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This book offers an in-depth analysis of the differences between
common law and civil law systems from various theoretical
perspectives. Written by a global network of experts, it explores
the topic against the background of a variety of legal
traditions.Common law and civil law are typically presented as
antagonistic players on a field claimed by diverse legal systems:
the former being based on precedent set by judges in deciding cases
before them; the latter being founded on a set of rules intended to
govern the decisions of those applying them. Perceived in this
manner, common law and civil law differ in terms of the (main)
source(s) of law; who is to create them; who is (merely) to draw
from them; and whether the law itself is pure each step of the way,
or whether the law's purity may be tarnished when confronted with a
set of contingent facts. These differences have deep roots in
(legal) history - roots that allow us to trace them back to
distinct traditions. Nevertheless, it is questionable whether the
divide thus depicted is as great as it may seem: international and
supranational legal systems unconcerned by national peculiarities
appear to level the playing field. A normative understanding of
constitutions seems to grant ever-greater authority to High Court
decisions based on thinly worded maxims in countries that adhere to
the civil law tradition. The challenges contemporary regulation
faces call for ever-more detailed statutes governing the decisions
of judges in the common law tradition. These and similar
observations demand a structural reassessment of the role of
judges, the power of precedent, the limits of legislation and other
features often thought to be so different in common and civil law
systems. The book addresses this reassessment.
This book offers an in-depth analysis of the differences between
common law and civil law systems from various theoretical
perspectives. Written by a global network of experts, it explores
the topic against the background of a variety of legal
traditions.Common law and civil law are typically presented as
antagonistic players on a field claimed by diverse legal systems:
the former being based on precedent set by judges in deciding cases
before them; the latter being founded on a set of rules intended to
govern the decisions of those applying them. Perceived in this
manner, common law and civil law differ in terms of the (main)
source(s) of law; who is to create them; who is (merely) to draw
from them; and whether the law itself is pure each step of the way,
or whether the law's purity may be tarnished when confronted with a
set of contingent facts. These differences have deep roots in
(legal) history - roots that allow us to trace them back to
distinct traditions. Nevertheless, it is questionable whether the
divide thus depicted is as great as it may seem: international and
supranational legal systems unconcerned by national peculiarities
appear to level the playing field. A normative understanding of
constitutions seems to grant ever-greater authority to High Court
decisions based on thinly worded maxims in countries that adhere to
the civil law tradition. The challenges contemporary regulation
faces call for ever-more detailed statutes governing the decisions
of judges in the common law tradition. These and similar
observations demand a structural reassessment of the role of
judges, the power of precedent, the limits of legislation and other
features often thought to be so different in common and civil law
systems. The book addresses this reassessment.
This book explores the interrelation of facts and norms. How does
law originate in the first place? What lies at the roots of this
phenomenon? How is it preserved? And how does it come to an end?
Questions like these led Georg Jellinek to speak of the "normative
force of the factual" in the early 20th century, emphasizing the
human tendency to infer rules from recurring events, and to
perceive a certain practice not only as a fact but as a norm; a
norm which not only allows us to distinguish regularity from
irregularity, but at the same time, to treat deviances as
transgressions. Today, Jellinek's concept still provides
astonishing insights on the dichotomy of "is" and "ought to be",
the emergence of the normative, the efficacy and the defeasibility
of (legal) norms, and the distinct character of what legal
theorists refer to as "normativity". It leads us back to early
legal history, it connects anthropology and legal theory, and it
demonstrates the interdependence of law and the social sciences. In
short: it invites us to fundamentally reassess the interrelation of
facts and norms from various perspectives. The contributing authors
to this volume have accepted that invitation.
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