Comp. Law - Lecture notes All PDF

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Professor Balakrishnan...

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3/31: Civil Law Traditions -Shift away from religious traditions, to secular ones. (Common and Civil). -There is no exact point of start (like Revelation), instead there is a gradual emergence of Civil Law from Chthonic Law. -Civil Law though, unlike Chthonic law, is not based on faith or religion. -The basis of law is reasoning, rationality, etc. The focus of the law is on the individual, although it is not necessarily a post-Reformation tradition. The tradition can be traced back to Roman times. -The evolution of Roman law comes from Chthonic Law. -Why does the textbook use the word slavery to refer to people who were born into this society. ● More like feudalism than society, but used in order to demonstrate that the people were born into this status and did not have a choice. ● Anybody who escapes this is forced to live outside of the society, without the protections that society offers them. -There is no clear, uniform path that the transition from Christian-Civil Law takes. -In Rome, there was one set of rules for Roman citizens (Jus Civile). These procedural rules governed the actions of daily life, and interactions between people (how do you marry, how do you will property, etc). There was another set of rules (Jus Gentium) that applied to those people who were conquered by the Roman Empire. ● Rome did not want to impose Roman culture on captured territories. There goal was to have an empire that fed into Rome, and it was noticed that less strife and animosity allowed them to govern more easily and derive a larger profit. ● Because of this, there existed a number of different legal traditions under the larger umbrella of the Roman Empire. These traditions were connected back to Rome at a relatively minimal level. Citizenship was not gained through marriage, therefore, if a Roman citizen married an outsider, they would follow the rules of the outsider’s legal tradition. ● This way, Rome did not have to worry about issues of different religions, etc. ○ The difference between Rome and the other legal systems is best exemplified by the story of the passion of Jesus. ● It should not be said that the Roman law was not accepting of influences from the other traditions. While the Romans saw their system as better, they also were fine with adapting certain parts of other systems that they viewed to be better in certain regards. -The issue of marriage in Roman law tells us that there was not an immediate divergence from Chthonic Law, instead the divergence came on a case by case basis. ● As conflicts pop up that the chthonic tradition cannot resolve, people begin to resolve them on their own, and as more and more people begin to accept the resolutions, the law begins to take on a more formal nature, and with that becomes more legitimate. ● The tradition is created by the gradual application of the body of rules that are considered to be legitimate. -Legitimacy is conferred by popular participation. Then the Roman Empire collapses, and is replaced by Christian empires. ● This is followed by the fragmentation of what used to be a unified system. There are then pockets of this tradition throughout Europe that are connected by the ideas of

Christian laws. -Any legal system that depends on faith requires uniformity. Because of this there can be no equivalent to the Roman tradition of Jus Gentium under Christian law. This explains the “eclipse” or lack of recreativity of Roman law following Rome’s collapse. -The idea of the individual that is present in Civil Law comes from the Christian idea. In the Christian tradition there is the belief that God bestowed the human person with certain rights, although these rights can only be understood within the context of the tradition. During the enlightenment, the idea of God and the Church is pushed to one side, but the idea of the individual and their rights remained the same. -In Roman Law there is a belief in what is called objective liability. It only occurs after there has been some damage, it does not exist in the abstract. Liability is not built into the law itself. -After the enlightenment, if you are going to hold an individual accountable for their actions, they must also be granted unalienable rights. The focus shifts to the individual, and therefore, the individual becomes the focus of the civil law. -Hobbes’s description of the chaos of nature is referring to the difference between the certainties of before and then. Before the enlightenment there was always certainty with regard to who you were, who you were -Humans can have all of the rights they want, but they cannot upset the order. (The Leviathan, Hobbes). -Think of the implications that this has for civil law. 4/3 -Comparative law, not comparative religion. ● Not the articles of faith. -State of Nature: ● Hobbes: Dark view of nature. Replaces the vengeful God with the Leviathan. Punishment for breaking laws is necessary for the maintenance of order within human society. ● If you need order, the legal tradition will have to reaffirm that principle. ● Locke: Human beings are not selfish. The goal of human life is prosperity, order is taken for granted. The government creates laws so that human life can advance. -Roman law is less focused on broad morality, and more on specific procedural issues. -Natural law comes from the process of reason, but with an appreciation of God’s law. ● Law then becomes secular. ● Validated by the rationality of the human person. ● Law -Property among the legal traditions: ● Christian Tradition: the division between secular and religious leadership leads to the ability to own property exclusively. ● Power rests on the capacity to interpret the word of God. ● The idea of a hierarchy cannot be reconciled with the belief that humans have rights. ● Civil law does not deal with the rights of the community, it deals with the behavior of people insofar as is needed to maintain order within a society. ● As you define terms, and the law becomes more complicated, a class of experts begins

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to emerge. Constitution is the social contract within a legal community.

Common Law: -The independence of the judiciary from politics is crucial within common law. ● If the judiciary were to lose their independence, the common law system would be greatly damaged. -Chthonic Law, religious traditions (based on faith/God’s law), Civil Law (construction of law in response to specific behaviors, rather than organizing behavior to fit within specific laws), Common Law (law comes first, and then behavior is categorized within those laws). -Common Law is a tradition that is almost exclusively European in development, and then it spread out to the world from there. ● It traces its roots to Chthonic Law. Building up of a legal structure over a long period of time. ● There is no written constitution in England following the Norman victory at the Battle of Hastings in 1066. ● Common Law allowed the Normans to successfully rule over the Anglo-Saxons. -Laws in the Common Law were written so generally that they would be able to accommodate the different systems and behaviors that existed in England. ● These general laws are called writs, which are then interpreted to fit each specific circumstance. -The Normans trusted priests to run the common law system because they were already well versed in Canon Law. ● It was important to create a paper trail that traced the writ all the way down to the specific decision. ● Procedural Law -The enforcement of the law is left to the community. By fining/punishing the community as a whole, the community is given the incentive to police themselves. ● It is kind of like religious traditions in that your identity is tied to your being a part of the larger community. -Independent judiciary, and local law working simultaneously with the larger system. -The responsibility of policing came down to the lowest common denominator, no longer the burden of the King or other legal elites. -In early forms of Common Law, juries were the finders of both fact and law. However, with the development of positivism, the structure begins to shift in favor of the judges. The judges decide which law applies, and then instructs the jury to act in accordance. ● The development of procedures is seen as analogous to the scientific method, something whose authority exists externally. -Positivism is law that is written down and agreed upon. 3/19: -Positivism develops as a result of the increased difficulty in creating a consensus within a community in the vein of natural law. -In common law, the idea of precedent is introduced after the introduction of positivism in order

to maintain the structure. -Local communities can have specific laws that deal with them, in order for the common law state to emerge those localities need larger commonalities that link them together (writs). -The positivist tradition attempts to build consensus, where possible, among the different local communities. -The U.S. constitution is essentially a marriage of natural and positivist laws. The interpretations of the constitution are possible because of this. -The doctrine of indelible allegiance- you cannot give up citizenship to these states no matter what. -The creation of institutions and bureaucracies in civil and common law means that corruption becomes tied to money. Islamic Legal Traditions: 3/21: -Islamic Law: The creation and structure of the legal system. ● Boundaries are much less porous than those of the Talmudic system. This is because the revelation comes from the Creator directly and is then clarified by the prophet. -No precedent, best compared to chthonic law in this regard, there’s an attempt to create a consensus. Not an adversarial dispute like in common law, therefore there is no further dispute once the consensus has been made, it is mutual. ● When there’s a loser, that person then has no vested interest in the maintenance of the system. This is why there is not an emphasis on the adversarial. -Applying law to facts, not facts to law (like in the common law process) -Private property does not trump the rights of the community. ● Private property rights can be curtailed if its use begins to harm the community (the ummah) ● Profits from the oil sales are shared amongst the ummah in Saudi Arabia. Oil is seen as community property. -Obligation to support the community is attached to property in Islam. If you can afford to, you are expected to provide for those who cannot. -Connections to the chthonic traditions despite there being a clear starting point for the law (the revelation). -Islam focuses on the community, and the individual is seen as inseparable from the community, therefore there is no room for the concept of individual rights. -It is difficult to add on new interpretations. ● There are clear boundaries in Islam, even though it’s a personal relationship with God. ● Affirmative development in Shia, because it’s not as strict as Sunni with regard to its boundaries. ● Transtheistic (Suffi) Strict Liberal Wahabism Sunni Shia Suffi Christian Legal Traditions 3/24

-Judaism vs. Christianity -God= a single entity in Judaism, there is no mitigating factor (Jesus in Christianity). -A good Jewish person is one who follows the guidelines of behavior set forth in the Pentateuch. -Christianity is about faith, not about behavior. ● Jesus is not God. ● Forgiveness can be granted from the church or from God simply because you believe. -The idea of Jesus being the son of man is what changes the law, society can be full of imperfect people, but as long as they have faith in Jesus it is ok. ● Therefore, there is not as much emphasis on the behaviors of people. ● Things like lent and other common rituals are important to the community, but they do not form its core. -Saints are people who are better able to supercede on our behalf with God. ● More of a reliance on these kinds of people than in Judaism or in Islam. -Formality of institutions increased in Christianity because you have to go through the Church in order to find the faith, -Bureaucratic politics = corruption -Broad base of adherents in Christianity, this was even apparent prior to the reformation. -Law is more open to interpretation once it’s based on the belief of God as the good. ● Ex: people argued that conquistadors had the right to take native peoples’ lands because they were not Christian, and therefore, not human and could not hold or own property. -Individuals do have rights, the right to make a legal case rest in the individual. -Love = Justice (Judaism) -Love = Charity (Chritianity) -Suicide implies a loss in faith in God, -Abortion is not a violation of God’s law in Judaism. -Abortion is seen as murder in Christianity. -Christianity, the expertise is not used on an ad-hoc basis. ● Consensus is important among the experts, not the community as a whole. -Protestant Reformation: -Can’t divorce the religion from the legal religious institutions because it’s all about God’s grace, not observable behavior. -Begins with the separation of church and state. ● Divide between the civil and common law. ● Even further removed from behavior. -The dominance of the individual and individual rights all came as a result of the divergence of politics and morality. -Emphasis on human as an individual with rights. ● Nonreligious aspect of civil and common law. Hindu Legal Traditions: -Being Hindu originally had to do with the territory one inhabited. It eventually came to encompass a belief system as that system spread. -Brahman = cosmic consciousness

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Atma = what we perceive as individuals Maya = illusion of separation Problematic for the belief in individuals and individual rights. The ability to assimilate other traditions without itself being harmed. Other religions talk about the right way of living in order to get to God. Hinduism talks about the right life in order to move up in the next life. (Karma) Ostensibly, to get closer to Brahman in the process. There is no sense of God coming back to smite you.

Reconciling Legal Traditions -How does one reconcile legal traditions in modern societies? (Societies that are in the process of moving toward a Western type...modernization) and societies that are not completely secular, but are moving toward that. -Human Rights: ● The ideal is we all have perfect choice, but at the same time we need society and the social contract regarding cooperation with one another, which imposes a necessary limit to the range of choices that we have to act. ● Not all societies view “human” in the same way, in that individualism is not always the dominant value within every society. There are societies that prioritize the function of the group over the freedom of the individual, and those like the chthonic communities that prioritize the nature of the cosmos and the universe over both human society and the individual’s freedom....