 |
|
TEXT 2. JURISPRUDENCE
In the United States jurisprudence normally signifies the philosophy of law. Jurisprudence is the study and philosophy of law. Specialists of jurisprudence, or legal philosophers, expect to gain a deeper understanding of the nature of law, of legal analysis, legal systems and of legal institutions.
Legal philosophy has many characteristics, but three of them are the most common:
· Natural law is a school of legal philosophy which considers that there are invariable laws of nature which govern us, which are general to all human societies, and that our institutions should try to equal this natural law.
· Analytic jurisprudence is indicate to be an objective study of law in impartial conditions, distinguishing it from natural law, which evaluates legal systems and laws throughout the structure of natural law theory, asks questions like, "What is law?" "What are the criteria for legal validity?" or "What is the relationship between law and morality?" and other such questions that legal philosophers may compromise.
· Normative jurisprudence looks at the intention of legal systems, and which sorts of laws are adequate, asks what law ought to be. It overlaps with moral and political philosophy, and contains questions of whether one ought to follow the law, on what grounds law-breakers might correctly be punished, the correct uses and limits of regulation, how judges ought to decide cases.
The theory of jurisprudence has been around for fairly a long time. Both the Ancient Greeks and Romans believed the philosophy of law, and earlier societies possibly did as well. The word itself is resulting from a Latin phrase, juris prudentia, significance “the study, knowledge, or science of law.” As long as humans have had laws governing their activities, philosophers and commentators have been meditation about these laws and considering how they fit in with the societies which they are presumed to codify and protect.
Since law can frequently be slippery and incomprehensible, it may come as no revelation to learn that jurisprudence is exceptionally complicated and sometimes very confusing. Many of the world's most famous specialists and philosophers have at least dabbled in jurisprudence, elaborating dense tomes, complex arguments, and complicated expression. The study of jurisprudence is also essential for a good lawyer, because it guarantees that he or she deeply understands the law and the philosophical approaches which have been implicated in its conception.
Studying law does not automatically make someone a lawyer, even though it is a significant element of a legal education. For judges and other people who must infer, defend, or refuse the law, jurisprudence is a very important field of study, along with more general studies of history, society, and philosophy. Since laws are such an important emphasizing of society, jurisprudence can also offer important information about a nation and its people.
Modern jurisprudence and philosophy of law is influenced today principally by Western academics. The concepts of the Western legal tradition have become so enveloping all over the world that it is persuasive to see them as universal. Traditionally, however, many philosophers from other civilization have discussed the same questions, from Islamic scholars to the ancient Greeks.
TEXT 3. CIVIL LAW
Civil law, or European Continental law, or Romano-Germanic law, is the principal system of law in the world. Civil law is the legal tradition that derives from Roman law. The countries discovered in this category have drawn principally on their Roman legal inheritance in addition to other sources, and while giving anteriority to written law, have determinedly selected for a systematic codification of their ordinary law. Also found in this category are countries, usually of the mixed law diversity, that have not resorted to the method of codifying law but that have retained to varying degrees enough elements of Roman legal construction, "as a written reason", to be considered associated to the civil tradition. On the other hand, there are countries in this category where Roman influence was feebler but whose law, codified or not, rests on the concept of legislated law which in many ways resembles the systems of countries with a "pure" civil tradition (for example, Scandinavian countries that maintenance a unique position within the "Romano-Germanic" family).
In civil law the sources recognized as authoritative are, principally, legislation – especially codifications in constitutions or statutes passed by government – and, secondarily, custom. In some civil law countries, the legal systems are established around one or various codes of law, which set out the most important principles that conduct the law. The most famous example is possibly the French Civil Code, even though the German Bürgerliches Gesetzbuch (or BGB) and the Swiss Civil Code are also landmark events in legal history. The civil law systems of Scotland and South Africa are without codifying, and the civil law systems of Scandinavian countries remain largely without codifying.
Civil-law systems vary from common-law systems in the substantive content of the law, the operative procedures of the law, legal terminology, the way in which authoritative sources of law are recognized, the institutional framework within which the law is applied, and the education and structure of the legal profession.
Scholars of comparative law and economists instigating the legal origins theory generally subdivide civil law into three different groups:
· French civil law: in France, the Benelux countries, Italy, Spain and former colonies of those countries;
· German civil law: in Germany, Austria, Croatia, Switzerland, Greece, Portugal, Turkey, Japan, South Korea and the Republic of China;
· Scandinavian civil law: in Denmark, Norway and Sweden. Finland and Iceland inherited the system from their neighbours.
Within the United States and its territories, only three jurisdictions are considered civil-law systems - Louisiana, Puerto Rico, and Guam - but because of the strong persuade of common law in these jurisdictions, they are truly “mixed systems” of civil and common law. Under the Supreme Court's ruling in Erie v. Tompkins (1938), Louisiana courts are the final authority on subjects concerning topics of civil law under the Louisiana Code of 1870. Similarly, courts in Puerto Rico and Guam have responsibility for the expansion of the civil law in those island jurisdictions.
Civil law is generally of tangential interest to the U.S. Supreme Court. The justices of the Supreme Court are results of the American common-law tradition, and, with few exceptions, they have not been familiar with civil-law sources or systems. Nevertheless, with the expansion of international private law, the increasing commercial significance of the European Union and Japan, and growing contacts among legal practitioners and legal elites across national limits, the Supreme Court will have to come to conditions with the civil law tradition, the most extended and significant legal tradition in the modern world.
UNIT 2: ROMAN LAW