--- Kai Henningsen <[EMAIL PROTECTED]> からのメッ セージ： > [EMAIL PROTECTED] (Nathanael Nerode) wrote on > 19.05.03 in <[EMAIL PROTECTED]>: > > > How different are things really on the Continent? > Is *everthing* codified?
[...] The important point being drawn out here is that the common law (U.S. U.K. et al) tradition relies on a notion of law drawn from a variety of sources but with special emphasis on past opinions of Courts, eg. precedent or stare decisis. In the "continental" or civil law approach drawing on Roman iustinian code and other traditions, laws are those found on the books, and the role for justices of a court has traditionally been much more constrained. Jurisdictions like Japan, Israel, and Canada I find especially interesting because they tend to mix these approaches more liberally. Note Japan, for example, who's statutes are called the "ROPPO" or six books after the German legal codes adopted during the Meiji Restoration in the 1860's. Despite this strong civil law tradition today there is a revolution in attorney licensign and a strong emphasis on modelling new legal practice on the common law approach. Also it's of note that many here in the U.S. also observe that there are ebbs and flow on emphasis on statutory (civil codes) and Court based precedent. Two good examples are debates on what to do about IP and anti-trust (competition) law. Some argue make property rights robust, well defined, and rely on the courts to work things out. Others argue for more interventionary (regulatory) approaches with laws to spell out the permitted and prohibited acts. Google will give you mostly Law School syllabus refs, but you can glean something here on Comparative law discussion of civil/common law. http://www.ejil.org/journal/Vol10/No1/br10.html. Also Luke Nottage, COMMENT ON CIVIL LAW AND COMMON LAW: TWO DIFFERENT PATHS LEADING TO THE SAME GOAL, provides an interesting discussion of maybe how things aren't usually all that different in practice anyway.. http://www.upf.pf/recherche/fichiers%20RJP7/17Nottage.doc > Please note that Germany is neither "common law" nor > Napoleonic Code. We > have our own legal traditions. (Going back to Rome, > in fact.) [legal vs. sittenwidrig discussion] I agree it is not Napoleonic. You would agree it is a civil law jurisdiction, though right? > Really, Europe is much more diverse legally than > people seem to think. I agree; a very important point. It is a common problem to accept propositions based on "I read in xx that yy is illegal" kind of research and analysis. There may certainly be circumstances where such conclusions will be warranted but *unfortunately* "the law" is in practice usually much more complicated to nail down. None to often it takes a case in your jurisdiction to give you a definitive response. I do read that there are a variety of efforts in the EU moving codes to harmonization. IP is an obvious example. Perhaps you could comment on this trend? > MfG Kai -- James Miller [EMAIL PROTECTED] __________________________________________________ Do You Yahoo!? Yahoo! BB is Broadband by Yahoo! http://bb.yahoo.co.jp/
