Continental Law, Roman Law, Napoleonic Code, jurisprudence, natural law, positivism, realism, legislative power, executive power, judicial power
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Abstract
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Abstract
Understanding the concept and history of continental law in France, its philosophies, and key principles.
Extract
[...] we must return to order after the revolution. Arrival to power of Napoleon I. 3 philosophies of Law: -the natural law ? philosophy of natural law ? did God foresee this? - the realism ? how it works in society? ? law that corresponds to customs ? accompanies society in its change -the positivism ? solution adopted by law in france today ? Law as it is written in texts. ? Expression of the general interest. ? applying a text to a concrete situation. [...]
[...] many things are regulated by custom (crimes, inheritances). ? The 'statutes' are written laws but they do not systematically need them because they do not invent a law for each problem. ? The jurisprudence creates a precedent and therefore we apply the rule of precedent The countries of droit continental (essentiel of the countries of continental Europe and their colonies) ? in civil law, one likes a lot the written law and judges do not create law ? no custom, we refer to the texts ? [...]
[...] ) and according to custom. It was also the king who was of divine right and who could therefore decide to adopt laws according to his will and according to the place he chose. Also according to where one lived because in Brittany for example, it was not the same customs. However, from 1789 everything changed, at the time of the French Revolution. - 1789: proclamation of the Declaration of the Rights of Man and of the Citizen (=DDHC) ? [...]
[...] Continental law is written. The invention of writing made it possible. The Code of Hammurabi (1750 BC) is the oldest written and engraved text of law. But for millennia the Bible was transmitted orally and it was part of the oral laws. In France, the law is based on Roman law. It is not by chance that Latin phrases are still used. The law pre-exists the conflict. ? Before committing an act, one already knows what sanction one incurs. ? [...]
