Re: Did Magna Carta die in vain?
Quote:
We, and this should perhaps not come as a surprise, are taught the exact opposite.
The English common law is the result of a gradual increase of rights authorities have granted their subjects. The civil codes on the other hand are the expression of the will of free citizens, who are their own sole sovereign
.
It doesn't (come as a surprise).
I will admit what we are told about the Napoleonic code is wrong. The trade is what you are taught about common law is also wrong. :2thumbsup:
Quote:
(Though we should really distuingish between civil law and public law and etc, )
Interesting. Our public law is a set of common law principles restricting the exercise of state power. It confers no powers. I understood your droit administratif was a seperate code granting special rights to organs of the state (presumably also prescribing procedural safeguards?) Did I get that wrong?
Re: Did Magna Carta die in vain?
Quote:
Originally Posted by English assassin
Interesting. Our public law is a set of common law principles restricting the exercise of state power. It confers no powers. I understood your droit administratif was a seperate code granting special rights to organs of the state (presumably also prescribing procedural safeguards?) Did I get that wrong?
I think you're correct. 'Think' because I'm not a lawyer and you shouldn't take my word for it, and secondly because of my confusion with translating / distuingishing between legal systems. If I'm correct, common law can mean either the entire English set of laws or just civil law alone, and in English one uses civil code in both meanings too when referring to the area of French legal tradition.
Whereas in France or French civil code ('code civil') means only the set of laws between citizens. Law and the court system in the French legal tradation is divided into three areas: civil law, penal law and administrative law. The Code civil is only civil law.
I get horribly confused because the terminology differs between French and English and the legal tradition between England and France differs too. I'm not always sure what is meant when English persons speak of the civil codes.
Anyway, all three sets of laws are ideologically understood to be the product of the will of free citizens, who are their own sole souvereign. Article 3 of the constitution states that souvereignty belongs to the people, who exercise this souvereignity through their representatives and law giving institutions. State power isn't restricted but created by it. And here power is conferred to organs of the state. Parts of the public sector are governed by the administrative law - to finally answer your question.
After all the above, I hope you can understand my confusion with a statement like 'public law is a set of common law principles restricting the exercise of state power'. ~:mecry:
Re: Did Magna Carta die in vain?
Common law is an area that is best to stay clear of whenever possible. such as treating under "common law" which can take an age to fight through the courts where one has to proove that it was what the average person would do.
~:smoking:
Re: Did Magna Carta die in vain?
@ Louis. At risk of diverting this thread terminally, which would be a shame, that was very helpful. Predictably enough the French and English use similar terms with a different meaning.
Your division is essentially a functional one. Naturally, we can and do make that division as well, although largely for the convenience of lawyers and academics (the criminal/civil distinction being the only real one). When we talk of "common law" we are not really making a functional distinction, but a distinction based on the origin of the law. Common law is caselaw, and it need not be based on any Act of parliament. Indeed, in many of its most important aspects, its not. None of the basic rules of contract or tort in the common law system come from acts of parliament, and English lawyers are famously proud of inventing the trust* ab nihil, which, again, is entirely a creation of the judges. And you'd better believe no public body ever created the rules that say they have to act fairly, reasonably, after consultation, and so on.
(For further confusion, people speak of "common law jurisdictions", even though much of the law in those jurisidictions is statute, or in our case EU law, and not common law at all)
So there are common law crimes, common law rules of contract and other civil matters, and common law administrative law. There are also statutory crimes (more and more it seems), statutory rules of contract comsumer protection for instance) and statutory principles of admin law (not many, mainly to do with equalities and human rights)
Quote:
Common law is an area that is best to stay clear of whenever possible. such as treating under "common law" which can take an age to fight through the courts where one has to prove that it was what the average person would do.
Chi-chingggg. The bank is oooopppennnnn :2thumbsup:
Every time I have to sign a five page consent form the words "bloody lawyers" do pass through my mind. :yes:
*Note for pedants. Strictly the trust was a creation of Equity, not Common law, but I am so not going into that.
