|WikiProject Law||(Rated Start-class, Top-importance)|
|WikiProject Philosophy||(Rated Start-class)|
Old discussion copied from Talk:Legal code (municipal)
What's the difference ( remeber Aristotle ? Herodotus?) between law and code ( particularly municiple ), etc ? Quasi judicial and quaSI criminal? These are dark areas of law and should be explained. ` Wblakesxwblakesx
Text removed (in italics):
includes measures of formal distrust and other ways
Distrust is an article written by banned user EntmootsOfTrolls and recreated by his suspected reincarnation, JRR Trollkien. Because it is doubtful whether that article should exist, given our policy for handling such text, I object to having links added to it, especially when that same user is adding the links. If another user wants to vouch for it, I can live with that. Kim Bruning restored a link on checks and balances (there was no text besides the link). Since he restored it there, but not here, I read that as a conscious choice about where the link belongs, so I do not believe JRR Trollkien is justified in restoring it here. Furthermore, here it involves additional text, which I think disrupts the flow and the thought communicated by the sentence it is in. Checks and balances is already linked in the sentence; distrust is now linked as part of that article; the distrust article, as written, relates more directly to that topic than to legal codes generally; in this context, it seems out of place. If another person wants to restore the link, they are welcome to try addressing my concerns. --Michael Snow 16:21, 3 Jun 2004 (UTC)
It seems that the statement in the lead paragraph,
"By contrast, in a common law country a Code is a less common form of legislation, which differs from usual legislation that, when enacted, modify the existing common law only to the extent of its express or implicit provision, but otherwise leaves the common law intact. By contrast, a code entirely replaces the common law in a particular area, leaving the common law inoperative unless and until the code is repealed"
does not accurately describe how it works in those U.S. states, such as Maryland, where there is both a Code and common law. And even if it is accurate, it is unsourced. 18.104.22.168 (talk) 19:05, 16 March 2008 (UTC)
- Could you elaborate? I am not familiar with the legal system of Maryland. If the Code does not entirely displace the common law within its field of operation, what is the status of the common law? Could you give an example of a code that co-exists with the common law in that field? --PalaceGuard008 (Talk) 20:39, 16 March 2008 (UTC)
First, the quoted material is definitely poorly worded, if not inaccurate. Second, to try to answer PalaceGuard008's question simply, think of a code more like an organized set of statutes. Good example would be England and any/most USA jurisdictions. In England, you would usually refer to an act name and year, say Theft Act of 1978 (made up for example). That's for everything. In the USA, there are individual acts- Copyright Act of 1976 (I think that's the right year)- but instead of just acting on their own, they either create, modify, or are otherwise incorporated into the appriate code, in the Copyright Act's case, into the United States Code (U.S.C.), specifically title 17. There have been several subsequent statutes enacted that modify the Copyright law, and they inevitably add, repeal, or amend one or more sections in Title 17, U.S.C. So, for the most part, when lawyers cite to provisions of copyright law in the USA, they cite to 17 U.S.C. section ____. Whereas in England, they still refer to each pertinent.
In short, codes are neater and easier to research for the law. Also note that every state has codes. Other than codes, they may be called "(State Name) Revised Statutes" or something similar, but the "revision" in the statutes is the organization into a complete set of code, or codes depending how you look at them.
That said, the codes are handled the same as other statutes- they "trump" prior caselaw except where they are unconstitutional (USA jurisidctions). The real issue is how pervasive, how complete a code tries to be. Even where a code addresses something, it may use language that has been used throughout the common law for years, decades, and centuries. If certain words are not specifically defined in the code, but have been interpreted in case law either in that jurisdiction or another common law jurisdiction, then a court is likely to go with a common law definition, which may either be specifically legal definition or simply recognizing the common usage of the word(s). So even where the code indicates that there are no substantive common law rules, ie. the only crimes in a jurisdiction are created by statute, they may yet give common law interpretations in reading the crimes created by statute.
The idea in civil law states is that the code covers everything, the language is plain, and any special definitions are provided for in the statute. Courts in civil law states do not interpret law.
- Thanks for that explanation. I was not aware that "Code" apparently means something entirely different in US law to English-and-derivative jurisdictions!
- In those jurisdictions, a statute is only called a "code" when it is a comprehensive and exhaustive law in its field. E.g. a "Crimes Act" would contain certain provisions about the criminal law, but would operate in supplement to the existing common law of crime. By contrast, a "Criminal Code" would be an exhaustive volume of criminal laws which would be entirely self-contained and displace the entire body of the common law on crime (save perhaps the ordinary rules of statutory interpretation as it operates on the words of the statute).--PalaceGuard008 (Talk) 06:08, 22 August 2008 (UTC)
administrative continental law
you say that in civil law juridictions, law is described by a code that establishes all the rules of law, the case-law (called jurisprudence) being limited to precise law.
It is the case only in private law. The reason is that when Napoleon invented the civil and criminal codes, he made no provision for administrative law, and it was forbidden to courts to judge administrative matters. So in Napoleon times there were no written law on adminisrative matters and no courts, it means government might do what he likes without control.
In France the situation remained approximatively the same to the fall of Napoleon III in 1870.
Since 1870 the courts, or more exactly the justice courts, are always not allowed to judge administrative matters, but there are administrative courts, oompletly independant from the justice courts. The administrative courts (or more exactly the supreme administrative court, the Conseil d'Etat), have ruled that the civil code does not apply to the administrative matters and have establised an independant case-law without a general code.
So in France (and in most civil law juridictions) administrative law is completly different from private law : judges are completly different (they do not come from the same schools), proceedings are different, professors are either private law or public law professors, and the structure of administrative law, because the absence of a general code, looks common law's.
Inaccuracies regarding Roman law and the Justinian Code
I have in mind the following paragraph:
In the Roman empire, a number of codifications were developed, such as the Twelve Tables of Roman law (first compiled in 450 BC) and the Corpus Juris Civilis of Justinian, also known as the Justinian Code (429 - 534 AD). However, these codes did not exhaustively describe the Roman legal system. The Twelve Tables were limited in scope, and most legal doctrines were developed by the pontifices, who "interpreted" the tables to deal with situations far beyond what is contained therein. The Justinian Code collected together existing legal material at the time. However, it was authoritative only in the Eastern Roman Empire, and never became a contemporary legal tradition in the West.
It states that Roman codes, including that of the Justinian Code, "did not exhaustively describe the Roman legal system". To prove its point for the Justinian Code it then merely gives a logically flawed and historically incorrect motivation saying that it was only authoritative in the Eastern Roman Empire. First of all, the paragraph does itself in fact acknowledge that the Justinian Code was an exhaustive description of the Roman legal system since it states that it "collected together existing legal material at the time". That surely must be interpreted as an exhaustive legal system? Even disregarding this admission in the paragraph, that is to the best of my knowledge the virtually unanimous consensus of scholars on the issue.
Consequently, the motivation that it was not "exhaustive" seems to rest solely on the assertion that it did not apply to the Roman West. In other words, an "exhaustive legal system" which was not applied "exhaustively" throughout the territory of the Roman Empire. However, this claim seems to be based on a basic historical misunderstanding. The Eastern Roman Empire was a separate entity from the Western Roman Empire at the time of the Justinian Code, which in fact did not exist anymore by the 6th century. For all intents and purposes, the Eastern Roman Empire was the Roman Empire from the 6th century onwards. To talk of a division between a Roman West and a Roman East in the 6th century could only make sense in terms of a cultural realm that persisted in the former Roman West through the Latin language and Latin Christianity (reinforced later through a de facto Eastern/Western split in the Roman church).
However, in terms of government and law, there only existed one Roman government and one Roman law, namely what we would call the Eastern Roman Empire (or the Byzantine Empire) and the Justinian Code. The fluidity of the borders of the Eastern Roman Empire and its often precarious control over far-flung territories and conquests doesn't change this fact. The fact is that the Eastern Roman Empire did use the Justinian Code exhaustively wherever its insitutions were firmly in place and it even had a law school based in what in today's Beirut, where this law was studied by aspiring bureaucrats. I don't know what more is needed for its implementation to be considered "exhaustive" compared to the implementation of other law codes mentioned in the article for which this was not remarked as an issue?