Civil Law and Common Law

1. Civil Law Origins are in Roman jurisprudence It is a CODE, detailed and all-encompassing set of rules and regulations Legal scholar oriented, meaning that philosophical foundations tie the system together and make it make sense. Judges, by contrast, are rote applicators of the law. They find and apply the law. Common Law Origins are in the English tradition Think about Great Britain’s constitution and constitutional law…what is it? It is, essentially, judge-made (note relationship to legal positivism…) Legal custom and tradition become the law Stare decisis is key. Pros and cons of stare decisis? Civil Law and Common Law

2. Natural Law By virtue of human nature, reasonable people can reason objectively about what is moral; what is good or bad for themselves, others, society. Assumes people can see beyond selfish self- and group interests. Validity of natural law depends upon an inherent sense of justice; moral judgements. Natural law is related to, but distinct from, natural rights. The declaration articulates natural rights Big question for natural law: “how must I behave towards other human beings” The big question for natural rights: “what are my rights that other people and public officials have to respect?” Legal Positivism The law is the law is the law is the law Law givers are the law givers Law is what the judge says the law is Judges should not appeal to morality, justice, a sense of right or wrong. Just ‘the law’. Society must comply Validity and legitimacy are not tied to an inherent sense of justice, but to authority As long as the right people follow the rules, the law is valid. Consider Hans Kelsen example. Civil law systems typically follow the positivist school Questions of justice and morality are for legislators, not judges, to debate. The US is very positive law oriented. Schools Of Jurisprudence

3. Implications • Natual law always seems lofty and impossible • “Pure positivism” always seems cold and Draconian • Beneath the surface of positivism always loom questions of right and wrong, good and bad, ethics and morality. • Consider conventional/contemporary debates over “legal” and “political” models of jurisprudence