Континентальные системы

Continental law systems

Task 1. Warming-up Activity.

1. What is a continental law system?

CONTINENTAL LEGAL SYSTEM

one of the world's major legal systems, sometimes also called Romano-Germanic. It originated in continental Europe on the basis of Roman law, as well as canon law and local customs.

The Romano-Germanic legal family unites the legal systems of all countries of continental Europe and is opposed to Anglo-Saxon law. This legal family originated on the basis of the reception of Roman law. The main source of law is the Law (normative act). It is characterized by a clear division of the rules of law into branches, and all branches are divided into two subsystems: private law and public law. The sphere of public law includes administrative, criminal, constitutional, and international public law. Private property includes civil, family, labor, and international private property. In the system of State bodies, a clear distinction is made between legislative and law enforcement bodies. Legislative functions constitute the monopoly of the legislator. Most of the countries of this family are characterized by a written constitution.

1. What countries have continental law systems?

Within the framework of the Romano-Germanic legal family, the following groups are distinguished:

• the group of Roman law (the legal systems of France, Italy, Belgium, Spain, Romania, the law of Latin American countries);
• the group of German law (the legal systems of Germany, Austria, Hungary, Switzerland, Greece, Portugal, Turkey, Japan);
• the group of Scandinavian law (the legal systems of Denmark, Norway, and Sweden).

Task 2. Read the text. The following sentences (1-8) have been taken out of the text. Fill in the gaps (A-H) with the appropriate sentence.

B1) Nineteenth century Europe also saw the decline of several multi-ethnic empires and the rise of nationalism.

E2) Canon law had a stronger influence in countries with a less secular ideology than France, such as Spain.

D3) French public law has never been codified, and French courts have produced a great deal of case law in interpreting codes that become out of date because of social change.

F4) New codes of law developed under the postwar occupation show some influence from Anglo-American common law traditions (such as a statutory form of trust).

G5) Legal relations should not be thought of as in any way independent from political relations, which are based on ownership of property.

C6) His aim had been to eliminate the confusion of centuries of inconsistent lawmaking by formulating a comprehensive system that would entirely replace existing law.

A7) They have resulted from attempts by governments to produce a set of codes to govern every legal aspect of a citizen's life.

H8) However, socialist countries in the twentieth century have produced very strong centralized state institutions and complex legal systems alongside them.

Continental Systems

Continental systems are sometimes known as codified legal systems.

They have resulted from attempts by governments to produce a set of codes to govern every legal aspect of a citizen's life. Thus it was necessary for the legislators to speculate quite comprehensively about human behavior rather than simply looking at previous cases. In codifying their legal systems, many countries have looked to the examples of Revolutionary and Napoleonic France, whose legislators wanted to break with previous case law, which had often produced corrupt and biased judgments, and to apply new egalitarian social theories to the law. Nineteenth century Europe also saw the decline of several multi-ethnic empires and the rise of nationalism. The lawmakers of new nations sometimes wanted to show that the legal rights of their citizens originated in the state, not in local customs, and thus it was the state that was to make law, not the courts. In order to separate the roles of the legislature and judiciary, it was necessary to make laws that were clear and comprehensive. The lawmakers were often influenced by the model of the canon law of the Roman Catholic Church, but the most important models were the codes produced in the seventh century under the direction of the Roman Emperor Justinian. His aim had been to eliminate the confusion of centuries of inconsistent lawmaking by formulating a comprehensive system that would entirely replace existing law. Versions of Roman law had long influenced many parts of Europe, including the case law traditions of Scotland, but had little impact on English law.

It is important not to exaggerate the differences between these two traditions of law. For one thing, many case law systems, such as California's, have areas of law that have been comprehensively codified. For another, many countries can be said to have belonged to the Roman tradition long before codifying their laws, and large uncodified – perhaps uncodifiable – areas of the law still remain. French public law has never been codified, and French courts have produced a great deal of case law in interpreting codes that become out of date because of social change. The clear distinction between legislature and judiciary has weakened in many countries, including Germany, France and Italy, where courts are able to challenge the constitutional legality of a law made by parliament (judicial review).

Despite this, it is also important not to exaggerate similarities among systems within the Continental tradition. For example, while adopting some French ideas, such as separation of the legislature and judiciary, the late nineteenth century codifiers of German law aimed at conserving customs and traditions peculiar to German history. Canon law had a stronger influence in countries with a less secular ideology than France, such as Spain.

Modern Japanese law

Despite a tradition of private law that more closely resembled English principles of judicial precedent, the lawmakers of Meiji Japan decided to adopt criminal and civil codes closely based on the existing French models.            However, this rapid import of a new system was to a large extent an attempt to give Japan the appearance of a modernized, even Westernized country, and the way in which justice was actually administered continued to reflect older Japanese principles of refraining wherever possible from formal and open methods of solving disputes. New codes of law developed under the postwar occupation show some influence from Anglo-American common law traditions (such as a statutory form of trust).