Bibliographie complète
The Quest for a Systematic Civil Law
Type de ressource
Auteur/contributeur
- Stein, Peter (Auteur)
Titre
The Quest for a Systematic Civil Law
Résumé
We take it for granted that law, whatever its tradition, forms some kind of system. When the research funding mechanisms of this Academy were reorganised recently, law was located by the Humanities Research Board, without any apparent dissent, in a category labelled 'systems of thought and belief'. All modern laws are systems in the sense that they form bodies of norms, with certain features and with recognised ways of making them and changing them.'
My concern today is not with whether law is a system but with how far it has been expected also to be systematic. Whether or not we think that our law should be both a system and also systematic depends to some extent on how we conceive of law in general. If law is seen as essentially the product of legislation, express statutory provisions, they will have to be placed in some kind of order. Putting statutory provisions in order does not necessarily lead to a systematic structure but, if there is an order, it will be subjected to criticism and reform and improvement, and sooner or later it is likely to move towards systematisation. If, on the other hand, law is not put into authoritative texts, it is much more difficult to systematise it, if only because it is less clear what has to be the subject of the systematisation.
One of the obvious characteristics which distinguish the English common law, on the one hand, from the continental civil law, on the other, is that the civil law is systematic and codified, whereas the common law is not. 1 propose to consider how the modern civil law acquired this feature. It is sometimes suggested that it derived its highly systematic form from the Roman law, which was the source of much of its substance. We tend ta associate systematic order with codes and modern codes are associated with systematic order. In one of his famous, slightly inaccurate, aphorisms, Sir Henry Maine said that Roman law in antiquity 'begins, as it ends, with a Code'. 2 Maine was referring to the Twelve Tables in the fifth century Be and the compilation of Emperor Justinian in the sixth century AD. SO my first question is, Did the Roman law of antiquity have some inbuilt tendency to be systematic?
Publication
Proceedings of the British law
Volume
90
Date
1995
Langue
English
Titre abrégé
The Quest for a Systematic Civil Law
Archive
Proceedings of British Academy
Référence
Stein, P. (1995). The Quest for a Systematic Civil Law. Proceedings of the British Law, 90. http://www.britac.ac.uk/pubs/proc/volumes/pba90.html
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