Legal Uniformity and the Homogenization of the European Union

Total Page:16

File Type:pdf, Size:1020Kb

Legal Uniformity and the Homogenization of the European Union Pittsburgh University School of Law Scholarship@PITT LAW Articles Faculty Publications 2001 Romantic Common Law, Enlightened Civil Law: Legal Uniformity and the Homogenization of the European Union Vivian Grosswald Curran University of Pittsburgh School of Law, [email protected] Follow this and additional works at: https://scholarship.law.pitt.edu/fac_articles Part of the Civil Law Commons, Common Law Commons, European Law Commons, International Law Commons, Military, War, and Peace Commons, and the National Security Law Commons Recommended Citation Vivian G. Curran, Romantic Common Law, Enlightened Civil Law: Legal Uniformity and the Homogenization of the European Union, 7 Columbia Journal of European Law 63 (2001). Available at: https://scholarship.law.pitt.edu/fac_articles/55 This Article is brought to you for free and open access by the Faculty Publications at Scholarship@PITT LAW. It has been accepted for inclusion in Articles by an authorized administrator of Scholarship@PITT LAW. For more information, please contact [email protected], [email protected]. ROMANTIC COMMON LAW, ENLIGHTENED CIVIL LAW: LEGAL UNIFORMITY AND THE HOMOGENIZATION OF THE EUROPEAN UNION Vivian Grosswald Curran* [Lia grandeurdu ginie ne consisterait-ellepas ... b savoir dans quel cas ilfaut l'uniformiti et dans quel cas ilfaut des diffdrences? - Montesquieu' INTRODUCTION The main thrust of this article is to suggest why the European Union may succeed in its objective of legal uniformity despite encompassing the two highly distinct legal traditions of the common law and the civil law. My theory is that the defining characteristics of the civil-law legal culture, although in stark and profound contrast with those of the common-law legal system, nevertheless appear prominently and pervasively in the non-legal spheres of common-law nations; and vice versa, such that common-law legal characteristics correspond closely to elements often excluded from civil-law legal cultures, but which are included in the non-legal domains of the civil-law European Union Member States. Conversely, the defining characteristics of civil-law legal culture not only are largely absent from common-law legal systems, but, as Peter Goodrich has demonstrated, they consciously and repeatedly were rejected by England.2 Nevertheless, * Associate Professor of Law, University of Pittsburgh. B.A. University of Pennsylvania; M.A., M.Phil., Ph.D., J.D. Columbia University. Unless otherwise noted, translations are mine. I am grateful for financial support in the form of generous grants from Dean David Herring of the University of Pittsburgh School of Law and Professor Alberta Sbragia, Director of the European Union Center at the University of Pittsburgh. I also thank the Deutsch-amerikanische Juristenvereinigungfor the opportunity to present my ideas in their formative stages to German audiences; Professors Joachim Hermann and Thomas Mollers for their kind assistance in procuring research resources in Augsburg; Professors Christian Joerges and Karlheinz Muscheler for assistance with respect to research on Hermann Kantorowicz; Professor Bernhard GroBfeld for his thorough reading of an earlier draft of this article, and helpful comments, as well as for his inspiring vision of comparative law; Professors Volker Behr, Martha Chamallas, Jules Lobel, George Taylor and James Q. Whitman for their insightful readings of this article and helpful comments; Ulrich Paul Ronald, for the information about Esperanto I have used in these pages (and for having introduced me to Esperanto as a child). Finally, I would like to express heartfelt thanks to Mr. Peter Kent, of Fort Meyers, Florida, a descendant of the legal theorist, Hermann Ulrich Kantorowicz. Mr. Kent has shown a generosity beyond description in offering me information about his ancestor, including valuable German legal research of which I had been unaware. I am deeply grateful to him for sharing reminiscences and documents relating to Professor Kantorowicz, Professor Radbruch, and the turbulent world in which those two eminent scholars and close friends lived and wrote and which Mr. Kent also experienced during his childhood in Germany. Portions of this article were presented at the Sixth Biennial International European Community Studies Association conference, in June 1999; and at the law faculties of the Universities ofAugsburg (June, 1999) and Hannover (July, 1999). ' Montesquieu (Charles de Secondat, baron de), De I'Esprit des Lois, livre xxix, chapitrexviii (1990) ("[Does not the greatness of genius consist in knowing in which case uniformity is needed, and in which case differences?") 2 See Peter Goodrich, (Edipus Lex (1995). See also Mackay Cooper, The Common and the Civil Law - A Scot's View, 63 Harv. L. Rev. 468, 471-72 (1949) ("The Anglo-Saxon is instinctively hostile to 63 COLUMBIA JOURNAL OF EUROPEAN LAW [Vol. 7 they are prominently and pervasively present in the non-legalspheres of common-law European Union Member States. Consequently, lawyers from all of the Member States have an intimate understanding of the fundamentals of both the common-law and civil- law mentalities, although they have learned to apply only one of those mentalities to legal discourse and analysis. The progression towards legal uniformity is spawning a hybrid, homogenized legal culture from the systems of the civil and the common law that encounter each other in the new Europe. The resulting homogenization in turn fortifies uniformity, as the two distinct legal cultures are altered by their mutual encounters, adapting to the imperatives of coexistence and coalescence, and in turn reinforcing homogenization, as their acquired adaptive characteristics contribute to a further breakdown of distinctive legal attributes by processes of reciprocal influence and blending. I propose to support this thesis by signaling the striking resemblances between the common-law mentality and Romanticism; and between the civil-law mentality and the Enlightenment. The renditions of Romanticism and the Enlightenment that I apply to the common and civil law in these pages are based principally on Isaiah Berlin's analysis and discussion of Romanticism and the Enlightenment throughout the course of his life's work.4 This article both analyzes Berlin's discussion of Romanticism and the Enlightenment in terms of the common and civil-law legal methodologies and mentalities, and explores the implications of this analysis within the context of the European Union. Because all of the European Union's Member States were influenced by both Romanticism and the Enlightenment, lawyers from both the common-law and civil-law legal systems are adept at both conceptions of the world and of life that underlie the legal systems. Thus, the process of Europeanization is reduced to re-learning to apply the "other," "un-learned" system's tenets and methodology to the legal sphere of reasoning, thinking, arguing and conceptualizing. This process of skill re-acquisition for European lawyers and judges is greatly facilitated by their preexisting intimacy of acquaintance with the "other" perspective in the non-legal domains of their lives. Before I proceed with this analysis, I want to be very clear that I am not suggesting that Romanticism was itself a cause of the common-law legal system, or the Enlightenment a cause of the civil-law legal system. Both legal systems predate Romanticism and the Enlightenment by many centuries. Rather, Romanticism and the Enlightenment are useful to my argument to the extent that they are emblematic of different modes of intellectual discourse, outlook, thought and focus that have long coexisted in western society. For complex reasons, one or the other of those discourses dominates the legal institutions of Europe's Member States. The last two sections of this essay discuss the challenges to Europe's future posed by the fusing of legal cultures and by the coalescence of a wider range of cultural codification.") But see Reinhard Zimmermann, Civil Code or Civil Law? - Towards aNew European Private Law, 20 Syracuse J. Int'l. L. & Com. 217, 220 (1994) ("the prevailing idea of the English common law as constituting an entirely autochthonous achievement is a myth"). Cf. J.H.H. Weiler & Joel P. Trachtman, European Constitutionalism and Its Discontents, 17 Nw. J. Int'l. L. Bus. 354,354 (1997) ("European Community law is not a different species of law, but is a mutation of the same species.") 'h 4 See, e.g., Isaiah Berlin, The Age of Enlightenment: The 18 Century Philosophers (1984); Four Essays on Liberty (1969); Vico and Herder (1976); Concepts and Categories (Henry Hardy ed., 1978); The Crooked Timber of Humanity (Henry Hardy ed., 1992); The Sense of Reality (Henry Hardy ed., 1996); The Power of Ideas (Henry Hardy ed., 2000). 2001] ROMANTIC COMMON LAW, ENLIGHTENED CIVIL LAW characteristics in Europe, not all of which are attributable solely to the effects or acts of the European Union. The European Union's increasing unicity and univocality may threaten some of its most cherished goals. The very means by which the European Union increasingly becomes capable of effectuating its goals paradoxically also may undermine the ideals it seeks to promote. My conclusion is that economic and legal uniformity simultaneously may be both necessary to the European Union and destructive of it inasmuch as economic and legal uniformity may be incompatible and irreconcilable with cultural pluralism. Unmasking and lucidly examining this fundamental incompatibility lodged in the innermost structures and
Recommended publications
  • This Is the Title of My Paper
    JOURNAL OF LINGUISTIC STUDIES 105 106 2010 VOLUME 3 (1) ISSN 2065 – 2429 JOURNAL OF LINGUISTIC STUDIES Editorial office: 300645 TIMIŞOARA Calea Aradului nr. 119, Phone 0256/494023/7287 107 EDITORIAL BOARD EDITOR Assist. Professor Georgeta RAŢĂ – BUASVM, Timişoara, Romania EDITORIAL BOARD Professor Snežana GUDURIŠ – University of Novi Sad, Serbia Professor Rodica NAGY – Ştefan cel Mare University, Suceava, Romania Professor Natalia PUSHINA – Udmurt State University, Izhevsk, Udmurtia, Russia Assist. Professor Reghina DASCĂL – West University of Timişoara, Romania Assist. Professor Simona MANOLACHE – Ştefan cel Mare University, Suceava, Romania Assist. Professor Roumyana PETROVA – University of Rousse, Bulgaria SECRETARY Diana-Andreea BOC-SÎNMĂRGHIŢAN, PhD – BUASVM, Timişoara, Romania 108 CONTENTS Foreword 7 Etymological Issues 9 Davide ASTORI T RUMANIAN TABǍRǍ AND „AEGEAN-(PRE)PHILISTINE‟ * /D(A)BR 9 Languages in Contact 15 Sandra STEFANOVIŠ & Alina-Andreea DRAGOESCU ANGLICISMS IN THE SERBIAN AND ROMANIAN LANGUAGE OF ADVERTISING 15 Mariya TSIPLE & Virginia OPRIŞA THE HUNGARIAN INFLUENCE ON THE ROMANIAN VOCABULARY OF MARAMUREŞ AND BANAT (ROMANIA) 21 Morphology 33 Milica MILOJEVIŠ ON PRODUCTIVITY OF SUFFIX -IZACIJA (-IZATION) IN PUBLICISTIC STYLE 33 Applied Linguistics 37 Mohd Sallehhudin Abd AZIZ THE MALAYSIAN RECEP* EXPERIMENT: THE USE OF RESIDENTIAL COLLEGES AS EXPERIMENTATION BED 37 Diana-Andreea BOC-SINMARGHITAN & Ioana BANADUC L‟EMPLOI DE LA TOPONYMIE DANS L`ENSEIGNEMENT DU FLE 45 Jelena DANILOVIŠ & Sandra STEFANOVIŠ MORPHOLOGICAL
    [Show full text]
  • Magna Carta and the Development of the Common Law
    Magna Carta and the Development of the Common Law Professor Paul Brand, FBA Emeritus Fellow All Souls College, Oxford Paper related to a presentation given for the High Court Public Lecture series, at the High Court of Australia, Canberra, Courtroom 1, 13 May 2015 Magna Carta and the Development of the Common Law I We are about to commemorate the eight hundredth anniversary of the granting by King John on 15 June 1215 of a ‘charter of liberties’ in favour of all the free men of his kingdom [of England] and their heirs. That charter was not initially called Magna Carta (or ‘the Great Charter’, in English). It only acquired that name after it had been revised and reissued twice and after the second reissue had been accompanied by the issuing of a separate, but related, Charter of the Forest. The revised version of 1217 was called ‘The Great Charter’ simply to distinguish it from the shorter, and therefore smaller, Forest Charter, but the name stuck. To call it a ‘charter of liberties’ granted by king John to ‘all the free men of his kingdom’ of England is, however, in certain respects misleading. The term ‘liberty’ or ‘liberties’, particularly in the context of a royal grant, did not in 1215 bear the modern meaning of a recognised human right or human rights. ‘Liberty’ in the singular could mean something closer to that, in the general sense of the ‘freedom’ or the ‘free status’ of a free man, as opposed to the ‘unfreedom’ of a villein. ‘Liberties’, though, were something different (otherwise known as ‘franchises’), generally specific privileges granted by the king, particular rights such as the right to hold a fair or a market or a particular kind of private court, the right to have a park or a rabbit warren which excluded others from hunting or an exemption such as freedom from tolls at markets or fairs.
    [Show full text]
  • The Principle of Unjust Enrichment from the European Codes to the European Civil Code
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Directory of Open Access Journals Irina Anghel 535 THE PRINCIPLE OF UNJUST ENRICHMENT FROM THE EUROPEAN CODES TO THE EUROPEAN CIVIL CODE IRINA ANGHEL* Abstract Despite a very long history and the unanimous recognition of solid moral grounds, the principle of unjust enrichment found its place in the legal systems only very late and its acceptance occurred after many hesitations and imposed many conditions for its application. This paper takes a comparative view at the way the principle of restitution (according to which the unjustified enrichment is not allowed) is reflected in three leading continental European legal systems (French, German and Swiss) and the possible role this principle will play in a future European Civil Code. Keywords - restitution, codification, Europe, unjustified enrichment, principles. Introduction Lawmakers have always avoided the legislative sanction of principles that are too general as they did not wish to undermine the legal system by introducing principles whose general applicability would have called into question many of the special legal institutions. It is however undeniable that, although it was not taken up as a principal tenet of law, unjust enrichment represented a “formative force behind a variety of rules and institutions of positive law”1. Originating in the Roman Law, the moral principle of restitution is currently recognised under all modern legal systems represented in Europe. Nevertheless, its recognition by the jurisdictions of the Old Continent is inconsistent. Even though differently reflected in various legal systems of European states, the principle of restitution could, and in our opinion should, be regarded as one of the fundamental pillars of the European Civil Code, if such a code is ever to be enacted.
    [Show full text]
  • The German Civil Code
    TUE A ERICANI LAW REGISTER FOUNDED 1852. UNIERSITY OF PENNSYLVANIA DEPART=ENT OF LAW VOL. {4 0 - S'I DECEMBER, 1902. No. 12. THE GERMAN CIVIL CODE. (Das Biirgerliche Gesetzbuch.) SOURCES-PREPARATION-ADOPTION. The magnitude of an attempt to codify the German civil. laws can be adequately appreciated only by remembering that for more than fifteefn centuries central Europe was the world's arena for startling political changes radically involv- ing territorial boundaries and of necessity affecting private as well as public law. With no thought of presenting new data, but that the reader may properly marshall events for an accurate compre- hension of the irregular development of the law into the modem and concrete results, it is necessary to call attention to some of the political- and social factors which have been potent and conspicuous since the eighth century. Notwithstanding the boast of Charles the Great that he was both master of Europe and the chosen pr6pagandist of Christianity and despite his efforts in urging general accept- ance of the Roman law, which the Latinized Celts of the western and southern parts of his titular domain had orig- THE GERM AN CIVIL CODE. inally been forced to receive and later had willingly retained, upon none of those three points did the facts sustain his van- ity. He was constrained to recognize that beyond the Rhine there were great tribes, anciently nomadic, but for some cen- turies become agricultural when not engaged in their normal and chief occupation, war, who were by no means under his control. His missii or special commissioners to those people were not well received and his laws were not much respected.
    [Show full text]
  • Deutscher Bundestag
    Wissenschaftliche Dienste Deutscher Bundestag Aktueller Begriff Vierzig Jahre Deutsche Vereinigung für Parlamentsfragen Ende der sechziger Jahre wurde in Wissenschaft und Öffentlichkeit zunehmend über Wissens- und Verständnisdefizite in den Debatten über Parlamentarismus in der Bundesrepublik Deutsch- land geklagt. Auch wenn die parlamentarische Demokratie bereits zwei Jahrzehnte erfolgreich praktiziert worden war, mangelte es der wissenschaftlichen und öffentlichen Parlamentarismus- diskussion nach Ansicht zahlreicher Beobachter nicht nur an fundierten Kenntnissen über die parlamentarischen Gegebenheiten, sondern auch an einem schnellen und leichten Zugriff auf Daten und Informationen über aktuelle Entwicklungen des Parlamentarismus. Dies hatte in den Augen der Kritiker die sachbezogene Beobachtung, Kritik und Mitwirkung – also essentielle Grundbedingungen jeder parlamentarischen Demokratie – in der Bundesrepublik beeinträchtigt. Vor diesem Hintergrund fanden sich Wissenschaftler, Parlamentarier, Journalisten und Mitarbei- ter der Bundestagsverwaltung zur Gründung einer Vereinigung zusammen, die durch die Bereit- stellung zuverlässiger parlamentsbezogener Informationen, Daten und Analysen die wissen- schaftliche und öffentliche Diskussion über Funktionsweise, Reformbedarf und Reformmöglich- keiten des parlamentarischen Systems befördern sollte. Am 21. Januar 1970 wurde sie in Bonn als Deutsche Vereinigung für Parlamentsfragen (DVParl) gegründet. In Konzeption und Ausrichtung orientierten sich die Gründerväter an der englischen Hansard
    [Show full text]
  • Equity in the American Courts and in the World Court: Does the End Justify the Means?
    EQUITY IN THE AMERICAN COURTS AND IN THE WORLD COURT: DOES THE END JUSTIFY THE MEANS? I. INTRODUCTION Equity, as a legal concept, has enjoyed sustained acceptance by lawyers throughout history. It has been present in the law of ancient civilizations' and continues to exist in modem legal systems.2 But equity is no longer a concept confined exclusively to local or national adjudication. Today, equity shows itself to be a vital part of international law.' The International Court of Justice--"the most visible, and perhaps hegemonic, tribunal in the sphere of public international law" 4-has made a significant contribution to the delimitation,5 development of equity. Particularly in cases involving maritime 6 equity has frequently been applied by the Court to adjudicate disputes. Equity is prominent in national legal systems and has become increas- ingly important in international law. It is useful, perhaps essential, for the international lawyer to have a proper understanding of it. Yet the meaning of equity remains elusive. "A lawyer asked to define 'equity' will not have an easy time of it; the defimition of equity, let alone the term's application in the field of international law, is notoriously uncertain, though its use is rife."7 Through a comparative analysis, this note seeks to provide a more precise understanding of the legal concept of equity as it relates to two distinct systems oflaw: the American and the international. To compare the equity administered by the American courts with that administered by the World Court, this note 1. See sources cited infra notes 10, 22.
    [Show full text]
  • Federalism in the European Union and the United States Subsidiarity
    MILLS.DOC 1/13/2011 6:46 PM FEDERALISM IN THE EUROPEAN UNION AND THE UNITED STATES: SUBSIDIARITY, PRIVATE LAW, AND THE CONFLICT OF LAWS ALEX MILLS* ABSTRACT The United States has long been a source of influence and inspiration to the developing federal system in the European Union. As E.U. federalism matures, increasingly both systems may have the opportunity to profit from each other’s experience in federal regulatory theory and practice. This article analyzes aspects of the federal ordering in each system, comparing both historical approaches and current developments. It focuses on three legal topics, and the relationship between them: (1) the federal regulation of matters of private law; (2) rules of the conflict of laws, which play a critical role in regulating cross-border litigation in an era of global communications, travel and trade; and (3) “subsidiarity,” which is a key constitutional principle in the European Union, and arguably also plays an implicit and under- analyzed role in U.S. federalism. The central contention of this Article is that the treatment of each of these areas of law is related —that they should be understood collectively as part of the range of competing regulatory strategies and techniques of each federal * Slaughter and May Lecturer in Law, Selwyn College, University of Cambridge ([email protected]). An early version of this Article was presented at the Journal of Private International Law Biennial Conference, New York University, April 2009, and I would like to thank the participants in that conference for their comments, particularly Professor Ralf Michaels. I am also grateful for further helpful comments provided by Professor Geert de Baere, Professor Donald Earl Childress III, Mr.
    [Show full text]
  • A Common Frame of Reference for European Private Law—Academic Efforts and Political Realities
    A Common Frame of Reference for European Private Law—Academic Efforts and Political Realities Christian von Bar* I. THE AIMS AND PURPOSES OF THE COMMON FRAME OF REFERENCE ......................................................................................... 37 II. A COMMON FRAME OF REFERENCE, NOT A EUROPEAN CIVIL CODE ................................................................................................... 39 III. DRAFTING STYLE AND COVERAGE ..................................................... 41 IV. STRUCTURE ......................................................................................... 46 V. NEXT STEPS ........................................................................................ 47 VI. AND THEN? ......................................................................................... 49 I. THE AIMS AND PURPOSES OF THE COMMON FRAME OF REFERENCE Today’s keyword for the Europeanisation of Private Law is the “Common Frame of Reference”, an expression which, although it looks alien at first sight, covers surprisingly well what we are hoping to achieve. That is a text serving as a source of inspiration for law making and law teaching at all levels. We, the academic teams that in 2005 contracted with the European Commission to deliver up by the end of 2007 a first draft of the Academic Common Frame of Reference, hope to bring about a framework set of annotated rules to which the European and national legislators and the European and national courts, including arbitral tribunals, can refer to when in search
    [Show full text]
  • At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct Paul R
    Boston College Law School Digital Commons @ Boston College Law School Boston College Law School Faculty Papers 2018 At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct Paul R. Tremblay Boston College Law School, [email protected] Follow this and additional works at: https://lawdigitalcommons.bc.edu/lsfp Part of the Business Organizations Law Commons, Legal Ethics and Professional Responsibility Commons, and the Organizations Law Commons Recommended Citation Paul R. Tremblay. "At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct." Florida Law Review 70, no.2 (2018): 251-314. This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. AT YOUR SERVICE: LAWYER DISCRETION TO ASSIST CLIENTS IN UNLAWFUL CONDUCT Paul R. Tremblay* Abstract The common, shared vision of lawyers' ethics holds that lawyers ought not collaborate with clients in wrongdoing. Ethics scholars caution that lawyers "may not participate in or assist illegal conduct," or "giv[e] legal services to clients who are going to engage in unlawful behavior with the attorney as their accomplice." That sentiment resonates comfortably with the profession's commitment to honor legal obligations and duties, and to remain faithful to the law. The problem with that sentiment, this Article shows, is that it is not an accurate statement of the prevailing substantive law. The American Bar Association's (ABA) model standards governing lawyers prohibit lawyers from assisting clients with illegality, but only in certain defined categories-that is, crimes and frauds.
    [Show full text]
  • Evolution of the Common Law and the Emergence of Compromise
    EVOLUTION OF THE COMMON LAW AND THE EMERGENCE OF COMPROMISE DOUGLAS GLEN WHITMAN* Abstract In a system of judge-made law, each judge who decides a case in a particular area of law may, in principle, choose to depart from precedent in favor of another rule. This paper examines the question of whether such a system will produce con- stant oscillation among different legal rules or will instead produce a single rule that potential litigants can rely upon when choosing their behavior. Using a model of the legal process that treats judges as self-interested agents maximizing their pri- vate and reputation-based utility, this article derives conditions under which the common-law process will produce convergence on a single rule rather than oscilla- tion between rules. The article also examines the circumstances in which the intro- duction of a compromise rule can resolve a problem of oscillation between rules. Precedent, n. In Law, a previous decision, rule or practice which, in the absence of a de®nite statute, has whatever force and authority a Judge may choose to give it, thereby greatly sim- plifying his task of doing as he pleases. As there are precedents for everything, he has only to ignore those that make against his interest and accentuate those in the line of his desire. Lawful, adj. Compatible with the will of a judge having juris- diction. [Ambrose Bierce, The Devil's Dictionary] Under what circumstances will a common-law process yield legal rules that people can reliably assume judges will follow? In a system of judge- made law, judges are nominally bound to follow precedent whenever decid- ing cases, but in actual fact judges do depart from precedent from time to time.
    [Show full text]
  • Introduction to the History of Common Law
    Rechtswissenschaftliche Fakultät Introduction to the History of Common Law Elisabetta Fiocchi Malaspina Rechtswissenschaftliche Fakultät 29.09.2020 Seite 2 Rechtswissenschaftliche Fakultät Dillon, Laws and Jurisprudence of England and America, Boston 1894, p. 155 The expression, "the common law," is used in various senses: (a) sometimes in distinction from statute law; (b) sometimes in distinction from equity law c) sometimes in distinction from the Roman or civil law […] . I deal with the fact as it exists, which is that the common law is the basis of the laws of every state and territory of the union, with comparatively unimportant and gradually waning exceptions. And a most fortunate circumstance it is, that, divided as our territory is into so many states, each supreme within the limits of its power, a common and uniform general system of jurisprudence underlies and pervades them all; and this quite aside from the excellences of that system, concerning which I shall presently speak. My present point is this: That the mere fact that one and the same system of jurisprudence exists in all of the states, is of itself of vast importance, since it is a most powerful agency in promoting commercial, social, and intellectual intercourse, and in cementing the national unity”. 29.09.2020 Seite 3 Rechtswissenschaftliche Fakultät Common Law Civil law Not codified Law (exceptions: statutes) Codified law role of judges: higher judicial role of judges: lower judicial discretion discretion, set precedents No clear separation between public Separation
    [Show full text]
  • Uva-DARE (Digital Academic Repository)
    UvA-DARE (Digital Academic Repository) The many faces of Duchess Matilda: matronage, motherhood and mediation in the twelfth century Jasperse, T.G. Publication date 2013 Document Version Final published version Link to publication Citation for published version (APA): Jasperse, T. G. (2013). The many faces of Duchess Matilda: matronage, motherhood and mediation in the twelfth century. Boxpress. General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). Disclaimer/Complaints regulations If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible. UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl) Download date:26 Sep 2021 The many faces of Duchess Matilda: matronage, motherhood and mediation in the twelfth century Jitske Jasperse The many faces of Duchess Matilda: matronage, motherhood and mediation in the twelfth century ACADEMISCH PROEFSCHRIFT ter verkrijging van de graad van doctor aan de Universiteit van Amsterdam op gezag van de Rector Magnificus prof.
    [Show full text]