Roman law & comparative law

The author presents the historical genesis of the institute of construction law, with the purpose of presenting the reasons for its introduction in the first place, starting from Roman law to the first civil codifications that can be called modern. In this regard, this paper presents Roman long-term land leases first (emphyteusis and superficies). Superficies are considered the forerunner of modern construction law, because, among other similarities, it had almost the same purpose that is achieved today by construction law: to enable cheaper construction of buildings on someone else's land. Part of this paper is dedicated to the reasons for the revival of the institute of construction rights in the first civil codifications from the end of the 19th and the beginning of the 20th century (Austrian law, German law, French law). This part of the paper will also reflect the forms of this right (construction rights and superficiary rights) which occurred when the Roman law was accepted in the countries of the Germanic and Roman legal circles. In the same period in Serbian law, there was an institute of permanent right to use construction land in social or state ownership, which was in accordance with the, now abandoned, collectivist concept of property rights and which in some way satisfied the interests of individuals and society as a whole. Today, construction right is regulated by most of the legal systems in the region, but also by the countries of continental Europe. In Serbia, this legal institute has never been regulated in the form we find in comparative law, but its introduction was proposed by the preliminary draft of the Civil Code of Serbia, which, if accepted, will, in our opinion, be fully applied in domestic social relations.

According to the common understanding, tort law is the branch of private law whose set of positive rules, institutions, and procedures aims to shift the costs of accidents from the victim to a different subject. Similar accounts of tort law are widespread and uncontested, yet they fail to do justice to the overall role tort law plays in societies. Tort law does not live in legislatures, law firms, courts, and law books only. It also lives “in the shadow” of the official system of adjudication: in the offices of insurance companies; in people's notions about injury and risk, responsibility and justice; in the languages and images associated with law in mass-generated popular culture; as well as in public debates about what values should be protected and promoted, at what costs, and at the expense of whom. On the assumption that tort law is at the same time a product and a constituent of the very cultural framework in which it is embedded, the aim of this paper is to explore its cultural dimensions in a broad comparative perspective. Combining insights from legal anthropology, socio-legal literature, legal history, and comparative law, the article tries to understand the role that, in Western and non-Western legal traditions, tort law plays in responding to, and managing social conflicts. In this perspective, the paper studies the cultural frameworks that sustain the adjudication process outside and inside the courtrooms, and analyzes how notions, practices, and remedies of tort law “in action” vary across different social and cultural settings. It then puts forward some conclusions about the extent to which tort law notions, ideas, concepts, categorizations, and perceptions influence and, reciprocally, are influenced by the cultural framework of which they are an expression.

Like in most Western countries, the legal system in Israel is constantly evolving. Israel is a mixed jurisdiction in many respects. Historically, during the time of the Ottoman Empire, the land of Israel was ruled by Turkish law, which was followed by British law during the time of the British Mandate. Today, Israel’s legal system still reflects a mixture of civil law and common law. This mixture is evident, for example, in the combination of codified law and precedent-based law. Several areas of the law were codified, at the time of the British Mandate, in ordinances that remain binding today. However, these ordinances were supplemented and widely interpreted in Israel’s case law, and an “Israeli common law” was created. Today, legislative efforts are being made to codify this new common law. The mixed nature of substantive law in Israel is also illustrated by Israel's constitutional regime. While Israel has no formal constitution, it has a partial bill of rights (the basic laws) enacted by its parliament. In 1995, the Israeli Supreme Court decided, referring to American constitutional law, that it had the authority to invalidate “unconstitutional laws”. In its decision, the Supreme Court relied on a limitation clause, included in the new basic laws and inspired by the Canadian Charter of Rights and Freedoms. Since then, the Israeli Supreme Court has developed a number of constitutional rights from these basic laws, influenced by both the American concept of liberty and the European concept of human dignity. Finally, comparative law plays an important role in Israeli case law. While British common law no longer binds the Israeli judiciary, judges have wide discretion to use comparative law in their decisions. When relevant, referring to foreign law may be of great assistance to a judge by providing inspiration in a difficult case. Utilizing many different sources of law may help to create harmony between various jurisdictions, especially in times of increasing globalization.

Unjust enrichment is considered one source of obligations, which stands in contrast to harmful acts as another source of obligation in the Jordanian Civil Code (JCC). The Unjust Enrichment Rule has developed historically from Roman law, through Islamic jurisprudence, then French law and jurisprudence to modern laws, such as that in Egypt influenced by French law. All these laws have recognised the Unjust Enrichment Rule as an independent source of obligation. Although the JCC was influenced by Islamic jurisprudence, Arab laws, such as the Egyptian Civil Code, and foreign-influenced Arab laws, its features distinguish it from other laws, either in terms of naming the source or the details related to its legal provisions. JCC’s special features need to be highlighted, defined and evaluated for comparison with other laws, i.e., proving beneficial when enacting a new JCC or defining it as unique rather than a copy of other precedent Arab laws.

The CISG-based cancellation structure, that is, in the case of cancellation, does not require attributable reasons, and the cancellation structure centered on the so-called “fundamental breach of contract” has been directly accepted in each country's revised laws. In particular, it can be seen in common that reasons attributable to major countries such as Germany, France, and Japan tend to be deleted from the recently revised laws. Instead, the acceptance of the requirements for “fundamental non-performance” is being considered, for example, in the revision of the German Civil Code, the concept of “fundamental non-performance” is recognized as an exception while expanding the scope of application to all contract violations in principle by canceling the set of the Nachfrist. The Japanese Civil Code also requires the concept of serious non-performance, albeit passive, through a minor defense, with the highest cancellation as a principle. It can also be understood in the same context that the French Civil Code requires the materiality and non-existence of non-compliance while acknowledging the avoidance of contract by the creditor's expression of intention other than the court's avoidance of contract. Regarding the introduction of the “fundamental non-performance” requirement, it is also approved by comparative law, and the revision of our civil law is expected to be introduced based on what has been discussed in practice. The problem is that in the case of introducing a “fundamental non-performance”, the relationship with the “Nachfrist” requirement, which has been previously required as a requirement for avoidance of contract, should be considered. The former originated in British-American law, and the latter originated from Nachfrist of German law, which is a heterogeneous requirement resulting from separate and independent legal systems. In response, the CISG recognizes the avoidance of contract of the “fundamental non-performance” and the setting of the “additional period of time” as “parallel” - respectively independent requirements for avoidance of contract, which are evaluated as a successful fusion of separate systems in comparative law. On the other hand, in German law or recently revised Japanese law, Nachfrist for avoidance of contract is a principle, and the concept of serious non-performance is passively accepted, and both are composed of coexistence requirements. In our 2013 amendment, fundamental non-performance, minor defense- and maximum have been constituted as practical and procedural requirements for avoidance of contract, respectively (Article 544 (1) and (2) of the 2013 Amendment). As the recent legislation of each country has different ways of accepting the two heterogeneous systems, it is necessary to review how to establish the relationship between these requirements in the discussion on the revision of our law. Until now, there has not been much active discussion on this point. This article examines the relationship between fundamental non-performance and Nachfrist for avoidance of contract from the perspective of historical and comparative law.

The chapter themes are: What is Legal History? What is Comparative Law? What are the Techniques of Legal Historians? What are the Techniques of Comparative Lawyers? What are the Aims of Legal Historians? What are the Aims of Comparative Lawyers? Is Comparative Law any more than Legal History? Is Legal History any more than Comparative Law?; and what has been learned in the last Quarter of a Century?

Artur Duck, De Usu et Authoritate Juris Civilis Romanorum - Mediocre or Brilliant Work?SummaryDe Usu et Authoritate Juris Civilis Romanorum in Dominiis Principum Christianorum, the work by Artur Duck was published in London in 1653. Duck, one o f the leading civil lawyers, a royalist, high commissioner, Master in Chancery, King’s Advocate and a chancellor of three dioceses wrote his book in exile in Oxford during the English Civil War. In his work he analysed the position and influence o f Roman Law in fourteen countries of 17th-century Europe. Apart from England, Scotland and Ireland, he researched the German Empire, France, Italy, Sicily and Naples, Poland, Hungary, Bohemia, Spain, Portugal, Denmark and Sweden. Although Duck was an Englishman, he admired Roman Law and believed it could unify and consolidate the legal systems of Christian Europe. His work shows deep knowledge of how the legal systems o f 17th-century Europe were organized and influenced by Roman Law. What seems to be of a special significance is the section of his book considering the role o f Roman law in England, where Duck was involved in judicial activity for several years as a judge and advocate. Although his work remained forgotten for centuries, contemporary science is attempting to restore it to its proper position. So far, Duck’s work has not been scientifically analysed but there is no doubt that it deserves a detailed study.

: The purpose of this article is to discuss the transformative role of comparative law in the development of small nations with short legal histories, compelled to rely on borrowed ideas, concepts and regulations to create their own legal culture and reality. As a small country Estonia does not possess the necessary legal expertise or court practice in many specific areas. Here, comparative law in both of its functions – rules-based and context-based research – provides great help. The article explains how comparative law has been used in the framing of the Estonian system of civil law as well as of specific statutes. In the drafting process, a comparative law method was used to provide drafters with strategic options drawn from an array of legal systems, codes and provisions. The notion of legal transplants is widely used and explained, but in small countries, using transplants may be the only technique for building up a national legal system. The article also focuses on analysing whether the courts may use comparative law as a legal basis for developing private law. The last part of the article is dedicated to the use of comparative law in Estonian court practice, in order to illustrate that there are limits to using comparative law methods. Models of core countries may differ in their suitability because of the differences in ability to successfully absorb legal transplants or because the level of development of the society as a whole does not support the reception of transplants.

Liberalism and Married Women’s Property Rights in Nineteenth-Century Latin America

Reviewed by: The Justice of the Greeks Robert W. Wallace Sealey, Raphael. The Justice of the Greeks. Ann Arbor: University of Michigan Press, 1994. Pp. xiii 1 164. Over the last fifteen years research in Greek law has expanded rapidly, especially in Anglo-American countries. In consequence, significant differences of approach to this material have become apparent. The older, juristic approach is largely continental, where the living tradition of Roman law as the basis for current legal codes has meant that most Greek legal historians first studied Roman law, were trained as lawyers, and now teach in law schools. By contrast, most Anglo-Americans now working in this field were trained as ancient historians or philologists. They know little of Roman or modern law and mostly care less about it, arguing that most Greek legislation was unsystematic, arising piecemeal in response to interpersonal or community problems. For these scholars, a juristic approach to Greek law is sometimes even misleading: sociology and anthropology offer more appropriate methodologies. Sealey places his new book squarely in the continental tradition. He expressly rejects sociology (22), and modestly announces his intention to publicize the work of Wolff, Ruschenbusch, and Thür (ix–x). However, S. also was trained as a historian and philologist. How far does his book add to the juristic tradition of Greek legal scholarship? And how far does it make its own, historical contribution? [End Page 130] “This book is an inquiry into the rule of law,” its first sentence declares. It is not always that, but rather, a wide-ranging exposition of various questions about Greek law, which ruled and in some areas (S. indicates) failed to rule. S.’s book offers a number of lucid, courteous discussions, presented sometimes in a paratactic way, but conveying overall a sense of chronological development. Its general intention is “to discover the historical contribution of Greek thought to the field of law, justice, and right . . . [and] to discover principles, concepts, and aims that underlay the development of law in Greek cities” (133). With a scope so large, the book is often too brief. With rapid strokes S. adopts positions typically without evaluating much of the scholarship regarding them. Some arguments S. has made before. He repeats them despite previous criticisms. S. includes several lengthy discussions of Roman and Near Eastern law, typically to illustrate differences with Greece. This may contrast with legal anthropologists, who illuminate Greek practices through comparative materials. Although S. adopts various hypotheses of his continental colleagues, it is not his purpose to add much to their arguments. More significantly, despite S.’s intention to find “the historical contribution of Greek thought to the field of law, justice, and right,” it remains unclear that the Greeks made such a contribution. As S. himself says, the Greeks “did not recognize an underlying body of thought expressed” in particular laws (59). By contrast, in smaller instances and in his general conclusions regarding the “principles, concepts, and aims” underlying Greek law, the positive results of S.’s work are historical, and even sociological. Chapter 1, “Scope of the Inquiry,” is perhaps most problematic. S. begins with the role of law in society, the meaning of the term “law,” and philosophical discussions of the nature of law especially in Savigny (7–9). Having set out objections to Savigny’s thesis that every nation’s civil law springs from, and remains true to, its distinctive character or historical circumstances (9–12), S. concludes, somewhat abruptly, that Savigny’s great merit was his recognition that “law can develop without statutory enactment and that the development stays within limits or follows lines that can be discerned” (12). It is so far unclear how Savigny’s thesis pertains to ancient Greece. It remains so during S.’s three illustrations of the development of Greek law beyond statutory enactment, in atimia, testimentary practice, and the marriage of heiresses (12–19). Indeed, it turns out, S. largely rejects Savigny’s primary insight (21–22). For S., laws are shaped not by national character but by “an underlying body of thought” characteristic of the society. Accordingly, S. concludes, the legal historian must fit specific legal provisions into their wider legal and intellectual context...

Torts, Courts, and Legislatures Comparative Remarks on Civil Law Codifications of Tort Law

At a formal level, the English law of liability is at once more unified and more fragmented than its French counterpart. It is more unified because English law does not traditionally distinguish an entirely discrete category of the administrative law of liability any more than the legal system itself recognises a distinct jurisdiction for the disposal of disputes involving public bodies or of a specially public nature. On the other hand, English law is more fragmented owing to the process of ‘individuation’ which has resulted from the steady accretion of ‘implied’ terms for particular contracts and from the disparate nature of its law of torts. This chapter explains how English law has treated the practical issues of liability for products which have already been discussed in relation to French law, and compares and contrasts them. It starts by explaining English law’s framework for the law of torts and breach of contract and then looks at how English law deals with questions of liability in the administration.

The comparative law scholarship in China in 2014 can be defined by two key words, namely, the rule of law and globalization. The fourth Plenary Session of the eighteenth Communist Party of China’s Central Committee set out a new blueprint for the rule of law in 2014, promising sweeping judicial reforms while enhancing the overarching role of the Constitution in the country’s legal system. According to the communiqué, the overall target is to establish a system serving ‘the socialist rule of law with Chinese characteristics’ and building up the country under the ‘the socialist rule of law’. 1 Against this background, it is expected that comparative law will continuously play a significant role in the development of Chinese laws and legal processes, particularly in the processes of deepening the legal and judicial reforms. On the other hand, it is recognized that globalization has influenced every aspect of the society, including law. Legal traditions, systems, and rules have to be changed in response to the significant challenges brought about by globalization. Against this background, comparative law not only provides the possibility for communication among different legal traditions and cultures, but it also helps to identify legal problems and solutions in both national and international contexts. China and other countries have to rethink and reconsider their laws and make good use of comparative law as a significant legal method.

The university curriculum continued to emphasize Roman and canon law, rather than common law, although a new chair of civil law was established in 1540 and canon law abolished during the Reformation. The chapter analyzes the few legal texts produced in Oxford, including William Blackstone's Commentaries on the Laws of England, and places them in the context of the robust legal publishing trade in London and the emerging legal curriculum in Oxford. Little medical publishing occurred in Oxford, though medical books were imported in large numbers from Europe or produced in London. The arrival of Robert Boyle and his programme of experimental investigation in Oxford resulted in a brief period of significant scientific and medical publishing at the Press in the 1660s and 1670s. Titles included Boyle's own publications, first printed in English then in Latin translation, and those of the Oxford physician Thomas Willis.

Comparative law or legal system is a scientific activity in comparing one legal system with another legal system, both the legal system between countries and the legal system in a particular country by comparing the legal system that used to apply with the legal system that is currently in force in a particular country, to find and find similarities and differences both in terms of its advantages and disadvantages in the legal system. In order to get an explanation to assess the effectiveness of the legal system. The legal aid system for the poor in Indonesia to access justice, until now, still felt not practical to provide meaningful benefits for the poor in Indonesia when facing legal problems.