law but they are components, formants of the legal system. Ex: Story of Alfred and Paul: where is the formant (= norm)? The norm is created by case law (motorcycle is movable property and it can be the object of a comodato). This is a formant, a component of the Italian legal system because as soon as the judge has created this norm, a new norm has been added to the Italian legal system. NEW COMPONENT = NEW FORMANT Formants are norms. The most important ones in Italy are: legislation, case law and doctrine. Ex: Story of Paul and Alfred → the Italian doctrine agrees with the position of the court, they both agree upon the fact that registered movable property can be the object of a contratto di comodato. Three formants: - LEGISLATION - CASE LAW - DOCTRINE Doctrine is a formant, scholars do create norms but doctrine works indirectly in the Italian legal system because it is not part of the sources of the law. Legal scholars create norms in articles, books and lectures and are in power to influence a judge, a legislator or their students; however, the norms created by scholars have no direct impact on the legal system. 10/10/2022 Bullet points from the previous lecture: - Structuralism and functionalism are much more complicated. Structuralism has its origins in linguistics, invented by De Soussure and borrowed by Rodolfo Sacco, the term “formant” id borrowed from linguistics. When we refer to structuralism in law, we focus on the relationship of different components that coexist within the same legal system. The theory of formant, the main theory in structuralism, is useful to map similarities and differences among different systems but also to know more about our own legal system. - Case law and doctrine are not sources of law in Italy but we do qualify them as formants of the Italian legal tradition. - Art. 1083 Italian Civil Code → according to the Italian civil law a comodato is a contract by which a party delivers to another party a good (movable or immovable) with the obligation to return it. Where is the formant? Legislative formant because the norm is provided in the civil code. The object of the comodato is composed by movable property (in this case). Is registered movable property included in the object of a comodato? - The legislative formant (art. 1803) does not include registered property (the motorcycle is excluded as object of the comodato) - Case law 1 (Supreme Court) → movable registered property IS regulated by the contratto di comodato, this contract is applicable because Alfred’s motorcycle is the object of a contratto di comodato. - Doctrine → the scholars agree with case law. - Let’s imagine that a first instance court (ex: Tribunale di Trento) decides that the object of the contratto di comodato is limited to movable property only. The decision is in contrast with the first one. By saying that the decision of the Tribunale di Trento is in contrast with the one of the Corte di Cassazione is not part of the language of the comparative law scholars; the only thing a comparative lawyer highlights is that, from the point of view of the case law formant, we are in front of two different norms coexisting in the same legal system. Is the comodato (gratuitous loan for use) applicable to registered movable property? Is registered movable property the object of a comodato? ITALIAN LEGAL SYSTEM 11 LEGISLATIVE FORMANT → NO, the Italian civil code does not include registered movable property. CASE LAW FORMANT 1 (SUPREME COURT) → YES CASE LAW FORMANT 2 (TRIBUNALE DI TRENTO) → NO DOCTRINE (SCHOLARS) → NO We have a map of different formants and different norms composing the Italian legal system with regards to specific legal questions. Formante legislativo → legislative formant → statutory rules (constitution, legislation, decrees, regulations and customs). Formante giurisprudenziale (case law formant) → judicial decisions, decisions of judges (from the Supreme Court, first instance courts). Formante dottrinale (doctrinal, scholarly formant) → scholars’ opinions. The theory of the formants breaks the idea that in a given legal system all the norms have the same content. In comparative law, we accept that there is a sort of legal pluralism (= a specific material fact can be regulated in different ways within the same legal system, in the same moment). What about the legal certainty? It is granted and protected anyways. Formants are always legal rules, norms and they are groups of norms sharing the same characters with regard to a specific question. We have a number of norms and it may happen that a norm designed in a statute is different from one general principle of the constitution so inside the legislative formant we have a constitutional norm and the legislative one which might be in contrast and the decision is up to the Constitutional Court. FORMANTS INMORE THAN ONE LEGAL SYSTEM The justification of the theory of the formant is the necessity of an instrument to collect data from different systems and then measure differences and similarities. The natural environment in which the theory is used when we map different legal systems or in order to better understand how a specific question is answered in different legal systems. EX: I believe MYself to be an heir of a beautiful flat in the centre of Trento BUT I don’t need the flat and I am more in need of money so I dispose of my property in favour of a third party, who is in good faith. I believe myself to be the heir but I am not. I might be in good faith because my uncle made me believe I was an heir; by contrast, I could be in bad faith but the important point is that my friend, to whom I want to sell the flat, is in good faith. She concludes the contract, pays but then she realises i was not the real heir and owner. Is this transaction effective or not? Did my friend become the owner of the flat? FORMANTS IN ITALY LEGISLATION: according to Italian article 534, the transaction is valid (see art. 534). Regardless of the fact that I was not the heir, my friend did become the owner of the building and now I have the money. CASE LAW: applies art. 534 and agree with the norm of the civil code. DOCTRINE: scholars agree. From the comparative law, the Italian legal system is very compact because all of the formants agree on the same solution. The situation is stable, we can expect that it won’t change in years. The real aim of the decision is based on economical reasons, it is wishable to preserve the free circulations of capitals. People in Italy buy immovables thanks to the protection provided by the State. FORMANTS IN BELGIUM LEGISLATION: the Belgian civil code (which has imported the French model) gives no answer with regards to this specific situation. It is up to the court to decide because judges have to decide. CASE LAW: the solution relies on the general rules governing ownership. According to the Belgian law, property/ownership can be transferred only by the real owner (transaction ineffective). DOCTRINE: scholars agree with the case law. The Belgian legal system is not as compact as the Italian one. FORMANTS IN FRANCE LEGISLATION: the Civil code does not provide any solution (same situation as in Belgium because the civil code is the same) CASE LAW: In France, the decision of the judge is that of protecting the new owner despite the fact there was no norm in the French civil code. How can a judge justify this decision? The French judge decides the transaction is effective because there was a tacit agency (mandato tacito) from the real heir to me, so the norm justifying the solution in France is the idea that the former owner (my uncle) has created a sort of ambiguity and the solution is based on what is apparently through (my uncle kept saying I was the one he would give the flat once passed away). So the former owner has created a tacit agency, a mandate, on me. DOCTRINE: scholars criticise the solution of case law because it is not stable. The code civil has been recodified and this change interests the transfer of property. RECAP OF THE FORMANTS LEGISLATIVE FORMANT CASE LAW DOCTRINE ITALY YES YES YES BELGIUM X NO NO FRANCE X YES NO - The situation with regards to this specific question is stable in Italy. We can expect this situation will not change suddenly. - Belgium is not as compact as Italy but more compact than France. 12 - In France the situation is under evolution and there was a recent recodification of part of the code civile that interested also the transfer of property by contract. The real aim of these decisions is based on economic reasons. If the new owner is protected, it means that legal transactions are based on the idea that we have to preserve the circulation of goods (positive for the development of the economy). People in Italy buy immovable properties because they know their movements are protected by the Italian legal system, regardless of the fact that who is selling is not the actual heir. How is it possible in Italy we have different decisions of different courts when we have the decision of the Supreme Court? Italy is a legal system in which it may happen that lower courts decide differently from the Supreme Court. France, Belgium and Italy are all part of the civil law tradition in which there is no rule of binding precedents, courts are not bound to decide according to the previous decisions as in England but the level of adherence to previous decisions is different within the different legal systems of the civil legal tradition. In France it is rare a lower court decides differently from the Court de Cassation, it is much more frequent in Italy. The theory of the formants can be useful to analyse our own legal system: EX: Adultery When two people marry, they are under some duties which are regulated by the civil code. One of these duties is loyalty to one another. The breach of this duty (= adultery) was qualified as a crime in Italy and regulated by the Italian criminal code. That was strictly respected in the courts of Southern Italy but then in Northern Italy, some courts started challenging the idea that adultery is a crime. Adultery was not a crime anymore and was repealed from the Italian criminal code and it was conceived as a damage to be compensated by a sum of money. In the south, courts kept considering it as a crime then the situation changed again and in the north of Italy nowadays this breach is not a damage anymore and has not an important weight in the divorce procedure. In the south, up to a few years ago, courts went on to consider adultery as a damage and so the spouse who suffered this breach of loyalty was compensated. ROE V. WADE The US Supreme Court decided on abortion in 1973 in the case Roe v. Wade (Roe decided not to use her real name; Wade was the district attorney for Dallas County). The federation has states which have their own constitutions and Supreme Courts. This decision comes from the US Supreme Court which is composed of nine justices and one of them is the president. In 1969 a 20-year-old single woman, Norma McCorvey, challenged the criminal abortion statute enacted in Texas. The state used to forbid abortion because it was considered to be unconstitutional, except in cases where the mother’s life was in danger. McCorvey was pregnant with her third child when she filed the case in front of a court of Texas because she claimed she had been raped so she did not want to give birth to the child but she was forced to, aer the rejection by the court in Texas. Huge reaction of the public opinion so she decided to address the US Supreme Court to review the case even though the Supreme Court is not obliged to take the case because there isn’t any right to appeal. In this case, the US Supreme Court decides to accept the case and in Roe v. Wade, the Court ruled that the statute on abortion in Texas was against the US Constitution. The point is that the USC does not explicitly regulate abortion, it was the US Supreme Court in this case ruling that the right to abortion was to be put at a constitutional level. Therefore, the statute of Texas was unconstitutional. This decision was overruled (power of each common law Supreme Court to reverse its previous decisions) by the same Supreme Court, since it is not bound by the previous decisions because the Supreme Courts are not simple courts but they are power of the states. The Supreme Court of England, for instance, holds the judiciary power of the State and as such it has a say in very delicate questions of political nature. The origin of the case was the constitutionality of a statute in Mississippi prohibiting abortion aer the 15th week of pregnancy. So in Mississippi the legislative formant used to allow abortions but not aer 15 weeks of pregnancy. The case was filed by the Centre of Reproductive Rights in March 2018, the centre acted on behalf of the Jackson’s Women Health Organisation and decided to fill a case before one of the courts of Mississippi because they wanted the state statute to be modified because they did not agree on the limit of 15 weeks and wanted to extend it. Mr Dobbs did not agree, he was the plaintiff because aer the Centre for Reproductive Rights succeeded in front of the court of Mississippi, Dobbs decided to ask the Supreme Court to decide the case again. Dobbs asked the US Supreme Court to reject the previous decision and reduce the number of weeks as it was before. But then something happened in between, Justice Amy Coney Barrett was nominated. She is a religious conservative judge. As soon as Justice Barrett was nominated, Dobbs changed strategy and asked the US Supreme Court to overrule Roe v. Wade and to declare abortion unconstitutional. The majority of the justices of the Supreme Court (7 against 2) held that abortion is not a constitutional right so they haven’t decided the abortion is unconstitutional but they made a sort of diplomatic decision by saying: abortion is not against the USC but it is not part of it and it is not a constitutional right. It is up to the different subnational units to decide how to regulate abortion. The consequence was that we had different reactions: - The right to abortion is banned (Alabama, Arkansas) with no exceptions for rape or incest. - Idaho → there are cases according to which abortion is legal only if it protects the woman’s health. - North Carolina → abortion is banned at the 20th week of pregnancy. - There are states in which abortion is qualified as legal for now, abortion is legal but states are waiting and studying how to handle the decision of the Supreme Court. - In Montana, in 2021 an anti-abortion law was enacted and now the Montana Supreme Court has ruled that the State Constitution protect the right to abortion but waits for the development of the decision of the US Supreme Court. - There are states in which abortion is still legal (Hawaii, Vermont…). 15 Every single writ was characterised by a standard procedure called “Form of action”, a procedure through which the claim can be carried on (how the defendant had to greet the court, the ritual words to be pronounced, for example). The procedure was sometimes more important than the writ itself. The typical principle upon which the English common law still relies is the following: “Remedies precede rights”. English common law was created on the basis of the procedure and substantive law came later; this means that originally procedures were of primary importance and the only way to receive a judgement was to respect the different steps of the procedure so people had to pronounce the correct words, to bow etc. “QUI CADIT A SYLLABA CADIT A TOTA CAUSA” → if you make a mistake, the whole procedure is affected. To sum up, the English legal system was created on the basis of a procedure. The Year Books They are the original form of reports in which all the decisions were stored; nowadays, all the judgements are collected in the law report, officially enacted by the government, the single judgements are checked upon by the very judges that decided on those specific cases. At the time, the yearbooks were books in which you could find different information, not really reliable because they were not technical since they also contained uninfluential information. It seems they were created in order to allow the pupils, present in court, to be legally trained and to study from them. The yearbooks are the original forms of law report in England. How was substantive law created in England? Substantive law was created within the meetings in Westminster among judges who discussed the cases they had decided on, in the lands. In the different lands, there were different versions of local custom, the norm on the basis of which the judges decided a case. Ex: inheritance passed from one father onto the oldest son in one shire (village); in another shire, from the father onto the youngest son; finally, in another one, onto the whole offspring in equal parts. The Royal court judges used to decide initially according to different norms but then, aer discussing the cases in Westminster, decided which custom was the best, so that the Common law was unified. Common law → norms that are common to all territories. English Common law evolved from the necessity to solve disputes, to offer justice. Writ = right Enacting a writ meant granting a right to people because in the absence of a writ, no right was recognised. The importance of history 1. English jurists have traditionally emphasised matters of procedure = norms have their origin directly in their application, not in the written norm. 2. Concepts and categories of English law have been shaped by the historical circumstances (writ) = a trial could be initiated only with a writ being recognised. The writ was establishing a right (diritto soggettivo). 3. The distinction between public and private law is not present as one of the original main categories of English law = the idea was not that of protecting an individual but that of making justice on behalf of the King (public procedure from the very beginning). 4. The development of the Common law – the procedure particularly - was a barrier to the reception of Roman law categories and concept (ius commune) = the common law model based on case law was occupying the whole territory leaving no room for other models although there were in England some imitations of Roman law. Why were the courts competing against one another? The writ had a price so receiving was a right and a privilege because the party had to pay a sum of money; issuing writs was a way for the Curia regis and for the King to earn money, just like for the local courts. The competition of courts had some economical background: the barons, who had established the baronal courts, were not really happy with the fact that the Curia regis was also located in their lands, so the tension between the barons and the King started growing. The loss of jurisdiction of the local courts induced discontent among the barons and led to the first Baron War; theMagna Carta was enacted as the result of the war,agreed upon by King John and the barons, it was a way to limit jurisdiction of the Royal court. Particularly, chapter 44 of the Magna Carta states that every person is supposed to sue someone else in front of a specific and local court, in order for the Royal court to lose power. However, as a result the Royal Court started being perceived as a second instance court and gained much more power, there was no way to stop people from asking for the protection by the Royal Court. Because the Barons War was not solved, almost forty years later, Simon de Montfort forced King Henry III into ratifying the Provisions of Oxford, establishing a new form of government in favour of the barons. From a legal point of view, the important norm establishes that no other writ could be enacted if they were not already present in the register. A writ is not collected in the register → the Chancellor cannot enact a new writ → no possibility to create a new right There was a way to try to force the system to become rigid but is it possible for a legal system not to evolve? Is it possible for people not to have the possibility to create new rights? It was unnatural and then the situation was solved with the Statute of Westminster II. 13/10/2022 Bullet points of the previous lecture (introduction to the English Legal system): - The system has a birthdate, it was born on the day of the Battle of Hastings (14th October, 1066). - Common Law evolves out of necessity, concrete reasons, norms are based on case law. - At the basis of Common law there is case law, not legislation. - The organisation of the territory into a feudal system (law property). - To start a trial, the writ is required. 16 - Civil servants and landlords had the task to handle administration (by collecting taxes) and used to move from Westminster to the lands and overtime they also started to exercise justice in the lands as the council was split into three courts (Court of Exchequer, Court of Common Pleas and the King’s Bench). Once the judges and the courts were in the lands, another issue arose concerning how they handled law from a procedural and a substantive point of view. - The writ became typical. - How was substantive law created? By filtering the different customs into one single norm (Common law) as a result of the discussions of itinerary judges who used to meet in Westminster aer having decided in the lands. All this led to tension between the King and the Lords and to the Magna Carta and the Provision of Oxford, a way to limit the legal power of the King. A legal system cannot be crystallised and in fact the lawyers of the time (“narratores”) started trying to include their pleadings into the already existing writs. The result of that was the Statute of Westminster II, an agreement reached between the barons and the King, a legislation in one of whose chapters there was a rule regulating the destiny of the writ. It was provided it was possible to create new writs aer the Provision of Oxford, the Chancellor was allowed to enact new writs but only when the material fact of the new dispute was similar to the ones of a previous writ. The writ in consimili casu → diplomatic agreement between the King, who obtained an annulment of the Provision of Oxford, and the barons, satisfied because the Chancellor was not allowed to enact new writs but to extend what was already collected in the register. Ex: the writ of entry (created by the Chancellor and registered) = an action to recover the possession of land where the tenant (A) has been wrongfully dispossessed by B, and B has disposed of the land (for instance by transferring it to C). This is a way to protect A, because of the behaviour of B, against C. This writ gives the chance to A to start a trial against C for the recovery of the land. One narrator probably realised the material fact concerning the position of women aer marriage, was very similar to the one framed in the writ of entry: women, once entered the marriage, no longer had the possibility to manage their assets anymore because it was dealt with by the husband. Therefore, in the case of a husband wrongfully administering the land of a wife and disposing of it by transferring it to a third party ( C ), the wife could go to court against C for the recovery of the land. The material facts are different but similar at the same time, this is a writ in consimili casu, a way in which the English legal system started to evolve again. By means of the Statute of Westminster II, the King and the Barons just put black on white what was already happening in reality. Foundations of Law of contract (diritto dei contratti in responsabilità extra contrattuale) → compensation of damage on the basis of a contract: every time two or more parties enter into an agreement and one of the parties does not perform, this is qualified as contractual liability. Example of Paul and Alfred, gratuitous loan for use: one of the party did not want to return the motorcycle, he is under the duty to give it back so he doesn’t perform according to the original agreement = contractual liability → A. is liable towards P. : A. has to return the motorcycle and pay damages. Another example of contract (oral, this time) → Professor Ioriatti asks one of my colleagues if he wants to buy her phone. He says he does so they have concluded an oral agreement (under Italian law). If Professor Ioriatti at the end of the lecture changes her mind and no longer wants to give the phone to my colleague, she is guilty of mis-performance, contractual liability because the teacher is bound to give the phone to my colleague and to pay damages. All the situations in which there is no agreement between the parties but the damage occurs concern tort law (=one of the three branches of private law regulating the compensation of damage as a consequence of a damage occurring outside the frame of an agreement), not contract law. Property law (one of the branches of private law) = “absolute right” which gives the possibility to the owner to dispose of a good and even destroy it; everyone else is excluded by the boundaries of his/her property. The origins of the English law, because of the feudal system, is based on the law of property, the very first cases decided on the Curia Regis and the first category of Private Law concern law of property. In the Civil Law tradition, the norms were still based on Roman Law and the main category of Private Law regulated by the Romans was contract law, because merchants needed a legal frame to regulate their transactions. The evolution of the legal system and the mindset of the common lawyers move from case to case, one dispute could be discussed in court because of the enactment of a writ or of a writ in consimili casu, because the material facts of this dispute were qualified as similar to the fact, the object of a different dispute decided before (origin of the rule of binding precedents). How is the case accepted by courts? Ex of Paul and Alfred: the material facts are qualified by a judge under the fundamental element of a norm (written, general and abstract) and this case is qualified as gratuitous loan for use. In Civil law, the material facts are vertically linked to a norm which is written, general and abstract (the norm existed before the decision). In Common law, there was no such thing as a written, general and abstract norm; the only way to solve the case was by connecting the facts one to another: when the material facts were recognised as similar to the one already decided before, as object of a previous writ, then the case could be accepted. The Writ of Trespass It represents the origins of tort law and one of the oldest writ enacted in order to sanction an act committed by the defendant (TORT LAW). Tort law was a way to compensate damages that were not part of a previous agreement. The Writ of Trespass was popular in Common Law and required by the narrators because its form of action did not include the wager of law (= group of twelve people called “compurgatores” who had to be convinced by the plaintiff to come to court, describe the material fact and taking an oath in favour of the defendant). 17 In the formula of some writs (of debt, of covenant…), the plaintiff was asked to demonstrate the fact by bringing to court twelve compurgatores coming from the village and who were supposed to side with the position of the plaintiff even by taking an oath. This kind of requirement was heavy on the plaintiff, not always the plaintiff could recruit twelve people willing to go to court and support the position of the plaintiff, who very oen had to pay the people. The compurgatores tended to be reliable as long as the dispute remained local: if I have to take an oath for something that happened in my village, where everybody knows me, I tend to tell the truth. By contrast, when the compurgatores were unknown and the disputes were moved to Westminster, the result of the dispute depended on the amount of money they received. The narratores tended to avoid the wager of law as an instrument to prove the truth; the Writ of Trespass never had this evidence and this form of action. The form of action of the writ had a formula that, at the beginning, included the “vi et armis” clause: in order to be compensated the person who had been damaged had to prove that the behaviour of the one causing the damage was carried out intentionally. Trespass in consimili casu The narratores started persuading the Court by saying the writ of trespass could be issued also in cases in which the damage was not caused intentionally, the act could be a consequence of negligent behaviour. The Courts, because of the writ in consimili casu, realised the Writ of Trespass could be employed also in cases of negligence. Therefore, the same writ could be now issued both in cases of intentional and of negligent cause of damage; additionally, the writ was gradually deprived of the “vi et armis” part. Overtime, the narratores started to escape the writ of covenant and to ask for the issuance of the writ of trespass, since the latter no longer required the wager of law. As the writ of trespass did not envisage the wager of law, a larger and larger amount of plaintiffs started asking for the writ of trespass even regarding cases that had nothing to do with contract or tort law. The original object of the writ of trespass was tort but then, even in situations in which parties had concluded an agreement (contract) because of which they had suffered damage, people started asking to be protected by the writ of trespass. Gradually the pleader (plaintiff) persuaded the Court that in cases in which a promise (= origin of the agreement) was made, but not performed, the facts of the case justified that it could be treated like those which had been previously considered matters of trespass. The first evolution was from intention to negligence and the second from tort to contract law. The Humber Ferry Case (1348) (The first case in which the writ of trespass is enacted to sanction a behaviour based on an agreement but causing damage to someone.) John Bukton (plaintiff) paid Nicholas Tounesende of Hessle (defendant), ferryman at a crossing on the River Humber, to carry his horse over the other side of the river. Tounesende overloaded his boat with horses and the plaintiff’s horse died. = CONTRACT LAW. Originally, this case would be solved by means of the writ of covenant but it required the wager of law by the plaintiff. The plaintiff succeeded in convincing the court that the writ of trespass could be enacted; in cases in which a promise was made (the promise to carry the animal across the river) but not performed, these circumstances justified the case could be handled like the previously-considered matters of trespass. Another reason why the Common lawyers’ way of thinking is always focused on the material fact is because of the jury, which is the evolution of the wager of law. The wager of law and the compurgatores were what nowadays we’d call witnesses who were hired and paid in order to say something in court that could be in favour of either the plaintiff or the defendant (mostly the plaintiff). Then, the jury turned into a judging body; nowadays, in the US the trial is carried on by the judge but the verdict is up to the jury. In Italy, the “giudici a latere” can be qualified as something similar to the jury, they are two people sitting at the sides of the judge but they decide together with her/him. The jury is supposed to decide whether someone is guilty or not by means of a verdict (not a judgement) which is made of one single word. The jury decides on the material fact and aer the verdict is pronounced, it is a task of the judge to translate it into legal terms. THE RULE OF BINDING PRECEDENT The English legal system has gradually become a Stare decisis system, a system relying on the rule of binding precedent. The decisions are never repealed; once the judge decides it, then the decision is there forever together with the norm. Doctrine “stare decisis” → let the decision stand → the judge has to respect the tradition. STARE DECISIS → duty of English judges to observe the norm as stated in judgements by previous judges. The binding nature of precedents applies only to cases (judgments) that are similar to the already decided cases. But what does “similar” mean? If we change the subject of the Humber Ferry case into a cow, the case is similar. What if we change it into an elevator? The judges are flexible. One of the weak aspects of the Common law legal system is that two cases might be similar or not depending on the level of abstraction. What does “predecessors”, “previous judges” refer to? Only to the cases decided by the superior courts, so inferior courts are bound by the precedents decided by superior courts. SUPERIOR COURTS BIND INFERIOR COURTS The application of a precedent involves the analysis of the different parts of a previous judgement; every single judgement in Common Law is composed of two elements: 20 Lord Atkin states that the manufacturer of the thing is under a duty to produce it carefully. So the neighbour is the consumer too. Conclusion of Lord Atkin: “my Lords the law in this matter, as in most others, is in accordance with sound common sense (=reasonableness)” This precedent started to be relied upon by judges that were in need to adjudicate cases on dangerous products. In England, 5 judges decide and write down 5 different opinions (in Donoghue v. Stevenson 3 of them were in favour of Mrs. Donoghue and 2 of them in favour of Stevenson). In the USA, the Supreme Court is composed of 9 judges that find a compromise and write one single opinion. 20/10/2022 Comment on Donoghue v. Stevenson [see on Moodle] Ratio decidendi 1 → “Who is my neighbour?” Lord Atkin pronounces the “neighbour” principle which was taken up by other judges and use this case as a precedent. Ratio decidendi 2 → position of the producer towards the consumer. ENGLISH LAW AND THE SYSTEM OF EQUITY For a certain period of time, between the 15th and the 19th century, English law was made up of two legal systems: Common law and Equity. “Equity” is not translatable and refers to an entire legal system created to fill some gaps of the Common law legal system because for a period of time Common law courts were not able to handle all the situations and to protect all the needs of the people. «The English Equity arose from the sulkiness and obstinacy of the common law Courts, which refused to suit themselves to the changes which took place in opinion, and in the circumstances of society» J. Austin The origin of the problem was that Common law evolved rigidly even if there was the creation of the writ in consimili casu and there was the possibility to extend writs by making reference to similar material facts. The system remained rigid because there was a lack of specific remedies. One example is the compensation of damage: it was one of the few remedies recognised by the Common law court. Nonetheless, the only possibility the Common law court had in order to compensate someone was through a sum of money. In situations in which a land was occupied, the only protection a court could offer was that of compensating with a sum of money the owner of the land but the construction occupying the land remained there. There wasn’t any kind of enforcement that would oblige someone to remove this construction. To sum up, the only possibility, in front of a Common law court, consisted in receiving a judgement, condemning someone to compensate for the damage. By contrast, the Equity court had the instrument to force someone to remove the construction of the example → The decree of specific performance. Another aspect that favoured the development of the Equity courts was the disappearance of the local courts such as the Hundred Court. At the beginning of the 15th century some disappointed parties, some who had already received a judgement in Common law courts, turned to the King soliciting justice. The King had the power and the duty to solve the disputes in the interest of the people; he was representing God, he had the religious, moral, social and legal duty to behave. At the very beginning, the King used to solve the disputes by himself so he devoted a part of the day to meeting people and to offer justice but then the Chancellor started to decide on behalf of the King. The Chancellor was the Head of the Chancery, a sort of civil servant acting on behalf of the King because he was in charge of the Royal Court. At the same time, the Chancellor was an ecclesiastic and as a consequence he was educated, not only could he read and write but also he had a huge knowledge of the writ system. The Chancellor started to accept petitions of people ex gratia for equitable relief, this means that the Chancellor was not obliged to accept petitions but at the same time he was not bound by the Common law. The Chancellor only acted on behalf of the King and so the Equity procedures grew up in a different way: at the beginning there was no duty for the Chancellor to enact a writ, he would just talk to people and try to find a solution. Then overtime, the Chancellor started to design a specific writ called “writ of subpoena”. WRIT OF SUBPOENA → it was a very simple letter and unlike the Common law writs, it did not include any form of action, it was just a letter inviting the defendant to come to court. The reason why the defendant had to come to court was not explained and the way in which the Chancellor used to carry on the Chancery process was based on the inquisitorial process of Canon and Roman law because he was trained in these disciplines. Inquisitorial process means that only the Chancellor was allowed to talk to the plaintiff and the defendant, to find the proof, to uncover the truth and to conduct the oral examination; the Chancellor was the only judge in the Equity court. People started to address the King because there was corruption in Common law courts. At the beginning the form of action was not part of the Equity procedure which at the beginning was very simple, the Chancellor would admit the losing parties in the Common law courts because the Chancellor they were worthy of protection and the meeting consisted in a simple dialogue. All the procedure was oral, there was no evidence, no wager of law, no jury: just a simple way to ask for protection aer the loss in the Common law court. The defendant was questioned orally and in person, the aim of the Chancellor was trying to understand what had happened and deciding on the basis of justice and fairness. The Chancellor was free to decide, not bound by form of action and system of writ. 21 Starting from the 15th century, the Equity started being governed by some general principles, the Maxims of Equity, some of them were unwritten, some contained in the books of authority. One who seeks equity must do equity. → If you come to me as a Chancellor asking for my protection and my decision, you must behave properly, you must be in the right. He who comes into equity must come with clean hands. → you must be loyal and honest. Equity acts in personam. → The Chancellor wants to talk directly with the defendant, the Chancellor wants to know orally what happened. Equity will not suffer a wrong to be without a remedy. → The Chancellor has always to find a solution; this is why a system of Equity remedies was created, everytime a Chancellor accepted the case, a remedy was enacted and a new system of norms was created alongside the one of the Common law. So, in the Common law system the King was morally obliged to fulfil justice and the Common law courts were not able to solve all the cases; another way to assure justice was to ask the Chancellor, on behalf of the King, for protection. THE MOST IMPORTANTMAXIM → “Equity follows the law” Equity was not there to abolish Common law or to decide against it, Equity was just an instrument of addition of remedies that were injected by the Chancellor into the whole system. “Equity follows the law” means that Equity respects the Common law, Equity fulfils the law and doesn’t destroy it. Examples of Equity remedies: - Specific performance → the common law trial was carried on as a sort of battle between the plaintiff and the defendant. The judge had no possibility to intervene into the process; - Discovery order → a way enacted by the Chancellor to force one of the parties (mostly the defendant) to deliver a document which was in their hands and that revealed itself to be important for the purpose of the decision of the case. This was not included in Common law. - Undue influence → it may happen that someone is forced to sign a contract, nowadays the contract might be void under Italian law. That was possible in Common law but only when the people signing had been physically obliged to sign, not in circumstances in which the signing party was subject to moral undue influence. This remedy was created by the Chancellor and the Equity and was encapsulated into the Common law system. - The Trust ! Then, the system of Equity was recognised as a court system carried on in harmony with the other system which was the Common law, there was no competition whatsoever. Overtime, these two systems entered into a negative competition due to the personalities who were in charge of each institution: Sir Coke, supporter of the Common law court and Lord Ellesmere, the Lord Chancellor representing the Equity court. This tension was lessened by King James I that ruled in favour of the superiority of the Court of Chancery, from the 17th to the 19th century it was the superior court of England. Then with the passing of time, the system of the courts started being as rigid as the one of the Common law; the Chancery Court started suffering the same matters of the Common law courts. The system of Equity was additionally extremely slow because there was only one judge deciding all cases. The presence of a double system of courts complicated English justice for years. In the 19th century, by means of the Judicature Acts there was a huge reform of the English system, the system of court was modified because the Common law and the Equity courts merged in a single pyramid of courts with the Supreme Court at the top. Only the Equity remedies have survived to our days: every court is enabled to enact a Common law remedy or an Equity remedy. 24/10/2022 BOOKS OF AUTHORITY (= books containing precedents) At the time, the doctrine was relevant because the number of precedents and norms was not too high, there was no legislation or oral constitution so the judges deciding a case could rely on the doctrine, on the norms suggested by the different authors in the books of authority. One of the important books of authority was by de Bracton, a sort of summary of the already existent writ, this book is a mix of Common law and Roman law. Another important one is the one by Edward Coke, it gives a general overview of the English system of the time but deliberately omits the description of the Equity system. The last book of authority is by Blackstone, a general overview of the English system observed from the public and private law perspective (“public wrong” and “private wrong”). This is the last book of authority because, starting from the 18th century, the law reports (the volume in which case law was collected) were officially enacted by the government and controlled by the judge pronouncing the decision and started becoming very reliable. Since the law reports were reliable, judges could find the case, the number of precedents was higher. Then, with the Judicature Acts there was the reform in England and the Equity courts and the Common law courts were reorganised in one single pyramid of courts. All these changes made the system of case law reliable and complete and this is why the doctrine is not qualified as an official source of the law anymore. THE TRUST 22 The Trust is one of the most relevant remedies created by the Equity system which was created at the origin of the English legal system under the name of “Uses”. Nowadays, it is widely employed globally in different disciplines. The trust was applied by the Royal Court, the idea behind it is that of giving the possibility to someone that owns a good, a land or a sum of money to have this asset administered in the interest of a third person who generally is a person with weaknesses. SETTLOR OF TRUST → Owner of the asset that decides to create this legal scheme in order to protect the situation of a thor party called BENEFICIARY. The settlor of trust looks for someone they trust (TRUSTEE) to whom they can transfer their property and this person becomes the actual owner in Common law terms. The ownership shis from the SETTLOR OF THE TRUST to the TRUSTEE, who as owner has all the powers normally belonging to the proprietor with one limit: the TRUSTEE is under the duty to administer the asset according to the interest of the BENEFICIARY before making a choice. At the time in which a Trust was created in Common law, the SETTLOR OF TRUST did not have any legal instrument that could be offered by the Common law case law through which he could control the activity of the TRUSTEE. In the original scheme the idea of the Common law trust was that of finding someone that SETTLOR could trust; however, it may happen the TRUSTEEmade mistakes so the Equity system started introducing new rules by injecting some new remedies on the original scheme of the trust. Once the trust is created, whatever the object of the trust is, it turns into the “trust fund”; according to the Equity, the object of the trust is not necessarily the original object. EXAMPLE: the SETTLOR OF TRUST transfers a land, the object of the trust is not the land but its value (trust fund). Quid iuris?What does legally happen when the TRUSTEE decides to sell the property to a third party (Mr. Red) but this sale is not in line with the needs of the BENEFICIARY? EX: The income of the BENEFICIARY depends on the rent he perceives from the immovable property (object of the trust) which was rented by the TRUSTEE. One day, the TRUSTEE decides to sell this immovable property. Quid iuris? The BENEFICIARY needs to be protected through the remedy that envisages that the object of the trust is not the building but the trust fund, the value of the building. Once the building is sold to Mr. Red then the qualification of the TRUSTEEmight move from the original one to Mr. Red. This might also happen in case the TRUSTEE decides to transfer the property to Mr. Red as a gi. The TRUSTEE does not receive any money and the quality of TRUSTEE passes onto Mr. Red. Another possibility is that of moving not the role of TRUSTEE but the object of the trust: the building now belongs to Mr. Red but the TRUSTEE has earned a sum of money that has the same value as the original building. The remedy introduced by the Equity is that of moving the trust from the building to the sum of money. This is the reason why the object of the trust is not the original asset but the original trust fund. THE TRUST [ENGLAND] Mr. Red → settlor of the trust Mr. Green → trustee John Yellow → beneficiary The trust in England is part of the law of property, this is not a contract. The asset of the trust can be split into more than one part and have more than one owner at the same time. Property law can also be divided in time, property can be owned by someone on the first part of the week and by someone else on the weekend. Mr. Red organises a trust and transfers the property of a building in the centre of London to Mr. Green; Mr. Green has the duty to administer in the interest of John Yellow. But before concluding the trust agreement, before accepting to become the TRUSTEE,Mr. Green has performed some transactions that oblige him to pay some debts towards third parties called creditors. So the creditors start asking for money to Mr. Green and eventually they file a lawsuit against him. Are creditors allowed to ask Mr. Green to transfer the trust fund? The answer is NO, in England there is a clear separation between the personal asset of Mr. Green and the trust fund, a way to protect John Yellow. NEGOZIO FIDUCIARIO [ITALY] Rossi → fiduciante Verdi → fiduciario Giallo → beneficiario According to Italian law, it is contract law. Rossi transfers his property to Verdi in order to protect Giallo. Verdi (fiduciario) becomes the owner of the property even if this is a contract. The situation of the fiduciario is very similar to that of the TRUSTEE. Verdi has concluded some unclear transactions and he has some debts to pay to creditors. The creditors ask the judge to transfer the asset (the object of the negozio fiduciario) to them. Can they do that under Italian law? YES, the asset (patrimonio) is composed of positive elements (the object of an asset can be an immovable property, shares, money etc…) and negative elements (debts are part of the asset). As a whole, if my asset is positive then the positive part of it > the negative part of the asset. The point is that under Italian law the asset is only one so the object of the negozio fiduciario transferred to Verdi melts with Verdi’s personal asset. 25 The jury was present in the Common law court in England but wasn’t in Equity court; that had an impact on the circulation of the Equity model in the US → in the US there are few models of Equity courts, most of them deciding cases on family law. One of the reasons for the poor circulation of the Equity in the US than the Common law was because the Equity was not provided with a jury and wasn’t mentioned in one of the books of authority. THE US SUPREME COURT The US Supreme Court is regulated by art. 3 of the USC and is one of the formants of the US legal system. The fact they don’t wear the wig is a sign that they do not apply the same procedures and norms of the UK Supreme Court. The Court is composed of associate members and one Chief of Justice, appointed by the US President. The US Supreme Court decides certiorary → The US Supreme Court is not bound by the pleadings of the parties, judges are not obliged to make justice, they can choose whether to accept a pleading or not. Oen, the Supreme Court is asked to decide very political issues (Dredd Scott v Sandford), conversely the Corte di Cassazione is bound by the pleading of the party. In Italy, once it is clear the party has a right to involve the IT Supreme Court in their decision, then the judges of the Corte di Cassazione are bound to accept the case (they cannot exercise certiorari). LEGISLATION Art. 1 sect. 8 → how the legislation is regulated. The federal law competence is up to the US Congress; at state level, each state has a Congress. QUESTION: What is the impact of the fact that both the legislation and the judicial competences are separated at federal and state level? The legislative and the judiciary system do not overlap: most of the cases are adjudicated by state courts, only a small part of them are decided by the federal court. The federal Congress legislates on specific subjects; all the rest is up to the Congress of each state. The problem which may arise concerns a situation in which a federal court has jurisdiction on a case, has to decide it but no federal law is enacted on this specific issue. EX: Contract law is not regulated at federal level. Quid iuris when a federal court has to decide a case but no statute on this case is enacted on this matter. What bases will the federal court make a decision on? Are federal courts allowed to create a common case law at federal level or are they supposed to rely on the case law of the state at issue? UNIFORMITY V. STARE DECISIS One of the aspects of the US legal system is the tension between uniformity and stare decisis. The rule of binding precedents at federal level is a less bureaucratic system, this means that the Federal Court and the Supreme Court are not bound by their own precedents, there is no horizontal precedent at the level of Supreme Court. This means that every state Supreme Court or Federal Court can overrule very frequently. Flexibility = lack of horizontal precedents. Formally, even when courts are bound by their precedents (ex: first instance court being bound by the precedents of the Supreme Court), the duty is applied in a much more flexible way, judges rely much more on the Distinguishing. If one court in a state observes the decision made in another state, this precedent is very oen imitated by means of the Distinguishing. A court might rely on precedents of its own state, but then decide to apply the decision of another state → this would be justified by the use of the Distinguishing. The obiter dicta are more relevant in the US → not part of the ratio decidendi but of the motivations. Justices rely on them in order to inform their colleagues on the way this precedent should be applied in the future. Ex: the ratio decidendi of a precedent might be respected but criticised → I still rely on Donoghue v. Stevenson, but I’ll do it for the last time since it’s obsolete. The ratio decidendi can be limited → I rely on this precedent but in the future, I suggest to restrict the application of this precedent. Overruling is much more frequent in the US than in England. All these elements bring uniformity to a system that needs flexibility and does not want to become a system split in 50 different systems. UNIFORMITY: THE ROLE OF LEGAL LITERATURE English literature - American literature (inspired by the English model) The books of authority were originally sources of the law because they were part of the legal system when it was under construction. At the beginning, the precedent was there but the legal system was not equipped with a sufficient number of writs, precedents and norms so the judges had to rely on the books of authority (in England). When the US started to build up their legal system, it was a different time and books of authority already circulated from England and they covered a different role in the US: the basis of the legal system. Legal education was not centralised like in the UK. In the US, the judges had to rely on legal literature. In the US, the role of legal education was entrusted to the law schools while the jurists (narratores, serjants at law → barristers and solicitors) were trained in court (case of England, I suppose). Legal education in England → the Chief Justice of the Court of Common Pleas was asked by the King to train young jurists in a way they could sustain a trial in the future. The Chief of Justice created the “Crib” in a court, a part of courtrooms in which young pupils could attend trials. In the same period the Inns were created → INNS = areas of the city where pupils sojourned together under the watch of old barristers giving lectures and seminars on history, mathematics, philosophy etc… They were requested to regularly have dinner with the old barristers so that they could verify their knowledge and their personalities. Barrister → attorney allowed to stand in court and converse with the judges. 26 Solicitor → educated differently and less demandingly; they’re not allowed to step into higher courts and they were the only ones to keep in touch with the clients. They are tasked with the collection of the documents and the precedents to defend the client in court. The Court and legal service act (1990) → reduces the difference between barristers and solicitors. In the US, the recruitment of the legal professions is different: attorneys → they have to attend a master’s degree in Law and in order to be admitted to the legal profession they have to pass the Bar exam. Differently from Italy, where you need a full legal education (giuri), in the US students can attend whatever Bachelor’s degree and then attend a Master’s degree in Law, the result of the Bar exam depends on the ranking of law schools. The legal education is different also because of the decentralisation of the system so different law schools educate students on the American general law, not State law (in the state where they study). Most judges in the US are elected, not chosen. Law schools in the US → the first one was founded by Reeve (Litchfield Connecticut) who realised the fact that the legal education was still too decentralised and not unified so he decided to the first American law school. He based his education on American literature and case law, in a passive and theoretical way. The idea of Reeve was to create a uniformal American legal education. Then, Langdell (dean of Harvard Law School) employed the Reeve’s model until he decided to reform the method of legal education by introducing “The case method”, still based on case law but the idea behind it was the selection only the most relevant cases decided on the US and containing a doctrine (= general principle included in the motivation of a decision and is supposed to be applied forever as a general principle). Langdell was sure the US legal system was based on general principles and not on isolated cases. He selected a number of cases and asked the students to uncover the general principle (the doctrine). It is at the basis of the “Restatement of the Law” (= a collection of volumes on specific areas of law which report the doctrine by the scholars among a huge number of state decisions; not the case law). Ex: the mailbox rule is applied also in the US (notwithstanding its English origins) because the scholar who was in charge of the restatement on contract law went on mapping decisions of the courts of the states and then drew the general principles (the mailbox rule). The “Restatement of the law” is not binding on judges, they can decide whether to rely on it or not. Most of them do, because this method saves a lot of time, because judges are not asked to go through thousands of cases and to write the motivation of the decision, they just need to quote the “Restatement”. 03/11/2022 The General Federal case law is the possibility of the federal court to create a federal general case law to avoid the case law of the single state. Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. The legislative power of the Congress does not coincide with the jurisdiction of the federal court; when a federal court is competent or assumes jurisdiction, not always is the case decided on a federal statute or a legislation previously enacted by the Congress. The Congress of the US is regulated in its legislative competences in art. 1 sect. 8, regulating the subjects in which the Congress can enact federal statutes. The residual competences are entrusted to the Congresses of the states. According to the Constitution the judicial power is vested in the Supreme Court and all the other federal courts. The federal court assumes jurisdiction on the basis of the nature of the dispute: when a case involves a federal statute. There is a dispute and it has to be decided by relying on a federal statute, a legislation enacted at a federal level or a provision of the Constitution. The federal court will decide according to one of the statutes. There is a second reason on the basis of which the federal court assumes jurisdiction: the Diversity Clause. Which is the applicable law in this case? What about the second case? CASE STUDY: A woman Mrs White (California citizen, living in California) intends to divorce her husband Mr Black (Missouri citizen, living in California and working in Missouri). She claims that Mr Black, because of his choice to accept a position in St. Louis (Missouri), has not been able to balance work and personal, family life. 1. What about the jurisdiction? Which court is competent? The first instance district court. 2. Which law is applicable? The competence is of the federal district first instance court (Diversity). The laws of the federal state. 3. Where is the competent federal court located? In which state? California. When a federal court takes jurisdiction on diversity, this means that the court is not supposed to decide according to a federal statute or a legislation enacted by the federal Congress nor to the Constitution because the court is competent because of the nature of the dispute. The ground of the jurisdiction is the diversity clause; there is no legislation at federal level, no statute enacted by the Congress and no involvement of the Constitution. The federal court should rely on the laws of the federal state. What is the meaning of “LAWS”? 1. Laws = statutes or case law of California. or 2. Laws = statutes and legislation of California (NO STATE CASE LAW). OPTION 1 (STATUTES + CASE LAW OF CALIFORNIA) → no statute enacted in California and regulating divorce, in this case the federal court cannot rely on legislation. However, the federal court can also rely on case law. Case law of California argues the following: “spouses are allowed to divorce if they are no longer willing to live together”. 27 OPTION 2 (STATUTES BUT NO CASE LAW OF CALIFORNIA) → there are no statutes regulating divorce in California. This is the case in which the federal court can create a general federal common law, their own case law. In this case, a federal case law was created already and the ground for divorce is the “irretrievable breakdown of the marriage”, the marriage cannot be saved anymore. There can be a double level of case law on the same issue (= criteria to obtain a divorce): 1. California case law → Spouses are allowed to divorce if they are no longer willing to live together. 2. Federal case law → Spouses are allowed to divorce when their marriage is «irretrievably broken» (It is not enough for the wife to say that she no longer wishes to be married to her partner, but the relationship must have ‘irretrievably broken down’) The general federal common law is a Common law that, during a specific period of the US, has been created by the Federal court in a huge number of issues. The US have been characterised by a double level of decision in many subjects and the result of that was the phenomenon of “FORUM SHOPPING”. FORUM SHOPPING → The party can move from one state to another one in order to avoid the federal jurisdiction or seek it. = possibility to choose one line of case law. EX: Missouri case law: Spouses are allowed to divorce if they are no longer willing to live together. California case law: Spouses are allowed to divorce if they are no longer willing to live together. Federal case law: Spouses are allowed to divorce when their marriage is «irretrievably broken» (It is not enough for the wife to say that she no longer wishes to be married to her partner, but the relationship must have ‘irretrievably broken down’). It was possible for one of the parties to move their residence in order to avoid one or the other state’s jurisdiction. BROWN & YELLOW TAXICAB V. BLACK ANDWHITE TAXICAB, 276 U.S. 518 Under the agreement between BY and Railroad, BY had an exclusive licence to enter into Railroad property (Kentucky), waiting for the clients in front of the railway station. Railroad was allowing BW to enter onto its property. BY claimed a violation of their exclusive contract. According to Kentucky state case law, the agreement between BY and Railroad was void. BY lawyer suggested BY company to transfer its legal head office in Tennessee, in order to create diversity as the federal case law was in favour of the position of BY. (Example of forum shopping, consequence of the General Federal Common law) SWIFT V. TYSON, 41 U.S. 1 [1842] A case brought in diversity in the Federal Court located in New York on a bill of exchange accepted in New York. The Supreme court of the United States ruled that – according to section 34 of the Judiciary Act - Federal courts competent on diversity do not have to apply the state case law, but their own federal case law. This case had been accepted on certiorari by the US Supreme Court. The State Court of NY had been qualifying the bill of exchange in a wrong way for years so every decision having the bill of exchange as a subject the bill of exchange, was wrong. The State of New York applied to the bill of exchange, the doctrine of consideration meaning that the bill of exchange is strictly linked to the contract, once the contract is void, also the bill of exchange is void. The case law of the State of NY on the bill of exchange was wrong and had not been applied properly. As the bill of exchange is at the basis of the commercial transaction, Justice Story made up the following strategy: the federal court which is competent is not supposed to rely on the state case law of New York; the federal court is allowed to elaborate its own federal case law (origin of the General Federal Common Law). The case was brought before the Supreme Court which accepted the case on certiorari; the Supreme Court ruled that, according to sect. 34 of the Judiciary Act, Federal Courts competent on diversity do not have to apply the State case law but their own Federal case law. = Origin of General Federal Common Law (instrument of the jurists to be employed to the uniformity and harmonisation of the US law; other instruments → legal literature, the American law, the Restatement of the law, stare decisis. Every choice made by the court or by the legislator has some costs, depending on the norm employed. Forum shopping provokes an increase of the costs of the dispute related to one of the parties moving to another state. ERIE RAILROAD CO. V. TOMPKINS 304 U.S. 64 [1938] Mr. Tompkins was walking along the railroad tracks in Pennsylvania and was hit by an open train door. He claimed damage in the Federal court of New York, where the Erie Railroad company had its registered legal office. The US Supreme court overruled Swi v. Tyson, and ruled that Federal courts sitting in diversity jurisdiction should apply state case law. [ https://www.youtube.com/watch?v=NDXma8D6UEA ] The General Federal Common law was overruled by the US Supreme Court because the original attempt to create a standard case law at federal level provoked a low level of legal certainty and high transaction costs because of the consequences of the forum shopping. This represents the end of the General Federal Common law, nowadays the Federal Courts do not rely on their own Common law in the US but the General Federal law is created indirectly because the state courts informally rely on the decisions of the Federal courts. One of the consequences of the flexible rule of binding precedent is that the state courts observe one another so we have a circulation of models among state courts. Imitation of models at state level → the State Court of California imitates the decision of the State court of Missouri (example). Observation by state courts of the case law of the federal courts. (even if General Federal Common law is forbidden). Negligence → ”colpa” (acting not carefully) Wanton negligence → in between negligence and intention: I am aware my behaviour can provoke damages but I do not want to intentionally cause damages. COMMENTS ON THE YOUTUBE VIDEO: Trespasser → someone not having permission to enter a land. The duty of the railroad (defendant) was to avoid wanton negligence, this was against the position of Tompkins. Wanton negligence is more difficult to prove because Tompkins had to demonstrate that they knew about the dysfunction of their doors. In most states the rule was of ordinary negligence and the federal court could decide what negligence was applicable (ordinary negligence). The Supreme Court resend the case to the Court of Appeal (same as in Italy). MARBURY V. MADISON 5 U.S. 137 [1803] 30 All these phenomena that give birth to the Civil law family, were based on a series of characters of the legal education. The legal education started in Bologna, the university of Bologna was imitated by other universities all over Europe and both students and professors shared, respectively, the same way of learning and teaching. They all relied on the Glossa and on the same language: Latin. At the same time, students and professors used to travel all over Europe in many universities once the course ended. All continental Europe used to rely on the same subject, on the same language, on the same legal education and that was the result of the school of the glossators in Bologna (XI century). The post-glossators (the commentators) The school of the post glossators started to develop in Italy and Western Europe in the 14th and 15th centuries. The objective of post glossators studies is different from the one of the glossators because the commentators (post-glossators) did not just work on the clarification of the content of CIC but also on the creation of new legal instruments and norms in order to fulfil the need of the social group and the new economical environment. Step forward towards the creation of a unique European legal system. The situation in the universities of the post-glossators was similar to the one of the glossators in the sense that they all used to teach the same subject in all Europe, in the same language and by means of the same method. One of the leading scholars was Bartolus of Sassoferrato who had learned from Cynus of Pistoia. All this in Europe gave rise to a new phenomenon typical of the European legal environment which is the so-called jus commune (“usus modernus pandectarum” = modern use of the Pandectae; the Pandectae is one of the two books on which the glossators and post-glossators used to work). Jus commune ≠ common law The civil law family’s origins are to be looked for in a community of culture, in general and abstract norms. Even if the CIC is different from the modern code, it was already composed of general and abstract norms (there was no case law, jurists relied on the written text). The civil law family is created by a community of scholars in the university context and its origins come from written law from the very beginning. The jus commune is the core of the civil law family so norms and principles elaborated in all universities of Europe in the same language, with the same level of abstractness and this is the reason behind the name “Usus modernus Pandectarum”, meaning a new common use of the Pandectae in all Europe. Together with the work of the glossators and post-glossators we also have the contribute of the church: Gratian (ecclesiastic) used to teach canon law in Bologna, a subject based on the decretal letters. Within his way of teaching he tried to introduce the students to a systematic study of canon law. Canon law was very fragmented at the time, based on different sources which were the different ecclesiastical letters providing norms. Because of Gratian, who tried to teach the introduction to systematic study of Canon law and wrote the decretum as a result of the collection of his lectures, in the 12th century we had two fundamental textbooks: the Digest and the Decretum by Gratian. All students in Europe used to study on the Digest (as it had been elaborated by the glossators and by the commentators) and the Decretum by Gratian. So, the jus commune was applicable to all continental Europe for five centuries and was a theoretical model elaborated in Bologna and imitated in all scholars in continental Europe (huge circulation of a model). The Bologna model was imitated in all Europe and this is at the basis of the Civil law tradition. The feature of the civil law tradition is very different to the Common law one. Main difference from the Common law → the Civil law tradition is based on written norms (not on case law) and the result of a common cultural process. The jus commune interested continental Europe for almost five centuries but entered a crisis because of a series of events: - The rise of the Nation state between the 17th and the 18th century → the main reason of the crisis of the jus commune. The creation of the nation state has led to the phenomenon of positivism, the idea that every single national territory had to be governed by the same body of law. - Fragmentation of the jus commune all around Europe → what, until the middle of the 15th century had been the law common to all Europe, started to be fragmented in different territories. The different schools in Europe started to teach and learn according to different directions. EX: Italy and France : in France the post-glossators started to detach themselves from the Corpus Iuris Civilis while in Italy, the school of Bologna remained much more adherent to the original CIC. So the school of the Humanists in France started to elaborate different norms. - The role of the Concilia and of the “Communis opinio doctorum” (= common opinion on a specific position of the commentators taken in different universities; the common opinion decided by scholars) → at the beginning the work of universities was theoretical and occurred inside the buildings where abstract norms were taught. As time passed, some judges and attorneys started to get in contact with universities and asking for advice. The typical scenario was that of a judge sitting in a court who had to solve a dispute and started to ask for the advice of post-glossators in universities. The Concilia (= advice given by the commentators) started to be inserted into the decisions of the court: on the one hand, it was a way to reinforce the jus commune because it entered the operative decisions but on the other hand, this practice became one of the reasons why the jus commune entered the crisis. Giving advice to a judge means being able to remain objective and speak on the norm but as a commentator, when giving advice to an attorney, you have to favour the interest of the party. The jus commune was reliable, prestigious and enabled everyone to rely on the same principles but once the principle was sold for money by a commentator in order to favour one of the party in court, then the jus commune lost credibility. In order to solve the problem caused by the Concilia and the fragmentation of the jus commune, the universities and the scholars used to rely on the communis opinio doctorum. So, in front of two different advice the prevailing norm was that on which the communis opinio doctorum used to rely. For some time, the communis opinio doctorum prevailed on the Concilia but then the period of the jus commune went on and the fragmentation, the creation of the nation state and the importance of the Concilia favoured the fragmentation of the communis opinio doctorum. 31 - The role of the Great Courts and the “consuetudo judicandi” → for a certain period, the Great Courts of Europe used to rely on the communis opinio doctorum as consuetudo judicandi. So, the communis opinio doctorum was the norm on which the Great Courts used to rely as a rule of binding precedent; the consuetudo judicandi was the rule of binding precedent in Europe. From the 16th and the 18th century, the jus commune still played an important role in Europe but started to be fragmented and challenged by the different laws of different states. - The codification process → final problem the jus commune had to face and determined its end. THE CODIFICATION PROCESS While the Common law family is based on a continuous legal tradition, the Civil law family was based on Roman law, then the phase of legal pluralism, then the period of jus commune and, aer five centuries, the final phase of the civil law tradition (the codification phase). The jus commune was not reliable anymore and not considered the “Common law of Europe” because of all the events mentioned a few lines above among which the creation of the Nation state gives rise to the centralisation of law. The cultural and philosophical movements at the basis of the codification process are Positivism, Jusnaturalism and Enlightenment. Positivism = theoretical phenomenon according to which the only reliable source of the law is the one enacted by the state. This means that the idea of creating a nation state is due to the desire to enact one single legal instrument for each state. Italy was created as a nation state, the law of Italy had to be centralised and enacted by the State. In positivism, not only local customs are not considered reliable but even case law is not reliable (even though both remaining formants). According to positivism, case law had the only functions to give a correct interpretation to the written norms (which were the only sources of the law) and to apply the written norm. → indirect way of reinforcing the nation state. Jusnaturalism = the natural school of law was created by the Humanists and according to this theory, before the creation of the code or a norm, there are some general and natural principles that exist and are supposed to guide the written law. Ex: Pacta sunt servanda = at the basis of all the norms of contract law contained in the modern civil code. There are pre-existing principles which need to be crystallised in written norms that had to be common to a specific state and enacted by it. Enlightenment = In France it gave rise to the idea of separation of powers (Montesquieu), the idea that every power of the state has a task which needs to be protected from the action of all other powers. The separation of power in France gave rise to the French revolution and to the idea that legislative powers have to remain separated from the judicial power, the legislation (law and the written norm) has to be enacted by the Parliament and judges cannot interfere by creating any norm. These norms created by the parliament have to reflect the creation of the single right, at that time for the very first time the idea that every single person had rights to be expressed in written norms by the state and enforced by courts, was created in Europe. This atmosphere gives birth to the creation of the code, a legal instrument that has very specific characteristics. - Legislation → enacted by the government, the central state. - Renovation → the creation of a code means that all the norms are renovated and the new political choices are introduced into a legal instrument. - Values and principles → Creation of new principles applicable to every system. Ex: France → the civil code was enacted in 1804 and represents a renovation of the newly created French legal system. Through the French civil code, the idea of single right to which every individual is entitled is introduced in a code for the very first time. Before the creation of the single right (diritto soggettivo), the French legal environment was characterised by the presence of many different privileges (for the noble class, the church etc). With the code, everything against equality and democracy was repealed. - Systematisation → every norm is technically inserted in a system which is harmonised and coherent, a system in which all norms are connected to one another. Ex: in the Italian civil code there is one book in which obligation and contract are regulated and in another part the donation is regulated. According to Italian law, the donation is a contract so the norm on obligation and contract are also applicable to donation. (example of systematisation = all norms are connected to each other). CODIFICATION v. CONSOLIDATION Codification → enterprise regulating all the norms on civil law introducing new values, principles and changing the social and political structure of a society in a systematic way. Consolidation → way of storing all norms on a specific subject in a single book. Ex: “Codice dell’urbainistica”, all the legislations enacted in Italy in terms of regulation of the territory are contained in a specific book but it is just a list of statute that are not connected to one another. Codification → historical phenomenon Consolidation → way of ordering a subject Codification → four types - Civil code, regulating all the private law norms of a legal system; - Criminal code - Code of civil procedure, regulating the process - Code of criminal procedure, regulating the process 32 The codification is going on in the systems in transition (countries once belonging to the USSR) which are imitating the Western legal tradition. The codification is based upon: - Political choice → enacting a code needs political support because the political forces need to agree and support a huge renovation of the law of a specific legal system. - Doctrine → rewriting the law of a legal system needs the support of scholars and doctrinal forces. So the code needs to be written by them. Ex: in Germany the codification was postponed not because of a political choice (political force were all about the idea that Germany had to be unified by the code) but because the doctrinal forces were not up to the task. The code is a statute. The very first example of a codification to be fully qualified as a code is the Civil Code of France (1804). 08/11/2022 The codification was a fracture in the development of the civil law tradition, unknown in the Common law system. The code, in our civil law tradition, is not intended as a collection of statutes. From a technical point of view, the code is placed at the same level of the statute in the Italian pyramid of the sources of the law and is a new set of norms introducing new values with regard to civil or criminal law; these rules are organised systematically and coherently and part of a comprehensive exposition. The rational system created by the code could be implemented through a revolution (France) or legislation enacted by enlightened law makers. The first real code was the Prussian one in 1756 (Allgemeine Landrecht fuer die Preussischen Staaten). Then, in Austria the Allgemeines buergeliches Gesetzbuch was enacted in 1811, since Maria Teresa was both enemy and admirer of Frederick II (King of Prussia). But, the most important example is the French civil code, enacted aer the French revolution in 1804 (so, all the values of the revolution were crystalized). In Italy we have had two civil codes, one enacted in 1865 and the other one in 1942. In Germany, the Buergerliches Gesetzbuch was enacted in 1900. In the Netherlands the Nieuw Burgerlijk Wetboek (1992) is based on a comparative law activity. While the civil code of Québec (1994) is an example of bilingual code. A consolidation is the reorganisation of a specific field by a legislator (for example, urbanistics). Maria Teresa introduced important modernisations such as the tabular system of land property registration → registration of immovable property enforced in Trentino-Alto Adige and Friuli Venezia-Giulia. In order to transfer immovable property, the registration in the tavolare is mandatory (to make sure the seller is the actual owner). The intent of Maria Teresa of Austria was to oblige noble classes to pay taxes by mapping all Austria. The Austrian Civil Code focuses more on general and abstract norms and is similar to the French civil code. THE FRENCH LEGAL SYSTEM Before the 18th century, in the north there was the pays de droit coutumiers (legal system based on customs) while in the south there was the pays de droit écrit (written norm legal system in which Roman law prevailed over custom). During this time, this separation increased. In the 15th century, the King decided to re-codify the French law by means of the Ordonnances, a way to put in written form the droit écrit and the droit coutumier, a way to control the land. The norms of the Ordonnances were applied by the Parliament (not legislators). The Parliaments were filled with jurists picked by the King in order to enforce the King’s decisions; then the Parliament became independent and some of the decisions of the Parliament were codified in the French Civil Code. DROIT INTERMEDIAIRE = PERIOD GOING FROM THE ORDONNANCES TO THE CODIFICATION The last part of the Droit Intermediaire is the so-called Ancien Règime (1781-1799) → completely deleted by the enactment of the Civil Code. It made tabula rasa of the feudal system, the privilege of the nobles and of the clergy. (Marriage shied from canon law to contract law). The 1789 French revolution led to a change also in the legal system, which had to be based on the ideas of legality, freedom and fraternity. Montesquieu introduced the separation of the legislative, judicial and executive powers. The weight of Jusnaturalism, Positivism and Enlightenment was important. The values which came out from the revolution were crystalized in the civil code, a democratic one. Before the revolution, people had no idea what rightmeant (diritto soggettivo). Before that, legal systems were based on the idea of privileges given on the basis of census. There were barriers in the transfer of immovable property. Normal people had no right at all; they only had duties. However, the regulation of the civil code was entirely based on the regulation of the property law, the main instrument of the bourgeoisie, based on freedom and on individualistic values (no social protection). The civil code (1804) was composed of: 1. first book, which concerned laws and people (marriage, civil rights, relationships); 2. second book, which dealt with laws and things (property); 3. third book, which provided the acquisition of property (the law of contract, even though it is not mentioned). The code was presented as equal but in the end it was the code of the bourgeoisie. The code was enacted in a very special environment, which meant to give all the power to the people. Of course, the legislative power is the most powerful one. It was given to the parliament, which was elected directly from the people for the very first time. This is the result of a combination of the French political environment and the message of Jusnaturalism. The civil code has circulated a lot because it was presented as a democratic code, written in a simple way so that ordinary citizens could understand it. Actually, it was not democratic and did not even present the exact language of ordinary people. The French civil code initially had a constitutional function: the values of the Revolution were incorporated in the Code and that happened also in Italy (civil code 1865 and 1942). The Italian Constitution entered into force only in 1948 so for 6 years the civil code had a constitutional function. The codification of France has also introduced the separation of powers, a crystallisation of the doctrine of Montesquieu and the fact that the three branches were separated is summarised in the message spread also by Napoleon that “the law is the code”. Bugnet, a commentator of the code, used to teach the Code Napoleon, not a specific branch of law (all the values were incorporated in the code). 35 LEGAL REASONING CIVIL LAW LEGAL REASONING (based on Roman law and the work of the Jus commune period) «bringing the facts of a case within the terms of an abstract authoritative text» COMMON LAW LEGAL REASONING «bringing the facts of a case within the terms of a concrete case law decision» During the jus commune, there was a text of divine origins and all the answers to a legal question were supposed to find solutions in the text composed of general and abstract norms. In Civil law, the material facts are supposed to be linked to a norm general and abstract. In Civil law, the legal reasoning is based on the syllogism. SYLLOGISM Material facts (the reality) ↓ Legally relevant facts → Fundamental elements of the norm ↓ The norm (general and abstract) If I, as a lawyer, observe a material fact, the first step is to uncover all the facts which are legally relevant. If I want to evaluate if a document is valid, I have to verify if the author is still living. Once the legally relevant facts are cleared up, they have to be linked to the fundamental elements of the norm and then to go through its interpretation because the norm is general and abstract and not at all related to any specific case. PIERRE’S EXAMPLE IN ROME Pierre, 18 years old, visits the house of his neighbors. He is distracted by the daughter of the neighbours, does not look where he was walking and stumbles over the carpet and falls against an antique Chinese vase, which breaks as a consequence. The value of the vase is 3.000,00 Euro. Must Pierre pay his neighbour 3.000,00 Euro? This is tort law. Art. 2043 (regulating tort law) Any intentional or negligent act that causes an unjustified injury to another obliges the person who has committed the act to pay damages. Criteria: 1. negligence or intention - PIERRE ACTED NEGLIGENTLY. 2. Damage, something to be compensated - THE VASE WAS DAMAGED. 3. remoteness of damage (causal link), for the damage to be worth of compensation, it has to be qualified as the consequence of the behaviour of those who have caused the damage. - THERE IS A LINK BETWEEN PIERRE AND THE DAMAGE BECAUSE HE STUMBLED OVER THE CARPET. 4. unjustified injury - THE OWNER OF THE VASE WAS THE NEIGHBOURWHOSE PROPERTY HAS BEEN DAMAGED. Irrelevant facts: By whom was Pierre distracted, the role of the carpet, the role of the size of the vase…. Auxiliary facts are not important, as the syllogism works if the description of the facts must match the fundamental elements (conditions) of the rule. THE SYLLOGISM «If somebody acted wrongfully toward another person, and if he thereby caused damage to this other person, then he must compensate this damage» (Tort, responsabilità extracontrattuale, delict) If: Pierre acted wrongfully towards his neighbours and caused a damage then: Pierre must compensate damage to his neighbour. The material fact is linked to a legally relevant fact which is linked to a ratio decidendi. No abstract rules – no syllogism The ratio decidendi is «the valid rule» and can support future legal decisions. So if we look at case law, the main source of law, the syllogism does not exist because the rule is not general and abstract but it is the ratio decidendi. PIERRE’S EXAMPLE IN LONDON Pierre, 18 years old, visits the house of his neighbours. He is distracted by the daughter of the neighbours, does not look where he was walking and stumbles over the carpet and falls against an antique Chinese vase, which breaks as a consequence. The value of the vase is 3.000,00 Euro. Must Pierre pay his neighbour 3.000,00 Euro? A judge in England would have to rely on a precedent such as Donoghue v. Stevenson: Ratio decidendi: the manufacturer owed the woman (consumer) a duty of care as the woman was a neighbor of the maufacturer. [ NEIGHBOUR PRINCIPLE = A principle developed by Lord Atkin in the famous case of Donoghue v Stevenson [1932] AC 562 (HL Sc) (Snail in the Bottle case) to establish when a duty of care might arise. The principle is that one must take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to injure one's neighbour. A neighbour was identified as someone who was so closely and directly affected by the act that one ought to have them in contemplation as being so affected when directing one's mind to the acts or omissions in question. ] Fundamentals of the tort of negligence: 1. Duty of care - NEIGHBOUR PRINCIPLE IS APPLICABLE. 2. Breach of the duty of care - PIERRE WAS DISTRACTED SO HE BREACHED THE DUTY OF CARE. 3. Remoteness of damage (link between the behaviour and the damage) - PIERRE’S BEHAVIOUR PROVOKES THE DAMAGE. 4. Damage - 3.000€ DAMAGE. PRECEDENTS? - Donoghue v. Stevenson - In this case, if it is not foreseeable, then the neighbour principle can’t be applied, so we have to move to a different precedent. - Heaven v. Pender - We can justify the compensation of damages with proximity. In the case there IS proximity. - Winterbottom v. Wright - the ratio decidendi states that no compensation of damage is envisaged outside the domain of contract. Whatever you choose, reasonableness must be taken into account: it is reasonable to compensate the damaged party. 36 05/12/2022 COMPARATIVE LAW AND LANGUAGE In the first phase of its history, comparative law has been investigating the law from inside. Translation was a tool. Later on, law was analysed from outside too. Translation became a field of study, research. This is so also because of the growth of bilingual and multilingual environments. At the very beginning the legal translator relied on ordinary language. Before XVI century, the legal books were considered at the same level of the religious ones. They were considered as immutable, untouchable; so, they had to be translated in a literal way. Then, when Martin Luther translated the Bible into German in 1534, he wrote an open letter, On Translating, in which he expressed the problems he had to go through in translating. He wrote: The exact literal translation may in special cases have to be retained, where important issues depend on precise terminology. The translator must take into account the immediate contextual meaning in light of the author’s whole message. Then, the Pandesctistic school of law was the inventor of the so-called syllogism. For example, with das Rechtsgeschae, which was translated in Italy with the neologism negozio giuridico. Solutions (by Rodolfo Sacco): - untranslatable concepts (e.g. trust, equity); - homologation = splitting a legal concept into smaller parts; (e.g. divorce: involvement of the two parties / talak: unilateral way of dissolving the marriage – can we homologate the word talak with the word divorce? – in the legal field, no) - neologisms (e.g. negozio giuridico). Who has the power to invent new neologisms? Legislators. Susan Sarcevic wrote the book New approach to legal translation in 1997. It gives a general overview of legal translation. She realised that the future of legal translation wasmultilingualism. In Trentino Alto-Adige five languages are spoken: Italian, German, Ladin, Mocheno and Cimbro; but the normative languages are Italian, German and Ladin. The European Union is a new legal system. It is under construction day by day. It formulates regulations in twenty-four languages and, so, in twenty-four legal languages. In 1951 the Treaty of Paris established that the European Community Steel and Coal contained no provisions regarding the language. In 1957 the Treaty of Rome established that the European Economic Community provided the equal authenticity of the four original languages: French, Italian, German, Dutch. Nowadays the linguistic regime is regulated by art. 342 of the TFEU. This article argues that: “The rules governing the languages of the institutions of the Union shall, without prejudice to the provisions contained in the Statute of the Court of Justice of the European Union, be determined by the Council, acting unanimously by means of regulations”. The very first regulation of the European Economic Community of April 15th 1958 read as follows: [Art. 1] The official languages and the working languages of the institutions of the Community shall be Dutch, French, German and Italian … Czech, Danish, English, Estonian, Finnish, Greek, Hungarian, Irish, Latvian, Lithuanian, Maltese, Polish, Portuguese, Slovak, Slovenian, Spanish and Swedish … [Art. 4] Regulations and other documents of general application shall be draed in all the official languages. However, the EU linguistic regime in action has no full translation. The solution is the creation of neologisms (for example, with the words globalisation or possesso). The EU is developing a new language and a new legal language. In the Directive 2011/83/EU of the European Parliament and of the Council of October 25th 2011 on consumer rights the right of withdrawal of a contract was established. In Italy I need a giusta causa in order to withdraw a contract. For the national jurist (in particular judges) EU law interpretation and application are very difficult, since they have no background. Habitual residence is a typical European word. It is a way to regulate where the succession has to be regulated (for example, if the deceased was an Italian citizen, but his asset was in France). However, under Italian law residenza has a completely different meaning. A legal system is composed of different models, which circulate continuously around the world, because of prestige or imposition. For example, a circulating model could be the English trust. In the European Union there is a huge circulation of models.