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Civil law presentation

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Annie Olson

on 24 March 2015

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Transcript of Civil law presentation

Comparative Law
Common law
Two primary sources: case law and enacted legislation.

Case law- Rulings from previous judges

Legislation- Formally enacted law

Civil law
Primary- Enacted law and custom (used for commercial and labor law)

Secondary- Case law, writings of legal scholars aka doctrine.
Sources
Legislation (Main Source)
Sources
Civil law jurisdictions strongly believe in the concept of legislative supremacy. Legislation forms a hierarchy with the constitution at its center; Constitutional councils have the power to review legislation to ensure conformity to the constitution (much like our human rights tribunal).
Use of Custom
Custom is often listed as a primary source, however, it is not always of practical importance (it is often used in Spain and other Spanish-speaking countries). It plays a much greater role in commercial and labor law than in typical civil proceedings.
Civil Law
General principles of Law
The general principles of fairness and justice which are universally applied in legal systems around the world.
(Natural Justice)
Civil Law - Primary Source
Case Law
In civil law jurisdictions, case law is not binding on other courts. It exists to ensure consistency in rulings of similar cases, and thus, fairness. A line of cases which are decided in the same way are sometimes considered "customary".
Secondary Source - Civil Law
The Role of Judges
Judges are not as experienced as in the common law system; judiciary positions are available to students directly out of law school. As a result, judges are not held in the same esteem as common-law jurisdictions.

Written judgements are often short, non-specific, and do not refer to other cases. They are often referred to as a "decision of the court".
Civil Law
"Doctrine" / Legal Writings
The writings of legal scholars (often referred to as a "Doctrine") are used as a secondary source of law. Depending on the reputation of the author, these doctrines can influence a judges interpretation of the case and their subsequent ruling.

Secondary Source - Civil Law
Legal Scholars
Scholarly information is communicated via commentaries on the codes, general and specialized treatises, and law review articles.
Becoming a judicial scholar is another career option for law students.
So...
Now that we understand the sources of law that are considered by judges, we can revisit the question.

How do judges apply precedent when there is a statute pertaining to the subject of the case?
Statutory Interpretation
In common law, precedence is applied by examining the previous statutory interpretations made by judges, especially those made in higher courts. In civil law, interpreting enacted law is considered a form of art due to its complexity.
The Four Types of Intellectual Operations
The purpose of statutory interpretation is to determine the express/implied will of the legislation. For a civil law judge, this is done by utilizing four types of intellectual operations (aka- four methods of thinking).
The four Types of Intellectual Operations
1. The use of language- deciding the most plausible meaning of the words.

2. Ambiguity- clarifying ambiguous language.

3. Filling in gaps in the legislation.

4. When all other methods have failed to yield a solution, judges essentially expand/create a law. This is generally frowned upon in civil law jurisdictions who believe that ultimate judicial power should remain with the state.
Manitoba's Bill 18
An example of how the four steps may become necessary in modern society:

Criticized as the vaguest bill in Canadian history, a proposed Manitoba law defines bullying as:

"any behavior that causes or would be known to cause fear or harm to someones body, feelings, self esteem, reputation or property".

Its easy to see how judges might interpret statutes in different ways.
Game
If this bill was passed, what steps would you take?
Group Presentation
How do judges apply precedents when there is a statute on the subject of the case?
If this bill was passed and you were a judge overseeing a case in which someone was accused of bullying, what steps would you take to interpret the statute?
What question?
Annie
Andra
Kale
Full transcript