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Anglo here.
Tell me about Civil code. Is it just a special rulebook? Do precedents even matter, or do judges look to the book every time? Do governments constantly update their laws? What happens if there's a verdict that is inconsistent with previous verdicts?
General law thread, based common law welcome.
>>428458
>Is it just a special rulebook?
Yes.
>Do precedents even matter, or do judges look to the book every time?
Precedent doesnt matter, it's the attorney who argue their case based to their interpretation of book. Judges rule based on what presented before them and their own understanding of the book.
>Do governments constantly update their laws?
Depends on their need.
>>428458
It's simple. If the law is misinterpreted, then Napoleon will rise from his tomb and strike down the offender with a great mass of artillery.
>>428458
1 ) yeah , but there is other codes ,68 of them
2 ) they somewhat do, sometimes rules a created from precedents
3 ) if it's needed yes
>>428522
Napoleon was a shit
>>428458
>Is it just a special rulebook?
Yes. It is not unlike common law (laws), just bigger.
>Do precedents even matter, or do judges look to the book every time?
Yes. But a lot less than in CL. Every country has different rules for this, but enough consistent rulings by high enough courts can effectively establish how a law will be interpreted.
>Do governments constantly update their laws?
This is more political than legal. But yes, laws tend to change from time to time, whether small hotfixes, or full blown reforms.
>>429878
>Every country has different rules for this, but enough consistent rulings by high enough courts can effectively establish how a law will be interpreted.
Does this mean legislation has to be passed to change that law?
I mean, here in Canada there were a lot of rulings/ precedents on self defense laws, then the government passed legislation to clear it up, but recently the courts determined that the use of lethal force for self defense is justified if you are defending your dwelling from potential lethal force or force that is likely to cause great bodily harm.
R v. Joshua Neil
http://www.cbc.ca/news/canada/nova-scotia/kevin-joshua-neil-acted-in-self-defence-judge-rules-1.3020018
The legislation the government passed in the criminal code essentially outlawed all forms of lethal use of self defence to defend your home. This ruling changed that.
correction; when i was saying self defence, I meant self defence as in defending your property not yourself. Certainly if you're under attack and you kill the attacker that's self defence. But this ruling set the precedent that you have the right to use lethal force to defend your property.
>because canada
>>429784
Don't talk shit
>>429915
muh special rulebook!
>>429924
>having thousands of laws fucking disorganized and that will probably contradict themselves instead of a neat well organized book so that everyone can understand what the fuck is going on
https://www.youtube.com/watch?v=LWimm0ModPU
>>429975
That's not really how common law works.
For example; there may be a statute such as the automobile insurance act, which was to regulate how people could sue each other over car accidents,
Rossy v. City of Westmount ,was a precedent set after the Automboile Insurance Act
The automobile insurance act ruled "no fault insurance" which means if there is an accident, no matter who's fault the accident was, each person's own insurance pays for the damage. The reason for this was to prevent insurance companies from suing each other.
tl;dr:
>the case was basically Rossy was sitting in his car and a rotten tree on city property fell on his car and killed him.
>The family were sueing the city for compensation for his death because the city was negligent in taking care of it's trees.
>The city's insurance company argued "since he was in his car, it should be no fault insurance and his own insurance company should pay him compensation"
>The superior court of Ontario (provincial high court) dismissed the case saying it should be subject to no fault insurance clause in the automobile insurance act
>Supreme court of Canada overturned that and said Rossy being in his car had nothing to do with the accident, the death was to do with the tree falling. And thus the city is responsible.
This set the precedent that change the motor vehicle insurance act which made it that no fault insurance only applies when two vehicles are involved and set a precedent that the city and private property owners are liable if they have rotting trees that fall cause damage.
The result of this case is that many municipalities hire arborists (tree experts) to inspect trees in public places, as well as cut down trees which could fall and cause damage.
That's one example of how a precedent was set from a case. So in the future, if a guy is sitting in his car, and a tree on city property falls on it, the courts will look back to Rossy v. City of Westmount.
>>430108
>hat change the motor vehicle insurance act
do you mean in writings, or the act has not been changed at all?
>>430142
>do you mean in writings, or the act has not been changed at all?
I mean it was 'read into' the act.
So future cases of a judge interpreting the statute, Rossy v. City of Westmount, will always be taken into consideration. Kind of added to the act.
So no, the written act itself hasn't been changed at all, but the precedent changes how part of it is interpreted.
Think of it like playing a board game, there's a dispute over a rule, the dispute is resolved but doesn't necessarily follow the written rules. All future disputes which are similar no longer follow the written rules, but they follow how that first dispute was resolved.
Makes sense?
>>430161
>Makes sense?
no, if you do not change the law concretely, the law is not changed.
tomorrow, a judge will decide to refute your little historic case and apply the law in the book. he will be spot on.
>>430176
>tomorrow, a judge will decide to refute your little historic case and apply the law in the book.
but that's not how common law works. Laws are based on and changed by precedents. That was a superior court of Canada ruling, so no lower level court could change that precedent. Unless it goes to the court of appeal or back to the supreme court, that precedent is law.
>>430184
>superior court of Canada
Sorry, Supreme court (superior court is the high court of the provinces)
>>430176
Another example of a supreme court of Canada ruling that set an important precedent is
R v. Collins
tl;dr:
>Collins was at a bar with friends, the bar was notorious for drug use
>the cops came to arrest people for possession
>Collins had a bag of heroin in her hand
>cops ask her to open her hand and she refused
>a cop grabbed her by the neck and threw her to the ground and she dropped the heroin
>police collected the heroin and charged Collins with possession
>Collins is found guilty of possession of heroin but appeals the ruling
>Take case ends up in the Supreme court because Collins claims her rights of unlawful search and seizure were violated
>the supreme court ruled, yes they were violated because the cops had no right to use physical force to obtain evidence
>the Supreme court ruled that evidence obtained by violating rights is inadmissible in court
This set the precedent under section 7 of the Canadian Charter of Rights and Freedoms which includes freedom from unlawful search and seizure.
Collins was tried again, but since the heroin could not be submitted as evidence she was dismissed.
The precedent set the "collins test" which the courts look at to see if evidence has been obtained by violating rights or not. If it has been, then it is not admissible. This prevents cops from obtaining evidence by force.
The statue only claimed you have the right from unlawful search and seizure, but the supreme court ruled that if you are subject to unlawful search and seizure, that evidence is not admissible in court. That is now law.
>>429909
Yes. The law can only be changed by the legislative power, except in some specific cases when the executive has that power.
The biggest influence that the judicial power has on the law lies on the possibility of establishing a set interpretation. Or even, to declare it unconstitutional, and therefore void.
>>430485
>. Or even, to declare it unconstitutional, and therefore void.
This happened in Mexico recently;
The supreme court of mexico ruled banning marijuana for private use violated privacy rights. however that didn't change any laws.
In Canada if the Supreme court were to make that ruling, that would be law
Hey commonlawfags, where do rights come from?
>>430851
in Canada we have a charter of rights entrenched in our constitution. However many parts of the charter are defined by precedents, like section 1 is now interpreted from R v Oakes, section 7, R v. Collins, and so forth
ok
>>430851
Rights don't exist. Only successful court cases for redress of wrongs exist.
>>432501
We have a charter in Canada, USA has the bill of rights
>>432623
>Butt hurt continental bragging about his special rulebook
>>432623
>You need to work on your expression
I don't follow
Gump
how does it feel to know that your laws are nothing but pure contingent conventions that you must enforce and use the terror of the imprisonment in order to get people to follow them ?
>>434742
I've seen that image before on this board! Someone used it to describe his cuckold bukkake experience.
French Civil Code from 1804 is considered to be progenitor of many codifications in Europe and elsewhere. It's also seen as landmark in terms of legal solutions and legal expression.
As for modern civil codifications, yes, they are ''special rule books'', usually addressing legal areas like obligations (contracts, torts, etc.), property law, family law and succession (inheritance), as well as general legal norms which apply to all of these. This is called private law.
You also have other codes, addressing criminal law, administrative law etc.
Some civil law countries don't codify private law in narrow meaning of the word, so you have codification of family law, codification of law of obligations, codification of law of succession etc.
>Do precedents even matter
Precedents matter in the sense that rulings by superior court are often taken to be correct interpretations of law by lower courts. Also, when some dispute arises which isn't regulated by law, it's up to court to practically create law. However, you can't base your judgement on a precedent, nor can you use precedent as an argument in court.
Judges judge according to law, they interpret law.
In some countries (France, Italy), it's expressly forbidden to use precedents.
>Do governments constantly update their laws?
Only legislative body can update laws. So parliament, assembly, whatever it's called.
>What happens if there's a verdict that is inconsistent with previous verdicts?
Nothing. No precedents. Every ruling is separate and derived from written law.
You have a right to appeal. How many tiers exist depends on country.
For example, ruling made by inferior (basic) court can be appealed in front of higher court, and in some cases you can go to constitutional court. In Europe, final tier is European Court of Human Rights in Strasbourg. Interestingly, stare decisis (precedent) applies here. International courts de facto use precedents as law.
>>435068
>Some civil law countries don't codify private law in narrow meaning of the word, so you have codification of family law, codification of law of obligations, codification of law of succession etc.
And this is lawyer's hell. Believe me. I love my country's system of laws ( The Netherlands), as the amount of codification and merging of law books is amazing ( we have all parts of civil law in one big book for instance,with a handy structure, love it)
>>434742
How does it feel to know that your laws are nothing but statutes passed by politicians seeking re-election based on nothing but populism and muh morals.
At least common law has laws created by a judicial body with experience administering and upholding the law as oppose to uninformed politicians doing what they think is right.
b-but muh special rulebook!
>>435306
>passed by politicians seeking re-election based on nothing but populism and muh morals
Are you aware US Congress can pass laws?
Are you aware US have both federal and state laws, which are actually more far more bloated than European laws?
Also, laws aren't written by some random dudes, they're usually written by experienced and well-educated jurists or they are at least consulted when writing law.
>http://www.scstatehouse.gov/code/statmast.php
And just look at this, Title 23 Chapter 33
>A “missile,” as contemplated by this chapter, shall be defined as any object or substance hurled through the air by the use of gunpowder or any other explosive substance whether purchased by the individual or compounded from chemicals.
>Before any person shall fire or attempt to fire or discharge any missile within the borders of this State, he shall first procure a written permit from the Aeronautics Division of the Department of Commerce on such form as it may prescribe.
>any object or substance hurled through the air by the use of gunpowder or any other explosive substance
So that means, before you fire a bullet (bullet fits the description), you must get approval from Aeronautics Division of the Department of Commerce?
American law is ridiculous.
>>436278
Or, let's take a look at Title 23, Chapter 51 or ''Reduced Cigarette Ignition Propensity Standards and Firefighter Protection Act''.
4000 words.
OP are you a 1L? I think I remember all of the cases you mentioned from my studies last year (just finished up first term of 2L). Hope your first round of exams went well if so.
Legal history is pretty fascinating and I wish I put more effort into looking into it. I might try to take a class or two in it next year but I've got some based profs that go into it in their respective areas which are pretty cool.
This is probably one of the only things I like about Common Law - some of the cases we looked at were just hilarious given how old they were.
I also like the idea of judges having power and being able to disregard things made by shit-tier pandering politicians (as happens in Canada) but at the same time there's about a 50/50 tradeoff here in that I'm sure just as many feminist edgelord justices go around trying to bend the rules in their direction.
Civil law pleases my inner autist a bit more tbqhwy.
>>436508
OP here, ill go on about common law in canada in a couple min. I have a wicked example
ok
>>438733
sorry i fell asleep, i was kind of drunk
I forget the point i wanted to make ;_;
>>436508
>OP are you a 1L? I think
No, I work at a law firm training as a law clerk right now, but i want to go to law school for 2017. Due to things beyond my control I was unable apply this fall, I also think another couple years of work experience will benefit me in school
>>436508
>tradeoff here in that I'm sure just as many feminist edgelord justices go around trying to bend the rules in their direction.
hazah I remember the point I wanted to make
http://www.theglobeandmail.com/news/national/top-court-upholds-rape-shield-law/article4168257/
In 1992 the government passed "shape shield legislation" which made a woman's sexual history irrelevant for the defense. So the accused can't say like "but she let me tie her up and ass fuck her all the time! I thought it was consensual!" as his defense.
In 1992 the court shut it down as violating a fair trial, but the government amended the legislation, and recently the legislation was challenged in the case I posted, and the court upheld it this time.
The legislation original said that the complainants sexual history is completely off limits for the defense, but the court said if the defense can prove that it is relevant, they can use it in their defense.
The purpose of the legislation was to not make women afraid of going to the police for sexual assault because in trial the defense used to rip the woman apart with her sexual history
gump
Any other Canadians been following the Oland case?
http://www.cbc.ca/news/canada/new-brunswick/dennis-oland-murder-verdict-1.3368684
tl;dr:
>Wealthy family, starters of a brewery in Canada.
>Father murdered by getting beat in the head with a blunt object
>His son is accused and charged with second degree murder
>the Crown's main piece of evidence was a jacket with a few spots of blood on it which the police collected during a search warrant
>The case was mostly based on circumstantial evidence citing the son's financial problems motivated him to commit the murder
>Found guilty of second degree murder
>his lawyers are taking it to the court of appeal because the police didnt have a warrant to conduct DNA testing on the jacket they seized which violated section 8 of the charter, protection from unreasonable search and seizure.
>Section 24 of the charter guarantees remedies for violation of charter rights, which after R v. Collins and more recently R v. Grant, if rights are violated to obtain evidence then that evidence is inadmissible in trial
>so basically the defense wants a retrial and the DNA test on the jacket, and the jacket itself excluded as evidence.
This is significant because it could set another precedent around section 8 (unlawful search and seizure) and section 24 (remedies)
bump
gn
Saved
>>441138
Apparently the defence is going after the jury instructions rather than the admissibility of the evidence now
>>430877
Please explain to me the logical mechanism through which precedents come to define rights.
>>443222
Example 1/2
In canada the freedom from unreasonable search and seizure is codified in section 8 of the Canadian charter of rights and freedoms as verbatim "everyone has the right to be secure from unreasonable search or seizure"
Section 1 is the reasonable limits clause, essentially if the harms of the rights violation outweigh the means then the court would reject it
R v. Oakes was a case where Oakes was caught with hash oil and money, he claimed he bought the hash oil for personal use but was charged and convicted of trafficking based on the narcotics control act
Part of the narcotics control act outlines the conditions on which someone is guilty of trafficking which broadly described having drugs and cash basically means trafficking
He said this violated his section 11 right, the presumption of innocence, was violated by the narcotics control act and the court ruled that section of the narcotics control act violated the reasonable limits clause. Now R v. Oakes aka the Oakes test is used in future cases to determine if legislation is within reasonable limits of charter violation
1/2
>>443322
2/2
There was a landmark case in 1987, R v. Collins, in which Collins was grabbed by a police officer and thrown to the ground, then cops found heroin she was hiding.
The supreme court ruled that was unreasonable search or seizure, and defined section 24(2) which is the remedies clause and states if evidence was obtained by violating rights it shall be excluded from trial if it would bring the administration of justice into disrepute.
What R v. Collins did was defined section 8 and section 24(2)
Now the Collins test
So in the future if section 8 is challenged instead of reinterpreting the statute, the courts will compare the case before the court to R v. Collins and make the ruling accordingly.
So section 1 is defined by R v Oakes and section 8 by R v Collins
Now in this case
>>441138
Oland is claiming his section 8 right was violated because of how the police obtained and used his jacket as evidence against him.
The court of appeal will compare this situation to R v Collins and another case for section 8, R v Grant, and determine if Oland's case fits with the decision made in those cases.
Basically the statute is the rules, and the precedent is the set example on how the rule should be applied
>>428458
>Tell me about Civil code. Is it just a special rulebook? Do precedents even matter, or do judges look to the book every time?
I can only speak about Swedish labour laws but a lot of the time there's stuff deliberate vague in the law book. "Work" isn't defined anywhere because it's always changing what the society count as work and not. The definition used comes from previous rulings.
This means that once you get to the seven-member court (there are three neutral members plus two members representing the interests of the employer and two representing employee interests) you'll get shut up if you think you're too clever and try to be right yet ask for more money than they usual judge the wrong part to pay in a specific kind of case.
Not that it really matter since Swedish labour laws can be summed up as "this is how it is unless you two have decided otherwise, and if you can't decide on something then you should try again before coming to court because sloppy negotiation aren't looked kindly upon."
>>443401
In Ontario a lot of labour laws are based on precedents however they're loosely codified, but not in legislation
Kind of like heading
Wrongful Dismissal
Under the common law employment can be terminated at any time without just cause, upon reasonable prior notice
In determining What is reasonable the judge would consider the employment contract and based on the precedents in the common law.
Then it would give a few examples of cases and rulings which are used to determine various employment standards such as what reasonable notice means
>>443401
But there's also codified legislation like the Ontario Labour Relations act which defines what a union is, who can join unions, how collective bargaining rights work and so forth, and states that a unionized employee cannot use common law wrongful dismissal action, rather they must follow the Ontario Labour Relations act.
However this piece of legislation is essentially an agreement between the unions and the Province.
However last winter the supreme court ruled on "Saskatchewan Federation of Labour v Saskatchewan" and concluded that all workers have the right to form a union and the right to collective bargaining
So that one section of the Ontario Labour act which defines who can join a union is now bunked and the Province needs to scrap or rewrite the legislation in that section
In Ontario if the Province doesn't amend the legislation and are taken to court about it then the courts will look to the Saskatchewan Labour case to make their ruling
>>436278
You left out
>The provisions of this chapter shall not apply to the firing or discharge of missiles by any agency of the Federal or State government, to small firearms or to fireworks now authorized by law.
Don't apply for the Bar Exam just yet
Ump
>>443509
Why don't they just write new legislation? That sounds arbitrary and convoluted
>>444726
Because that's not how common law works
Any lawfags still here?
>>445843
Work
Law
Do any non-anglo countries use common law?
>>450399
I think some African countries use it, or some form of it
