What are the historical reasons that France adopted civil rather than common law? The story I heard is that revolutionaries thought that judges were corrupt and thus should be left to interpret the law, and thus should closely follow codified rules. Is that historically accurate?
Yes. France invented the civil law system and adopted it in connection with the French Revolution. Napoleon commissioned it in 1804. The summary of the story is here. As Wikipedia explains: Before the Napoleonic Code, France did not have a single set of laws; law consisted mainly of local customs, which had sometimes been officially compiled in &quot;custumals&quot; (coutumes), notably the Custom of Paris. There were also exemptions, privileges, and special charters granted by the kings or other feudal lords. During the Revolution, the last vestiges of feudalism were abolished. Specifically, as to civil law, the many different bodies of law used in different parts of France were to be replaced by a single legal code. The Constituent Assembly, on 5 October 1790, voted for a codification of the laws of France, the Constitution of 1791 promised one, and the National Assembly adopted a unanimous resolution on 4 September 1791, providing that “there shall be a code of civil laws common for the entire realm.” However, it was the National Convention in 1793 which established a special commission headed by Jean-Jacques Régis de Cambacérès to oversee the drafting process. His drafts of 1793 (for which he had been given a one-month deadline), 1794, and 1796 were all rejected by a National Convention and Directory more concerned with the turmoil resulting from the various wars and strife with other European powers. The first contained 719 articles and was very revolutionary, but was rejected for being too technical and criticized for not being radical or philosophical enough. The second, with only 297 articles, was rejected for being too brief and was criticized for being a mere manual of morals. The third, expanded to 1,104 articles, was presented under the Directory, a conservative regime, but never even came up for discussion. Another commission, established in 1799, presented that December a fourth scheme drafted in part by Jean-Ignace Jacqueminot (1754–1813). Jacqueminot's draft, the so-called loi Jacqueminot, dealt almost exclusively with persons and emphasized the need to reform the Revolutionary divorce laws, to strengthen parental authority and increase the testator's freedom to dispose of the free portion of his estate. It was, of course, rejected. Napoleonic reforms Napoleon set out to reform the French legal system in accordance with the ideas of the French Revolution, because the old feudal and royal laws seemed confusing and contradictory. After multiple rejected drafts by other commissions, a fresh start was made after Napoleon came to power in 1799. A commission of four eminent jurists was appointed in 1800, including Louis-Joseph Fauré and chaired by Cambacérès (now Second Consul), and sometimes by the First Consul, Napoleon himself. The Code was complete by 1801, after intensive scrutiny by the Council of State, but was not published until 21 March 1804. It was promulgated as the &quot;Civil Code of the French&quot; (Code civil des Français), but was renamed &quot;the Napoleonic Code&quot; (Code Napoléon) from 1807 to 1815, and once again after the Second French Empire. The process developed mainly out of the various customs, but was inspired by Justinian's sixth-century codification of Roman law, the Corpus Iuris Civilis and, within that, Justinian's Code (Codex). The Napoleonic Code, however, differed from Justinian's in important ways: it incorporated all kinds of earlier rules, not only legislation; it was not a collection of edited extracts, but a comprehensive rewrite; its structure was much more rational; it had no religious content, and it was written in the vernacular. The development of the Napoleonic Code was a fundamental change in the nature of the civil law system, making laws clearer and more accessible. It also superseded the former conflict between royal legislative power and, particularly in the final years before the Revolution, protests by judges representing views and privileges of the social classes to which they belonged. Such conflict led the Revolutionaries to take a negative view of judges making law. This is reflected in the Napoleonic Code provision prohibiting judges from deciding a case by way of introducing a general rule (Article 5), since the creation of general rules is an exercise of legislative and not of judicial power. In theory, there is thus no case law in France. However, the courts still had to fill in the gaps in the laws and regulations and, indeed, were prohibited from refusing to do so (Article 4). Moreover, both the code and legislation have required judicial interpretation. Thus a vast body of case law has come into existence. There is no rule of stare decisis
Why do you want to know? I think that the reason this question seems so obscure is because it does not involve sufficient context and specificity. It can't be answered until one knows the reason that it matters to know if a rule is new or not. In a particular context, these questions usually have obvious and clear answers. The murkiness arises only when one tries to overgeneralize. The life of law is not reason, it is experience. In general, it is almost never fruitful to try to apply legal principles of any kind to their logical conclusion without grounding that logic in fact specific and context specific precedents and applications. That approach to legal reasoning is a classic rookie mistake that gets a lot of young associate attorneys doing legal research into trouble by overstating the confidence that they should have in their conclusions when there is no case right on point addressing a situation. For example, if a federal government agency publishes something in the federal register that does not exactly restate an existing regulation, then it is a rule change, in the narrow sense that is changes an existing published narrowly defined Code of Federal Regulations rule. The process by which one does so derives from the Administrative Procedures Act and other authorizing legislation passed by Congress and also custom and case law interpreting these, so it isn't self-referential. A completely different context in which the question of whether there is a "new rule" of law is when a court according to the principles of stare decisis makes a ruling interpreting the constitution in a manner different from or expanding upon previously rulings interpreting the constitution in a similar circumstance. In this context, this matters because a "new rule" of constitutional law is generally given only prospective effect, while an interpretation of an existing rule of law that merely expands upon existing precedents in a foreseeable way has retroactive effect. In this situation, as in any case in which one tries to determine the best definition to apply under the law, the best approach is to look for a definition that produces just results given the consequences of a particular definition v. another particular definition. In that context, the determination of whether a rule is a "new rule" should depend upon foreseeability and the amount of reliance that people put on the old rule as opposed to the new rule being in force. There is no good reason to have transsubstantive legal meta-rules that apply to both of these situations. The former mechanistic rule makes sense in its context and makes the status quo clear and the events that constitute a change in the rule clear, while the latter consequence oriented definition makes sense in the completely different context where it is used. Surely, there are other contexts in which the question of what constitutes a "new rule" could have different consequences still. For example, to determine what constitutes a new v. old rule of U.S. Senate procedure, or to determine which statute is newer or older for purposes of determining which statute of two that conflict should be given effect when there was a cosmetic recodification of the section numbers of one of the titles but not the other without changing the substantive meaning of the recodified statute. The determination should generally be made on a case by case basis as there is no important purpose served by having a uniform metarule to answer these questions. If you are getting paradoxes trying to apply your legal theory, you are probably doing it wrong. For what it is worth, I have a dim opinion of Hart as someone who uses lots of words to say nothing of consequence or use, and I am not familiar with Biagoli or Suber. In general, legal theorists are not terribly influential in how the law is applied and interpreted in practice, although, of course, there are always exceptions.
He has this phrased like it's the ability to decide which laws you follow, and that it's an ability being withheld from the general public (although I seriously doubt that at least the former is the case). This is yet another false claim made by "freemen" or those who claim "common law defences". Notice of Understanding has no legal meaning unless the context demands that it evidences a meeting of the minds for the purposes of contract formation. It is a well-settled principle of common law that in order to be bound by a contract, there must be an agreement. Put simply, I cannot bind someone simply by sending them a Notice unless it is a right conferred on me by some earlier statute or legislation, or legally binding agreement. I tried searching for a solid definition, but all I could find was people/organization's Notice of Understanding and Intent and Claim of Rights. The reason you've found nothing official about the terms Notice of Understanding and Intent and Claim of Rights is that there is nothing official or legal about those terms. They are ordinary terms with ordinary meaning being bastardised by deluded people who believe they can fine the government and refuse to be bound by the law of the land. Of course, none of this holds up. What is the purpose of declaring your Notice of Understanding and Intent and Claim of Rights? It might make you feel better, even though it has no legal, practical or other effect.
Any precedent can be overturned by any court at the same or higher level in the hierarchy So, for your example of a High Court precedent, it can be overturned at Supreme Court, Court of Appeal or High Court levels. However, the longer a precedent is in place, the less likely it is to be overturned because one of the objectives of the legal system is to provide certainty - a system that routinely overturns precedent doesn’t do that. Also, a precedent that is often cited with approval is more compelling because it’s no longer just one judges reading of the law, many other judges agree. Also, the judiciary tends to be conservative in overturning precedent. Most judges see it as their role to interpret law made by the legislature. If the people/legislature think their interpretation is wrong then the judiciary tends to feel that the legislature is the body who should change the law. That said, really old common law precedent that hasn’t been cited for a long while may be readily overturned if it comes up because social expectations may have changed.
There is no such law mandating this layout, nor is there any law permitting the defendant to demand a change to it. The arrangement seems most likely to have been driven by security concerns when courts began removing "the dock" and letting the defendant past the bar to sit with his attorneys. One court has also concluded that it was meant to assist the government "because it bears the burden of proof." It's of course impossible to prove a negative like this, but I'll note that Kenneth Lay's attorneys raised the issue in the Enron case, and they were unable to cite a single case saying that the defendant has the option to sit closer to the jury. If they couldn't find it, it probably doesn't exist. Meanwhile, the government was able to find several cases saying that the defendant does not have the right to demand a change, though it did not have any cases saying that the layout is mandatory. Instead, it described itself as "traditionally" having a right to the table. In that case, the judge ended up splitting the baby. Saying that there was "no law" to inform his decision, he sat the government next to the jury during its case, and it sat the defense next to the jury during its case. That was quite a bit more generous than the Seventh Circuit, which has rejected the jury-proximity argument as frivolous. So there are some cases addressing the issue, but I don't know of any case where a court has actually looked at the issue and given any real consideration to the due-process implications of the substantial empirical evidence suggesting that the party closest to the jury enjoys an advantage.
Interesting question. I routinely write wills that authorize the executor to destroy property that has no significant economic or sentimental value, but I've never encountered a case where a testator or testatrix has directed that property be destroyed and I've never seen a reported case (or even a news report) in which that has happened. To the extent that an estate is solvent, there is no reason that a creditor could complain and if the destruction was done in a safe manner (as opposed to burning down a house or something like that without consulting the fire department) I'm not sure that there would be a public interest in doing so either. There are many religions that had a practice historically of burying someone with grave goods, so there are reasonable First Amendment freedom of religion arguments for allowing such a practice if it had a religious basis. And, if no interested party objected, I don't see how anyone could stop the executor from acting, unless the property to be destroyed was, for example, evidence of a crime, in which case it would be a crime to destroy it and the provision of the will would be void because it was a crime to carry it out. If an executor sought permission from a court to carry out this instruction, the court might require a public notice of the planned destruction to give notice to any third party who might claim an ownership interest in the property allegedly belonging to the decedent. On the other hand, usually, all interested parties in an estate can agree to act contrary to a will by unanimous consent, in which case no one would have standing to fight for the provision in court (unless it was considered a charitable bequest, in which case a state attorney general or an advocate appointed by the court with the "will" as the client could defend it). Given the strong public policies in the law disfavoring "waste" (i.e. useless destruction of property) such a provision could be held to be void as against public policy (similarly, bequests contingent upon marriage decisions are now void as against public policy).
Your question isn't quite as simple as it sounds; some civil cases are tried before juries, and though a judge can give directions to a jury to give a particular verdict, they are not always required to obey; there are eighteenth-century English cases on the point that established that principle for most related jurisdictions. But your last sentence does have a simple answer: No. A judge usually takes an oath on assuming office, to administer the law without fear or favour. That means he will investigate the relevant law (with the assistance of the parties' lawyers), and enforce what it says. "This law would be unfair to the customer, so I will ignore it" would be just as bad as "The mechanic threatened to hit me with a wrench, so I find for him". Of course, most jurisdictions do have overriding principles of fairness; it may be that this contract term was not shown to the customer, so is not enforceable, or it may be that it is contrary to public policy to be uncertain what repairs will cost. But unless there is an explicit legal reason, the judge will have to find for the mechanic. It would be neither improper nor unusual for the judgment to include the sentence "This result is clearly unfair to the customer, and I urge the legislature to look at closing the loophole; nevertheless, the law is clear, and I find the customer must pay the increased price."
It is complicated to answer why a law is what it is. Judge Frank Esterbrook writes (in the forward to Reading Law by Scalia and Garner): Every legislator has an intent, which usually cannot be discovered, since most say nothing before voting on most bills; and the legislature is a collective body that does not have a mind; it "intends" only that the text be adopted, and statutory texts usually are compromises that match no one's first preference. If some legislators say one thing and others something else, if some interest groups favor one outcome and others something different; how does the interpreter choose which path to follow? I will provide the historical background leading to the current fair use statute and case law, but take from it what you will as to why it is what it is. Fair use is a statutory defence provided by 17 USC 107. Its application is clearly demonstrated in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). Fair use was an "exclusively judge-made doctrine until the passage of the 1976 Copyright Act". (Campbell) Courts had been finding exceptions for "fair abridgements" and other precursors to fair use as far back as under the Statute of Anne of 1710. (Campbell, citing William Patry's "The Fair Use Privilege in Copyright Law".) This doctrine worked its way into US case law in the nineteenth century. In Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901) (CCD Mass. 1841)1, Justice Story distilled the essence of law and methodology from the earlier cases: "look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work." (Campbell) Folsom states: There must be real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon; and not merely the facile use of the scissors; or extracts of the essential parts, constituting the chief value of the original work. This early incorporation of fair use focused on whether something new was being created, or whether the "chief value" of the original work was being taken. This primary focus on transformativeness has stuck with with fair use doctrine until today. Campbell said (internal citations removed): The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely supersedes the objects of the original creation ("supplanting" the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative". Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. Campbell also includes the following statement of rationale for why Congress included section 107: Congress meant § 107 "to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way" and intended that courts continue the common-law tradition of fair use adjudication. H. R. Rep. No. 94-1476, p. 66 (1976) (hereinafter House Report); S. Rep. No. 94-473, p. 62 (1975) (hereinafter Senate Report). There is no support for your separation of "parody, comment, and criticism " from "teaching, research, and news reporting", or that there are differing amounts of commercial use allowed for these types of work. The statute lists together "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" as examples purposes. The statute requires that "whether such use is of a commercial nature or is for nonprofit educational purposes" be considered in all fair use cases. There is also very little if any First Amendment rationale expressed for the fair use doctrine. The intersection of the First Amendment and copyright law is more clearly found in the idea/expression dichotomy. 1. Folsom v. Marsh full opinion text