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Civil Law slide 8

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Civil Law slide 8

Civil Law slide 8

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Transcript

  • 1. Introduction to Civil Law School of Law An Scoil Dlí
  • 2. Introduction to Civil LawDr Suzanne Kingston School of Law An Scoil Dlí
  • 3. Influence of common law and civil lawsystems on each other
  • 4. Influence of common law and civil lawsystems on each other• Tendency think own system is better – Caricatures of other systems
  • 5. Influence of common law and civil lawsystems on each other• Tendency think own system is better – Caricatures of other systems• Is the reality more complex? “Globalisation” of law, subject to socio-cultural differences?
  • 6. Influence of common law and civil lawsystems on each other
  • 7. Influence of common law and civil lawsystems on each other• Reasons for the influence? – EU law (“harmonisation” of law – formal and informal) – International law – Migration of scholars and judges – Comparative law – Demand: • international trade – Compare: merchant law • Cross-border movement of persons (economic and non-economic migrants) – eg family law disputes • Jurisdictional “forum shopping” eg tax law
  • 8. Influence of common law and civil lawsystems on each other
  • 9. Influence of common law and civil lawsystems on each other• Older tradition of influence – Roman law studies; jus commune – Colonisation
  • 10. Influence of common law and civil lawsystems on each other
  • 11. Influence of common law and civil lawsystems on each other• Examples – US Declaration of Independence, French Declaration of Rights of Man and the Citizen • …to huge variety of national constitutions – Public law, private law distinction – Abolition of rule that can cite opinion of dead, but not living, jurist – Movement from oral procedure to more written procedure in common law – Increase in jury trials civil law
  • 12. Influence of common law and civil lawsystems on each other
  • 13. Influence of common law and civil lawsystems on each other• Examples – Increase in criminal defence counsel civil law – Increasingly active judicial role common law – Increase in citation of academics common law – Publication of judgments civil law and increasing citation of previous judgments – de facto precedent? – Increase in use of “codes” in common law – though often these are codifications of judicial decisions
  • 14. Influence of common and civil lawsystems on EU law
  • 15. Influence of common and civil lawsystems on EU law• What is the EU?
  • 16. Influence of common and civil lawsystems on EU law• What is the EU?• Many original features of EU legal system similar to civil law systems – European Court of Justice: Unanimous judgments – no dissenting opinions – Emphasis on written procedure – Relationship between national courts and ECJ (Art. 267 TFEU “preliminary reference” system): comparable to French cassation? – Role of the “Advocate General” in ECJ comparable to the French procureur général – No formal system of precedent – Judges ask questions at hearing (esp. recent years)
  • 17. Influence of common and civil lawsystems on EU law
  • 18. Influence of common and civil lawsystems on EU law• Common law features also present – Importance of judge-made law in EU law • Lots of citation of previous case law now – Sometimes expansive method of “statutory” interpretation (esp. interpretation of founding principles of the EU Treaties) – Judges not good at finding “facts” – rely heavily on parties and/or national courts
  • 19. In turn, EU law influences common/civillaw systems
  • 20. In turn, EU law influences common/civillaw systems• Eg proportionality in England, Ireland
  • 21. In turn, EU law influences common/civillaw systems• Eg proportionality in England, Ireland• Trade law initially most influenced
  • 22. In turn, EU law influences common/civillaw systems• Eg proportionality in England, Ireland• Trade law initially most influenced• “Formal” harmonisation: Member States amend EU Treaties to allow EU legislation in broader areas (often with cross-border aspects) – Eg environmental law – Eg sex discrimination law – Eg some aspects of asylum, immigration law
  • 23. In turn, EU law influences common/civillaw systems
  • 24. In turn, EU law influences common/civillaw systems• “Informal” harmonisation – Joint Network on European private law – Eg projects on European Contract Law and European Civil Code
  • 25. In turn, EU law influences common/civillaw systems• “Informal” harmonisation – Joint Network on European private law – Eg projects on European Contract Law and European Civil Code• Some areas remain taboo – Tax – Social security – Education – Criminal law • European Arrest Warrant (2003) • Role of “Eurojust” (2002) network of prosecutors and judges • Treaty of Lisbon makes possible “European Public Prosecutor” for cross-border financial crimes – Rules of general legal procedure
  • 26. Influence of common and civil lawsystems on international law
  • 27. Influence of common and civil lawsystems on international law• European Convention of Human Rights (ECHR) law – ECHR (1950) preamble: based on “common heritage of political traditions, ideals, freedoms and the rule of law” • Follows from 1948 Universal Declaration of Human Rights – Judges include former academics, former judges, former diplomats – Not necessarily unanimous judgments
  • 28. Influence of common and civil lawsystems on international law
  • 29. Influence of common and civil lawsystems on international law• European Convention of Human Rights (ECHR) law – Not always oral hearings – emphasis on written procedure • Court may decide to have oral hearings – questions put to parties – Rarely investigates facts, though has power to do so
  • 30. Influence of common and civil lawsystems on international law
  • 31. Influence of common and civil lawsystems on international law• International criminal law – International Criminal Tribunal for the Former Yugoslavia (1993) • Not all judges are permanent – some are ad litem • Much fact-finding, but done by Prosecutor (adversarial) • Deference to common law system, but changes in Rules of Procedure to more inquisitorial approach • Eg Slobodan Milosevic self representation • Eg Cross-examination possible • But ICTY as a “third way”? – few restrictions on admissibility of evidence – ICTY can order production of new evidence – No plea-bargaining or immunity – International Criminal Tribunal for Rwanda (1994) similar to ICTY – International Criminal Court (2002)