Legal Reasoning and Legal Integration

2003 ◽  
Vol 10 (1) ◽  
pp. 67-97 ◽  
Author(s):  
Jaap Hage
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Legal Reasoning ◽  
Civil Code ◽  
Case Based Reasoning ◽  
Rule Based ◽  
Rule Application ◽  
The Common ◽  
European Civil Code ◽  
Case Based

According to Legrand, harmonization of European private law by means of a European Civil Code would not work, because of the different legal cultures (mentalités) within which such a code would have to operate. In the civil law tradition, legal reasoning on the basis of such a code would be deductive in the sense of the application of rules that are posited prior to the cases to which they should be applied. In the common law tradition, the starting point of legal reasoning is in the cases themselves. As a consequence, common law reasoning would abstract less from the peculiarities of individual cases. The main point of this paper is that Legrand's picture of civil law reasoning is based on the subsumption model of rule application, which does not allow adaptation of the law to the needs of concrete cases other than through the limited possibilities of interpretation. It is argued that this picture is wrong. As an alternative, the reason-based model of rule application is proposed, which allows legal decision makers much more leeway to tailor the law to the needs of concrete cases. In a comparison with case-based reasoning it is argued that rule-based reasoning, according to the reason-based model, gives the decision maker the same leeway. The final conclusion is that possible differences in legal culture between the civil law and the common law tradition are not rooted in the distinction between rule-based reasoning and case-based reasoning, and are therefore merely contingent. There is no reason why the introduction of a European Civil Code could not overcome the differences between the two traditions. Whether this would be desirable is a different question.

Brexit. Or, Is the European Union Educable?

2016 ◽  
Vol 17 (S1) ◽  
pp. 63-70
Author(s):  
Russell A. Miller
Keyword(s):  
Western Europe ◽  
Common Law ◽  
Civil Law ◽  
Legal Culture ◽  
Civil Code ◽  
Legal Systems ◽  
The European Union ◽  
Legal Traditions ◽  
The Face ◽  
European Civil Code

In an essay from 1998 the comparative law scholar Pierre Legrand asked the question “are civilians educable?” It was a theme that had preoccupied him for some years as he agonized over what he regarded as the intolerant, totalizing, and normalizing manner in which civilian legal systems and their acolytes encounter other legal traditions. He had documented, for example, the ways in which Quebec's new 1994 Civil Code constructively sought to suppress and exclude the significant and historically relevant Anglophone community in Quebec. Legrand argued that this domineering posture is a product of the civil law's cosmological and autarkic mentality. “The difficulty,” Legrand lamented, “is that the civil law mind … is reflexively imperialistic … because of its penchant for universalization.” Far more than his disquiet over the precarious future of Quebec's Anglophone community, Legrand came to be concerned about the fate of the English common law tradition in the face of the European Union's convergence agenda. This was, to Legrand's mind, an apocalyptic confrontation between England's still-proud legal culture and Europe's horsemen of convergence: the ECJ, the Commission, the Parliament. With increasing distress Legrand turned his attention to the way in which the European Community (and later the Union) “is liable to achieve … the marginalization of one of the subcultures that have defined western Europe historically.” He would go on to insist that “European legal systems are not converging” and to raise ever-more strident objections to the idea of a European civil code. This would not cease until Legrand had written “Antivonbar,” an incendiary manifesto aimed at salvaging the English common law from what he viewed as the Union's closed-fisted and violent politics of supremacy, which had taken the form of the proposed European Civil Code.

scholarly journals Garanțiile negative

2021 ◽  
Vol 65 (4) ◽  
pp. 955-976
Author(s):  
Adrian Tamba ◽  
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Civil Code ◽  
The Common

"My work, called „Negative Pledges”, aims at some interesting legal beings. Mainly, they are used by banks. Yet, negative pledges may very well be placed in the hands of entities that are not banks; this is pointed out by, e.g., First Wyoming Bank, Casper v. Mudge. Negative pledges are encountered both in the Civil Law and the Common Law traditions. Of course, it is my view that the Romanian Civil Code embraces the so-called negative pledges, though it does not use such an expression. At the end of this paper, the abandonment of orthodoxy is highlighted: no explicit conclusions can be noticed."

La nueva perspectiva de la tutela del error en el moderno derecho de los contratos

2014 ◽  
pp. 863
Author(s):  
Rocío Herrera Blanco
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Contract Law ◽  
Civil Code ◽  
European Contract ◽  
Legal Effect ◽  
The Common ◽  
The Impact ◽  
European Contract Law

Premio de artículos jurídicos «GARCÍA GOYENA» (Curso 2013-2014). Primer accésit Todos los ordenamientos jurídicos europeos prevén normas relativas a la ineficacia de los contratos por vicios del consentimiento, sin embargo, existen entre ellos diferencias bastante significativas, especialmente cuando se comparan el Common Law y los derechos continentales. El presente estudio comparado parte del tratamiento de esta cuestión en la regulación española y se centra en las propuestas que el moderno Derecho de la contratación proporciona en materia de vicios del consentimiento, con particular atención a la figura del error, así como en el Derecho anglosajón, por su eventual influencia en la regulación de estos instrumentos. De manera muy amplia, podríamos decir que el Common Law enfatiza la seguridad de las transacciones, mientras que los sistemas del Civil Law, quizás todavía marcados por las huellas de las llamadas teorías voluntaristas, son más transigentes en permitir la ineficacia de los contratos por defectos del consentimiento. Partiendo de esta premisa, intentaremos evidenciar que las soluciones brindadas por el Derecho anglosajón y los diferentes instrumentos de unificación para la determinación de los efectos jurídicos del error son muy similares. Asimismo, en este trabajo se defiende la tesis de la obsolescencia del Código Civil español en esta materia, y la consecuente necesidad de adaptación del mismo a la actual realidad social, a través de un propósito de homogeneización del Derecho contractual europeo. Para ello, igualmente estudiaremos la Propuesta de modernización del Código civil en materia de obligaciones y contratos, cuya regulación del error, en particular, merece ser objeto de estudio y confrontación de ideas.The legal systems of all european countries provide rules regarding the inefficacy of contracts due to defects of consent, however, there are very significant differences between them, with the deepest differences when Common law and continental systems are contrasted. The present comparative study focuses on the proposals that the modern contract law (PECL, Unidroit Principles, DCFR, CESL) provides with regard to defects of consent and, particularly, to the doctrine of mistake, as well as the Common law for its eventual influence on the regulation of these projects. Very generally, we could say that Common Law emphasizes the security of transactions, while Civil law systems, perhaps still under the impact of the eroded voluntarist theories, are more generous in allowing the inefficacy of contracts due to defects consent. Given these premises, we will try to evidence that the solutions provided by the Common law and the different unifying instruments in order to determinate the legal effect of the defects of consent are very similar. Furthermore, this survey defends the thesis of obsolescence of the spanish Civil Code respecting defects of consent, and the ensuing need for adapting it to the current social reality through a purpose of homogenization of european contract law. Due to this fact, we will also study the Proposal for the modernization of the Civil Code on obligations and contracts, whose regulation of defects of consent, particularly, diserves to be analyzed.

scholarly journals Formulasi Pengaturan Tahapan Pra Kontrak dalam Proses Pembentukan Kontrak di Indonesia

2020 ◽  
Vol 22 (02) ◽  
pp. 84-93
Author(s):  
Bebeto Ardyo
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Civil Code ◽  
Legal Certainty ◽  
Law System ◽  
Human Needs ◽  
Contract Formation ◽  
The Common ◽  
The Times ◽  
Civil Law System

The increasement of human needs in society goes hand in hand with the development of technology. To meet these needs, there must be interaction between people which sometimes has the potential to cause disputes. That’s why a contract is needed. The existence of a contract guarantees legal certainty regarding protection of the rights of the parties and also the obligations that they must fulfill. There are several stages of contract formation which consist of pre-contract and agreement between the parties. According to the system in the Book III of Indonesia’s Code of Civil Law, consensus is the base for the formation of contract that means once the agreement has reached between the parties then a contract is formed. Indonesia’s Code of Civil Law doesn’t yet regulate pre-contract stages of contract formation, even though these stages are equally important. The regulation of pre-contract stages are usually set in the common law system, but along with the times, the regulation of pre-contract stages should also be regulated in the civil law system. As a comparison, Het Nieuw Burgerlijke Wetboek (New Civil Code of Netherlands) has already regulated that pre-contract stages, although the Netherlands is a country that implements civil law system. The pre-contract stages are very important to be regulated in Indonesia because there are many potential pre-contractual issues. This paper aims to formulate the outline of what needs to be regulated in the pre-contract regulations. Keywords : Interaction, Contract, Formation, Civil Code  

scholarly journals The application of good Faith principle of precontract in common law and civil law contry

2021 ◽  
Vol 10 (16) ◽  
pp. e139101623621
Author(s):  
Rizky Febri Dewanti ◽  
Pujiyono Pujiyono ◽  
Yudho Taruno Muryanto
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Civil Code ◽  
Good Faith ◽  
Law System ◽  
Library Research ◽  
Legal Implications ◽  
The Common ◽  
Civil Law System ◽  
Legal Consequences

In Indonesia, development of application of good faith principle in legal agreement focuses on the application of Civil Code (KUHPerdata) where scope is still placed on the implementation of agreement. It is as if Civil Code has not recognized the existence of good faith principle at  pre-contract stage. In comparison, according to modern agreement theory that parties who suffer losses in pre-agreement/contract stage or at  negotiation stage, their rights also deserve to be protected. Thus, pre-agreement/contract promises will have legal implications for those who violate them. This will be seen in countries that have common law and civil law systems. An important issue in this case relates to the principle of good faith at the pre-contract stage which creates a gap with the provisions in the legislation. To analyze these problems, legal research was conducted with the black-letter law paradigm. Technique of collecting legal materials in this research used library research. Legal materials are analyzed deductively and utilize the method of interpretation (hermeneutics). Results showed that the application of the principle of good faith at the pre-contract stage in Common Law and Civil Law countries had differences. In the Civil Law system, good faith is highly emphasized in the stage of contractual negotiation. Whereas in the Common Law system, it prioritizes efforts to restore rights of aggrieved party in pre-contract stage. Parties who do not have good faith at the pre-contract stage have legal consequences for cancellation of the agreement.

Legal Reasoning Across Commercial Disputes

2020 ◽  
Author(s):  
Strong SI
Keyword(s):  
Empirical Analysis ◽  
Large Scale ◽  
Common Law ◽  
Civil Law ◽  
Legal Reasoning ◽  
Conventional Wisdom ◽  
International Survey ◽  
Structured Interviews ◽  
The Common ◽  
Commercial Disputes

This book offers a novel, multi-pronged empirical analysis of legal reasoning in commercial disputes, comparing data across three different axes: the judicial–arbitral divide, the domestic–international divide, and the common law–civil law divide. In so doing, this text provides important insights into how judges and arbitrators resolve complex commercial disputes in both national and international settings and conducts important comparisons between different procedures. The study includes three different empirical methodologies: a large-scale international survey, a series of semi-structured interviews, and a detailed quantitative (coding) exercise. Results from the three research strands are cross-verified through various triangulation techniques and tested against conventional wisdom regarding legal reasoning. This work will help judges, arbitrators, practitioners, clients, and scholars understand how legal reasoning is conducted in different settings, thereby improving the practical and understanding of how commercial disputes are resolved.

Is Style of Reasoning a Fundamental Difference Between the Common Law and the Civil Law?

2017 ◽  
Vol 17 (2) ◽  
pp. 238-290
Author(s):  
Colm Peter McGrath ◽  
◽  
Helmut Koziol ◽  
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Fundamental Difference ◽  
The Common

Classifying precontractual liability: a comparative analysis

Legal Studies ◽  
2001 ◽  
Vol 21 (2) ◽  
pp. 153-191 ◽  
Author(s):  
Joachim Dietrich
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Contract Law ◽  
Common Elements ◽  
Ongoing Debate ◽  
Unjust Enrichment ◽  
The Common ◽  
Initial Focus

The common law has solved questions of liability arising in the context of precontractual negotiations by resort to a range of different doctrines and approaches, adopting in effect ‘piecemeal’ solutions to questions of precontractual liability. Consequently, debate has arisen as to how best to classify or categorise claims for precontractual work and as to which doctrines are best suited to solving problems arising from anticipated contracts. The purpose of this article is to consider this question of how best to classify (cases of) precontractual liability. The initial focus will be on the ongoing debate as to whether principles of contract law or principles of unjust enrichment can better solve problems of precontractual liability. I will be suggesting that unjust enrichment theory offers little by way of explanation of cases of precontractual liability and, indeed, draws on principles of contract law in determining questions of liability for precontractual services rendered, though it does so by formulating those principles under different guises. Irrespective, however, of the doctrines utilised by the common law to impose liability, it is possible to identify a number of common elements unifying all cases of precontractual liability. In identifying such common elements of liability, it is necessary to draw on principles of both contract and tort law. How, then, should cases of precontractual liability best be classified? A consideration of the issue of classification of precontractual liability from a perspective of German civil law will demonstrate that a better understanding of cases of precontractual liability will be gained by classifying such cases as lying between the existing categories of contract and tort.

Graphical Fault Diagnosis Expert System of CNC Machine Tool Based on B/S

2014 ◽  
Vol 945-949 ◽  
pp. 1707-1712
Author(s):  
Bin Shen ◽  
Shu Yu Zhao ◽  
Jia Hai Wang ◽  
Juergen Fleischer
Keyword(s):  
Fault Diagnosis ◽  
Expert System ◽  
Machine Tool ◽  
Case Based Reasoning ◽  
Cnc Machine Tool ◽  
Cnc Machine ◽  
Rule Based ◽  
Detailed Case ◽  
Case Based ◽  
Remote Fault Diagnosis

Based on the authors previous work of developing an expert system for fault diagnosis of CNC machine tool, this paper studied the theory and method of CNC remote fault diagnosis expert system based on B/S, and presents schema and structure of the expert system in detailed. Case based reasoning is used for the multi-alarm diagnosis, and rule based reasoning is used for single-alarm diagnosis. At last fault diagnosis expert system was designed and developed making use of C# and ASP.NET.

scholarly journals The publication of judicial decisions as a reason for convincing precedent

1970 ◽  
pp. 195-199
Author(s):  
Roman Sabodash
Keyword(s):  
Common Law ◽  
Civil Law ◽  
General Idea ◽  
Court Decisions ◽  
Supreme Courts ◽  
State Register ◽  
Pros And Cons ◽  
Legal Position ◽  
The Common ◽  
The Right

The paper shows how the publication of court decisions influenced the formation of a precedent. The author reviewed scientific works devoted to research the precedent in common and continental law. The research explains that the formation of precedent in England was accompanied by development of the judgment’s reviews and their prevalence among lawyers. Of course, publication of court decisions was not a major factor in setting a precedent, but it played a significant role in this. The paper also describes facts of the publication of court decisions in Italy, Germany, France and the Netherlands, as well as the admissibility of their citations at the court of cassation. The general idea of the paper is that convincing precedent exists and is used although the countries of continental law do not have a «classic» precedent. The paper gives a review of the importance of the state register of court decisions for setting a convincing precedent in Ukraine. The author analyzes the pros and cons of citing court decisions. It’s stated that, unfortunately, the quotations of court decisions is not always correct and sometimes amounts to rewriting the «right» legal position without comparing the circumstances of the case. The article concludes that the practice of applying a convincing precedent in Ukraine is only emerging and needs further improvement.          It has been found out that the publication of judgments of supreme courts is one of the factors that helped to establish precedent in common law countries. The publication of court rulings also created the conditions for a convincing precedent in civil law countries (especially in private law). At the same time, the formation of a “convincing precedent» in countries where court decisions are published in publicly available electronic court registers is much faster than in common law countries. Of course, the structure and the significance of the precedent in the common law and civil law countries are different, but one cannot dismiss that publication of court decisions as one of the factors for establishing the precedent.

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