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Forum LockedJustice and Hammurabi's Code

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    Posted: 31-Jan-2008 at 10:09
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sarmat Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 20:58
It is called Droit Civil in France. Code Civil is just the most important Loi Civil and the major source of Droit Civil.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote gcle2003 Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 20:06
It occurs to me that here and in France reference is usually (it seems) to the Code Civile, rather than to the Loi Civil. I'm kind of used therefore to thinking of continental (etc) sytems as 'Civil code systems'.
 
If I remember correctly, in English universities wasn't it taught as 'Romano-Dutch Law'? (Not that I read law.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sparten Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 16:20
Sarmat12,
I definatly thought you were familiar with the subject matter.
 
The Germans also take vacations in Paris; especially during the periods they call "blitzkrieg".
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sarmat Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 15:43
Originally posted by Sparten Sparten wrote:

Sarmat12,
The thing is that legal terminolgys are confusing for the layman and you really need to be a lawyer to comprehend them and even then I am not sure we always know what we are talking about.
 
Private Law is a term employed when you have law which affects the rights of private individuals and dose not involve government bodies acting in their official capacity. A defamation suit against a newspaper for instance. Civil Law strictly means any suit which is not a criminal one, but the crucial difference here is that even a criminal suit can be a civil one if it entails a private prosecution*; hence the name; civil; by civil i.e  non offical people.
 
Civil Law System; On the other hand is different from Civil Law, this is the system based in Continental Europe, Louisiana, S America etc, this system is based upon legal codes, the court system is inquistorial in nature (meaning the court takes an active interest in the case and in investigating and determining the truth, as opposed to the common law adversarial procedure, where the courts hears the two parties; the adversaries, give their version of the case and then gives its judgement), as opposed to the common law system in use in the Commonwealth and the US, which is based on case law and is adversarial in nature.
 
GLCE2003 got confused between the two when I said "whether you meant the common law in use or the civil law" and thought I had implied that the civil law was not in use in England as opposed to the civil law system. My mistake I should have made that clear, but in my defence the term 'civil law' is used for both, even though they mean different things.
 
*In judistrictions which still permit a private prosecution. England still dose I believe, but only with the AG's premission. A private prosecution is when the prosecution is carried out by a private party  rather than by the state.
 
Sparten, I'm a lawyer trained in the Continental/Civil law system I also have a law degree from the US, so I'm familiar with the basics and terminology of the both systems and I'm not really a layman in the realm of law Wink
 
I understand what you are talking about, but I still think gcle2003 was correct in what he said.
 
One point I want to add however. In the Continental or Civil law system if you will, the distinction between public and private law is made not really based on the parties, but based on so-called concept of legal relationship. When the parties are free to draw the rules by themselves without following mandatory regulations (as for example in sale contract), this is called a private relationship (law), even though one party to the contract could be a government body acting in its official capacity. However, when the rules of the relationship are mandatory and can't be changed (as for a example in Criminal or Administrative law where one must comply with the rules established by the state) it's called public law or jus publicum. This concept is inherently continental and comes from Roman law, I don't think Common law has it.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote gcle2003 Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 15:15
 
 
Originally posted by Sparten Sparten wrote:

Sarmat12,
The thing is that legal terminolgys are confusing for the layman and you really need to be a lawyer to comprehend them and even then I am not sure we always know what we are talking about.
 
Private Law is a term employed when you have law which affects the rights of private individuals and dose not involve government bodies acting in their official capacity. A defamation suit against a newspaper for instance. Civil Law strictly means any suit which is not a criminal one, but the crucial difference here is that even a criminal suit can be a civil one if it entails a private prosecution*; hence the name; civil; by civil i.e  non offical people.
A criminal prosecution is never a civil action, even if it is a private prosecution (which in England requires to consent of the government anyway as you note below). For instance even in a private prosecution the burden of proof is 'beyond reasonable doubt', not on the balance of probability as it is in a civil action.
 
But as I said I'm only talking about the law in England and Wales.
Quote
 
Civil Law System; On the other hand is different from Civil Law, this is the system based in Continental Europe, Louisiana, S America etc, this system is based upon legal codes, the court system is inquistorial in nature (meaning the court takes an active interest in the case and in investigating and determining the truth, as opposed to the common law adversarial procedure, where the courts hears the two parties; the adversaries, give their version of the case and then gives its judgement), as opposed to the common law system in use in the Commonwealth and the US, which is based on case law and is adversarial in nature.
 
GLCE2003 got confused between the two when I said "whether you meant the common law in use or the civil law"
I didn't get confused. I quite clearly said I was talking about English law, and under English law 'civil law' refers to actions brought by one party (other than the sovereign) against another (other than the sovereign) with the court adjudicating between them. In criminal law, the Queen (State or US in the US) brings the action against a defendant, who is accused of having broken the law, and threatened with being punished for it.
 
In civil law (given that in the US in particular the terms are often misused) you don't have a prosecutor and a defendant, you have a plaintiff and a respondent. And no-one is being accused of breaking the law: the respondent is being accused of having wronged the plaintiff in some way, and being asked to make compensation.
 
What you wrote was "I think you have mistaken "Civil Law" as in continental law and "Civil law" as in non-criminal private law." I hadn't mistaken anything. I hadn't said anything about anything except English law.
Quote
and thought I had implied that the civil law was not in use in England as opposed to the civil law system. My mistake I should have made that clear, but in my defence the term 'civil law' is used for both, even though they mean different things.
 
*In judistrictions which still permit a private prosecution. England still dose I believe, but only with the AG's premission. A private prosecution is when the prosecution is carried out by a private party  rather than by the state.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sparten Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 06:42
Sarmat12,
The thing is that legal terminolgys are confusing for the layman and you really need to be a lawyer to comprehend them and even then I am not sure we always know what we are talking about.
 
Private Law is a term employed when you have law which affects the rights of private individuals and dose not involve government bodies acting in their official capacity. A defamation suit against a newspaper for instance. Civil Law strictly means any suit which is not a criminal one, but the crucial difference here is that even a criminal suit can be a civil one if it entails a private prosecution*; hence the name; civil; by civil i.e  non offical people.
 
Civil Law System; On the other hand is different from Civil Law, this is the system based in Continental Europe, Louisiana, S America etc, this system is based upon legal codes, the court system is inquistorial in nature (meaning the court takes an active interest in the case and in investigating and determining the truth, as opposed to the common law adversarial procedure, where the courts hears the two parties; the adversaries, give their version of the case and then gives its judgement), as opposed to the common law system in use in the Commonwealth and the US, which is based on case law and is adversarial in nature.
 
GLCE2003 got confused between the two when I said "whether you meant the common law in use or the civil law" and thought I had implied that the civil law was not in use in England as opposed to the civil law system. My mistake I should have made that clear, but in my defence the term 'civil law' is used for both, even though they mean different things.
 
*In judistrictions which still permit a private prosecution. England still dose I believe, but only with the AG's premission. A private prosecution is when the prosecution is carried out by a private party  rather than by the state.
The Germans also take vacations in Paris; especially during the periods they call "blitzkrieg".
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Brian J Checco Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 06:10
He put out the first "bartending" laws. Essentially, purveyors of bum hooch either lost limbs or were drowned. If only those laws were still in tact, some of us might not accrue the bum tabs we rack up...

"108

   If a tavern-keeper does not accept corn according to gross weight in payment of drink, but takes money, and the price of the drink is less than that of the corn, they [sic] shall be convicted and thrown into the water."

http://www.wsu.edu/~dee/MESO/CODE.HTM
 
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sarmat Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 05:13

The point was that gcle2003 referred to the Civil law as limited notion within the English legal system. Another point is the in the US for example the notion which is used to refer to the law which not involve state is strictly Civil law, not Private law.

Private law is more appropriate for the Continental law system where it is widely used. On the contrary the use of this concept with the reference to the Common law could create confusion.

The traditional Common law didn't know any public/civil law division it's a new trend, perhaps triggered by the interaction with the continental law systems, though it's based in Common law on different principles than it's based in Continental law.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sparten Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 04:46
Okay terminology defination time here.
 
1) There are two great legal systems in the world today, Common Law, which is based on the legal system in England and Wales, and the Civil law, which is based on the system in use in Continental Europe, hence why its also called the continental law system.
 
2) In all systems, non-criminal, non-public law (that is which dose not have to do with public bodies) is typically called civil law. Another term used to avoid confusion with the above term is Private Law though again strictly speaking Private Law is a lot more expansive than civil law.
 
I'll (for once) defer to wiki here, since I can vouch for its effectiveness since I helped write some of these articles.
 
 
 
 
 
The Germans also take vacations in Paris; especially during the periods they call "blitzkrieg".
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sarmat Quote  Post ReplyReply Direct Link To This Post Posted: 30-Jan-2008 at 01:58
Originally posted by gcle2003 gcle2003 wrote:

Originally posted by Sparten Sparten wrote:

Gcle2003,
I think you have mistaken "Civil Law" as in continental law and "Civil law" as in non-criminal private law.
I'm not sure what you mean here. I specifically said English civil law, and what I said is true of English civil law. It may or may not be true elsewhere.
 
 
I think glce2003 is correct. At least in the US which is also a common law country all the law which regulates the disputes between individuals is called Civil as opposed to Criminal law which regulates the disputes between indivuduals and the state. In other words all the law that is not Criminal is Civil. I believe England probably has the similar concept.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Aster Thrax Eupator Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 19:47
hmmm I think we should move this thread to the philosophy section now...
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Post Options Post Options   Thanks (0) Thanks(0)   Quote gcle2003 Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 18:42
Originally posted by Sparten Sparten wrote:

Gcle2003,
I think you have mistaken "Civil Law" as in continental law and "Civil law" as in non-criminal private law.
I'm not sure what you mean here. I specifically said English civil law, and what I said is true of English civil law. It may or may not be true elsewhere.
 
For instance, in English contract law oral engagements are just as binding as written ones, because sticking to one's word, when both parties have given it, is seen as a moral imperative. Moreover, in adjudicating on contract issues, the court, other things being equal, is bound to favour the party that did not write the contract, something else that goies to the heart of the fairness concept.
 
I'm not saying English law is unique in this respect. For instance in European (EU) law, it is necessary that both parties are able to read the contract in a language they are familiar with, which again incorporates the moral imperative of fairness.
 
I would have said, incidentally, that systems of contract law which require contracts to be written and signed are less morality-based than the English (Anglo-Saxon in general) system.
 


Edited by gcle2003 - 29-Jan-2008 at 18:45
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sarmat Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 17:37
I didn't say that the Islamic law is complitely based on Morality. I already noted that the Law is not Morality per se and the Law can't be complitely based on morality a priori.
 
What I said is only that the Islamic law makes morals rules legal rules to a much larger extent than the Western legal systems and this is the fact.
 
I also noticed that that the law can be consistent with the local morality. The allowance of poligamy doesn't mean that the Islamic law is less moral in this regard, simply in this particular case the concept of poligamy is considered Moral in Islamic world unlike in the Western world. However, most of the basic fundamental moral standarts including the negative attitude to adultery are common for Islamic and Western world, so in this regard those standarts are legally embodied in the Islamic law to a much larger extent than in the Western Law Systems.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sparten Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 16:52
Gcle2003,
I think you have mistaken "Civil Law" as in continental law and "Civil law" as in non-criminal private law.
 
Sarmat12,
I can give the near universality of anti-polygamy laws in the western system as a counter-example or the fact that Common Law requires there to be an elem en t of dishonesty in theft. I can't speak for Hindu law but I can for Common Law and Islamic Law. Common Law and common law philosophers like John Austin and HLA Hart both regarded "morality" as being more or less incidental to law, while Civil Law lawyers like Lon Fuller believed in the "inner morality of law". As for Islamic Law, well kindly tell me which school "is based on morality?" A lot of Islamic Law was taken ad vertium from Roman Law, and Persian Law. How can say Abu Hanifa's concept of trusts be based on "morality", or indeed Abu hanbals?
The Germans also take vacations in Paris; especially during the periods they call "blitzkrieg".
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sarmat Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 16:11
Originally posted by Sparten Sparten wrote:

^
That is not the feature of Islamic Law at all.
 
Very strange point. One example.
Here is the link about punishment of adultery pursuant to Islamic law.
 
 
In Islam adultery is both immoral and illegal. The same approach existed in the Biblical law of the Old Covenant and Ancient Middle Eastern Codes.
 
In the modern Western legal systems there no any illegality in this. However of course it's critisized from the point of social morale but it doesn't have any relation to law at all.
 
 
Originally posted by Sparten Sparten wrote:

^
 Incidentally when you say "western systems" what do you mean? In the "west" you either have common law or civil law, each is rather different with a different view on morality, the common law system is distinguished by a lack of concern for morals and morality, while the civil law system seems to have a moral basis.
 
I mean both systems and both of them have very limited concern about Morality compare to Sharia law or for example Hindu traditional law.


Edited by Sarmat12 - 29-Jan-2008 at 16:16
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Post Options Post Options   Thanks (0) Thanks(0)   Quote gcle2003 Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 16:10
 
Originally posted by Sparten Sparten wrote:

^
That is not the feature of Islamic Law at all. Incidentally when you say "western systems" what do you mean? In the "west" you either have common law or civil law, each is rather different with a different view on morality, the common law system is distinguished by a lack of concern for morals and morality, while the civil law system seems to have a moral basis.
 
The English civil law consists primarily of two branches - contract and tort. Tort by definition covers cases where a wrong has been done to someone by someone else. Contract covers situations where one or other side has failed to deliver on its bargain, which is seen as a wrong thing to do.
 
Other minor civil law concerns, like inheritance and child welfare provisions are also very much concerned with fairness, which is a moral concept.
 
I would in fact have said that the criminal system is less concerned with morality (though morality does enter into it) than the civil law was.
 
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Post Options Post Options   Thanks (0) Thanks(0)   Quote gcle2003 Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 16:04
It is true that law and morality are different things (the first is objective, the second subjective, for instance: law deals with what is legal and what illegal, and morality deals with what is good and what is bad), and I wish that the distinction was more clearly made in legislatures. Sadly though, politicians and people in general will go on trying to use the law to enforce their personal moral codes.
 
In the modern world, laws are indisputably laid down by human agencies, even though they may be decided upon on the basis of their morality. However even now, and much more in the ancient world, the meaning of the words has been so blurred - mostly because of the feeling that 'laws' ought to reflect morality in some way - that the distinction is in practice probably an over-fine one to draw.
 
So the reality probably goes something like: punishments are inflicted for various antisocial acts; those punshments become standardised, and eventually codified; because people grow up knowing that some things are punished, they take them to be 'bad' in a moral sense; thus a moral code develops.
 
The myth on the other hand goes: a divinity establishes what is right and what is wrong - establishes normative rules for behaviour; that defines a moral code; to ensure that these rules are followed, laws are written, and punishments inflicted for transgression.
 
Oversimplified, of course.
 
Specifically I think it's a misapprehension to say that Western legal systems do not express the local moral code. Take incest for instance. Or drugs and prostitution.
 
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Sparten Quote  Post ReplyReply Direct Link To This Post Posted: 29-Jan-2008 at 15:31
^
That is not the feature of Islamic Law at all. Incidentally when you say "western systems" what do you mean? In the "west" you either have common law or civil law, each is rather different with a different view on morality, the common law system is distinguished by a lack of concern for morals and morality, while the civil law system seems to have a moral basis.
The Germans also take vacations in Paris; especially during the periods they call "blitzkrieg".
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