Notas de lectura
Introduction to Legal Systems Notes
- Grado
- GEL
- Institución
- ESADE Law & Business School (ESADE)
Detailed notes from all classes.
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Questions/Topics for Final ExamDo California, England, and Australia have the same legal system? Please, explain the
concepts of the Legal System and Legal Tradition.
● While California, England, and Australia share the common law tradition, each has its
unique legal framework shaped by historical, cultural, and legislative factors.
○ California operates under a common law system, heavily influenced by
English common law due to its historical ties with the British legal system.
○ England primarily follows a common law legal system, which has significantly
influenced many other legal systems worldwide due to the British Empire's
historical expansion.
○ Australia's legal system is a blend of common law (inherited from England)
and statutes derived from its legislative processes.
● A legal tradition refers to the underlying principles and values shaping a society's
legal approach. In contrast, a legal system encompasses the entire framework,
including institutions and processes, through which laws are made and applied.
○ Legal System – set of rules, institutions, procedures, and actors that
constitute the framework for creating, interpreting, and enforcing laws within a
specific jurisdiction
○ Legal Tradition – the collective body of customs, principles, practices, and
institutions that form the basis of a society's approach to law and justice
Why did Justinian forbid any further reference to the works and commentaries of other
jurisconsults not included in the Compilation?
● Justinian's decision to forbid further reference to the works and commentaries of
other jurisconsults not included in the Compilation was primarily driven by his intent
to streamline and consolidate Roman law into a coherent and authoritative legal
system.
● During Justinian's reign, there was a vast amount of legal writings and commentaries
produced by various jurists, creating confusion and inconsistency in legal practices.
● To address this issue and establish a unified legal framework, Justinian
commissioned the compilation of Roman law into what is known as the Corpus Juris
Civilis.
● By forbidding reference to other works not included in the Compilation, Justinian
aimed to ensure that legal decisions and interpretations were based solely on the
texts included in the Corpus Juris Civilis.
○ This restriction was intended to create legal certainty, uniformity, and
consistency throughout the empire through a standardized legal code.
Which elements converge in the Compilation ordered by Justinian and the Civil Code
ordered by Napoleon?
● The Compilation ordered by Justinian and the Civil Code ordered by Napoleon share
several converging elements:
○ Both initiatives aimed to systematize and codify the laws of their respective
empires.
, ■ Justinian's Compilation (Corpus Juris Civilis) consolidated Roman
laws, spanning various legal sources, into a comprehensive body of
law.
■ Napoleon's Civil Code (Code Napoléon) sought to compile and
standardize French laws into a coherent legal system.
○ Both codes aimed to unify the legal systems prevailing in their territories.
■ Justinian's Compilation attempted to harmonize diverse legal traditions
and opinions into a singular corpus, bringing consistency to Roman
law.
■ Napoleon's Civil Code intended to unify the various regional laws and
customs in France into a single legal framework, promoting legal unity
within the country.
● The concept of the separation of powers, which emphasizes the division of
governmental functions into distinct branches—legislative, executive, and
judicial—was not explicitly incorporated into the Compilation or the Civil Code, but
elements of it can be found implicitly within the legal codes:
○ The legal system under Justinian possessed certain elements resembling the
division of functions. For instance, there was a recognition of separate roles
for magistrates, judges, and lawmakers.
○ Napoleon's Civil Code emphasized the rule of law, the independence of the
judiciary, and the authority of legislation, laying some groundwork for the
division between legislative and judicial functions.
● *The Civil Code is based more on jus commune than Roman law itself.
How was the jurisdictional function during medieval and pre-revolutionary times?
● During medieval and pre-revolutionary times, the judiciary applied the jus commune –
a set of laws composed of Roman law, canon law, commercial law, and Germanic
customary law – in various European legal systems.
○ European scholars and lawyers traveled to Italy to study Justinian’s
Compilation after it was discovered in Italy in the 12th century, which led to
the integration of Roman Law into the jus commune.
● There was no unified legal code. Jurisdictional functions were, therefore, not unified,
which led to inequality and uncertainty in interpretation.
How does the different view of the role of Judges in society depend on the tradition (Civil or
Common Law Tradition)? How is this role changing nowadays?
● The development of the modern nation-state and the codification of laws significantly
shaped the role of judges into the structured and more specialized positions they
hold today.
● In the common law tradition, judges have a prominent role in shaping the legal
system.
○ They have a significant role in interpreting the law, and judicial review of
administrative actions and legislation is widely accepted.
○ They create legal precedents through their decisions, contributing significantly
to the development of the law.
● In the civil law tradition, judges are public servants and functionaries.
○ They follow a different tradition dating back to Roman times, where the judges
were not prominent legal figures.
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