The theme here is something that I have talked about before. Constitutionalism is definitely the strong, currently dominating, trend in European law. But this is challenged, or perhaps actually driven, by Supranational and Internal challenges to national supremacy. This is clearly visible in Europe, in the Supranational European Union and in the increasingly powerful regional governments.
The Old Assumptions (1)
Legal System: one that contemplated such things as a legal universe inhabited only by the individual and the state;The Old Assumptions (2)
legislative supremacy;
a rigorous separation of the judicial from the legislative and administrative powers;
a narrowly defined and uncreative judicial role;
the denial of stare decisis;The Old Assumptions (3)
the primacy of the civil code and of civil law scholarship;
a highly developed and coherent conceptual structure;
and a constant preoccupation with certainty. [1241].The Sub-traditions of the Civil Law Tradition
1) Roman civil law;
2) Canon Law;
3) Commercial Law;
4) The Revolution;
5) Legal Science;
6) ConstitutionalismEuropean Federalism
Associated Tendencies:
1) De-codification
2) Constitutionalization
3) FederalizationDecodification
Special Legislation
Statutory Microsystems of law
Social Objectives of law
OLD: The contract is the law between the parties
NEW: The law becomes the contract between the parties“Judge-made law”
French Tort Law
French Administrative LawSo why does the Code survive?
The Decline in Legislative Supremacy
Legislating by Executive Decree
Increased Bureaucracy
Is this healthy?
Democratic?The New Constitutionalism
--Challenges to the constitutionality of legislation or official acts.
--More often used.
--Focus on Individual Rights.
--The move from the Civil Code to the Constitution Itself.
--The new vision of separation of powers: the Judges are powerful again.
--The new uncertainty.The Future of Sovereignty
Federalization: The Challenges to Sovereignty
External Challenges
Supranational Authorities like the EU and the European Human Rights Convention.Internal Challenges
Human/Individual Rights
Recognition of Group/Class RightsThe Sub-traditions of the Civil Law Tradition
1) Roman civil law;
2) Canon Law;
3) Commercial Law;
4) The Revolution;
5) Legal Science;
6) Constitutionalism
GENERAL APPROACH
As I mentioned during the review session, this exam is quite different from the original from which the questions were taken. You have clear instructions that require you to do three things, rather than the more descriptive original. More comparative examples and more analysis is required. This analysis should show your command of the material you learned in class.
THE WORD COUNT:
As I mentioned during the Review Session, and during our last class, everything must be included in the word count, unless expressly excepted. The ONLY exception is the Bibliography page that I suggested. Everything means everything: footnotes, citations, parentheticals included.
HELPFUL INFO
For those of you who are doing research in the Forced Heirship question, I added some material from my Civil Code Seminar to the notes above. It is a very basic description of contemporary forced heirship. I also discuss the subject in my article The Non-Adversarial, Extra-Judicial Search For Legality And Truth: Foreign Notarial Transactions As An Inexpensive And Reliable Model For A Market-Driven System Of Informed Contracting And Fact-Determination, 16 Wisc. Int'l L. J. 1 (1997).
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