3. The relations of international and national law

2019 ◽  
pp. 45-102
Author(s):  
James Crawford
Keyword(s):  
International Law ◽  
Common Law ◽  
Civil Law ◽  
The Other ◽  
The Common ◽  
International Systems ◽  
The Relationship ◽  
Flexible Instruments

This chapter explores the relationship between international and national law, discussing both the common law tradition and the civil law tradition. It suggests that each system is supreme in its own field; neither has hegemony over the other. And yet any generalities offered can only provide a background to the complex relations between the national and international systems. Three factors operate. The first is organizational: to what extent are the organs of states ready to apply rules of international law internally and externally? The second factor is the difficulty of proving particular rules of international law. Third, courts, national and international, will often be concerned with the question of which is the appropriate system to apply to particular issues arising. The question of appropriateness emphasizes the distinction between organization, that is, the character of the jurisdiction as ‘national’ or ‘international’, and the character of the rules of both systems as flexible instruments for dealing with disputes and regulating non-contentious matters.

The Relationship between Disability Non-Discrimination Law and Quota Schemes

2019 ◽  
pp. 94-117
Author(s):  
Lisa Waddington
Keyword(s):  
Public Sector ◽  
Common Law ◽  
Civil Law ◽  
People With Disabilities ◽  
Public And Private ◽  
The Public ◽  
The Common ◽  
Public And Private Sector ◽  
The Relationship

This chapter explores the relationship between disability quota schemes and non-discrimination law in Europe. While at first sight they seem to sit uneasily beside each other, the chapter reveals how, in some instances, quota schemes can serve to facilitate compliance with non-discrimination legislation. At the same time, the chapter explores seeming incompatibilities between the two approaches and considers whether there are differences between common and civil law jurisdictions in this respect. Tentative conclusions suggest that there is a greater willingness to establish quota schemes through legislation in civil law jurisdictions compared to common law jurisdictions, and that quota schemes in civil law jurisdictions are more likely to provide for the imposition of a levy in the case that employers fail to meet their quota obligations through employing the required number of people with disabilities. There also seems to be some indication that there is greater awareness of the potential for conflict or tension, in various forms, between non-discrimination law and quota schemes in common law jurisdictions than in civil law jurisdictions. Finally, the two schemes operating in the common law states are only applicable to the public sector—whilst in civil law states quotas are generally applied to both public and private sector employers. This may indicate different perceptions regarding the role of public sector employers and the legitimacy of imposing quota requirements.

Interprétation auprès des tribunaux nationaux

FORUM ◽  
2007 ◽  
Vol 5 (1) ◽  
pp. 65-89 ◽  
Author(s):  
Christiane J. Driesen
Keyword(s):  
Human Rights ◽  
Continuing Education ◽  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Cognitive Content ◽  
Bachelor Degree ◽  
Law System ◽  
The Common ◽  
University Course

The aim of this article is to take stock of the situation concerning training of court interpreters, particularly in what is known as the « civil law » countries in Europe as opposed to those with the « common law » system. It reviews existing organisational formats and proposes the two types of teaching that seem best-suited to meet the urgent requirements of the courts. One is in the framework of continuing education; the other a university course leading to a bachelor degree. The author recommends a principle of pedagogical progression taking into consideration the difficulties linked to less spoken languages and stresses the importance of teaching all the traditional interpreting techniques, including specific cognitive content, but at the same time focusing especially on ethical and human rights aspects in the interpreting strategies taught.

Judicial Legal Culture and Victim Procedural Status at the Special Tribunal for Lebanon and Extraordinary Chambers in the Courts of Cambodia

2020 ◽  
pp. 389-411
Author(s):  
Juan-Pablo Pérez-León-Acevedo
Keyword(s):  
Direct Relationship ◽  
International System ◽  
Common Law ◽  
Civil Law ◽  
Legal Culture ◽  
Adversarial System ◽  
Educational Backgrounds ◽  
The Common ◽  
The Relationship ◽  
Inquisitorial System

This chapter examines the relationship between judicial legal culture and victim procedural practices at the Special Tribunal for Lebanon (STL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). Starting with judicial composition, judges are categorized by their professional and educational backgrounds and legal cultures before assuming their STL/ECCC judicial positions: whether they originate from the common law/adversarial system, the civil law/inquisitorial system, or the ‘international’ system. The chapter then investigates connections between STL/ECCC practices concerning victim procedural status and the typical features of these legal cultures. Overall, it is argued that there is a direct relationship between the legal culture of judges and their judicial practices. The chapter explains how STL and ECCC judges have adapted several civil law/inquisitorial and common law/adversarial features to make victim procedural status fit the mandate and characteristics of the STL and ECCC, namely, the presence of sui generis international features.

Legal Systems and Variance in the Design of Commitments to the International Court of Justice

2009 ◽  
Vol 26 (2) ◽  
pp. 164-190 ◽  
Author(s):  
Sara McLaughlin Mitchell ◽  
Emilia Justyna Powell
Keyword(s):  
International Law ◽  
Islamic Law ◽  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Bilateral Treaties ◽  
The Relationship

This paper explores the relationship between domestic legal systems and the design of commitments to the International Court of Justice (ICJ). Empirical analyses demonstrate that civil law states are more willing to recognize the compulsory and compromissory jurisdiction of the World Court than common law or Islamic law states. Common law states place the highest number of reservations on their optional clause declarations, with the majority of those restrictions relating to specific areas of international law. Civil law states typically embed compromissory clauses in multilateral treaties, while common and Islamic law states prefer recognition of the ICJ's jurisdiction through bilateral treaties.

Mistake

2017 ◽  
Author(s):  
Hein Kötz
Keyword(s):  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Historical Background ◽  
European Law ◽  
The Common ◽  
The Law ◽  
To Receive

This chapter examines how the law deals with contracts that a party entered into by mistake. After a brief discussion of the historical background of the rules in the civil law and the common law, the question is raised whether there is a relevant mistake if a party’s ‘motive’ for entering into the contract turns out to be incorrect, if the party’s mistake refers to the value of what it promised or was to receive under the contract, or if the party’s mistake is due to its carelessness. Should the relevance of a mistake not depend on whether it was caused or shared by the other party? Finally, the chapter outlines some common threads in the development of a European law on mistake.

Comparative Perspectives

2020 ◽  
pp. 740-776
Author(s):  
Kenneth G C Reid ◽  
Marius J de Waal ◽  
Reinhard Zimmermann
Keyword(s):  
South America ◽  
Common Law ◽  
Civil Law ◽  
Far East ◽  
Family Members ◽  
The Other ◽  
Judicial Discretion ◽  
The World ◽  
The Common ◽  
Financial Need

Today freedom of testation is qualified, in most countries of the world, by a degree of mandatory family protection. Broadly speaking, that protection can be delivered either by a system of fixed shares (such as forced heirship or compulsory portion), or by the court-based discretionary system which is often known as ‘family provision’. In fixed-share systems, certain family members (especially the surviving spouse and children) are protected merely because they are family members; in discretionary systems there is often an additional requirement of financial need. Fixed-share systems dominate in the civil law countries of Europe, South America, and the Far East as well as in Islamic countries and the Nordic countries; discretionary systems are found mainly in England and in the common law world more generally. The range of potential beneficiaries varies from system to system and country to country, but today includes the surviving spouse and children as well as, often, civil partners, cohabitants and even dependants. Each system has opposing strengths and weaknesses: fixed-share systems are predictable but inflexible; discretionary systems are flexible but unpredictable. Each system has sought various means to temper its weakness. Amidst general satisfaction with mandatory family provision, there have also been reforms and calls for more reform. In fixed-share systems there is support for moving, in whole or in part, to a system of judicial discretion. There is little demand, in discretionary systems, for a move in the other direction.

Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.12

2015 ◽  
Author(s):  
Huber Peter
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Time Limit ◽  
The Other ◽  
Reasonable Time ◽  
Time Limits ◽  
Individual Term ◽  
Time Period ◽  
The Common ◽  
The Right

This commentary focuses on Article 3.2.12 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning time limits for exercising the right to avoid the contract. Art 3.2.12 stipulates that notice of avoidance shall be given within a reasonable time, having regard to the circumstances, after the avoiding party knew or could not have been unaware of the relevant facts or became capable of acting freely. Where an individual term of the contract may be avoided by a party under Article 3.2.7, the period of time for giving notice of avoidance begins to run when that term is asserted by the other party. In relying on a ‘reasonable time’ period rather than setting out a clearly defined period of time (for example, two years after conclusion of the contract), Art 3.2.12 follows the common law model rather than the typical civil law solution. This commentary discusses the commencement and duration of ‘reasonable time’ period as well as the consequences of failure to avoid a contract within time limit.

scholarly journals Radbruch Redux: The Need for Revisiting the Conversation between Common and Civil Law at Root Level at the Example of International Criminal Justice

2011 ◽  
Vol 24 (2) ◽  
pp. 393-410 ◽  
Author(s):  
MICHAEL BOHLANDER
Keyword(s):  
Criminal Justice ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Common Law ◽  
Civil Law ◽  
Common Denominator ◽  
International Criminal Justice ◽  
Public International Law ◽  
The Relationship

AbstractInternational criminal justice is based to a large extent on extrapolations from criminal-law research on domestic systems. The difficult exercise of arriving at a common denominator is exacerbated by the systemic dichotomy of the so-called common-law and civil-law models, which, in turn, have now been joined by a third contender: public international law. Each of these has its own methods of approaching the task of solving legal problems. This paper queries the inter-model conversation that is happening so far and asks the question as to whether it is necessary to hold this discussion at a much more fundamental level than it would seem has been the case so far. It does so at the example of the relationship between German and English and Welsh law, but its concerns and conclusions merit consideration for the entire debate between the systems.

Unjustified Enrichment in Comparative Perspective

2019 ◽  
pp. 960-993
Author(s):  
Daniel Visser
Keyword(s):  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Comparative Perspective ◽  
Unjust Enrichment ◽  
The Future ◽  
The Common ◽  
The One ◽  
Level Of Understanding ◽  
Unjustified Enrichment

The emergence of unjust enrichment as a cause of action in its own right in England and Australia sparked a remarkable debate between, on the one hand, civil and common lawyers, who were confronted with thinking which was often completely outside the paradigm to which they had become accustomed, and, on the other hand, between common lawyers inter se about the merits of the various ways in which unjust enrichment may be understood and organized. At the heart of this debate was the struggle of the common law to confront and deal with the deficit caused by its reliance solely on ‘unjust factors’ to make sense of enrichment liability without taking account of the notion of ‘absence of basis’. This chapter argues that comparative lawyers can make an important contribution to the future of the fractured and fractious world of unjustified enrichment by uncovering the enormous wealth of learning of which both the common law and the civil law are the repositories, and so bring the same level of understanding to the law of unjustified enrichment which has, over the years, been achieved between the systems in regard to contract and tort.

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