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111-657: The word roppō is a slightly adapted form of the word used in Japanese to describe the Napoleonic Code (ナポレオン五法典 Napoleon go-hōten) when it was brought over during the early Meiji period . Although, French Emperor Napoleon enacted five major codes, which were, in Japanese, altogether metonymically referred to as "the Napoleonic Code" (the official name of the Civil Code, the first and most prominent one),

222-644: A federal system (as in Australia, Germany or the United States) or different voting configuration in a unitary system (as in France). In the UK the upper house is appointed by the government as a house of review . One criticism of bicameral systems with two elected chambers is that the upper and lower houses may simply mirror one another. The traditional justification of bicameralism is that an upper chamber acts as

333-650: A new criminal code was issued under Napoleon. As with the Penal Code of 1791 , it did not contain provisions for religious crimes, incest, or homosexuality. The French Revolution's Declaration of the Rights of Man and of the Citizen enunciated the presumption of innocence until found guilty. Concerned by the possibility of arbitrary arrest and detention , or excessive remand , Napoleon remarked that care should be taken to preserve personal freedoms, especially before

444-417: A parliamentary system , as with Britain, Italy, Germany, India, and Japan, the executive is known as the cabinet, and composed of members of the legislature. The executive is led by the head of government , whose office holds power under the confidence of the legislature. Because popular elections appoint political parties to govern, the leader of a party can change in between elections. The head of state

555-688: A ruler ') is a set of ordinances and regulations made by ecclesiastical authority , for the government of a Christian organisation or church and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern Orthodox Church , the Oriental Orthodox Churches , and the individual national churches within the Anglican Communion . The way that such church law

666-409: A science and as the art of justice. State-enforced laws can be made by a legislature , resulting in statutes ; by the executive through decrees and regulations ; or by judges' decisions, which form precedent in common law jurisdictions. An autocrat may exercise those functions within their realm. The creation of laws themselves may be influenced by a constitution , written or tacit, and

777-440: A "common law" developed during the reign of Henry II during the late 12th century, when Henry appointed judges who had the authority to create an institutionalised and unified system of law common to the country. The next major step in the evolution of the common law came when King John was forced by his barons to sign a document limiting his authority to pass laws. This "great charter" or Magna Carta of 1215 also required that

888-613: A civil code. For this commission, Cambacérès (now Second Consul), and Napoleon himself chaired the plenary sessions. After this process finished, the Code was sent to the Legislative Body as a preliminary bill in December 1801, where it was rejected by a vote of 142 to 139. In response, Napoleon announced on 2 January 1802 that he was suspending all projects, effectively closing the assemblies' sessions; simultaneously, he went to

999-560: A code of civil laws common for the entire realm." However, it was the National Convention in 1793 which established a special commission headed by Jean-Jacques-Régis de Cambacérès to oversee the drafting process. His drafts of 1793 (for which Cambacérès had been given a one month deadline), 1794, and 1796 were all rejected by a National Convention and the French Directory of the time was more preoccupied with

1110-469: A code; secondly, the creation of new codes encounters a kind of law of diminishing returns in that, the more progress that is made in the development of new codes, the trickier it becomes to determine in which code particular provisions should be located; and, finally, it is clear that certain kinds of provision [...] are unsuitable for codification, since codification makes sense only when it involves provisions that possess sufficient generality. A year later,

1221-555: A fundamental change in the nature of the civil law legal system , making laws clearer and more accessible . It also superseded the former conflict between royal legislative power and, particularly in the final years before the Revolution, protests by judges representing views and privileges of the social classes to which they belonged. Such conflict led the Revolutionaries to take a negative view of judges making law. This

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1332-488: A higher court or the legislature. Religious law is in use in some religious communities and states, and has historically influenced secular law. The scope of law can be divided into two domains: public law concerns government and society, including constitutional law , administrative law , and criminal law ; while private law deals with legal disputes between parties in areas such as contracts , property , torts , delicts and commercial law . This distinction

1443-442: A house of review. This can minimise arbitrariness and injustice in governmental action. To pass legislation, a majority of the members of a legislature must vote for a bill (proposed law) in each house. Normally there will be several readings and amendments proposed by the different political factions. If a country has an entrenched constitution, a special majority for changes to the constitution may be required, making changes to

1554-502: A lawyer for the defendants who did not have one. (Failing to do so nullified the proceedings.) Whether or not the Cour d'assises , which judges severe crimes, should operate with a jury was a topic of considerable controversy. Napoleon supported jury trials (or petit jury ), and they were finally adopted. On the other hand, Napoleon opposed the indictment jury (" grand jury " of common law countries), and preferred to assign this task to

1665-503: A legislative nature (see above). With regard to family, the code established the supremacy of the husband over his wife and children, the status quo in Europe at the time. Women had even fewer rights than children. Divorce by mutual consent was abolished in 1804. The draft Military Code was presented to Napoleon by the special commission headed by Pierre Daru in June 1805; however, as

1776-601: A process of reform, at least in terms of economic, if not social and political, rights. A new contract code in 1999 represented a move away from administrative domination. Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organization . In general, legal systems can be split between civil law and common law systems. Modern scholars argue that the significance of this distinction has progressively declined. The numerous legal transplants , typical of modern law, result in

1887-574: A public service code ( code général de la fonction publique ). Even though the Napoleonic Code was not the first civil code, it was the first modern legal code to be widely adopted in Europe, and it influenced the law of many of the countries formed during and after the Napoleonic Wars . In the German regions on the west bank of the Rhine ( Rhenish Palatinate and Prussian Rhine Province ),

1998-462: Is legislated , interpreted and at times adjudicated varies widely among these three bodies of churches. In all three traditions, a canon was originally a rule adopted by a church council ; these canons formed the foundation of canon law. The Catholic Church has the oldest continuously functioning legal system in the western world , predating the evolution of modern European civil law and common law systems. The 1983 Code of Canon Law governs

2109-499: Is a code of Jewish law that summarizes some of the Talmud's interpretations. A number of countries are sharia jurisdictions. Israeli law allows litigants to use religious laws only if they choose. Canon law is only in use by members of the Catholic Church , the Eastern Orthodox Church and the Anglican Communion . Canon law ( Ancient Greek : κανών , romanized :  kanon , lit.   'a straight measuring rod;

2220-458: Is a system of rules, divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Secondary rules are further divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). Two of Hart's students continued the debate: In his book Law's Empire , Ronald Dworkin attacked Hart and

2331-472: Is an "authority" to mediate people's interests. Oliver Wendell Holmes defined law as "the prophecies of what the courts will do in fact, and nothing more pretentious." In his Treatise on Law , Thomas Aquinas argues that law is a rational ordering of things, which concern the common good, that is promulgated by whoever is charged with the care of the community. This definition has both positivist and naturalist elements. Definitions of law often raise

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2442-733: Is apart from the executive, and symbolically enacts laws and acts as representative of the nation. Examples include the President of Germany (appointed by members of federal and state legislatures ), the Queen of the United Kingdom (an hereditary office ), and the President of Austria (elected by popular vote). The other important model is the presidential system , found in the United States and in Brazil . In presidential systems,

2553-513: Is authority, identifiable purely through social sources and without reference to moral reasoning. In his view, any categorisation of rules beyond their role as authoritative instruments in mediation is best left to sociology , rather than jurisprudence. The history of law links closely to the development of civilization . Ancient Egyptian law, dating as far back as 3000 BC, was based on the concept of Ma'at and characterised by tradition, rhetorical speech, social equality and impartiality. By

2664-467: Is law?" There have been several attempts to produce "a universally acceptable definition of law". In 1972, Baron Hampstead suggested that no such definition could be produced. McCoubrey and White said that the question "what is law?" has no simple answer. Glanville Williams said that the meaning of the word "law" depends on the context in which that word is used. He said that, for example, " early customary law " and " municipal law " were contexts where

2775-493: Is reflected in the Napoleonic Code provision prohibiting judges from deciding a case by way of introducing a general rule (Article 5), since the creation of general rules is an exercise of legislative and not of judicial power . In theory, there is thus no case law in France. However, the courts still had to fill in the gaps in the laws and regulations and, indeed, were prohibited from refusing to do so (Article 4). Moreover, both

2886-543: Is stronger in civil law countries, particularly those with a separate system of administrative courts ; by contrast, the public-private law divide is less pronounced in common law jurisdictions. Law provides a source of scholarly inquiry into legal history , philosophy , economic analysis and sociology . Law also raises important and complex issues concerning equality, fairness, and justice . The word law , attested in Old English as lagu , comes from

2997-441: Is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour. In The Concept of Law , H. L. A. Hart argued that law is a "system of rules"; John Austin said law was "the command of a sovereign, backed by the threat of a sanction"; Ronald Dworkin describes law as an "interpretive concept" to achieve justice in his text titled Law's Empire ; and Joseph Raz argues law

3108-607: Is the French civil code established during the French Consulate in 1804 and still in force in France, although heavily and frequently amended since its inception. Although Napoleon himself was not directly involved in the drafting of the Code, as it was drafted by a commission of four eminent jurists, he chaired many of the commission's plenary sessions, and his support was crucial to its passage into law. The code, with its stress on clearly written and accessible law,

3219-1007: Is the Supreme Court ; in Australia, the High Court ; in India, the Supreme Court of India ; in the UK, the Supreme Court ; in Germany, the Bundesverfassungsgericht ; and in France, the Cour de Cassation . For most European countries the European Court of Justice in Luxembourg can overrule national law, when EU law is relevant. The European Court of Human Rights in Strasbourg allows citizens of

3330-490: Is the legal systems in communist states such as the former Soviet Union and the People's Republic of China . Academic opinion is divided on whether it is a separate system from civil law, given major deviations based on Marxist–Leninist ideology, such as subordinating the judiciary to the executive ruling party. There are distinguished methods of legal reasoning (applying the law) and methods of interpreting (construing)

3441-513: Is the only U.S. state to practice forced inheritance of an estate; additionally, some of Louisiana's laws clash with the Uniform Commercial Code practiced by the other 49 states. Law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as

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3552-567: Is to make laws, since they are acts of the general will ; nor whether the prince is above the law, since he is a member of the State; nor whether the law can be unjust, since no one is unjust to himself; nor how we can be both free and subject to the laws, since they are but registers of our wills. Jean-Jacques Rousseau, The Social Contract , II, 6. The philosophy of law is commonly known as jurisprudence. Normative jurisprudence asks "what should law be?", while analytic jurisprudence asks "what

3663-671: The Corpus Juris Civilis , and within it, the Institutes . The Institutes divide into the law of: Similarly, the Napoleonic Code divided the law into four sections: Before the Napoleonic Code, France did not have a single set of laws ; law consisted mainly of local customs, sometimes officially compiled in "custumals" ( coutumes ), notably the Custom of Paris . There were also exemptions, privileges , and special charters granted by kings or other feudal lords. With

3774-701: The Manusmriti (c. 100–300 AD) were foundational treatises in India, and comprise texts considered authoritative legal guidance. Manu's central philosophy was tolerance and pluralism , and was cited across Southeast Asia. During the Muslim conquests in the Indian subcontinent , sharia was established by the Muslim sultanates and empires, most notably Mughal Empire 's Fatawa-e-Alamgiri , compiled by emperor Aurangzeb and various scholars of Islam. In India,

3885-459: The "is" and what "ought to be" problem. Bentham and Austin argued for law's positivism ; that real law is entirely separate from "morality". Kant was also criticised by Friedrich Nietzsche , who rejected the principle of equality, and believed that law emanates from the will to power , and cannot be labeled as "moral" or "immoral". In 1934, the Austrian philosopher Hans Kelsen continued

3996-504: The Codex Hammurabi . The most intact copy of these stelae was discovered in the 19th century by British Assyriologists , and has since been fully transliterated and translated into various languages, including English, Italian, German, and French. The Old Testament dates back to 1280 BC and takes the form of moral imperatives as recommendations for a good society. The small Greek city-state, ancient Athens , from about

4107-506: The Commission supérieure de codification to reflect in its annual report for 2011: The Commission observes that the age of drawing up new codes is probably reaching its end. The aim of a nearly complete codification of the law is no longer pursued, for three reasons: firstly, the technical developments by which texts are provided in non-physical form offer to users modes of access that are comparable in many ways to those available through

4218-611: The Council of Europe member states to bring cases relating to human rights issues before it. Some countries allow their highest judicial authority to overrule legislation they determine to be unconstitutional . For example, in Brown v. Board of Education , the United States Supreme Court nullified many state statutes that had established racially segregated schools, finding such statutes to be incompatible with

4329-486: The Early Middle Ages , Roman law was rediscovered around the 11th century when medieval legal scholars began to research Roman codes and adapt their concepts to the canon law , giving birth to the jus commune . Latin legal maxims (called brocards ) were compiled for guidance. In medieval England, royal courts developed a body of precedent which later became the common law . A Europe-wide Law Merchant

4440-577: The English Court of Common Pleas had five. This powerful and tight-knit judiciary gave rise to a systematised process of developing common law. As time went on, many felt that the common law was overly systematised and inflexible, and increasing numbers of citizens petitioned the King to override the common law. On the King's behalf, the Lord Chancellor started giving judgments to do what

4551-1251: The Enlightenment . Then, in the 19th century, both France, with the Code Civil , and Germany, with the Bürgerliches Gesetzbuch , modernised their legal codes. Both these codes heavily influenced not only the law systems of the countries in continental Europe but also the Japanese and Korean legal traditions. Today, countries that have civil law systems range from Russia and Turkey to most of Central and Latin America . In common law legal systems, decisions by courts are explicitly acknowledged as "law" on equal footing with legislative statutes and executive regulations . The "doctrine of precedent", or stare decisis (Latin for "to stand by decisions") means that decisions by higher courts bind lower courts to assure that similar cases reach similar results. In contrast , in civil law systems, legislative statutes are typically more detailed, and judicial decisions are shorter and less detailed because

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4662-571: The Fourteenth Amendment to the United States Constitution . A judiciary is theoretically bound by the constitution, just as all other government bodies are. In most countries judges may only interpret the constitution and all other laws. But in common law countries, where matters are not constitutional, the judiciary may also create law under the doctrine of precedent . The UK, Finland and New Zealand assert

4773-560: The French , but mostly the German Civil Code. This partly reflected Germany's status as a rising power in the late 19th century. Similarly, traditional Chinese law gave way to westernisation towards the final years of the Qing Dynasty in the form of six private law codes based mainly on the Japanese model of German law. Today Taiwanese law retains the closest affinity to the codifications from that period, because of

4884-810: The French Code Napoléon , especially the Civil Code of Lower Canada (replaced in 1994 by the Civil Code of Quebec ), mainly derived from the Coutume de Paris , which the British continued to use in Canada following the 1763 Treaty of Paris . However, most of the laws in Latin American countries are not heavily influenced on the Napoleonic Code, as the Spanish and Portuguese versions of

4995-538: The Hindu legal tradition, along with Islamic law, were both supplanted by common law when India became part of the British Empire . Malaysia, Brunei, Singapore and Hong Kong also adopted the common law system. The Eastern Asia legal tradition reflects a unique blend of secular and religious influences. Japan was the first country to begin modernising its legal system along Western lines, by importing parts of

5106-679: The Latin Church sui juris . The Eastern Catholic Churches, which developed different disciplines and practices, are governed by the Code of Canons of the Eastern Churches . The canon law of the Catholic Church influenced the common law during the medieval period through its preservation of Roman law doctrine such as the presumption of innocence . Roman Catholic canon law is a fully developed legal system, with all

5217-479: The Old Norse word lǫg . The singular form lag meant ' something laid or fixed ' while its plural meant ' law ' . But what, after all, is a law? [...] When I say that the object of laws is always general, I mean that law considers subjects en masse and actions in the abstract, and never a particular person or action. [...] On this view, we at once see that it can no longer be asked whose business it

5328-622: The Quran has some law, and it acts as a source of further law through interpretation, Qiyas (reasoning by analogy), Ijma (consensus) and precedent . This is mainly contained in a body of law and jurisprudence known as Sharia and Fiqh respectively. Another example is the Torah or Old Testament , in the Pentateuch or Five Books of Moses. This contains the basic code of Jewish law, which some Israeli communities choose to use. The Halakha

5439-686: The Retreat of the Republic of China to Taiwan , the legal system in Taiwan is strongly influenced by Japan and China. As a result, the terms Six Codes and Book of Six Codes are also widely used in Taiwan. Napoleonic Code The Napoleonic Code ( French : Code Napoléon ), officially the Civil Code of the French ( French : Code civil des Français ; simply referred to as Code civil ),

5550-511: The Sénat conservateur to berate its members. These tactics cowed the legislature into submission, and gave Napoleon the majority he needed. The code finally came into effect on 21 March 1804. The process developed mainly out of the various customs, but was inspired by Justinian's sixth-century codification of Roman law , the Corpus Juris Civilis and, within that, Justinian's Code ( Codex ). The Napoleonic Code, however, differed from Justinian's in important ways: The Napoleonic Code marked

5661-612: The War of the Third Coalition progressed, the code was put aside and never implemented. In 1791, Louis Michel le Peletier de Saint-Fargeau presented a new criminal code to the National Constituent Assembly . He explained that it outlawed only "true crimes", and not "phony offences created by superstition, feudalism, the tax system, and [royal] despotism ". He did not list the crimes "created by superstition". The new penal code did not mention blasphemy , heresy , sacrilege , witchcraft , incest , or homosexuality , which led to these former offences being swiftly decriminalised. In 1810,

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5772-626: The absolutist theory of Thomas Hobbes ' Leviathan . Sun Yat-sen 's Five Power Constitution for the Republic of China took the separation of powers further by having two additional branches of government—a Control Yuan for auditing oversight and an Examination Yuan to manage the employment of public officials. Max Weber and others reshaped thinking on the extension of state. Modern military, policing and bureaucratic power over ordinary citizens' daily lives pose special problems for accountability that earlier writers such as Locke or Montesquieu could not have foreseen. The custom and practice of

5883-496: The rights encoded therein. The law shapes politics , economics , history and society in various ways and also serves as a mediator of relations between people. Legal systems vary between jurisdictions , with their differences analysed in comparative law . In civil law jurisdictions, a legislature or other central body codifies and consolidates the law. In common law systems, judges may make binding case law through precedent, although on occasion this may be overturned by

5994-597: The "basic pattern of legal reasoning is reasoning by example"—that is, reasoning by comparing outcomes in cases resolving similar legal questions. In a U.S. Supreme Court case regarding procedural efforts taken by a debt collection company to avoid errors, Justice Sotomayor cautioned that "legal reasoning is not a mechanical or strictly linear process". Jurimetrics is the formal application of quantitative methods, especially probability and statistics , to legal questions. The use of statistical methods in court cases and law review articles has grown massively in importance in

6105-424: The 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code , which consisted of casuistic statements ("if … then ..."). Around 1760 BC, King Hammurabi further developed Babylonian law , by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae , for the entire public to see; this became known as

6216-411: The 6th century, which were rediscovered by 11th century Italy. Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class. Instead a lay magistrate , iudex , was chosen to adjudicate. Decisions were not published in any systematic way, so any case law that developed was disguised and almost unrecognised. Each case was to be decided afresh from

6327-431: The 8th century BC was the first society to be based on broad inclusion of its citizenry, excluding women and enslaved people . However, Athens had no legal science or single word for "law", relying instead on the three-way distinction between divine law ( thémis ), human decree ( nomos ) and custom ( díkē ). Yet Ancient Greek law contained major constitutional innovations in the development of democracy . Roman law

6438-451: The Civil Code in this form is nearly 3,000 pages, available in print and online. Additional material, including scholarly articles, is added in the larger "expert ( expert )" version and the still larger "mega ( méga )" version, both of which are available in print and on searchable CD-ROM . By this stage, it has been suggested, the Civil Code has become "less a book than a database". The sheer number of codes, together with digitisation, led

6549-413: The Commission recommended that, after its current codification projects were completed, there should not be any further codes; an additional reason was government delay in publishing reforms that the Commission had completed. The government responded encouragingly in March 2013, but the Commission complains that this has not been followed through; in particular, that the government has abandoned its plan for

6660-441: The Imperial Court: "these courts would have a great strength, they should be prohibited from abusing this situation against weak citizens without connections." However, remand still was usual for defendants suspected of serious crimes such as murder. The possibility of lengthy remand periods was one criticism, particularly voiced in common law countries, of the Napoleonic Code and its de facto presumption of guilt . Another reason

6771-412: The Japanese added to this their own constitution to form six codes in all, and thus it came to be called the roppō or "six codes". Legislation in Japan tends to be terse. The statutory volume Roppō Zensho (literally: Book of Six Codes), similar in size to a large dictionary, contains all six codes as well as many other statutes enacted by the Diet. The Six Codes were introduced to China in 1905 after

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6882-438: The King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country. A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralised. In 1297, for instance, while the highest court in France had fifty-one judges,

6993-405: The Quran as its constitution , and is governed on the basis of Islamic law. Iran has also witnessed a reiteration of Islamic law into its legal system after 1979. During the last few decades, one of the fundamental features of the movement of Islamic resurgence has been the call to restore the Sharia, which has generated a vast amount of literature and affected world politics . Socialist law

7104-444: The Revolution, the last vestiges of feudalism were abolished. Specifically, as to civil law, the many different bodies of law used in different parts of France were to be replaced by a single legal code. The Constituent Assembly on 5 October 1790 voted for a codification of French laws, the Constitution of 1791 promised one, and the National Assembly adopted a unanimous resolution on 4 September 1791 providing that "there shall be

7215-437: The Sharia: the Supreme Constitutional Court of Egypt may invalidate such laws, and in Iran the Guardian Council ensures the compatibility of the legislation with the "criteria of Islam". Prominent examples of legislatures are the Houses of Parliament in London, the Congress in Washington, D.C., the Bundestag in Berlin, the Duma in Moscow, the Parlamento Italiano in Rome and the Assemblée nationale in Paris. By

7326-430: The U.S. , the two systems were merged . In developing the common law, academic writings have always played an important part, both to collect overarching principles from dispersed case law and to argue for change. William Blackstone , from around 1760, was the first scholar to collect, describe, and teach the common law. But merely in describing, scholars who sought explanations and underlying structures slowly changed

7437-468: The adjudicator is only writing to decide the single case, rather than to set out reasoning that will guide future courts. Common law originated from England and has been inherited by almost every country once tied to the British Empire (except Malta, Scotland , the U.S. state of Louisiana , and the Canadian province of Quebec ). In medieval England during the Norman conquest , the law varied shire-to-shire based on disparate tribal customs. The concept of

7548-426: The civil code formed the foundation of the Latin American legal systems e.g. the Chilean , Mexican , and Puerto Rican civil codes. In Mauritius , the Civil Code, which originates from the Napoleonic Code, represents an important primary source of law and provides for the rights of individuals, matrimonial regimes, contract law, and property law, amongst others. The French Civil Code was extended to Mauritius under

7659-447: The code and legislation have required judicial interpretation. Thus a vast body of case law has come into existence, but without any rule of stare decisis . The preliminary article of the code established certain important provisions regarding the rule of law . Laws could be applied only if they had been duly promulgated , and then only if they had previously been officially published (including provisions for publishing delays, given

7770-590: The criminal division of the Court of Appeals . Special courts were created to judge criminals who might intimidate the jury. The French codes, now more than 60 in number, are frequently amended, as well as judicially re-interpreted . Therefore, for over a century all of the codes in force have been documented in the annually revised editions published by Dalloz (Paris). These editions consist of thorough annotations , with references to other codes, relevant statutes , judicial decisions (even if unpublished), and international instruments. The "small ( petit )" version of

7881-507: The defining features of any legal system. Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislation —especially codifications in constitutions or statutes passed by government—and custom . Codifications date back millennia, with one early example being the Babylonian Codex Hammurabi . Modern civil law systems essentially derive from legal codes issued by Byzantine Emperor Justinian I in

7992-406: The executive acts as both head of state and head of government, and has power to appoint an unelected cabinet. Under a presidential system, the executive branch is separate from the legislature to which it is not accountable. Although the role of the executive varies from country to country, usually it will propose the majority of legislation, and propose government agenda. In presidential systems,

8103-500: The former Duchy of Berg and the Grand Duchy of Baden , the Napoleonic Code was influential until the introduction of the Bürgerliches Gesetzbuch in 1900 as the first common civil code for the entire German Empire . A number of factors have been shown by Arvind and Stirton to have had a determinative role in the decision by the German states to receive the code, including territorial concerns, Napoleonic control and influence,

8214-902: The golden age of Roman law and aimed to restore it to the peak it had reached three centuries before." The Justinian Code remained in force in the East until the fall of the Byzantine Empire . Western Europe, meanwhile, relied on a mix of the Theodosian Code and Germanic customary law until the Justinian Code was rediscovered in the 11th century, which scholars at the University of Bologna used to interpret their own laws. Civil law codifications based closely on Roman law, alongside some influences from religious laws such as canon law , continued to spread throughout Europe until

8325-530: The idea of the rule of law because he did not accept the primacy of abstract normative principles over concrete political positions and decisions. Therefore, Schmitt advocated a jurisprudence of the exception ( state of emergency ), which denied that legal norms could encompass all of the political experience. Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fiction in The Concept of Law . Hart argued law

8436-428: The ideal of parliamentary sovereignty , whereby the unelected judiciary may not overturn law passed by a democratic legislature. In communist states , such as China, the courts are often regarded as parts of the executive, or subservient to the legislature; governmental institutions and actors exert thus various forms of influence on the judiciary. In Muslim countries, courts often examine whether state laws adhere to

8547-564: The last few decades. It is a real unity of them all in one and the same person, made by covenant of every man with every man, in such manner as if every man should say to every man: I authorise and give up my right of governing myself to this man, or to this assembly of men, on this condition; that thou givest up, thy right to him, and authorise all his actions in like manner. Thomas Hobbes, Leviathan , XVII The main institutions of law in industrialised countries are independent courts , representative parliaments, an accountable executive,

8658-513: The law more difficult. A government usually leads the process, which can be formed from Members of Parliament (e.g. the UK or Germany). However, in a presidential system, the government is usually formed by an executive and his or her appointed cabinet officials (e.g. the United States or Brazil). The executive in a legal system serves as the centre of political authority of the State . In

8769-647: The law of many of the countries formed during and after the Napoleonic Wars . The Napoleonic Code influenced developing countries outside Europe attempting to modernise and defeudalise their countries through legal reforms, such as those in the Middle East , while in Latin America the Spanish and Portuguese had established their own versions of the civil code. The categories of the Napoleonic Code were not drawn from earlier French law, but instead from Justinian's sixth-century codification of Roman law ,

8880-734: The law. The former are legal syllogism , which holds sway in civil law legal systems, analogy , which is present in common law legal systems, especially in the US, and argumentative theories that occur in both systems. The latter are different rules (directives) of legal interpretation such as directives of linguistic interpretation, teleological interpretation or systemic interpretation as well as more specific rules, for instance, golden rule or mischief rule . There are also many other arguments and cannons of interpretation which altogether make statutory interpretation possible. Law professor and former United States Attorney General Edward H. Levi noted that

8991-527: The laws of the State, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. From 529 to 534 AD the Byzantine Emperor Justinian I codified and consolidated Roman law up until that point, so that what remained was one-twentieth of the mass of legal texts from before. This became known as the Corpus Juris Civilis . As one legal historian wrote, "Justinian consciously looked back to

9102-426: The legal profession is an important part of people's access to justice , whilst civil society is a term used to refer to the social institutions, communities and partnerships that form law's political basis. A judiciary is a number of judges mediating disputes to determine outcome. Most countries have systems of appeal courts, with an apex court as the ultimate judicial authority. In the United States, this authority

9213-433: The means of communication available at the time). In brief, no secret laws were authorised. It prohibited ex post facto laws (i.e. laws that apply to events that occurred before their introduction). The code also prohibited judges from refusing to do justice on grounds of the insufficiency of the law, thereby encouraging them to interpret the law. On the other hand, it also prohibited judges from making general judgements of

9324-472: The mid-1940s, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions. In modern times, the legal systems of many Muslim countries draw upon both civil and common law traditions as well as Islamic law and custom. The constitutions of certain Muslim states, such as Egypt and Afghanistan, recognise Islam as the religion of the state, obliging legislature to adhere to Sharia. Saudi Arabia recognises

9435-520: The military and police, bureaucratic organisation, the legal profession and civil society itself. John Locke, in his Two Treatises of Government , and Baron de Montesquieu in The Spirit of the Laws , advocated for a separation of powers between the political, legislature and executive bodies. Their principle was that no person should be able to usurp all powers of the state , in contrast to

9546-676: The most influential. In contrast to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and easy for judges to apply. However, today there are signs that civil and common law are converging. EU law is codified in treaties, but develops through de facto precedent laid down by the European Court of Justice . Ancient India and China represent distinct traditions of law, and have historically had independent schools of legal theory and practice. The Arthashastra , probably compiled around 100 AD (although it contains older material), and

9657-512: The necessary elements: courts , lawyers , judges, a fully articulated legal code, principles of legal interpretation, and coercive penalties, though it lacks civilly-binding force in most secular jurisdictions. Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empire 's Mecelle code in the 19th century being a first attempt at codifying elements of Sharia law. Since

9768-538: The notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas , notably his Treatise on Law . Hugo Grotius , the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason. Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature". Jeremy Bentham and his student Austin, following David Hume , believed that this conflated

9879-570: The positivist tradition in his book the Pure Theory of Law . Kelsen believed that although law is separate from morality, it is endowed with "normativity", meaning we ought to obey it. While laws are positive "is" statements (e.g. the fine for reversing on a highway is €500); law tells us what we "should" do. Thus, each legal system can be hypothesised to have a ' basic norm ' ( German : Grundnorm ) instructing us to obey. Kelsen's major opponent, Carl Schmitt , rejected both positivism and

9990-490: The positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an " interpretive concept" that requires judges to find the best fitting and most just solution to a legal dispute, given their Anglo-American constitutional traditions. Joseph Raz , on the other hand, defended the positivist outlook and criticised Hart's "soft social thesis" approach in The Authority of Law . Raz argues that law

10101-416: The principle of representative government people vote for politicians to carry out their wishes. Although countries like Israel, Greece, Sweden and China are unicameral , most countries are bicameral , meaning they have two separately appointed legislative houses. In the 'lower house' politicians are elected to represent smaller constituencies . The 'upper house' is usually elected to represent states in

10212-514: The prosecution; however, criminal justice in European countries in those days tended to repression. For instance, it was only in 1836 that prisoners charged with a felony were given a formal right to counsel in England . In comparison, article 294 of the Napoleonic Code of Criminal Procedure allowed the defendant access to a lawyer before a Cour d'assises , and mandated the court to appoint

10323-449: The publication of the Code under the title "Code Civil Mauricien." In the United States, the legal system is largely based on English common law . But the state of Louisiana is unique in having a strong influence from French and Spanish legal traditions on its civil code . Spanish and French colonial forces quarreled over Louisiana during most of the 1700s, with Spain ultimately ceding the territory to France in 1800, which in turn sold

10434-469: The question of the extent to which law incorporates morality. John Austin 's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". Natural lawyers , on the other hand, such as Jean-Jacques Rousseau , argue that law reflects essentially moral and unchangeable laws of nature. The concept of "natural law" emerged in ancient Greek philosophy concurrently and in connection with

10545-607: The reform and modernization of the Chinese legal system led by Cixi . Such reform was based on the similar laws adopted in Germany, France, and Japan. After the establishment of Nationalist Government , the Complete Book of Six Codes was passed on October 3 1928. The Chinese Communist Party abolished the practices of Six Codes on the land of Communist control in February 1949. As a result of Japanese colonial rule and

10656-402: The sharing of many features traditionally considered typical of either common law or civil law. The third type of legal system is religious law, based on scriptures . The specific system that a country is ruled by is often determined by its history, connections with other countries, or its adherence to international standards. The sources that jurisdictions adopt as authoritatively binding are

10767-458: The split between Chiang Kai-shek 's nationalists, who fled there, and Mao Zedong 's communists who won control of the mainland in 1949. The current legal infrastructure in the People's Republic of China was heavily influenced by Soviet Socialist law , which essentially prioritises administrative law at the expense of private law rights. Due to rapid industrialisation, today China is undergoing

10878-492: The strength of central state institutions, a feudal economy and society, rule by liberal ( enlightened despotic ) rulers, nativism among the governing elites, and popular anti-French sentiment . A civil code with Napoleonic code influences was also adopted in 1864 in Romania , and remained in force until 2011. The term "Napoleonic Code" is also used to refer to legal codes of other jurisdictions that are influenced by

10989-510: The territory to the United States in 1803. The 10th Amendment to the U.S. Constitution grants states control of laws not specifically given to the federal government, so Louisiana's legal system retains many French elements. Examples of the practical legal differences between Louisiana and the other states include the bar exam and legal standards of practice for attorneys in Louisiana being significantly different from other states; Louisiana

11100-550: The testator's freedom to dispose of the free portion of his estate. It was rejected. Napoleon's victory at the Battle of Marengo allowed him to consolidate his power in France Returning to Paris, he appointed on 12 August 1800 a commission of distinguished jurists and politicians, including fr:Jacques de Maleville , François Denis Tronchet , Félix-Julien-Jean Bigot de Préameneu , Jean-Étienne-Marie Portalis to draft

11211-574: The title Code Napoléon by decree of Charles Mathieu Isidore Decaen , Capitaine-General , on 21 April 1808. The Code was modified and embodied in Chapter 179 of the Revised Laws of Mauritius 1945, edited by Sir Charlton Lane, former Chief Justice of Mauritius. The 1808 decree was repealed by Act 9 of 1983, but the Revision of Laws Act which was enacted in 1974, made provision, in section 7, for

11322-410: The turmoil resulting from various wars and strife with other European powers. The first draft contained 719 articles and was very revolutionary, but was rejected for being too technical and criticised for not being radical or philosophical enough. The second, with only 297 articles, was rejected for being too brief and was criticised for being a mere manual of morals. The third, expanded to 1,104 articles,

11433-621: The way the law actually worked. Religious law is explicitly based on religious precepts. Examples include the Jewish Halakha and Islamic Sharia —both of which translate as the "path to follow". Christian canon law also survives in some church communities. Often the implication of religion for law is unalterability because the word of God cannot be amended or legislated against by judges or governments. Nonetheless, most religious jurisdictions rely on further human elaboration to provide for thorough and detailed legal systems. For instance,

11544-418: The word "law" had two different and irreconcilable meanings. Thurman Arnold said that it is obvious that it is impossible to define the word "law" and that it is also equally obvious that the struggle to define that word should not ever be abandoned. It is possible to take the view that there is no need to define the word "law" (e.g. "let's forget about generalities and get down to cases "). One definition

11655-491: Was a major milestone in the abolition of the previous patchwork of feudal laws. Historian Robert Holtman regards it as one of the few documents that have influenced the whole world. The Napoleonic Code is often portrayed to be one of the most widespread systems of law in the world, claimed to be in force in various forms in about 120 countries, but many of those countries are civil code countries that had their own version of their civil code for centuries. The Napoleonic Code

11766-472: Was equitable in a case. From the time of Sir Thomas More , the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery . At first, equity was often criticised as erratic. Over time, courts of equity developed solid principles , especially under Lord Eldon . In the 19th century in England, and in 1937 in

11877-496: Was formed so that merchants could trade with common standards of practice rather than with the many splintered facets of local laws. The Law Merchant, a precursor to modern commercial law, emphasised the freedom to contract and alienability of property. As nationalism grew in the 18th and 19th centuries, the Law Merchant was incorporated into countries' local law under new civil codes. The Napoleonic and German Codes became

11988-467: Was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists and were highly sophisticated. Over the centuries between the rise and decline of the Roman Empire , law was adapted to cope with the changing social situations and underwent major codification under Theodosius II and Justinian I . Although codes were replaced by custom and case law during

12099-633: Was not the first legal code to be established in a European country with a civil-law legal system ; it was preceded by the Codex Maximilianeus bavaricus civilis ( Bavaria , 1756), the Allgemeines Landrecht ( Prussia , 1794), and the West Galician Code ( Galicia , then part of Austria , 1797). It was, however, the first modern legal code to be adopted with a pan-European scope, and it strongly influenced

12210-447: Was presented under the conservative Directory regime, but never even came up for discussion. Another commission, established in December 1799 established a fourth outline drafted in part by Jean-Ignace Jacqueminot  [ fr ] (1754–1813). Jacqueminot's draft, the so-called loi Jacqueminot , dealt almost exclusively with persons and emphasised the need to reform the divorce laws, to strengthen parental authority and increase

12321-401: Was the combination of magistrate and prosecutor into a single role. However, with the work of the juge d'instruction accomplished, the trial itself did not have the same de jure presumption of guilt; for instance, the juror's oath explicitly required jurors not betray the interests of the defendants or ignore their defence. The rules governing court proceedings gave significant power to

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