I am handing out these essays as examples of my vision of adequate to good examination answers. Although I have made certain editorial comments and corrections, you should not assume that I regard every statement made in them as correct. I believe that these pieces, taken as a whole, represent fairly good efforts. None of them is perfect, but, no exam answer is ever perfect either.
[NOTE: The following is a good and interesting discussion piece. It uses what the student learned to give his/her views of how it is relevant to his/her system.]
I think the most interesting topic we have discussed in class thus far has been foreign legal education. It probably struck me as being particularly intriguing because I had never given much thought to the subject before; I guess I just assumed that other countries taught law the same way the U.S. does. Needless to say, I was surprised by the great difference between how we educate law students and how civil law countries (and even England) do. I was even more surprised to see that some countries implement ideas which I had thought of for improving our own legal education process.
The most striking difference between U.S. and foreign legal education is the U.S.'s belief that law schools should provide the vocational training necessary for the average lawyer to practice, while foreign countries feel that vocational training should be obtained outside the university. As a practical matter, I am inclined to agree with the foreign approach, because it has been my experience that U.S. lawyers obtain most of their "practical" knowledge on the job anyway, not at the law school. However, this approach would tend to trivialize the issues which are discussed at school, because most U.S. students would feel that a curriculum which is completely detached from practicality [like, perhaps, comparative law?] serves little purpose, other than to frustrate and delay their entry into the practice of law. I guess the most important lesson I took away from this reading was that civil law countries separate theory from practice much more distinctly than the U.S. system.
Another fact which I found surprising was that the majority of students who study law at civil law universities don't go on to become lawyers. The fact that basic legal education is taught at the undergraduate level in most of these countries contributes to this, I'm sure, as well as the fact that the number of students studying law in civil law countries dwarfs the number of law students in the U.S. Having law available as an undergraduate curriculum is an excellent idea, in my opinion. It is unfortunate that U.S. undergraduates who don't want to invest the time, money, and energy to go through law school must forsake the study of law entirely. It seems ludicrous that U.S. universities would have majors in arguably useless areas of knowledge (I won't name any, to avoid offending those who took them), yet would not have any courses in American law, one of the most pervasive and important fields one could study. The availability of legal education to most citizens in civil law countries is admirable, even with its inherent problems (overcrowding, unreasonable student/teacher ratios, lack of electives).
The role of the professor in civil law counties as opposed to the U.S. is another area ripe for comparison. Because my mind was already programmed to assume that all law professors are like John Houseman in "The Paper Chase," I found it hard to believe that civil law professors teach almost exclusively through the lecture method, with little or no class participation. It seemed odd that future lawyers were expected to stay quiet and mindlessly absorb the information the professor spewed out without question. However, when I considered the size of the classes most of these professors are lecturing to, it became less surprising to me that student questions were discouraged. Also, the fact that professors in most civil law countries are part time, and are paid very little, would explain their reluctance to extend the time they have to spend lecturing by entertaining questions.
From reading about foreign legal education, I found that some of my own ideas for changing the U.S. system have been the status quo in civil law countries for decades. I also learned that there are flaws in those ideas, which can lead to a system as imperfect as the one we already have. Most importantly, I learned that other legal education systems exist, and serve their purpose just as well as ours.
Of the topics we've covered so far in our course, I found that of the different legal professions and the peculiarities of each within the several Civil Law countries we have studied so far, to be amongst the most interesting. The extremely varied meaning and job duties ascribed to each profession within the different countries, plainly illustrates the diversity within the Civil Law world itself, and the importance of clearly understanding that the same language does not necessarily mean the same thing.
The six legal specialties of the Civil Law world: the judiciary; procurators; [government lawyers]; advocates; notaries; and academics, although fairly uniform across the different countries studied, are merely descriptive terminologies which stand for an array of varied meanings and job descriptions. Even though, you can still get a pretty good flavor for what each of the legal specialties are through John Henry Merryman's essay. Merryman gives one an overall perspective of what the categories generally mean in the Civil Law world.
The judiciary is described by Merryman as a complete and separate specialty all its own. There is no intermingling of practicing lawyers in their ranks as in the common law world, all judges come straight from the judiciary career track. The civil law judge views the law from a strictly judicial viewpoint, receiving all of his training as a judge and having never been a practicing lawyer, and restricting his professional and social world to that of other judges.
The procurators, termed public prosecutors by Merryman, are in many ways, very "judicial" in their duties. These duties generally consist of acting as state prosecutor, and of representing the public interest in private proceedings.
The advocates are the widest open and perhaps most diverse of legal specialties. It is very hard to pin any type of uniform job description to the advocate in the several civil law countries studied. Yet it is safe to summarize by saying that of all the legal specialties, they stand roughly equivalent to the American attorney.
The government lawyers usually act as either in house counsel for government agencies, or work in a government office which advises and acts as legal counsel for the different government agencies. These positions are usually very administrative and bureaucratic in nature.
Notaries in the civil law world are almost completely different to what they are in the common law world. They are a quasi-governmental officer, in that they act as an official record keeper, but are in reality private practitioners. Notaries are extremely important in most civil law countries, the evidentiary veracity of their "public acts" being almost unassailable in court. [This makes the notarial document particularly important, given the civilian preference for written evidence.]
The final category is that of the academic lawyer. Roughly equivalent to the common law law professor, he is however, much more important in the civil law world, acting as the fundamental thinkers for the entire legal profession. The views of the academic lawyers carry so much weight because they are in fact the inheritors of the Roman jurisconsult and the medieval scholar, whose views were once binding upon judges. The road for an aspiring academic is extremely difficult, as professorships are very hard to come by, and most must practice the saw to support their academic endeavors. [The role of the scholar is particularly important as a source of law, this would make a very pertinent and interesting addition here.]
In conclusion, a look at the difficulty of the aspiring academic lawyer to attain a professorship, leads one to a very interesting paradox in many ways indicative of the entire civil law world; to survive he must practice as a real-world lawyer, pragmatically pursuing his result wherever it may lead him. Even across the boundaries of the legal fields he himself so assiduously and faithfully constructs and maintains as he pursues his academic endeavors.
The origins of the civil law can be traced to Roman law. Roman law had a tremendous influence upon the character and nature of the civil law. The Roman law was formulated over several centuries, but the compilation which is most identified with the Roman law is the Corpus Juris Civilis that was promulgated by Justinian in 533 A.D.. The Corpus Juris Civil is was a compilation of the Roman law up to that time, but edited to omit inconsistencies and obsolescence. This code was based extensively on the laws promulgated by Roman officials known as magistrates.
Rome emerged from a small city-state to become the dominate power in the Mediterranean. The Romans overthrew their king and replaced him with two magistrates called Consuls. This period of Roman history was known as the Republic. The early part of this period was characterized by the struggle between the Patricians (noblemen) and the Plebeians (the common people). Out of this class struggle developed the Republican constitution that defined the structure of Roman government.
The magistrates were the executive power in the Republic. [NOTE: it would have been better to discuss the commingling of executive and judicial power by the magistrates]. The two magistrates, held office for one year, exercised full executive power and had veto power of one another. As Rome grew there was a need for more magistrates to deal with specific areas of governing. The lower magistrates were subject to the power of the magistrates above them, but within their field the exercised total power.
The magistrates that were the most influential in the development of Roman civil law were the Urban Praetor and Peregrine Praetor. The Urban Praetor had civil jurisdiction over cases involving only Roman citizens. The Urban Praetor had civil jurisdiction over cases involving at least one foreigner.
The major function of the Praetor was the issuing of Edicts. These edicts contained, among other things, the legal remedies that a citizen could use to redress a wrong. The Roman legal system was based not so much on rights as it was on remedies. This is somewhat analogous to the English writ system. A claim could only be brought if it was expressed in a recognized form. The power of the Praetor to create new forms of action did in effect create new rights, but it was not viewed in this manner.
These forms of action were created within the formulary system. This system allowed the use of elements that were the building blocks of a formula which made-up a pleading. The Praetor had the power in a particular dispute to create a new formula. Therefore, the Praetor not only had the power to issue laws of general applicability, but he could control litigation by granting a new formula to fit the facts of the case before him. [By creating new causes of action, the praetors were, in effect, making new private substantive law.]
The edicts of the Praetor greatly influenced the Corpus Juris Civilis. The praetorian edicts comprised a body of civil law that was compiled and edited by later jurists. The edicts themselves laid down the fundamental legal concepts that permeate the civil law world.
[An analysis of these fundamental legal concepts would be a great answer. Good discusion.].
The progression of the rights and duties of the Pater from the Twelve Tables (451-450 AD) to modern family, and tort law illustrates how civil law has progressed through the centuries. It is necessary to understand how the civil law developed because without understanding its past we are incapable of understanding its present construction and where and how it will develop in the future.
Under the Twelve Tables the Pater had the exclusive domain over both his natural and adoptive children and their heirs until emancipation or a [marriage] in manus occurred. The Pater could kill the child, sell the child into slavery, refuse to emancipate the male child, refuse to give the female child in manus to her husband, and surrender the male child for payment of debts to cover the Pater's tort liability for that child. If the Pater chose, he could emancipate the male child. [Initially,] Emancipation occurred alter the Pater sold the child three times into slavery. These were usually paper sales and did not actually require that the child actually work as a slave under three masters. Emancipation also occurred after a Noxal surrender period had ended [i.e., when the debt had been repaid]. Once the male child was emancipated he took control of his own property, however the Pater was able to retain control of 1/3 of the property.
Under Justinian's Institute's the controls of the Pater remained essentially the same. One notable change was the simplification of the rules of emancipation. The three sale process was no longer required. In addition no longer was the son's military fund the only property wholly owned by the son prior to emancipation. Pater's had the right to receive only that which the son earned through use of the Pater's property. Any other income created or derived from another source,( i.e. investment of the son's military fund into a trading scheme or business), was the property of the son, not the Pater. In addition the Pater was no longer allowed to keep 1/3 of the son's property for himself. Once the child was emancipated the Pater could only retain a usufruct over one half of the property.
Under both the Twelve tables and Justinian's Institutes and Codes, the Pater had absolute control over the lives of his sons and daughters. The Pater also had absolute liability for the torts or acts of delict of his children. The Pater had the right to surrender the tort-feasor to the injured party for the payment of the damages. However, if the child was sold into slavery for the payment of a debt the master of that child, not the Pater was responsible [for his acts, just like masters were generally responsible for the acts of slaves. NOTE, however, that soon after the Tables, the child could not really be sold into slavery, the noxal surrender gave him as a servant in payment of a debt, but children so surrendered were not slaves, i.e., they could not be re-sold by the recipient. Even the noxal surrender, however, was obsolete by the time of Justinian.]
During medieval times the concept of the Pater was alive and well in Spain. Under Las Siete Partidas (1348) [which were promulgated and probably effective in the 13th century, but which became officially recognized after the Ordenamiento de Alcalá in 1348], the Pater or Father had Patria Potestas, dominion, over his children because they were of his blood and also because they were his property. Unlike Roman Paters, Spanish fathers could not kill their children, but if they were under siege, and not allowed to surrender, they could eat them. Spanish fathers could sell their children into slavery but only if they were hungry. The father, or someone else, could free the child later by paying the purchase price plus any amount owed for education or improvement during the child's enslavement.
Under Las Siete Partidas, the child had much greater control over his own property. The military fund was of course the child's. Unlike Roman Law though, any money earned by the child's own labor, as well as, any gifts or inheritances and the money earned from those gifts or inheritances belonged to the child and not the father. Like Roman law though any money earned from the father's property belonged to the father.
The duties and tort liabilities of the Pater continues today within the civil law tradition. However, both parent's bear legal duties and liabilities. Unlike in earlier times emancipation occurs when the child reaches majority [this is what is known as a natural type of emancipation]. The parents may not keep the child under their control after that time. [The writer could have incorporated here more about the modern mutuality of duties between parents and children.]
[NOTE: I really enjoyed this previous essay because of its ambitious scope. In the history area, it is important properly to understand the development of Roman, Canon and regional\national European law. For purposes of the examination, however, this is not merely a historical exercise, you should indicate how these roots produced modern civil law. The previous essay is a good, although not completely successful attempt at an "A" answer. The next essay reflects a good grasp of the history of canon law, it would become an "A" answer if it connected this history with modern civil law. Of course, this will be clear from the exam question, and should not be interpreted as criticism of the essay, which obviously had a different focus.]
Canon law originated in the twelfth century when the monk Gratian published his textbook and compilation, the Concordia Discordantium Canonum, later called the Decretum Gratiani. The Decretum systematically analyzed and clarified the mass of laws, legal collections and norms which at that time constituted Church law. The Decretum was the foundation for what was later to become the Corpus Juris Canaonici, the code of Canon law modeled after the Corpus Juris Civilis of Justinian. Canon law arose primarily in response to the German emperor's contention that the secular Roman law established his absolute and primary power over all, including the Church. Canon law was modeled on the same legal science that was the basis of Roman law and which was studied and taught at the University in Bologna.
Canon law was developed by Decretists, scholars similar to the Glossators of Roman law, who interpreted Gratian's work in the form of annotations in the margins of the Decretum, and Decretalists, scholars similar to the Roman law Commentators, who incorporated Germanic law into Canon law and in this way expanded its scope.
The legal sources for Canon Law were considered to be Divine Law, Natural Law and Human Law. Because Divine Law occupied the highest place in the hierarchy of legal sources, Canon law was said to supersede Civil law and the law of the emperor in matters where Canon law had jurisdiction.
Throughout the twelfth to sixteenth centuries there was considerable conflict between the Church and emperor as to whose law held superior authority and jurisdiction. Canon law claimed personal jurisdiction over the clergy, students, crusaders, wretched people and travelers, and Jews and Muslims in cases where there were controversies with Christians. For wretched people, travelers, Jews and Muslims, jurisdiction was supplemental and employed only where the secular courts failed to protect these people.
The Canon law claimed subject matter jurisdiction in the following legal categories: family law, due to the sacrament of marriage; inheritance law, due to the testamentary act; property law, due to the Church's vast holdings of land; contract law, due to the pledge of faith; criminal law and tort law, due to the Church's jurisdiction over sin.
In Canon law, personal and subject matter jurisdiction were independent bases for Church jurisdiction, either one alone being sufficient to establish jurisdiction. The Church also viewed itself as having superior jurisdiction over secular authorities, resulting in the procedure of prorogation, which allowed an individual to remove a case from a secular to a Church court in situations where a failure of justice was claimed or in which there was a contractual issue.
The Canon law also established procedural foundations which were later incorporated into civil law. [In an exam answer, this last point should have been explored even further, because it is a major surviving influence of the canon law in modern European Civil Procedure.]