|| LA36520 |
|| CIVIL AND COMPARATIVE LAW |
|| 2004/2005 |
|| Dr Catherine Dupre |
|| Semester 1 |
|| Mr Richard W Ireland, Mr Stephen J Skinner |
|| LA10110 or LA30110 or LA15710 |
|| LA15830 or LA35830 and LA36030 |
| Course delivery
|| Lecture || 40 Hours one two hour and two one hour lectures per week |
|| Seminars / Tutorials || 8 Hours Seminar. four two hour seminars during the semester |
|Assessment Type||Assessment Length/Details||Proportion|
|Semester Exam||2 Hours ||66%|
|Semester Assessment|| Essay: Assessed Essay of 2000 words (required in week 10) ||33%|
|Supplementary Assessment|| Resit - By retaking the failed element (ie written assignment or examination or both, as applicable) || |
|| Not Required for Professional Purposes |
Learning outcomesOn successful completion of this module students should be able to:
This course intends to broaden students? understanding of law by looking at a number of foreign legal systems (mainly those of continental Europe). It encourages students to think more critically about their own legal system by comparing it with different legal systems. Moreover, the course aims to give students an insight into the Civil Law tradition by looking at some aspects of Roman law and highlighting some of the implications of having a system based on the superiority of written law.
At a practical level, the course aims to prepare students who are going to study in a foreign university to the different approaches to law that they are likely to face in their year abroad. The course also welcomes international students and will endeavour to respond to the questions that might arise while they are studying British law here.
On successful completion of the course, students should be able to:
? Be aware of the Roman law roots of civil law systems
? Be aware of the process in which comparative law developed as a new academic field of study as well as of its current relevance and uses
? Be able to undertake some legal comparison while reflecting on this process
? Become familiar with some substantive issues understood from a comparative perspective
? Develop a better and more questioning understanding to their own legal system.
Reasons for Offering the Course
Today, Civil Law forms the basis of the legal systems of most European countries, as well as many in Africa, Asia, North and South America and the Middle East. It has also been very influential in relation to the development of European Law. There is an increasing need for British lawyers to understand the principles and the detail of civil law systems. This arises from UK membership of the European Union and the fact that British lawyers are still largely not familiar with continental legal systems, particularly those of the new EU member states. Accordingly, the course offers students, who will largely come from the common law tradition, the opportunity firstly to study Roman Law, and then to compare the legal reasoning, structure and substantive law of some modern day Civil Law legal systems with British law. The study of comparative law is important for two obvious reasons. Firstly, it allows us to consider the law in other systems. This includes an examination not merely of the rules of substantive law but a consideration of the historical, social, economic and political factors which have influenced the shape and content of the law in those jurisdictions studied. Secondly, the study of law on a comparative basis provides an opportunity to examine more critically the principles of the common law and their practical effects.
? Knowledge of French or any other foreign language, although an obvious bonus for this course, is NOT a requirement.
? The selection of foreign legal systems considered in the course, while mainly drawn from continental Europe, will also depend on students? needs and interests, as well as relevance.
Summary of Course Content
The course begins with an historical introduction to the Civil Law. It examines the Roman Legal system, explores some of its key principles and explains its significance as a foundation for the systems of contemporary continental Europe. In its second part, the course considers the uses and methodology of comparative law, as well as its current relevance. In its third part, the course reflects on the importance of written law in continental legal systems by looking at declarations of rights, written constitutions and the process of codification. The final part of the course looks at criminal responsibility in the French and Italian legal systems.
Where possible, 2 lectures are given by visiting French and German lecturers to provide students with first-hand experience of these jurisdictions.
? To provide an understanding of the intellectual influence of Roman Law upon the legal traditions of modern Europe.
? To introduce students to the history and principal features of, and the intellectual contribution made by contemporary civil law systems.
? To equip students for further legal study elsewhere in Europe and enable them to appreciate the diversity of contemporary legal systems in Europe.
? To develop skills of comparative analysis and, through the comparative method of legal study and research, to analyse the common law in a more critical manner.
PART I - ROMAN LAW AND ITS RECEPTION IN EUROPE
1. The historical development of Roman Law and its significance in the development of modern legal systems
2. The sources of Roman Law
3. The Roman Law of Obligations - the nature of obligations - the classification of obligations - obligations ex contractu: general - a law of contract or contracts - general contractual principles - the types of contract - obligations ex maleficio: general - the nature and role of delicts - furtum and rapina - iniuria - damnum iniuria datum
PART II ? COMPARING THE LAW
1. Reasons for the study of comparative law
2. How to compare legal systems?
3. The relevance of comparative law: law importation and legal transplants
4. Example: Comparing constitutions
PART III ? THE IMPORTANCE OF WRITTEN LAW
1. Declarations of rights
2. Written constitutions
3. The `Civil Code? and codification
4. Written constitution as the supreme law of a state
Part III: Criminal law in France and Italy
1. Penal Codes: the general and specific parts
2. Analysing criminal responsibility in civil law systems and the example of self-defence
** Recommended Text
Harding & Orucu (2002) Comparative Law in the 21st Century
Kluwer Law International
Baer, Dorsen, Rosenfeld & Sajo (2003) Comparative Constitutionalism, Cases & Materials
Nelken & Feest (2001) Adapting Legal Cultures
Foster & Sule (2003) German Legal system and Laws
Orucu (1990) Critical Comparative Law:Considering Paradoxes for Legal systems in Transitions
Kluwer Law International
T G Watkin (1999) An Historical Introduction to Modern Civil Law
Nicholas (1962) Introduction to Roman Law
Youngs (1998) English, French and German Comparative Law
Steiner (2002) French Legal Method
Borkowski (1997) Textbook 0n Roman Law
Watkin (1997) The Italian Legal Tradition
** Supplementary Text
Prochazka, R (2003) Mission Accomplished, On Founding Constitutional Adjudication in Central Europe
Central European University Press
Russel (2000) Reforming the House of Lords: Lessons from Overseas
Certona (1985) The Italian Legal System
Dupre (2003) Importing the law in Post Communist Transitions, The Hungarian Constitutional Court and the Right to Human Dignity
De Cruz, P (1999) Comparative Law in a Changing World
Dickson (1994) Introduction to French Law
Dadomo & Farran (1996) The French Legal System
Sweet & Maxwell
Zweigert & Kotz (1998) Introduction to Comparative Law
Watkin (1999) An Historical Introduction to Modern Civil Law
Schwartz (2003) The Struggle for Constitutional Justice in Post Communist Europe
Kommers (1997) The Constitutional Jurisprudence of the Federal Republic of Germany
Duke University Press
Cairns & Mckeon (1998) Introduction to French Law
** Recommended Consultation
Youngs, R. (1994) Source Book on German Law
Rudden, B. (1991) Source-Book of French Law
Markesinis, B.S. (1997) Foreign Law & Comparative Methodology: A subject and a thesis
Pollard, D. (1996) Source Book on French Law
This module is at CQFW Level 6