Common Law - Civil Law: The Great Divide?

ISBN-13: 9783030877170 / Angielski / Twarda / 2021 / 204 str.

Bersier, Nicoletta

Opis

This book offers an in-depth analysis of the differences between common law and civil law systems from various theoretical perspectives. Written by a global network of experts, it explores the topic against the background of a variety of legal traditions.

Common law and civil law are typically presented as antagonistic players on a field claimed by diverse legal systems: the former being based on precedent set by judges in deciding cases before them; the latter being founded on a set of rules intended to govern the decisions of those applying them. Perceived in this manner, common law and civil law differ in terms of the (main) source(s) of law; who is to create them; who is (merely) to draw from them; and whether the law itself is pure each step of the way, or whether the law’s purity may be tarnished when confronted with a set of contingent facts. These differences have deep roots in (legal) history – roots that allow us to trace them back to distinct traditions. Nevertheless, it is questionable whether the divide thus depicted is as great as it may seem: international and supranational legal systems unconcerned by national peculiarities appear to level the playing field. A normative understanding of constitutions seems to grant ever-greater authority to High Court decisions based on thinly worded maxims in countries that adhere to the civil law tradition. The challenges contemporary regulation faces call for ever-more detailed statutes governing the decisions of judges in the common law tradition. These and similar observations demand a structural reassessment of the role of judges, the power of precedent, the limits of legislation and other features often thought to be so different in common and civil law systems. 

The book addresses this reassessment.

Spis treści

The Chain Novel of Civil Law – Dworkin, Brandom and the Rational Practice of Law outside of Common Law Systems.- The Civil Law as Foundation of the Common Law: Roscoe Pounds looks at the Origins of the Common Law.- Progress in Purity v. Purity in Progress. On: “The Law works itself pure.- In the Mix: Common Law and Civil Law Approaches United.- Presumption(s) of Correctness (?): Comparing the Methodological Relevance of Judicial Precedents in Civil Law and in Common Law Systems.- A Matter of Choice: On China’s Transition to a Civil Law System.- Xxx.- Between Guidance and Discretion: Mainstream and Critical Portrayals of Judges in the Civil Law and (American) Common Law Worlds.- Civil Law is only more or less Common Law – why Overstate the Difference?.- Common Law and Civil: Tree Diagram or Pyramid of Norms?.- A Positive Turn: Originalism between Common Law and Civil Law.- Common Law, Civil Law, and the Data of Legal Philosophy.- A Post Mortem on Legal Science?.- Two Faces of judicial decision making. On the concept of judicial precedent in the Civil Law Countries.- Common Law and Civil Law – The Matter of Constitutional Reasoning.

O autorze

Nicoletta Bersier is a member of Thémis Institute, Geneva. She has authored and (co-)edited numerous publications on legal theory and legal sociology.

Christoph Bezemek is a Professor of Public Law and the Dean of the Faculty of Law at University of Graz. His research focuses on comparative constitutional law, free speech, and legal and political theory.

Frederick Schauer is the David and Mary Harrison Distinguished Professor of Law at the University of Virginia and Frank Stanton Professor (Emeritus) of the First Amendment at the Kennedy School of Government, Harvard University. He is the author of numerous publications on constitutional law, in particular on free speech, and on legal theory. He is a Co-Editor of Springer’s Law and Philosophy Library.