scholarly journals Les réactions de la doctrine à la création du droit civil québécois par les juges : les débuts d'une affaire de famille

2005 ◽  
Vol 21 (2) ◽  
pp. 257-275 ◽  
Author(s):  
Pierre-Gabriel Jobin
Keyword(s):  
Twentieth Century ◽  
Legal System ◽  
Turning Point ◽  
Common Law ◽  
Civil Law ◽  
Legal Issues ◽  
Full Time ◽  
History Of ◽  
Local Traditions ◽  
Legal Writers

The middle of the twentieth century marked a turning point in the history of scholarly writings on the civil law in Québec. The emergence of a full-time teaching body in the law faculties entailed consequences of primary importance: publications gained not only in quantity, but also in quality and diversity and, in particular, the reactions of legal writers to judge-made law became frequent and substantial. The relations between legal writers and judges illustrate, here as elsewhere, the particular situation of the Québec legal system at the crossroads of civil law and common law. For instance, due to the British-inspired method of appointing judges and some local traditions, judges are personally known to many professors. Furthermore, decisions of the courts, most of the time, are written in a learned style, the merits of the legal issues being discussed and doctrinal opinions being quoted with approval or criticism. These relations between the writers and the judiciary may explain the great interest of legal writers in judge-made law and their perhaps insufficient sense of critical responsibility vis-à-vis that law. Legal writers and judges have the great advantage of speaking the same language and of maintaining a dialogue — an advantage which benefits law itself and the whole community.

scholarly journals Civil Law and Common Law: Two Different Paths Leading to the Same Goal

2001 ◽  
Vol 32 (3) ◽  
pp. 817 ◽  
Author(s):  
Caslav Pejovic
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Legal Issues ◽  
Distinctive Features ◽  
Theoretical Examination ◽  
Legal Structure ◽  
Procedural Law ◽  
The Common ◽  
Substantive Law

"There are many ways to skin a cat".While there are many legal issues which are dealt with in the same way by the civil law and Common Law systems, there remain also significant differences between these two legal systems related to legal structure, classification, fundamental concepts and terminology. This paper does not deal with theoretical examination of differences between the common law and the civil law, but focuses rather on various distinctive features of civil law and common law, with several illustrations of resulting differences in both substantive law and procedural law. These differences are not examined in detail as they should serve only as illustration of those differences. The paper does not enter into polemic as to which legal system is better and what are the advantages of common law or of civil law. The purpose of this short study is simply to highlight some of the main conceptual differences between common law and civil law systems, and to explore the possibilities of reconciling of some of those differences.

scholarly journals Comparison Of Legal System: Islamic Law System, Civil Law, and Common Law

2018 ◽  
Vol 5 (2-1) ◽  
Author(s):  
Asasriwarnia Asasriwarnia ◽  
M. Jandra
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Human Life ◽  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
Law System ◽  
Legal Method ◽  
History Of ◽  
Wide Definition

This paper will discuss the comparison of Islamic legal system, civil law, and common law. Knowing the comparison is important. This method is very appropriate considering that the legal system has its own character and scope. The questions of this study are: (1) how is the comparison concept of legal systems; (2) how was the comparison of legal systems’ source; (3) how was the comparison of its history and (4) the comparative material of law content. The purpose of this study is to reveal the concepts of legal systems comparison; the comparison of its source, history and the material comparison of law system’s content. This study use normative legal method. The results of this study are: (1) the concept of legal system comparison is defined by the similarities and difference on the collection of law elements. The needs of legal systems comparison are grouped into scientific needs and practical needs; (2) the comparison of legal system source is that the source of Islamic legal system, civil law, and common law has similarity in the effort of legal discovery. (3) The comparison of the history of legal system have similarities in growth and development influenced by the traditions of human life from one generation to the next generation in wide definition. (4) Comparison of the content of law system have similarities that all aspects of human life is generally regulated by law. In this context Islamic law is comprehensively regulate various aspects of human life including the relationship with the universe, the Lord and the hereafter.

scholarly journals The Transplant of Trusts in Different Legal Jurisdictions: The Example of China

Global Jurist ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Giulia Terranova
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Original Model ◽  
People’S Republic Of China ◽  
Legal Institution ◽  
Legal Systems ◽  
People's Republic Of China ◽  
Republic Of China ◽  
Trust Law

AbstractLegal transplants are considered a significant factor in the evolution of legal systems. One example of transplant of a legal institution through its prestige is the diffusion of the trust from the English legal system to other common law systems and to many civil law countries. One of these is China that in 2001 enacted the Trust Law of the People’s Republic of China. This paper wants to analyse the trust under the Trust Law and to compare it with the original model in the English legal system, understanding how far or how close it is from the original one.

Towards a Transsystemic Study of the Ghana Legal System

2017 ◽  
Vol 6 (1) ◽  
pp. 25-50
Author(s):  
Poku Adusei
Keyword(s):  
Legal System ◽  
Academic Discipline ◽  
Common Law ◽  
Civil Law ◽  
Cross Cultural ◽  
Legal Tradition ◽  
Legal Traditions ◽  
The Law ◽  
Cultural Dialogue

This article provides comprehensive insights into the study of the Ghana legal system as an academic discipline in the law faculties in Ghana. It urges the view that the study of the Ghana legal system, as an academic discipline, should be transsystemic. Transsystemic pedagogy consists in the introduction of ideas, structures and principles which may be drawn from different legal traditions such as civil law, common law, religion-based law, African law and socialist law traditions to influence the study of law. Transsystemia involves teaching law ‘across,’ ‘through,’ and ‘beyond’ disciplinary fixations associated with a particular legal system. It is a mode of scholarship that defies biased allegiance to one legal tradition in order to foster cross-cultural dialogue among legal traditions. It involves a study of law that re-directs focus from one concerned with ‘pure’ legal system to a discourse that is grounded on multiple legal traditions.

scholarly journals PERBANDINGAN SISTEM HUKUM COMMON LAW, CIVIL LAW DAN ISLAMIC LAW DALAM PERSPEKTIF SEJARAH DAN KARAKTERISTIK BERPIKIR

2018 ◽  
Vol 25 (1) ◽  
pp. 98
Author(s):  
Farihan Aulia ◽  
Sholahuddin Al-Fatih
Keyword(s):  
Legal System ◽  
Legal History ◽  
Islamic Law ◽  
Common Law ◽  
Legal Systems ◽  
Legal Tradition ◽  
History Of ◽  
Legal Thinking ◽  
Anglo American ◽  
The Comparative Study

The legal system or commonly referred to as the legal tradition, has a wealth of scientific treasures that can be examined in more depth through a holistic and comprehensive comparative process. Exactly, the comparison of the legal system must accommodate at least three legal systems that are widely used by countries in the world today. The three legal systems are the Continental European legal system, Anglo American and Islamic Law. The comparative study of the three types of legal systems found that the history of the Continental European legal system is divided into 6 phases, while Anglo American legal history began in the feudalistic era of England until it developed into America and continues to be studied until now. Meanwhile, the history of Islamic law is divided into 5 phases, starting from the Phase of the Prophet Muhammad to the Resurrection Phase (19th century until nowadays). In addition to history, the authors find that the Continental European legal system has the characteristic of anti-formalism thinking, while the Anglo American legal thinking characteristic tends to be formalism and is based on a relatively primitive mindset. While the thinking character of Islamic Law is much influenced by the thought of the fuqoha (fiqh experts) in determining the law to solve a problem, so relatively dynamic and moderate.

scholarly journals O Sistema de Precedentes no Brasil Como Instrumento de Concretização da Eficácia e Segurança Jurídica

2017 ◽  
Vol 18 (1) ◽  
pp. 30-39
Author(s):  
Lincoln Zub Dutra
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Legal Precedent ◽  
Legal Security

Este artigo aborda o tema o sistema de precedentes no Brasil como instrumento de concretização da eficácia e segurança jurídica, haja vista a imperiosa importância e discussão inerente ao mesmo. A utilização dos precedentes judiciais é um recurso difundido em diversos sistemas jurídicos, em especial, naqueles em que preponderam as características do Common Law. Todavia, o presente trabalho tem como objetivo auferir a influência dos precedentes judiciais no mundo jurídico do Civil Law e, mais especificamente, no ordenamento jurídico brasileiro, demonstrando assim sua capacidade contributiva para a eficácia e segurança jurídica.Palavras-chaves: Precedentes Judiciais. Eficácia dos Precedentes Judiciais. Segurança Jurídica.AbstractThis article discusses the theme the precedent system in Brazil and the effectiveness accomplishment of instrument and legal security, given the outmost importance and inherent to the same discussion. The use of legal precedent is a widespread feature in various legal system in particular those where the characteristicsof Common Law prevail. However, this study aims to derive the influence of legal precedents in the legal world of Civil Law and, more specifically, the Brazilian legal system, thus demonstrating its contributive ability to the the effectiveness and legal safety.Keywords: Legal Precedent. Effectiveness of Legal Precedent. Legal Security

Contract

2005 ◽  
Author(s):  
James Gordley
Keyword(s):  
Twentieth Century ◽  
Legal System ◽  
Common Law ◽  
Contract Law ◽  
Legal Method ◽  
Legal Problems ◽  
Early Twentieth Century ◽  
The Will ◽  
The Law

‘Classical’ contract law was built on a substantive premise about contract law and two premises about legal method. The substantive premise was voluntaristic: the business of contract law is to enforce the will or choice of the parties. The first methodological premise was positivistic: the law is found, implicitly or explicitly, in the decisions of common law judges. The second methodological premise was conceptualistic: the law should be stated in general formulas which can be tested by their coherence. Finally, ‘classical’ contract law reflected an attitude about how best to steer a course — as every legal system must — between strict rules and equitable considerations. Since the early twentieth century, classical contract law has been breaking down. Allegiance to its premises has weakened as has the preference for rigor. At the same time, scholars have found classical law to be inconsistent even in its own terms. Nevertheless, much of it has remained in place faute de mieux while contemporary jurists have tried to see what is really at stake in particular legal problems. This article describes their work.

2. English legal system—an overview

2018 ◽  
Author(s):  
Steve Wilson ◽  
Helen Rutherford ◽  
Tony Storey ◽  
Natalie Wortley
Keyword(s):  
European Union ◽  
Criminal Law ◽  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
European Convention ◽  
The European Union ◽  
Parliamentary Sovereignty ◽  
Legal Concepts ◽  
The Relationship

This chapter provides an overview of the English legal system, introducing fundamental legal concepts, such as the nature of law and parliamentary sovereignty, and the differences between criminal law and civil law legal terminology, such as terminology and the outcomes. The sources of law, legislation in the form of Acts of Parliament or statutes and delegated legislation and common law or judge-made law are outlined. An outline of the courts is given, including the judges and the jurisdiction of the courts. The relationship between the English legal system and the European Union (EU) and the European Convention on Human Rights (ECHR) is explained.

Legal Diversity in the Age of Taqlid: the Four Chief Qadis Under the Mamluks

2003 ◽  
Vol 10 (2) ◽  
pp. 210-228 ◽  
Author(s):  
Yossef Rapoport
Keyword(s):  
Legal System ◽  
Turning Point ◽  
Judicial System ◽  
The Other ◽  
Legal Rules ◽  
Other Hand ◽  
History Of ◽  
School Affiliation

Sultan Baybars' decision to appoint four Chief Qādīs , one from each of the Sunni schools of law, has long been recognized as a turning point in the history of the madhhabs. To date, historians have explained this decision only in political or ideological terms, paying little attention to its implications for the judicial system. Here I argue that the purpose of the new quadruple structure of the judiciary was two-fold: to create a uniform but at the same time flexible legal system. The need for predictable and stable legal rules was addressed by limiting qādīs' discretion and promoting taqlīd , i.e., adherence to established school doctrine. The establishment of Chief Qādīs from the four schools of law, on the other hand, allowed for flexibility and prevented the legal system from becoming too rigid. The quadruple judiciary enabled litigants, regardless of personal school affiliation, to choose from the doctrines of the four schools.

The Neuroscientific Non-Challenge to Meaning, Morals, and Purpose

2018 ◽  
Author(s):  
Stephen J. Morse
Keyword(s):  
Legal System ◽  
Criminal Responsibility ◽  
Human Life ◽  
Common Law ◽  
Civil Law ◽  
New Challenges ◽  
The Law ◽  
Legal Concepts

Stephen J. Morse argues that neuroscience raises no new challenges for the existence, source, and content of meaning, morals, and purpose in human life, nor for the robust conceptions of agency and autonomy underpinning law and responsibility. Proponents of revolutionizing the law and legal system make two arguments. The first appeals to determinism and the person as a “victim of neuronal circumstances” (VNC) or “just a pack of neurons” (PON). The second defend “hard incompatibilism. ” Morse reviews the law’s psychology, concept of personhood, and criteria for criminal responsibility, arguing that neither determinism nor VNC/PON are new to neuroscience and neither justifies revolutionary abandonment of moral and legal concepts and practices evolved over centuries in both common law and civil law countries. He argues that, although the metaphysical premises for responsibility or jettisoning it cannot be decisively resolved, the hard incompatibilist vision is not normatively desirable even if achievable.

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