1. COMPARATIVE LAW Spring 2003 Class 5 The Civil Law Tradition II

2. TODAY’S CLASS More on the civil law tradition, viewed broadly (its underlying justifications, attitudes towards change, and civil law and comparative law) A look at world legal systems: which systems are civil law systems and which are mixed civil law systems? What percentage of world jurisdictions are civil law and mixed civil law systems?

3. WRAP-UP: INFLUENCE OF JUSTINIAN’S GOALS Last time we discussed the 12th century revival of Roman law, its reception into European legal systems and lasting influence on the civil law

4. Development of Codes in Europe France: French revolution, Napoleon in 1804 German: 1900 Other European countries developed codes, as well as other civil law systems Expansion of civil law – growth in formal law as other forms of social cohesion (glue) decline (chthonic tradition, religion in public life)

5. Underlying Justification for Civil Law What is the underlying justification for civil law?

6. Underlying Justification for Civil Law What is the underlying justification for civil law? Judeo-Christian Humanism - equality, liberty Law as Reasons Instrument – logic, precision, consistency, instrument of building the modern state, protected judiciary but suspicion of independent judiciary

7. Compare the following to the chthonic tradition Civil Law of Obligations Civil Family Law Civil Law of Property Civil Criminal Law

8. Compare the following to the chthonic tradition Civil law – more rights based Civil Law of Obligations – will theory of contract (not a bargain theory), delictual obligation is fault- based or right-based Civil Family Law – more consensual, more private Civil Law of Property – more formal, less communal Civil Criminal Law - inquisitorial

9. Change in Civil Law Systems Compare the attitude to change of chthonic law, Roman law, and civil law

10. Change in Civil Law Systems Compare the attitude to change of chthonic law, Roman law, and civil law Chthonic law: didn’t contemplate change; fundamental core that did not change Roman law: no machinery for effecting radical change but had a notion of limited change to the law (edict, formulary procedure, substantive law)

11. Change in Civil Law Systems Civil law - conceptual change permitting isolation of law within historical time; this permits major legal change. Glenn claims civil law tradition has a positivistic approach to law and a systemtic approach to law

12. Civil Law and Comparative Law How has the notion of identity changed in Europe? How does the notion of identity relate to the civil law tradition? What is the place of comparative law in civil law thinking?