MODULE 1

In the history of law, several major processes of receiving law are known that have
affected areas particularly extensive, sometimes encompassing entire continents. The first was
the phenomenon of the reception of Roman law, applicable in many countries around the world for centuries,
right after the fall of the Roman Empire. In Germany or in Greece, Roman law was applied
directly until the last century. In other countries, such as France, this has been completed or
amended by local customs. In Germany, when Roman law was no longer applied directly,
The customs and local regulations that followed gave rise to contemporary Roman law. A
another reception process that left deep marks in the history and geography of law is the
regarding French law.

As a result of the Napoleonic conquests, the Civil Code was introduced in the states occupied by
French armies. Civil and commercial codes modeled after the French were adopted in
Italy, Holland, Belgium, or Luxembourg. Legal regulations have also been applied in the former
French colonies, as well as other states where the influence of French culture and legal science has
it has been predominant, thus specific regulations have been adopted, inspired by the model
French from countries such as interwar Romania and Poland, as well as Egypt.

They have enacted civil or commercial codes of French expression and inspiration.
the reception of another type (of the second degree) thus, Spain and Portugal (known as
find colonial powers) extended their legislation across the Ocean (the states of Central America and
Southern Spain, to which Mexico is added, has adopted Latin-type Civil Codes). If we refer to
Regarding the phenomenon of the reception of British law (common law), it is important to mention that
that it was born in England, it was not codified and spread in the former colonies
British (in Australia, New Zealand, Canada, except for the province of Quebec, where it
French law has been received, a situation that we also encounter in the case of the state of Louisiana.
USA) and has remained to this day. It should also be noted that it has not been
adopted in Scotland. In some English-speaking states in Africa, it is applied alongside the new
regulations and sometimes tribal customs. In India, traditional Hindu law has merged with
British law, the latter being codified for the first time.

Currently, the question arises whether this codification is not a historical phenomenon.
surpassed in the current stage of the development of sources of law, if it is not an outdated way of
to express the rule of law. It is necessary to define first the codification that must not
confused with the codes. The notion of codification appears in the 19th century and marks
the movement of transformation of the sources of law produced as a result of the actions of states through
the transition from customary law to written law. Codification represented the movement of
the transformation of customary law sources into written law, a unique event that took place
the unification of customary law with the help of Roman law and its modernization in
contact with natural law.

The main elements that allow the diagnosis of the existence of a codification phenomenon
common law concept (from continental law), general principles of law,
comparative method of extraction from these principles, starting from legal orders
distinct and systematization of law. An interesting phenomenon occurred in the USA, where
common law, introduced by the English colonists, underwent an interesting process of evolution,
adapting to the federal structure of the USA and the American way of life, resulting in a system
different from the original. 2 See Frederic Zenati – Castaing, The Future of the
codification in RIDC nr.2/2011, p.355. 6 Example of reception, although on a smaller scale, is
I encounter this in other cases as well. Thus, Swiss law, which is the result of an interesting
combinations between German and French sources were adopted in Turkey. Through such a way of
Processes, national systems are grouped into large legal systems, true continents.
legal frameworks that shape the geography of the legal world.

Foreign law and comparative law Confusion between comparative law and knowledge of the law
foreign is common, thus the knowledge of the law of other states and their comparison with that
One can use it themselves, not only the legislator but also interpreters, theorists, or practitioners.
Knowledge of foreign law is, obviously, a necessary prerequisite for carrying out some
comparative law research, however, is not sufficient. Therefore, mere knowledge of the law
foreign does not mean comparative law. Comparative law is not a branch of law, like
civil law, commercial law, criminal law or administrative law. It is not, therefore, a set of
legal norms applicable in social relations. The extent that research has taken on
comparative law especially in the second half of the last century, spurred by
the large number of international meetings dedicated to applied comparative law studies have
enriched a lot the knowledge in this field, benefited the most the law
commercial and civil law, the branches of law most affected by the development of exchanges
economic and circulation of persons.

Results have also appeared in other subjects, such as constitutional law, law
administrative, criminal law. It can be said that comparative law is a set of
procedures by which the comparison of certain standards, certain regulations, certain
institutions or legal systems from other countries, for the practical purpose of highlighting
the similarities and differences between them and propose improvements for some or the others. René
Rodier said: "comparative law helps to establish the subtle and profound rendition of 7
the connections, relationships between various institutions of a system. It allows, as a whole
the institutions and rules of a legal system to reveal what is essential, what
express the intimate nature of this system, what constitutes the foundations you cannot do without
reaching, without undertaking a general review of the moral ideas that inspired him and without being
recognized the social structures that support it.

When the comparison reveals a successful legislative experience made in another country, legal science
it cannot be limited to registering it. Based on it, studies and legislative proposals will be made
drafts, which aim to help improve legislation. We can affirm that the law
compared has a significant contribution to the improvement of national legislation. As stated
Prof. univ. dr. Victor Dan Zlătescu 'if the adoption of a law represents an experiment
social, this should only take place after understanding the experience gained in other
"countries with similar issues." Furthermore, the history of modern legislation attests to the special interest
which it presents, in the scientific drafting phase of the law, the knowledge of the regulations from
old states, knowledge that has become a scientific requirement of the process of
legislative elaboration. It can be said that comparative research benefits national law.
In older literature on comparative law, the purpose of comparative law was to
contributes to the unification of national legislations. In this process, comparative law was
reserved a separate role, as a scientific approach required that any uniform rule should
It is determined based on a comparison between the norms that regulated the subject in
the rights of all countries among which unification operates. The socio-political transformations that have
The location after the Second World War was such as to considerably modify
these concepts, however the results were not as expected, but rather at a dimension
reduced, as a result see Victor Dan Zlătescu, Introduction to formal legalistics, Oscar
Print, Bucharest, 1996, p.35. 8 of the states' desire to affirm their national sovereignty,
undeniably affected by the adoption of regulations whose content deviated
sometimes quite far from the social realities, traditions, and concrete conditions in each state.
Knowledge of foreign law is not identical to comparative law, as they are different fields.
they interfere on different levels, but retain their conceptual autonomy.
Typology of major contemporary legal systems Grouping of national systems into major
Families of law acquire a distinct appearance in the case of each branch of law and depending on
Regarding the content of the branch of law, the criteria for dividing into major families of law differ.

A major system or a major family of law represents the grouping of legal systems.
national, in relation to certain common traits of them. This idea must be
however, an important reservation was made regarding the so-called "religious systems and
traditional." A characteristic of these systems is that their rules do not apply to everyone
to the residents of a certain state or territory, but to all those who, having a
certain religion, regardless of the state in which they reside, are subject to a personal status that is
find the basis in the precepts of that religion. An example in this regard is the law
Islamic care in a set of norms is inseparable from religion and morality.
Mohammedanism addresses all followers of Islam, regardless of where they are in the world.
The problem of the structure of large legal systems could only be raised after the First World War.
global and is due to the emergence on the world map of a large number of states
independent, deep influences that the comparative school initiated by the Englishman has had
Gutteridge and continued by his students, the Frenchman René David and the Englishman Hamson.
Starting from the year 1900, a crucial date in the history of comparative law, related to 4 Victor Dan.
Zlătescu, Comparative Private Law, Oscar Print, Bucharest, 1997, p.112.

To see Elementary Treatise on Comparative Civil Law, L.G.D.J., Paris, 1950. 9 of the first
Paris Congress, in the specialized literature, there have been numerous attempts to
classification of major legal systems. We mention the classification of the French professor René
David, formulated in his comparative law treatise from 1950. According to this classification, in
There would be five main legal systems in the world. The first would be that of the Western world, based on
on the principles of Christian morality, on the political and social principles of liberal democracy and on
a capitalist economic structure. The second is the system that the author refers to
named, in 1950, "of the Soviet world", profoundly different from the previous one due to its structure
the social order to which it applies. The third, according to Rene David, is the system
Islamic, which cannot be reduced to any of the previous systems, given its foundation
theological and the close connection that unites law with religion in Islam.

The fourth is Hindu law, a traditionalist law as well, but which is based on a foundation
philosophical own different both from that of Christian countries and from that of the Muslim world. The
The fifth system would have been, in the conception of Professor René David, the Chinese system.
traditional. Subsequently, however, the author amended this classification in another work, he
by renouncing the global consideration of the systems of the Western world in the new work,
distinguishing a Roman-Germanic family, a common law family, one of socialist law
(It is worth noting here the evolution of terminology) and, finally, one of the philosophical systems and
religious. A higher classification attempt is due to Marc Ancel.
The French comparatist distinguishes three "essential" groups of perfect legal regimes.
determinates and two complementary groups, less defined. The 'essential' groups are
the Romano-Germanic system characterized by 6 René David, Ibidem, p.223. 7

In 1967, Marc Ancel as president of the French Society of Comparative Legislation and acad.
Traian Ionaşcu, as the director of the Institute of Legal Research, was one of the initiators in 1967.
the most important Romanian-French scientific manifestations of comparative law. It is about
the Franco-Romanian legal days, whose 15th session took place in Strasbourg, in
June 2011, organized by the French Society of Comparative Legislation, Faculty of Law of
University of Strasbourg, the Institute of Legal Research of the Romanian Academy,
Ecological University of Bucharest, with the contribution of teachers and researchers
University of Bucharest and the Romanian Institute for Human Rights. 10 his descent
Romanian and the tendency towards codification, the common law system, uncodified and presenting
the particularity of the coexistence of three parallel regulatory systems of common law specific to
this, equity and statute-law and that of the 'socialist states'. Apart from these, the author
mention the "complementary" groups, religious law systems and the system of countries from
"the third world" generally found shortly after gaining national independence.

Regarding the great socialist legal system, it should be noted that it has
lost, entered into history. In Poland, East Germany, Hungary, in Mongolia, the former
Yugoslavia and, especially, in Romania and the former Soviet Union, the revolutionary changes have
affected social infrastructure and had essential repercussions on civil legislation and
commercial. Within Western law, at least two major families of law are distinguished.
The first among these is the great Romanian-German family. Grouping the legal system
French and related national systems: Italian, Spanish, Portuguese, Belgian, those from America
Latin etc., as well as the German system, this great family, in which national systems are...
in the format based on Roman law, is characterized primarily by the predominance
written laws. Specific to these systems is the existence of civil and commercial codes,
true legislative monuments grouping regulations from entire fields of relations
social, subject to a rigorous systematization.

The French Civil Code of 1807, the German Civil Code (Buergerliches Gesetzbuch - B.G.B.) of 1900,
the most well-known among these still applies today. Especially the French code, closely
Regarding the name of Napoleon, he had an exceptional fate, being received not only in
the states that during the Napoleonic empire or during the colonial expansion, as such
the above-mentioned teams were subjected to French domination, as well as in other states where influence
French had only cultural aspects, as was our country. Indeed, the Civil Code
adopted in 1864 under the reign of Prince Alexandru Ioan Cuza and remained in force until no
long ago in our country, of course, with substantial modifications, there was a reproduction enough
of the fidelity to the French code. Another characteristic of the Roman-Germanic system is
represent the division into branches of law. French legal thinking at the beginning
the 19th century was profoundly Cartesian. This Cartesianism stamped its mark on the entire
regulation of civil and commercial relations, granting them a logical rigor and a
almost impeccable systematization. In this spirit, the division of the legal system was also produced
in branches of law, each with its specific methods and a certain mentality
characteristic. The first and most important division of law, inherited from law
Roman, this is in public law and private law.

This is the fundamental classification in Western law based on the difference in method of
regulation and which fundamentally reflects the essential role played by private property. In relation
From this, the division into branches appears as the result of some secondary criteria. Public law is
divides, thus, into constitutional, administrative, financial, etc., and private law into
civil law and commercial law without the differences between these branches having a character
essential of those between public law and private law. Another issue is raised by the law
Scandinavian countries. Some authors, as we will demonstrate below, see in the law of the Nordic countries
(Denmark, Sweden, Norway, Finland, Iceland) a large legal system, distinct both
of both the Roman-Germanic and the common law.
There is also a certain influence of the common-law system due to frequent
cultural and economic ties between the Scandinavian states and the British Isles. However, this
the law of the Scandinavian states is dealt with within the Roman-Germanic system,
specifying, however, that it represents a special case. The structure of English law (common law)
in a broad sense), is considerably different from that of continental law. We do not encounter codes, as
in French and German law, as we will generally not encounter normative acts
comprehensive for civil and commercial matters. The essential rules of law 12
civil are, as I have shown, of jurisprudential origin. It should be noted that England does not have a
a written constitution, but only a few laws of constitutional character, which do not cover the area
constitutional relations. The main tool used in the specialized literature of
the law is the rule of precedent, according to which, after distinctions on which we will
coming back, the decision of a higher court or even of the same court pronounced
previous, divine mandatory for the court that has to resolve a similar case.

In this way, due to the obligation of precedent, a creation has occurred over the decades or ...
certainly of the centuries, an entire legal system as coherent, in many respects, as that of
continental countries. It should not be believed, of course, that the role of the normative act in the system of
common law is nonexistent, or that continental systems exclude the contribution of jurisprudence.
Statute law has gradually taken on an increasingly important role over time, as development has occurred.
economic and social. It should be noted, however, that through normative acts, this happens only rarely.
regulate the fundamental aspects of civil or commercial relationships, these acts
mostly internal, in administrative, criminal, contraventional, fiscal matters etc. On the one hand
On the other hand, the prominence of the normative act in continental systems does not exclude the role either,
sometimes significant, which is called upon to play the judicial practice in the creation of law. A
A characteristic element of the common-law system is also the existence of the concept of branch of
law. The pragmatic spirit that characterizes insular legal thinking has led to
the elimination of differences, often artificial, that continental law makes between branches
of law. The tripartite division, typical of the Anglo-Saxon system, has nothing in common with
the Romanian division of branches of law. In common law, in equity as well as in statute law,
we encounter both rules that in the conception of continental jurists would be of public law, as well as others
which would be of private law. This is why Roman-Germanic law and common law
forms two distinct major systems of law. Moreover, the common law system does not
this is not unitary either.

British law is joined by the law of the United States of America, which has a structure
own, distinct features and a remarkable evolution from the first. It is also,
undeniably the right of British dominions (Canada excluding the province of Quebec,
Australia, New Zealand), although we do not have sufficient documentation regarding them, has suffered
a development that has significantly distanced them from the rights of the metropolis. Likewise, in
certain states in Asia or Africa, former British colonies, the common law system has been
preserved, however, it has been the subject of spectacular developments. It is enough to mention in this regard
the case of India, in which significant areas of British private law have been legislated, fact
never encountered in the country of origin. The third major system, particularly widespread,
religious and traditional rights, inspired by religion, were created during
feudal arrangement, preserving, in relation to the societies in which they find application, many
medieval elements, these systems could only be reduced despite the evidence
of the facts, in any of the European or American legal systems. It is true that
the existence of these systems disrupts all classifications, escaping any criteria that are
I laid the basis of these. Muslim law is undeniably the most well-known and the most
widespread, due to the number of subjects to whom it is applicable.
However, alongside it, other interesting legal constructions should also be mentioned such as
Jewish law, Hindu law, traditional Chinese law, Japanese law, etc. There are, in the countries where
these systems are applicable, a true legal dualism. Most often, the systems
traditional are incomplete, they primarily concern the matters of persons, family and
succession, subjects that are at the center of religious interest. They are complemented
sometimes even doubled in certain states that have modernized, by a written legislation that,
Sometimes, 14 promotes principles and regulations different from those of traditional law.
Thus there are some Islamic states such as Egypt, Algeria, Iraq, Syria, etc., which have adopted
modern regulations without eliminating Islamic law, or Israel, in which it was developed a
a right that we can sometimes call state right, directly opposed to rabbinical law
traditional. The overlap of the two regulations often leads to a legal synthesis
that we are not allowed to ignore and that stamps its seal in another way on the right
to each of these states.

It should not be overlooked that in Egypt or Algeria the civil codes contain texts that in case of
gaps or conflicts between their provisions and the principles of Muslim law are provided
they deceive that the last one applies. It would be wrong, in this way, to claim that (just as, in
Otherwise, it happened in Turkey after the Young Turks revolution, which removed Islamic law.
receiving Swiss codes) there is a general trend of abandoning regulations
traditional in favor of state ones. Even in Israel, traditional law is applicable
to people of the Mosaic religion, while written law applies to those of other religions, or,
if applicable, interfaith marriages. A special place is also held by the law
customary law still governs at least partially some African villages, because only
Thus we will become aware of the wealth and variety of the contemporary legal phenomenon.
What is understood by the phenomenon of reception of a right?
René David the legal systems of law in the world? 15

MODULE 2 THE GREAT ROMANO-GERMANIC LEGAL SYSTEM

Roman law is distinguished by the significant place it holds in the world.

contemporary, carrying forward the principles of Roman law and representing a true
workshop in which many modern legal concepts were forged and is widely spread today not
not only in Europe, but also in Central and South America (and even to a lesser extent in
Canada and the United States, as well as in Africa.

The great Romano-Germanic legal system is not the system resulting from a fusion of
Roman law with German customs, just as there is no such 'contemporary Roman'
Law, contemporary Roman law, which has been applied in Germany. Both French law and
and the Germanic ones have a rich common heritage derived from Roman law, on one hand,
the right of Germanic customary law, which has influenced not only modern German legislation, but
and the French customs that were the basis of the Napoleonic codifications, on the other hand. In
In both systems, the prominent role of the source of law is played by legislation. The tendency towards codification,

illustrated by the emergence of civil and commercial codes, a trend that leaves its mark on
the appearance of the system represents one of the brightest features of unity. Although,
there are certainly some different concepts, the major national fund of the two systems is
identical, primarily due to the fact that they have a common origin. The authors who have researched
The history of European law agrees that the moment of the emergence of Roman law is...
Germanic is situated in the 13th century of our era.

As René David shows, legal elements existed even before this date.
There is, of course, Roman law, which applies to these territories, there were also...
customs applicable throughout Europe, among which the predominant role was played by customs
French and German. It was an era of accumulation, in which, over the centuries, it has
synthesize a new legal system. A special role in the process of synthesizing law has
medieval universities. The reception of Roman law provided Europe with a system.
juridical more or less unified. After the fall of the Roman Empire, Europe found itself
divided into countless states that hurried to establish their own legal systems.
Universities were therefore inclined to undertake a synthesis and to appeal to the great
the legal foundation that Roman law represented, with its prestige and formal perfection,
superior, uncontestable, from a technical-legal point of view regarding local customs, means
excellent in the national unification operation that had begun in Germany and Italy. From the century of
In the 13th century, Roman law spreads more and more throughout Europe. The process of
the reception of Roman law, however, collided with the force of custom, those collections of customs that
they were selected and systematized by legal experts. These customs, precisely because of their significance
the role they played in shaping the system, did not often represent regulations
complete, they had a fragmentary character, being lacking in the systematic nature of some
true codifications. In the process of drafting the customs, the authors who were part of
17 of the most prestigious jurists of the time often relied on their legal knowledge.
human for covering gaps but also in places to correct certain solutions that
contradicts the principles of Roman law. The substance of customs does not reflect
Roman law in its classical form, but rather what is called 'vulgar law', which was born
during the decline of the Roman Empire. This was a kind of customary law formed
in the simplified adaptation of Roman law norms to the local needs of the provinces.

From here, the role of practitioners, for whom legal interpretation loses its value.
creator, becoming a simple routine, while the science of law becomes a purely speculative concern and,
consequence, unnecessary. Among the most important codifications that took place in this phase
the initial formation of the Romano-Germanic system, we mention: - Edictum Theodorici,
promulgated in the second half of the 5th century at Narbo, by Theodoric II, the king
Visigoths. - Codex Euricannus, promulgated around 475 AD by King Euric. - Roman Law
The Visigothic Code (also called the Breviary of Alaric), promulgated by King Alaric II, in Provence.
The Roman Law of the Burgundians, promulgated by King Gundobad, who died in 516, in the kingdom
Burgundy. These compilations formed the basis for the reception of Roman law and constituted, more
later, a precious material for the codifications made during the Middle Ages. A moment
essential in this process was to be played, a few centuries later, by the Corpus Juris Civilis of
Justinian, who was received in Eastern Europe starting from the 9th century, and in
Apus from the 11th century which, in one form or another, has been adapted to the needs of each.
eras and of each country. In some countries, such as Belgium and the Netherlands, the reception of the law
Roman was almost total. In other states it had only a partial character, being 18
restricted either to a certain number of regulations or to certain geographical regions, in
France, for example, can be distinguished by two well-defined areas. The northeastern part, adjacent to...
With Germania, it was called the 'land of written law', while the south-western part was 'the land
"unwritten law," where local customs governed. An important role in the reception
The Roman law was held by the schools of glossators and post-glossators. If the former...
they suggested as a goal to establish practicing, on the margins of classical writings, glosses or
annotations the exact meaning of the provisions, post-glossators tried, starting from the 14th century -
they should express new concerns. Through their interventions, they have brought developments
considerable in Roman law, laying the foundations for new directions in the evolution of law
private, as it relates to commercial law or private international law.
In this way, the post-glossators created a work, achieving not only the fusion
Roman law with provisions that found their origin in customs, but also its enrichment with
new provisions, the authors of which were they themselves. A Roman right was born from this.
modernization, known as "usus modernus pandectarum", corresponding to
the production relations that began to assert themselves. In none of the European countries,
the current of the post-glossators did not encounter more serious obstacles than in France, Spain and
Portugal. A particularly successful movement in France was the School of "humanists", aiming to...
not to the transformation and adaptation of Roman law, but to its purification, to the removal
any external influence, to restore it to its original state. In Portugal and Spain, usus
the modern digest was largely halted by the well-known 'quotes' law,
it required that, in cases of doubt, the opinions of three jurists be sought: Bartolus,
Baldus and Accursius. The reception of Roman law continued through the codifications undertaken in
different European countries, starting from the 18th century. Thus, through the adoption of some
Civil codes have been introduced in many states, a significant number of principles and norms from
Roman law.

The French civil code has also been received in numerous countries, such as Belgium, the Netherlands,
Luxembourg, Poland, Romania, Egypt, and the state of Louisiana. It was a strong source.
inspiration for the Italian, Spanish, and even Portuguese codes and was exported through
the environment of the latter, in all Latin American states. A significant influence
Canon law also influenced the formation of the legal system of Western states.
catholic. By "canonical law" two different bodies of rules must be understood, "law
divine" which, in the view of Catholic theologians, recognizes certain precepts, stemming from
Holy Scripture, and which have the character of legal norms and 'divine tradition.' The influence on
the influence that canon law had over Roman legal systems is represented by
The Council of Trent, held between 1546 and 1563 and during which it was established, among other things,
the prohibition of solo-consensual marriage, which was practiced based on the model of Roman law.
everything in Europe. Marriage could no longer be concluded by the free agreement of the parties, being
the intervention of the cleric who officiated it was necessary, as it was considered a mystery. Influence
The influence of canon law on civil law in the Romano-Germanic system has been,
thus, as can be easily noted, massive and essential. This influence is explained by
that Catholic doctrine has not dealt at all with marital regimes, and canon law does not
includes no provision regarding these, thus leaving the field open to inequalities and
inequalities that are encountered everywhere in this field in the laws of Western countries. More
above all, it is reproached to the Catholic Church the constant hostility manifested against
institution of divorce.

The canon law does not recognize this institution and, under its influence, the law of many countries
the Catholics did not adopt it for many years or even refused it in the Bavarian Code of 1756.
the Prussian code of 1794, like the civil codes adopted in the 19th century, such as the code
French or Austrian code, German code from 1900 or Swiss codes from 1881, 1907 and
1911. 20 presents. Thus are Italy, Spain, Ireland, Quebec, Argentina, Paraguay, Brazil.
Chile, Colombia, etc. As a substitute for divorce, the legislation of Catholic countries has introduced, under
the same canonical influence, the institution of "separation of body", which in some countries replaces
complete divorce, while in others it acts in parallel with it. The reception of canon law
Catholicism primarily occurred along two paths. In some countries, such as in the Catholic regions of
In Germany, canon law was received, together with Roman law, without an act of
formal introduction, as if it were one and the same body of rules. in other countries however,
The reception took place under the concordats concluded by the Vatican with the respective states.
It can be noted, regardless of the path that has been followed, that Catholic canon law has
exercise an important influence on the law in Western countries, contributing to
the configuration of the great Roman-Germanic system. Unlike Catholic law, law
the canon Protestant played a considerably lesser role in the formation process of this
another legal system.

The Orthodox canon law also had a certain influence. We will mention that this, towards
Unlike Catholic law, it has always recognized the institution of divorce and rejected it.
the separation of bodies. A characteristic of Orthodox dogma is, for example, the prohibition of the one of
the fourth marriage finding its origin in a dispute, which entered the annals of the church, between
the Byzantine emperor and the patriarch of Constantinople, who refused to grant him the right of
he remarried after divorcing three times; the rule existed in the law of all countries
orthodox and still subsist in modern Greek law. Moreover, the latter represents
the legal system most strongly influenced by Orthodox theology. In Greek law, by
for example, marriage is concluded only in front of an Orthodox priest, being forbidden for any Greek
it is orthodox to marry a person of another religion. Canon law emphasizes,
thus, being one of the important factors that contributed to the shaping of the great system
of Roman-Germanic law. The consolidation of the great Roman-Germanic system was achieved as follows
over the course of many centuries, during which the welding of certain normative funds was perfected
different.

Roman law, the 'barbarian' customs, and canon law, but especially the former have
represented in this process the most significant and richest sources of principles and of
Standards. However, the resulting system cannot be reduced to any of these. The synthesis that has been
produced a new, modern right that was able to free itself from all
the medieval rules that would have represented obstacles in the way of societal development. However, in general lines
essential, the Romano-Germanic legal system was formed from sometimes parallel evolution,
Alternative convergence of the French and German systems. The French legal system History of law.
France divides into three periods. The first, called 'ancien droit', is
it stretches from the origin to the specific date of June 17, 1789, when the Assembly was formed
Constituent. The second, which is the period of the French Revolution, is known as
the name 'intermediate law' and lasts until the beginning of the codification period
Napoleonic, and the third one began during the Empire and continues until
present. By 'ancien droit' (old law) is understood the numerous customs in force
over the entire territory of present-day France. This territory was, as I mentioned earlier,
divided into two by a well-established demarcation line.

The northeastern part of France represented that "pays de droit écrit", where predominated
the institutions of Roman law, while the southwest was the land of unwritten law,
that is the custom. However, this demarcation was not as categorical as it might seem.
Thus, in the parts of written law, "land that is governed by written law" had a
significant place, just as in "terrae consuetudinariae" a tradition of law has persisted
Roman law was generally considered to be a supplementary law. 22 Regardless
but whether the provinces were part of the 'countries of written law' or not, Roman law was
studied in all medieval universities. The contradictions between customs, the character
fragmented and incomplete of some of them, the instability that characterized them, have determined
the necessity of their drafting. Through drafting, the custom was encompassed at a certain moment of
in its evolution, imperfections were removed, contradictions avoided, and gaps, sometimes
supplements. Thus, the major collections of customs, called "customary laws", emerged among which
we recall the 'Great Customary of Normandy' from the 14th century or 'very old custom'
from Brittany" (the very old custom of Brittany) from the 14th century. In the year 1454,
King Charles VII issued the famous ordinance from Montil les Tours, by which he established
the obligation to draft the customs. Based on it, a laborious activity began, which lasted
more than a century and resulted in the stabilization of customs.

The resulting works were very different in both scope and value. Apart from the law
Generally, decrees, declarations, patent letters, etc., known must be reported.
together under the name of ordinances, normative acts emanating from royal power, which
they found application throughout the kingdom. Among these ordinances, some can be mentioned which through
their complete and systematic character represents true codes. Thus, they are the Ordinance
on the commerce of Versailles in 1673, which represented the core of the commercial code
since 1807, or the Ordinance on the Navy from Fontainebleau in 1861, from which,
Similarly, important parts can be found in the French commercial code. We mention, in the same
time, in civil matters, the well-known ordinances of Daguesseau, in the fourth decade and
the fifth of the eighteenth century, which, in turn, were largely adopted by
the civil code of 1804. The period of 'ancien droit' represented an era of fragmentation
customary, full of contradictions, from one custom to another, however mitigated by the slow process in writing of
of customs, which led to the development of legislative monuments that were to 23 become
for centuries based on the great codifications in the field of private law that were realized under
the reign of Napoleon. The French Revolution provided the substance of profound transformations
legislative events that took place during the so-called 'intermediate law'. The meaning of the numerous
laws adopted after June 17, 1789, when the General Estates transformed into
The Constituent Assembly consisted of breaking the mechanism of the feudal state and creating
a mechanism specific to the modern one.

The most significant act, in terms of private law, voted by the Constituent Assembly was
the abolition of the feudal regime and the establishment of capitalist-type property relations that have
the format of the objects of decrees adopted in the years 1789 and 1790. Other decrees from the same
the period eliminated the vestiges of canon law, authorizing interest-bearing loans,
removing the inequality between heirs, granting equal shares of the inheritance to all
co-heirs of equal degree or establishing representation in succession matters in line
direct downward to infinity. There were a series of measures aimed at elimination
discriminations made by feudal succession law and especially the rule of primogeniture, which
ensures the transmission of titles and noble properties to the firstborn of the family. Four years
later, the National Convention continues down this path by voting in turn, a
series of decrees intended to eliminate the remnants of feudalism. A decree from 1795 established
a broad mortgage regime organizing mortgage advertising, regulating the mortgage on
itself etc.

All these regulatory acts introduced new, revolutionary elements, contributing to

shaping the legal framework conducive to the development of capitalist relations. The new elements, thus
they represented acquired goods, being later adopted by the civil code of 1804.
The history of the drafting and adoption of the civil code, which would ultimately bear his name.
Napoleon is particularly eloquent for understanding the way of forming the great
Roman-Germanic system. The development of the new civil code project began during
The Consulate, being entrusted to a commission, appointed by the Resolution of 24 Thermidor of the year
Eighth of the revolution (from August 12, 1799), of which: Fr. Tronchet, the president.
Court of Cassation, F. Bigot de Preameneu, the government commissioner at the same
Tribunal, J. Portalis, general commissioner at the Council of Maritime Assets and, as secretary,
Jacques de Maleville, member of the Court of Cassation. The commission was conducting its work under
under the leadership of Jean Jacques de Cambaceres, consul, and was overseen by Napoleon.
The project development took only four months.

He was subjected to debate in the State Council, which dedicated a number to this issue.
of 102 meetings. Of these, 57 were presided over by the First Consul himself, who thus how
highlighted the entire literature dedicated to this subject, participated actively in debates,
concerned not only with factual issues but also with legal matters. In fact, even today
Still, in the office of the vice president of the Council of State, the armchair in which he used to sit is preserved.
Napoleon during the debates. A witness of the proceedings, Thibaudeau, wrote about the way
in which the First Consul participated in the works, the following: "He spoke without difficulty, without
claims, with freedom and in the tone of a conversation that animatedly unfolds naturally as it
he
was not inferior to any member of the Council, sometimes even equaled the best
knowledgeable among them through his ease of understanding the problems, through the correctness of the ideas
and the strength of its reasoning.

He often surpassed his interlocutors through the turn of phrases, as well as through originality.
expressions.” The project was sent for comments to the courts and then subjected to discussions
in the State Council. Once it reached parliamentary debate, the bill was presented by
Portalis. He showed that the authors of the project sought to preserve, as much as possible, the customs and
the royal ordinances, giving up only 25 of those "whose spirit has disappeared in the face of another
spirit" and keeping those that "are related to the great changes that have occurred in
political order." "No - wrote Albert Esmein in this regard - the civil law of the Revolution does not
the tradition of the nation; on the contrary, he continues and completes it. It represents the flourishing
"the highest of them all". Nevertheless, the legislative bodies rejected the first chapter of
the project. Upset, the First Consul withdrew the project in order not to submit it again.
debate only after obtaining a reduction in the number of tribunes. By the end, the code has
adopted between the years 1803 and 1804, in the form of a number of 36 laws, which were
reunited in a single code on March 21, 1804 (.30 Ventose, year XII). It is not the place to
We undertake a detailed exposition of the regulations included in the civil code.

The contradictory reactions that this code has provoked are well known, after all, the most
a widely spread normative act, in force in the modern world. There are jurists who see in the code
a civil example of unprecedented legal logic, superior legislative technique, style
concise and with exceptional literary virtues. Napoleon himself asserted, on the island of Saint Helena:
My glory is not that of having won forty battles. What no one will
I sting, that which will live forever, is my civil code, it is the minutes of the Council of
The Civil Code is, undeniably, the legal expression of the victory of capitalist relations.
Removing the vestiges of the feudal order from the regime of movable and immovable property, from
successor reports, from family relationships, the new code constantly promoted the principles of
liberty, equality, and fraternity proclaimed by the French Revolution. Regarding property,
the code establishes the abolition of the feudal regime and the free movement of land. The code sets
based on private property and the principles of consensualism. A predominant place
this reservation, therefore, 26 of the right of property to which no less than is dedicated
1766 articles compared to 500 that reserve the rights of individuals.

The right of property, in the conception of the code, represents one of the attributes of personality.
the code thus reiterating the thesis from the 'Declaration of the Rights of Man and of the Citizen' which it
proclaimed: "Sacred and inviolable right, of which no one can be deprived except on the basis of a
"just and preliminary indemnities". In matters of succession, the code includes a series of provisions.
represents a certain return to revolutionary principles. Thus the code
restores the will of the head of the family who regains, to a considerable extent,
the right to dispose mortis causa of one's property, while maintaining the institution of the reserve
successor, which limited the right of disposal. In regulating family relations, the code
the legitimate family, depriving of rights the children born outside of marriage. He restored
"parental authority", justifying it according to Malleville's theses, on the idea of "conservation"
"of morals and maintaining public order". In the same spirit, consent was reintroduced.
parents for the marriage of children up to 25 years for boys and up to 21 years for girls
party. The married woman was legally incapable, needing
the husband's authorization to perform certain legal acts. The Code mentioned divorce, but it
considerably circumscribed the reasons for which it can be pronounced and reintroduced the institution
separation of body, which had been suppressed during the revolution. In the structure of the civil code, it
itself criticized, are included, after 6 preliminary articles regarding the effects and application
laws in general, three books, whose extent varies and which are divided into titles. The first
Among these books, titled 'About Persons', refers to the civil status of the person:
nationality, residence, marriage, divorce, minority.

The second book, the shortest, looks at 'Goods and the various modifications of
property." The most extensive is the third book, titled "Different ways of acquiring 27
of property", which includes not only ownership but also the acquisition and transfer of all
real rights, including also successions, donations and wills,
special contracts, privileges and mortgages, the statute of limitations. In the specialized literature from
France poses a long-standing dispute between passionate admirers of code and supporters of a
unreserved conservatism, to the specialists who request not only substantial modification
of the code from 1897, but even the elaboration of a new one. Moreover, since the year 1904, the Ministry
The Justice has formed a commission tasked with drafting a code project, a ship that has not
however, managed to fulfill their tasks. In terms of obligations, the project must also be mentioned.
Franco-Italian Code of Obligations, from 1926, a remarkable work, which however was not adopted
In neither of the two countries. In 1945, a commission for the reform of the civil code was established.
who drafted a preliminary project of the first two books of the code. Following the observations
The draft was not adopted, however. The evolution of French civil legislation is
characterized thoroughly by Professor Gerard Cornu in his Civil Law Treatise. Year 1964.
this represents a significant date in the history of civil legislation in France, marking
the beginning of an era of radical revision of civil law.

In less than 15 years, French civil law has been fundamentally renewed. Of course, these
reforms do not extend over the entire Civil Code, many chapters remaining untouched, such as
the purpose of obligations. However, there were other areas of the Code that were almost entirely renewed,
especially the regulation of family relations. Thus, from 1964 to 1968, a number of nine
fundamental laws, following the same line of thinking, have focused on matters of the utmost
more interest. In 1964 the first intervention regarding guardianship reform, in 1965 the reform of regimes
marriage, in 1968 the law on the protection of incapacitated adults, including a wide-ranging
reform of civil incapacities, in 1970 the reform of family law, with the introduction of 28
the institution of 'parental authority', intended to replace the old 'parental power', one
of the most criticized institutions of the Code, in 1972 the reform of filiation, in 1975 the reform
divorce, in 1977 the reform of the institution of absence, in 1978 the reform of indivision. These acts
comprehensive normative, the French professor adds what he calls
its complements: in 1966 and 1976 the adoption reform, in 1971 a reform in the field
successoral reduction of donations, in 1974 the reform of the legal age of majority.
 The result of this process that lasted 14 years was an almost complete renewal of
regulation of family relations. However, this renewal occurred significantly in
the interior of the Civil Code, and not outside it. However, one should not believe that the modifications
legislative changes have occurred only in the field of family relations. Other matters of the Code and, in
special, the contracts were also affected by serious changes. I am of
note, in this regard, a law from 1967 on certain methods of real estate sale, another from
1971, regarding real estate sale contracts and various construction operations and another
law from 1975 regarding the reform of the penal clause. A law from 1978 concerning the reform
the responsibility of the builder and, in 1983, the reform of Title IX of Book Three of the Civil Code in
the subject of civil societies. Formulating an overall assessment of this legislative movement.
These reforms foreshadow a new type of civil legislation, marking what was called
the author of "the peaceful revolution of contemporary civil law", having a direct opening and
on other branches of law. With this, he writes, French legislation enters its era
sociological, to such an extent that the solutions adopted are the consequences of prior sociological studies.
A factor that contributed to the evolution of civil law, after the code, was jurisprudence.

Starting from the second half of the 19th century, jurisprudence has contributed substantially
the outlining of certain matters, such as liability for the act, external paternity
of marriage, the regime of movable dowry, causal 29 impulsive and determinant etc. Outside the code
civil, the other two large codifications mark the evolution of French private law:
the first is the commercial code, the second is the civil procedure code. It is observed that
that neither Roman law nor canonical law contains provisions regarding trade.
The main institutions of commercial law were formed during the Middle Ages, especially
in the fortress cities on the shores of the Mediterranean Sea and in the Hanseatic cities, where merchants
they obtained, in the form of specific statutes, a derogatory regime from common law. In
essence, the entire commercial law is nothing more than a set of provisions that
derogate from civil law, for the purpose of ensuring the publicity and security of relations
commercial and the constant promotion of trade interests. As they noted,
Word for word, Rodiere and Houin, commercial law initially had, just like Roman law,
otherwise, an international character, being identical in all the shopping malls of Europe. It
it made no distinction between the rights of one country or another, but between the rights of towns (jus
of the world), on one hand, and the right of the sea (jus maris), on the other.

The process of diversifying commercial law began in the 16th century and since then
dates and French commercial law. A significant role in the crystallization and definition of principles
and the institutions of commercial law had, as we have shown, Colbert's ordinances,
among which is the commerce ordinance from Versailles in 1673, whose main author was a
merchant named Savary - the structure of this ordinance was reiterated by the commercial code
from 1807, as well as the Ordinance on the Navy, from Fontainbleau in 1781, from which parts
the entire ones have been taken in the same commercial code, are the most significant. The preparation
The commercial code began in the year 1801 and was entrusted to a commission composed of 6
specialist. Subject to the approval of the Courts and tribunals, like the civil code, the project was debated
of the State Council only in 1806. The Code is divided into four books. The first one, entitled
"About trade in general", includes, besides the general provisions regarding
merchants, certain special materials: societies, exchanges, brokers, and couriers,
commission agents, commercial sale, letter of credit and promissory note.

The second book entirely addresses maritime law, the third includes
the regulation of bankruptcy and insolvency, and the fourth, and last, refers to jurisdiction
commercial. Modern commercial law literature notes the outdated character of
this code, the fact that, being copied from the decrees issued in the 18th century, it has been
unused right from the beginning. Therefore, the changes made to the code were numerous and
substantial. Thus, for example, the subject of commercial companies has been regulated by a
a law from 1966. Since the year 1919, the commercial register had been introduced; which the code did not
foresee, a register whose regulations were then profoundly reformed (in 1953). The law
Change care, also missing from the code, was introduced in 1935 as a result of unification.
international legislation, intervened in this matter, etc. Regarding the preparation
civil procedure code, it lasted almost a year, the drafting committee having as
draft of a royal ordinance from 1667. The code was voted by parliament on April 14 and 15, 1806
and came into force on January 1, 1807. The doctrine severely assesses the quality of the code of
civil procedure and welcomes parliamentary initiatives that have requested the drafting of a new code.

It is worth noting that the fruit of these initiatives is a substantial reform achieved in this
direction, in the year 1971. Through these three codes of private law: civil, commercial and
The civil procedure of the French private law legal system is outlined in its lines.
define torii. French codes were introduced by the force of arms in subjected territories.
the empire, such as Belgium, the Grand Duchy of Luxembourg, part of Switzerland, from Germany and in
Italy, following the peace of Amiens (1802) or in other countries, 31 satellites of this
Westphalia, Hanover, the Grand Duchy of Baden, of Frankfurt, of Nassau, the Grand Duchy of
Warsaw, the Kingdom of Naples or Holland. French law was retained in Belgium and
Luxembourg, where the codes adopted after the French model are still in force today.
similarly, it remained in force for a long time in the Rhine states (until 1900), in Switzerland
Romania (until 1907) or in Poland (until the establishment of the socialist regime).

In Baden, it was almost unchanged in the local codification. Aside from this way of
it is enforced in the occupied territories, French legislation has been adopted in some countries only
due to its undeniable qualities, the great influence it had gained in these countries
French culture, as well as the tradition of Roman law. This happened in the years 1864-1865.
in Romania, in 1867 in Portugal, in 1889 in Spain and in 1883 in Egypt. Towards the end
the 19th century marks the beginning of a new wave of reception, the French code spreading through
the realm of law of many of these countries, in vast extra-European territories. With
with the exception of Romania and Egypt, all the countries mentioned were holders of vast empires.
colonial or still held a strong cultural influence in states that had been subjected
their influence and had gained their independence. Thus, the Italian civil code was received in
Samos, Malta, Venezuela and even - partially, in the form of laws - in Bulgaria. The Spanish code has
famous recipes such as in Cuba, Puerto Rico, the Philippines, Panama, and Honduras and with certain
changes in Haiti (the former French possession), Bolivia and the Dominican Republic.

He also strongly influenced the Chilean, Colombian, Peruvian, Argentine codes.

the care, in turn, has been received in Paraguay -, Mexican and, partly, in the Brazilian one. In
outside of this reception, we will name the degrees 2 and 3 - we also signal another reception - of
grade 1 suddenly - in two territories in America: Louisiana and Quebec, these
representing the only enclaves of Romano-Germanic law in an Anglo-Saxon world. 32 The
the second wave of direct reception of French law occurred in the first half of
our century in the French colonies. Introduced as a result of the affiliation of these territories to
the French state, French codes have remained in force in many Asian and African countries
emerged after the acquisition of independence of the former colonies. Thus, things happened in
Maghreb, in Indochina, in Senegal, Togo, Madagascar Republic, etc. The new regimes have maintained
the French codes, as they represented a relatively modern legislation, had been applied in
the urban environment for a relatively long time and because the new independent states lacked
often highly qualified lawyers, to whom the task of drafting a new
legislations. The spread of French law in the world In Belgium, Luxembourg, and the Netherlands In Belgium,
The French codes were introduced during the occupation of this country by his armies.
Napoleon.

In 1803 and 1804, when the various titles of the French code were voted on, Belgium was
incorporated into French territory as a result of a decree of the National Convention of 9
Vendemiaire, Year IV A decision of the Directorate, given a year later, established in
Belgium the obligation of all laws of the Republic. The French codes have remained in force and
after Napoleon's defeat, during the Dutch domination, which began in 1814, as well as
after that, from 1830, when Belgium proclaimed its independence. The two codes had
in this time a different fate. The civil code has not undergone significant changes in its wording. It is
It is true that, today, French civil law differs, in certain respects, considerably from that
This process was not carried out through legislative means, but through a significant evolution.
jurisprudential. One of the first institutions created by the new independent state was the Court of
Cassation. Since its establishment, Belgian judicial practice has followed different paths of
the French case, a circumstance that resulted, over time, in the accumulation of 33
considerably different jurisprudence.

The commercial code had a somewhat different fate. The changes it underwent had
radical transformation. By maintaining only the initial framework, the legislator has substituted books and titles.
new original laws, which are numbered independently, some of which have survived
some of the texts of the French code. However, these modifications affected form more than
the content of the codes actually representing new drafts, clearly superior, of the same
matters. Luxembourg, which is one of the smallest states in Europe, offers us
the image of a country where French law has been observed with even greater rigor than
in the country of origin. At the time of adopting the French codes, the Grand Duchy was part of
Holland, which had been conquered by the French armies, so that both French codes of
private law has continued to be applicable up to the present day.

Luxembourg made fewer changes to the original text and much later than it did.
France itself. One can thus give the example of real estate transcription, which, not existing in the text
The initial code was introduced in France in 1855, but it was not accepted in Luxembourg.
than fifty years later. The history of the reception of French law in the Netherlands is
different, thus before the revolution, the Netherlands formed the Republic of the United Provinces, each
from these seven provinces had its own customary law while Roman law formed
a common law, applicable in all provinces. The Netherlands adopted a 'Napoleonic Code' in 1809.
arranged for the Kingdom of the Netherlands,” a variant of the French Code, which however did not last long
a little time, being replaced by French legislation. The introduction of the French civil code took place
first in the southern provinces that had been ceded to the French Empire in 1810. At
March 1, 1812, the code came into force throughout the territory of the Netherlands, at the moment when
The Dutch kingdom of Louis Bonaparte was annexed to France. In the year 1813 it was
composed a commission tasked with revising the Napoleonic Code, which remained in force after
the fall of the empire. The work of this commission, which encountered opposition from the Belgian population,
which country had been annexed to the Netherlands since 1815 continued until 1829, when the new code
The civil has been enacted.

The Belgian Revolution of 1830, which resulted in the acquisition of independence for this country.
countries, however, prevented the implementation of the new code. Only in 1838 did the Dutch civil code gain
final form and came into force. Essentially, the Dutch code does not differ from the French one.
However, in form there are a number of differences, the most significant of which concerns itself
his general plan. Thus, the Dutch code is divided into four books: about persons,
about goods, about obligations and about evidence and prescriptions. Unlike the code
Therefore, in France, matrimonial regimes, including the marriage contract, are included in
the first book, while the second book contains only the successions, wills, and mortgage.
Significant differences compared to the French model can be found regarding the condition of children, the regime
spouses, possessions, real and movable property transfers, privileges and mortgages, etc. In the year
In 1947, work began on the development of a new civil code project. Its adoption was
However, it was not fully submitted to parliament, each chapter of the code being subject to adoption.
by a separate law, as soon as it was considered completed. It is worth noting that
The Dutch project diverges in many ways from the French model, evolving especially
under the influence of the German civil code (B.G.B.) and Dutch case law. Among the novelties
the most significant aspects brought by the project include that it also covers the matter of law
commercial, rendering unnecessary, like the Italian code, the existence of a commercial code.

In Italy, Spain, and Portugal, in the great Roman-Germanic system, Italian law occupies a
leading place. This is not only because Roman law itself was born on the soil of
today of Italy, but also because modern Italian law presents us with a legal system of
private law that, while preserving the fundamental principles of the entire Roman-German family,
it shows remarkable originality. It is worth noting that in the history of modern Italian private law
It is possible to easily distinguish two periods: the first is the period of a strong influence
the second is characterized by a tendency to move away from
this influence. The period 1804—1809 was marked by the adoption of the Napoleonic Code
in a large number of Italian states: Piedmont, Genoa, Lombardy, Parma, Modena,
Venice, Lucca, Tuscany, Papal States, Naples, examples of faithful adoption of codes
French. The only Italian states that opposed this trend were Sicily and Sardinia.
After the fall of the empire, all these states that rushed to adopt the French code have
hurried to revoke it.

Only Luca's ducatus has kept the code in force. As a result of this removal almost
unanimously, an unprecedented legislative diversity has been created in Italian territory. Lombardy and
Venice, having come under Austrian rule, adopted the Austrian code, a significant
legislative monument. Tuscany and the Papal State have returned, due to their religious orientation, to
Roman law and canon law, while a few other states, such as the Kingdom of the Two Sicilies,
Parma, Sardinia, Piedmont or Modena have adopted their own codes, which were inspired by
substantial from the abrogated French code. The political unification of the country required unification
legislative, which was achieved through the adoption of a unique civil code.

On January 1, 1866, the Italian civil code came into force, which was itself a variant of
The Napoleon Code, including some modifications. Regarding commercial legislation,
the introduction of the commercial code during the Napoleonic domination must be mentioned
French, a code that was removed in 1882, being replaced by another code developed by the jurists
Italians. For us, he represents a particular importance, as in the year 1887 he was
received in our country, becoming the Romanian commercial code, still in force today. The one of
The second stage takes place under the sign of a departure from the French model and the search for a
originalities that sometimes resulted in remarkable successes, but that other times suffered failures
which Italian jurists themselves have recorded as such. The movement to revise the civil code has
starting from 1938, when the first part of a new regulation was adopted, between the years
In 1939 and 1941, during a fascist regime, five other books of the code were adopted, and in 1942
It was decided that all books from I to VI, to which a law concerning strength was to be added
legal of the so-called "Labor Charter", then the text itself of this charter, as well as a series
regulations concerning laws in general, to together form a civil code, which shall enter into
in effect on April 21, 1942. By the way it was conceived, as well as through a series of
the expressions used, the code from 1942 clearly expressed fascist ideology.

The "Labor Charter" represented a reflection of the corporatist concepts promoted by

the regime of Mussolini. Moreover, those elements remained external to the code itself, a fact
which explains why they could be easily eliminated after liberation. The greatest innovation
the significant technical-legislative aspect presented by the 1942 code is the inclusion
commercial law in the civil code. The inclusion of commercial law provisions in the civil code has
was not achieved through the mechanical juxtaposition of entire chapters from the old commercial code to
the corresponding chapters of the civil code, but through the melting, if we can put it that way, of
regulations, as a sign that it was aimed that, after each provision of civil law which
It is, obviously, a common law rule that the provisions of 37 of law should be inserted.
commercial care represents, most often, exceptions to this rule. The second
an unusual element that the code from 1942 offers is the inclusion of the regulation of relations
work.

Thus, one of the books of the code - the fifth one - entitled 'On Work' regulates
the problems of the labor regime, playing in this way the role of a true labor code. Although in
the substance of the regulation, the code does not deviate too much from the model represented by
the French civil and commercial codes, it represents an attempt to modernize the technique
legislation that can be viewed with interest. The specialized literature emphasizes the qualities
techniques, the style of expression and the complete character of the regulations. After the collapse
the Mussolini regime, the code was subjected to a revision operation, the area of work, as well as
all other provisions of fascist inspiration or that reflected corporatist concepts
find abrogate. After the war, the civil legislation underwent a number of modifications of which more
Significant are those concerning family relationships. Thus, we note a law from 1967 regarding
on adoptions, the law of December 1, 1970 regarding the dissolution of marriage and two laws from 1975
who have introduced essential transformations in family law.

The ensemble of these modifications amounts to an almost complete renewal of Italian law.
family. Italy has thus remained, due to the strong influence of Catholic circles, one of
the last states in the world where marriage was indissoluble. It is easy to understand, in this
the context, the emotion and the social turmoil caused by the adoption on December 1, 1970 of
the Fortuna-Bastini law, which introduced divorce. Hostile Catholic circles against divorce have not
disarmed in the face of this situation, managing to invoke - an unprecedented thing - the organization of a
national referendum. Held on May 12 and 13, 1974, the referendum was a success
because, with 60% of the votes, supporters of divorce. Only from this moment on can one
it should be considered that the institution of divorce was established in Italian law. However, it must be 38 that
we note that - supreme prudence - the law from 1975 avoids the term divorce, using
the euphemism of 'dissolution of marriage' (scioglimento del matrimonio). But the reform
family law, introduced by the law of 1975, is not limited to regulating
the divorce, affecting, as I have shown, the matter of family relations in various aspects.
In Spain, the process of receiving the Napoleonic code faced considerable delays.
compared to other European countries. This delay was so great that some of
The colonies, Chile, for example, adopted civil codes before Spain itself.

The causes must be sought in the circumstances in which the reconquest took place, which led to
the political unity of Spain, but also the fact that several languages were spoken on the Iberian Peninsula
languages, until Castilian was established as the official and literary language. Under these conditions, the right
the customary law of each province, termed in this country 'foral law' - from those fueros
what represents true codifications of custom - has demonstrated remarkable vigor,
leading to a delay in codification. Starting from the 7th century, customary law has
was coded. It is not, of course, about coding in the modern sense of the word, but,
rather than the surprise in writing the custom, an operation that defines it better and
stabilize. The beginning was made by the codification called Fuero Jusgo, which was applied
for five centuries, more precisely until the twelfth century, when two more were made
codifications:

Royal Fuero and The Seven Partitions. The civil code adopted in 1889 did not achieve unity.
the country's legislation. This is because, on one hand, in some provinces it remains in force
forest right, and on the other hand because the civil code, where it applies, has a character
superlative, find, always removed when the legal right included different provisions. This
the primacy of custom over law, characteristic of Spanish law, places it in a position
particular within the great Romano-Germanic system and attests to the exceptional strength of which it has
joy in Spain customary law.39 The civil code, in fact, although inspired largely
from French law, borrows a number of regulations from customary law, as well as from
the Italian and Portuguese codes. The code is divided into four books: the first refers to people,
the second regarding goods and property, the third includes the different ways of
acquisition of property and, finally, the fourth concerns obligations and contracts.
Among the provisions that find their origin in Spanish legal traditions, we mention
establishing the age of legal majority at 23 years, adopting it as a form in marriage matters,
an original combination between elements of civil law and those of canon law,
the non-existence in the essential version of the code, of the divorce, the matrimonial regime of the community
of goods, reduced to purchases, and, finally, the establishment of a typically customary institution at
improvement - obtaining adulthood through legitimization. An important revision of the civil code has taken place
in the years 1931 and 1932, during the republican regime, based on the Constitution adopted in
In 1931, the composition of civil courts was established for certain categories of litigation.
previously were under the jurisdiction of canon courts, such as separation from bed or
nullity of marriage.

In 1932, divorce was introduced for the first time in Spanish legislation, and the rulings
Judicial rulings previously pronounced regarding perpetual separation of persons have been
The assimilation of divorce. After the defeat of the republican regime, all these bold forms
they were removed, the initial form of the civil code being reinstated. It was reverted together with
this and under the divorce prohibition regime. The Spanish Commercial Code dates back to the year
1829 and is deeply inspired, in turn, by the French commercial code. A series of laws
subsequences were introduced into the code in 1885, when a revision took place
radical enough that from this date one can speak of a new commercial code. Although
influenced so strongly by French law, Spanish commercial law also knows and
original domains, such as maritime law, which finds its origin in the Ordinance of
the Bilbao of 1737, considered one of the most successful regulatory acts in the matter
commercial aspects of time. The structure of the commercial code differs largely not only from that
of the French code, but also of the German and Italian ones. Therefore, the chapters concerning should be highlighted
bank operations, stock exchanges, markets and fairs, interesting creations of the Spanish legislator.
The Portuguese code, among all civil codes adopted on the European continent under
The influence of French law provokes the most heated discussions regarding its originality.
If regarding the form, the plan of matter, the Portuguese code deviated considerably from
the French model, taking on rather the appearance of a civil law treaty than a
a law, if we can indeed find certain provisions within it that have their own
the origin in the old Alfonsine and Philippine ordinances (after the names of the kings who issued them),
dating from the 15th and 16th centuries, it is no less true that the substance of the most
many parts of the provisions of the code were borrowed from the Napoleonic code.

Many of the articles of the code did not contain actual legal norms, but only had
the purpose of granting legal authority to certain theses of the author. From here, its aspect
doctrinal, care, indisputable, gave it a specific appearance. Among the unprecedented provisions of
this code, which has been established in Portuguese law, we note: a) the establishment of a 'council
of guardianship, composed of the district judge and their substitutes, a court to which
can appeal against the decisions of the family council; b) the transcript of possession
mobile; c) the organization of an original and complex land registry system; d) the establishment
a competence of the family council in matters of separation of persons or assets; e)
the recognition of the existence of a family society among brothers and sisters or between father, mother and
children; f) the legality of permanent emphyteusis (called emprazamento); g) recognition
the validity of the will only in the case of the participation of five witnesses in its drafting; h)
limitation of liability for 41 the debts of the estate to the value of its assets, etc.
With all these characteristic elements, the Portuguese code did not deviate, in the great
the majority of normative provisions, from the French model, which is why its classification
is fully justified in the great Roman-Germanic system.

On June 1, 1967, a new civil code came into force. Having the same monumental proportions
as well as its predecessor - the new code shows no less than 233 articles, if not in
content at least in form, a certain departure from the 1967 code and at the same time a
similar to the other legislations of the great Roman-Germanic system, more precisely to the code
German, on the one hand, and French, on the other. The influence of the German code is found in
the existence of a general part, dealing in a first title with law, interpretation and
its application, and in a second, about legal relations, under which name it is
regulates the matters of persons, goods, facts, and legal acts and about
"the exercise of guardianship of rights." In a second book, it includes the law of obligations, for
then, to be addressed the matter of special contracts, property law, the law of
property, usufruct, use and habitation, emphyteusis, surface, predial servitudes. The book
the following concerns family law (marriage, parentage, adoption, maintenance obligation). The Code
ends with a book regarding inheritance law. After the "red carnation" Revolution, which has
overturned the Salazarist regime introducing a Western-type democracy, Portugal has
known fundamental transformations in all areas of political life. The Constitution of 1976 has
these transformations and provided the basis for a significant revision of the legislation
order and first, of the civil one. Thus, in November 1977, a decree was adopted-
law that substantially revised the Civil Code.

A new regulation regarding divorce has been introduced. The law allows for divorce by
mutual consent or for specific reasons. These 42 are violations
of marital rights or the factual separation of spouses, in which the law distinguishes three reasons
divorce: a) de facto separation of more than six years; b) absence without any news about the spouse,
at least four years; c) the illness, which lasted at least six years. The significant changes made
In the year 1977, the Portuguese Civil Code attested to the opening towards progress and democracy that has
took place in this country. The first Portuguese Commercial Code was adopted in 1833 and is
debtor of Ferreira Borges, code inspired both by the French commercial code and by those
Italian and Spanish, in what they had as specific. Due to its excessive volume and
Of doctrinal character, the code, subjected to severe criticism, was repealed, being replaced in 1885.
with a new code, concise and modern, the result of serious comparative research. This code
it is still in force today, with a series of significant modifications and additions. Bulgarian law
Bulgarian law, like our law, has regained its place in the system where it found
the roots. It is, in this retrogressive process that is taking shape in all the Eastern European countries
emerged from Soviet domination, an original phenomenon that comparative law will have to
to study it in depth: that of eliminating a subsequent reception that had overlapped with a
original source (which, from a historical point of view, was itself the result of another reception.
previous festivities). Founded in the 7th century AD, the Bulgarian state did not last long.
the Ottoman pressure, falling under the domination of the Turkish empire.

Bulgaria's independence was obtained in 1878, following the Romanian-Russian-Turkish war;

in 1946 the People's Republic of Bulgaria was proclaimed, and a year later it was
the first totalitarian constitution of this country was adopted. The communist regime did not find in Bulgaria,
in the private field, a codified right. The subject of civil legal relations was regulated
through a series of laws inspired by French or Italian models, each embracing one of them
43 chapters that are usually found in civil codes. After the establishment of the regime
socialist, the old bourgeois legislation has been repealed, moving on to the elaboration of a
legislation corresponding to the new social relations. Thus, on July 23, 1949, it came into effect
law on persons and family. In the same year, a law was adopted on
successions, so that in 1950 a law regarding obligations and contracts could come into force,
In 1951 a property law, in 1968 a new family code, which, with the exception of
certain articles, repealed the law of 1949 and, finally, in 1970 an ordinance on
economic organizations, and in 1973 a law on citizens' property. The law on
the individual and the family, which we referred to above, was replaced in 1968 by a
a family code. In 1985, it was replaced by a new code, which however did not
different in its fundamental places from the previous one. The Bulgarian code represented an act
original and interesting norm. The subject that has undergone the most significant changes is,
without a doubt, that of matrimonial regimes. Another category of provisions that have raised
interest in the era, were those related to divorce. We encounter in the new Bulgarian code a conception
interesting about the foundation and ways of divorce. "Each of the spouses
can file for divorce when the marriage is "irreparably broken". It has been noted, from
similarly, some regulations from the chapter regarding filiation.

Denial of paternity could be made not only by the father but also by the mother.
provision that is encountered extremely rarely. Some regulations from the middle of the last century,
which had temporarily subsisted also in the first years of the last decade of the 20th century, when it
returned to the democratic society, they viewed the right to property (1933), obligations
contractual (1950) and successions (1949). It is interesting to note - precisely in order to
it can characterize this area as accurately as possible - that the law of obligations and contracts has a
greater scope 44 than its title suggests, including the regulation of certain institutions that,
typically, they are addressed in the general part of civil law, such as capacity,
the prescription, representation. For this reason, the law of obligations comes closest to
the idea of the Civil Code. In the current phase, the political changes in the neighboring country, the accession of Bulgaria to

The Council of Europe and in 2007 the European Union led to a significant transformation in
the legal system. Economic transformations towards democracy, equality, privatization
However, the economy marked the direction of Bulgaria's return to the broader system.
of Romano-Germanic law, taking into account current international standards.

Polish law The history of Polish law is as tumultuous as that of the country.
The partition of Poland among neighboring powers caused the territories occupied by Prussia to become
supposed of the Allgemeine Landrecht from 1794 and then, from 1900, the German Civil Code. In
the Duchy of Warsaw, established based on the Treaty of Tilsit in 1807 and falling within the orbit of interests
French was introduced - it is said that due to the express will of Napoleon, who had created
duchy - The French Civil Code. After the fall of the emperor and the liquidation of the Duchy of Warsaw,
The Napoleonic Code, however, remained in force under the title of the Civil Code of the Kingdom of Poland, formed
by virtue of the Treaty of Vienna of 1815, a code that has undergone numerous modifications since then.
The part of the Polish territories located in the east of the Polish kingdom, under Russian occupation, was
governed by the laws of the Tartar Russia (Collection of laws of the Russian Empire). In turn,
commercial law, introduced in Polish territories on the occasion of the partition of the country, was also
the foreign origin. Thus, the codes were applicable in different regions of Poland,
French, Austrian and German trade, as well as Russian commercial legislation. Although it has not been
a total unification was achieved, undoubtedly successes were obtained in this direction
important.

A code of obligations and a commercial code was adopted, as well as a series of laws on
I changed, of the law and intellectual property. The rest of civil law, such as the subjects
of persons, property, family, and successions, which were not the subject of the new regulations,
they remained to be governed by provincial law, inherited from the former occupying powers.
The explanation for this fragmentation is found by Jan Wasilikovski in the fact that the bourgeoisie was not
interested in the unification of civil legislation only to the extent that it facilitates the exchange of
goods. A codification or at least a reform in the other areas of civil law did not present
no interest. Immediately after the end of the war and the establishment of the communist-type regime
Legislative unification has also been carried out in Poland, along with the elimination of the old legislation.

This important legislative reform took place gradually, between August 1945 and
November 1946. Through a series of decrees, a unified regulation of entire sectors was implemented.
fields of social relationships, such as: individuals, marriage, family, guardianship, regimes
matrimonial, successions, assets, land register, and finally, they were adopted, also on
civil code, a series of general rules of civil law. However, the code of obligations
and the commercial code, adopted in the period between the two wars, has not been repealed.
The reform of 1945-1946 truly achieved the legislative unity of the country, but it was
far from leading to a harmonious regulatory system.

The validity of the two codes, as well as the fact that the new decrees did not reflect
The integral transformations occurring in the social infrastructure made new interventions necessary.
legislative. An important moment of this process was constituted by the adoption, in the year
1950, of a law on the general rules of civil law and the first family code. It has
then moved on to drafting some family code projects and civil code 46, which were widely
debated in public, in 1955 a draft civil code was rejected by the government, thus,
From 1957 to 1962, a new project was developed that, after a
a large public discussion, it was adopted and came into force on January 1, 1965. Shortly after
Previously, on February 25, 1964, the Family and Guardianship Code came into force. Among the provisions
a particular aspect of Polish law mentions a higher marriageable age than in
Eastern states: twenty-one years for men and eighteen years for women,
of course, with the possibility of a dispensation granted by the guardianship court for
distinct motives, from the age of eighteen for men and sixteen for women
women.

Another specific chapter of the Polish Code concerns marital regimes.

the family was modified by a law that came into force on March 1, 1976. The changes,
as it appeared to a Polish author, is explained by an increasing concern for
the problems of the family and its consolidation. Subjected to a public debate, the code from 1964 has
has generally been considered satisfactory, so there has been no move to repeal it, but only to
the amendment or completion of some of its provisions. During the same period, it is put
the problem of the autonomy of economic law, which has, almost in all Eastern European countries, been
concluded in Poland with the victory of the civil rights supporters, that is, of the authors who denied that
Economic law is an autonomous branch of law. The expression of this victory was constituted by
The civil code from 1964, which, satisfying the prevailing conception, included.
its regulation and the subject of contracts between state organizations. The return to
democracy of Poland and accession to the Council of Europe as well as accession to the Union
European in 2004 gave rise to unprecedented regulations, legal institutions
enrolling in this context. Evaluation test: 1. What are the three periods in history?
French law? 47 2. In which state was the adoption of the Napoleonic Code delayed and which ones?
What are the factors? 3. Which legal system has influenced Bulgarian law the most? But what about it?
polonaise?

MODULE 3 ROMANIAN LAW

It can be said that long before the reception of French legislation, our law
private law definitely fell within the domain of Roman-Germanic law, its origins being found in
classical Roman law and in ancient Dacian law. In his seminal study on
In the realm of our law, Andrei Rădulescu cites the interesting testimony of a traveler.
from the fifteenth century, Paul Giovio, who said: "For the Vlachs are not Romans"
The discipline of certain customs and laws prevails, but also the words of the Latin language.
were preserved." What astonished the Italian author, therefore, was not the fact that the Romanians
I guide according to the customs of Roman law, but by the fact that I speak a Neo-Latin language. The same
the idea can be found two centuries later in Dimitrie Cantemir who said in
Description of Moldavia: 'Dacia transformed into a Roman province was sown with Roman seed'
"and received from the Roman colonists and Roman laws." Many young people have studied over time.
in the Western countries, Roman law. Thus, the stolnik Constantin

Cantacuzino is the first Romanian about whom we have information that he studied law over
"hotare, a graduate of the University 49 in Pisa, one of the important centers of culture"
Roman law in Europe. Later, in the first half of the 19th century, the professors
Moroiu, Ferekide, Bărbătescu, Kogălniceanu had learned in France or Germany,
acquiring through their studies, besides a thorough legal culture, also the idea of Romanity
our right or as A. Rădulescu said in the work we referred to, they
they had acquired the consciousness that "Romanian law is Roman law, and for some, the last form
"the evolution, the transformation of Roman law." Research on the content of the law
customary, applicable for centuries in both Principalities and known abroad especially
under the name of 'jus Valachicum' I highlight the existence of a large number of elements
Roman. Thus, the family was organized almost like in Rome, the central institution being that of
paternal power, which granted the head of the family - the man - particularly extensive rights
over its members, going not as far as that jus vitae necessique - as in law
Roman - classic but, in any case, until disinheritance. As shown by the author we have
As mentioned, the influence of Roman law is felt in a series of institutions both in law
family, as well as from the civil law itself: adoption, emancipation, matrimonial regime,
property, usufruct, servitudes, successions etc. It would certainly be exaggerated to consider
"jus Valachicum" is a body of rules of exclusively Roman origin.
On the contrary, the originality of our customary law stems from its indigenous origin.
of its majority provisions, a self-governance that does not exclude the relatedness of the entire system -
as highlighted the works of the Balkan legal days of 1979 - rightfully so
customs from other countries of Southeast Europe. But, undeniably, Roman law has
it was received primarily in the Romanian principalities through the means of laws and manuals
rights that were applied as true laws, in other words, through the path of normative acts.
The law applicable in the early days was customary law, known as
"the habit of the land." 50 In Transylvania, unlike the other two principalities, such as
Following the Hungarian occupation, a foreign law began to be applied, which, however, was not
antagonistic in essence to the Romanian system. Even there, however, in certain regions, it remained
applicability of Valachicum law. Thus, in the Făgăraş area, the 'Statutes of the Country' were applicable.
Făgăraşului" (1608) which reflected the Romanian custom. From the 14th century we witness in
Moldova and Muntenia in a process of receiving Byzantine law, the applicable rules in
the two countries drawing inspiration from this and achieving a certain legislative unity. In 1335
we encounter thus the alphabetical phrase of Matthew Vlastares which was applied during his time
Alexandru cel Bun, then the Basilicas, also known as the 'Royal Books',
The Institutes of Teofil and the Hexabiblos (six books) attributed to Harmenopulos (1345).

These law manuals often represented abbreviated collections of vast works.

Although they were written in Greek - the lingua franca of the time in that area - they conveyed
the principles of Roman law. These Byzantine rules or manuals were joined by
the 17th century three Romanian rules: 'The Romanian Book of Learning' (1645).
"The Rules of Eustratius" (1632) in Moldova and "The Correction of the Law", dating from 1632 in the Country
Romanian. O. Sachelarie points out, regarding that time, an original situation that
we will only encounter it in entirely different parts of the world in the common-law system: the coexistence of
three normative systems applicable in parallel. The first of these is customary law,
which was not eliminated by the introduction of the rules, the second is - obviously - written law,
represented by these rules and the third is the 'princely right' represented by the charters
domneşti. If the latter had, especially, a limited applicability, or even
individual and - we believe it can be said - often had a derogatory character from
the written law, among the other two normative systems, the delimitation of the scope of application does not
it is easy to do, for it is obvious that many rules overlapped, both
part of the category of legal systems with universal vocation.

We do not know any other criterion than the one mentioned by the cited author: customary law applies in
the 'simpler' causes, and the law written in the 'more complicated' ones. It is worth mentioning the
four successive projects - from 1765, 1766, 1775, and 1777 - of a general legal code
the statute of M. Fotino, then the Legal Code adopted in 1780 and especially the Legislation
Caragea, adopted in 1818, a particularly important regulation that together with the Code
Calimachi in Moldova, inspired by the Austrian Civil Code of 1811, were the normative acts.
the most significant ones that were applied in the Principalities until the adoption of the Civil Code. They are of
note, also here the two Organic Regulations - 1831 in the Romanian Country and
1832 in Moldova - which gave the Principalities an institutional structure inspired by law
French. Even before the great codifications, the law of the two principalities had a substratum.
Romanistic pronounced.

Moreover, the Byzantine law, which had been extensively received, was considered rather than Roman law in view of
the different authors of the rules. Austrian law also represented a legislation
predominantly Roman, as the Austrian Civil Code which inspired the Calimach Code
represents one of the most important Roman law codifications. The year 1838 can be considered
It marks the true beginning of the era of introducing French legislation in the Romanian Principalities.
In 1830, the code was translated into Romanian and adopted as national law in Wallachia.
French commercial, because in 1852, under the Stirbey Principalities, the Penal Code was adopted.
Napoleonic. By the royal decree of July 11, 1864, the State Council, recently created by
Prince Alexandru Ioan Cuza, following a similar French model, which later would become
transformed into the Legislative Council, was tasked with drafting a project for the Civil Code,
having the directive to follow the model of the French Code and the amendments made to it through
The Italian civil code of 1865. It must be shown that the draft Code was preceded by
the adoption of a series of partial laws, inspired by France, between 1831 and 1846, in both
During the principate, partial laws of French inspiration were adopted. Between 1831 and 1864 in
Both principalities have enacted laws regarding guardianship, emancipation, protemisis, etc., evidently
inspired by French law. In 1840, a law was adopted in Moldova regarding organization
tutelage, translated from the French Code, with minor adaptations, a law that was subsequently adopted
the integral part of the Civil Code in 1861. It is followed by the adoption in 1810 of the Code
French merchant in the Romanian Land.

It is interesting that in Moldova, although it has not been officially adopted as law, it has been translated.
in Romanian and applied in judicial practice. It is a situation of particular relevance for
comparative law, the reception taking place here directly and spontaneously. The drafting of the project
The Civil Code arrived at a time when all of Europe was grappling with the desire for
codifying. In most European countries, at this beginning of the century,
civil, commercial or criminal codes. The initiative for drafting the civil code project belonged to
of Prince Alexandru Ioan Cuza. By the royal decree of July 11, 1861, the Council of
Stal was tasked with developing a draft Civil Code, with the directive to follow the model
The French and Italian code. Six days later, the drafting committee was formed.
renowned jurists of the time: Dimitrie Roseti, Ludovic Stega, Costache Donescu - advisors
the Court of Cassation, Tudor Veisa - prosecutor, Gh. Cruţescu, Grigore Filiti and others.

The commission's work lasted 40 days. On January 15, 1864, it was submitted to the Assembly.
legislative the first 3 books of the Code. On November 26, 1864, the Code was sanctioned by
ruler, and on December 4, 1864 it was promulgated. The implementation took place on the 1st
December 1865. At the time of publication, the Code was named 'Civil Code Alexander John'.
but after [Link] abdicated, it was republished under the name of 'the Civil Code'
Romanian".9 Specialized literature has highlighted the tactical nature of the new legislation, which has
felt it for a long time as a stranger to local customs, promoting quite a few institutions
unknown until then to Romanian law. The code does not represent, of course, a simple
translation of French law. Its editors have also considered other sources, such as law
Belgian from 1851 regarding mortgages or the civil code project of Pissanelli, very
appreciated at that time. The drafting committee was able, on the other hand, to introduce a series
of innovations, and on the other hand to eliminate certain regulations from the French code. Among the innovations
Under Romanian law, we retain the obligation to pay ultra vires hereditatis of the burdens and
the debts of the succession (art. 774) and the recognition of the rights of universal legatees
on fruits (art. 898).

At the same time, certain institutions that had gained tradition in law were introduced into the code.
Romanian, as impediments to marriage arising from godparent or adoption relationships,
"animosity" of the man, as representing a cause for divorce for the woman, recognition
the right of inheritance of the poor widow. An important innovation is constituted by
the recognition of tradition as a means of acquiring property. At the same time, as
the Romanian legislator removed a series of institutions from the French code such as
separation of body, official guardianship, the institution of curator ventrix, the institution of the guardian
subrogation, civil death. One of the authors who dealt with this years ago, regarding what has
The new code since 1864 was C. G. Disseseu. Curious in the presentation of the issues raised.
the new code, which Professor Disseseu was creating, seems to us precisely the state of affairs that has
Regarding the emergence of the code. The spirit of legality promoted by the code seems to the author a 9 Emil
Cernea, Emil Molcuţ, The History of the Romanian State and Law, Publishing House and Press
"CHANCE", Bucharest, 1992, p. 202. 54 inconvenient, due to the lack of knowledge by the masses
The new legislation has allowed for the establishment of a true oligarchy of those who know the law.

The whole country was divided into two classes, he wrote: "those who suffered as a result of
brusque changes in legislation and those who took advantage of it; lawyers in particular, had become
the masters of the country, dividing themselves between the bar and the bench, the functioning of legal life becoming the
most important of the activities in Romania.” The code was harshly criticized from the positions of
for progressive forces, for the retrograde spirit it often manifests, for the fact that
it represents a code of the usurer, creditor, and banker. Numerous provisions
stark discrimination between men and women, between 'legitimate' children and 'illegitimate' ones,
between employers and employees. Following its French model, the Romanian code proclaimed that
property is the right that someone has to enjoy and dispose of a thing in a way
exclusive and absolute, but within the limits determined by law" (art. 480). Subject to the concept
according to which property reflects a relationship between the holder and the thing held, the code protects
the consistent positions of the owners, those who hire and the creditors. They were not, of course,
creations of the Romanian legislator, being taken from the French code.

The reductions of the regulation promoted by Al. I. Cuza should not overshadow the positive aspect of
which had the introduction of modern legislation, of a Western type. The establishment
the legislative foundations of the new state represented precisely one of the most aspects
significant aspects of modernization and the assertion of national sovereignty. Over the years,
The civil legislation adopted during Cuza's reign, especially the Civil Code, has undergone modifications.
significant. For example, we mention the Law from 1944 regarding the inheritance rights of the spouse
survivor. The codification of commercial law took place, as we have shown, with more
well two decades before the civil one. The first specific provisions regarding relations
Commercial regulations can be found in the Organic Regulation of Muntenia, which came into force in 1831.
This regulated the establishment of two commercial courts, in Bucharest and Craiova, and
defines commercial acts. The regulation also provided that 'the causes of trade will be
judged according to the commercial code of France, which will be translated into Romanian,
taking from it as much as will fit the state of the country." The execution of this provision takes place
Only in 1840, when the translation of the French commercial code is implemented in Muntenia.
since 1807, with the amendments it underwent after the adoption of the Regulation
organic. In Moldova, although a similar provision was included in the constitutional act,
the translation of the French code has not been made. For this reason, after the unification of the Principalities in
1864, the commercial code from.

Muntenia becomes the "Commercial Code of the Romanian Principalities." This code has remained
in force until September 1, 1887, when a new commercial code was adopted. The new
regulation took the Italian commercial code as its model, a codification of great prestige in
the legal life of the time, which results from the combination of the provisions of the French commercial code with
the German commercial law from where the regulation of the abstract act and the subject matter was taken
change it etc. and with the company law of Belgium. Like the Civil Code, this Code
The commercial was in effect in our country until 2011 when a series of its provisions
have been included in the new Civil Code. One of the significant moments in the formation of the system
the Romanian legal system was constituted by the extension of Romanian legislation to the provinces that were
the state of Romania after the First World War. National unity was not followed
immediate unification of legislation. Provinces previously under Austro-Hungarian domination
For more than two decades, they have applied the regulations introduced by the old rulers.
An explanation for this state of affairs could be found in the countless complications on
56 care, fatally, a replacement of private legislation generates in practice complications
care, for a long time, there has been an attempt to avoid, delaying the expansion of legislation
Romanian. This was done in successive stages aimed at a progressive expansion of the area.
territorial, regulated. Thus, on October 1, 1938, through law no. 478, there took place
the extension of Romanian legislation in Bukovina. Five years later, on June 22, 1943, through the law
No. 389, it was decided to extend it 'in Romania beyond the Carpathians,' a bizarre expression that was
intended to cover the tragic reality that followed the Dictate of Athens.

After the liberation of the occupied part of Transylvania, Romanian legislation was extended and
on the territories released by an amendment to law no. 389 through law no. 241 of 12
July 1947. After the war, the establishment of the communist regime managed to change for more
for four decades, the appearance of Romanian private law has been gradually transformed
in 'socialist law'. The civil code of 1864 remained in force, but affected however
of limitations until the year 2011. The first of them was the detachment of the regulation of relationships from
family of the Civil Code, created in 1954 by the adoption of the Family Code which remained in
valid until 2010, a legislative technique operation that was given meaning
the consecration of a new branch of law distinct from that of civil law. Enterprises of
while carrying out a planned activity, they left the scope of commercial law.
the relationships between them being regulated by a special legislation, which was baptized in
the same mentality of the autonomization of certain branches of law, "economic law". Alongside
this included a "business right" encompassing regulations regarding organization
and the operation of state enterprises. The Code of Civil Procedure has also undergone serious
changes starting from promoting the active role of the court, from adopting the dual degree
of jurisdiction and of extraordinary appeal, today appeal for annulment, a new Code of procedure
57 will come into force this year.

On May 24, 2011, a new Civil Code was adopted by the Parliament of Romania.
which came into effect on October 1 of the same year and promotes the monistic conception of
regulation of property and non-property relations between individuals, as subjects of
civil law in the 2664 articles. In the area of codification, provisions have also been integrated
private international law from Law no. 105/1992 revised and aligned with the instruments
community and international in the field of private international law. It has been achieved
thus a unification of the norms governing private law relations contained in a
multitude of distinct normative acts. In the new Code, Book I, about persons,
begins by dedicating the protection and guarantee by law of civil rights of
natural and legal persons and the assimilation of foreigners and stateless persons, under the law, with
Romanian citizens, regarding civil rights. This dimension is conferred by
civil capacity recognized for all persons, without any discrimination based on
race, color, nationality, ethnic origin, language, religion, age, sex or sexual orientation,
opinions, personal beliefs, political affiliation, union, social category or
belonging to a disadvantaged category, wealth, social origin, level of education as well as
any other situation. In the understanding of the Code, no one can be restricted in their capacity to
use, or completely or partially lacking the capacity for action, except under the conditions
expressly provided by law.
 It can be observed that there is a total lack of capacity to act of the minor under 14.
and, of full capacity to exercise for the person who has reached the age of majority and
the limited capacity to exercise, for the minor between 14 and 18 years old, the legislator has
refined the exercise capacity regime by recognition for legitimate reasons of
to the guardianship court for the anticipated capacity of exercise, for the minor who has turned
16 years old. 58 In the understanding of the new Code, also, respect for human beings and their rights.
it inherent is sized by the rights of personality, by the attributes of identification and by
the person's right to dispose of themselves. In the new Code, as a corollary of rights
the personality and identification attributes is the right of the individual to exercise control over themselves
itself, as long as it does not violate the rights and freedoms of others, public order, or good morals.
It can be noted that the institutions of guardianship and custodianship are also being revised for the purpose of
ensuring real protection for the minor and for persons who, although capable, cannot
manage assets or defend interests due to old age, illness, or infirmity and due to
motive of asylum cannot name a representative or administrator.

In the new Code, in book II, a rethinking of the regulation method is achieved.
family matter, giving up the idea of a distinct code governing this
domain. We observe that in the general provisions of Title I, the legislator presents in a form
summary the principles on which marriage and family are based, as well as their role in
the growth and education of minors, thus reiterating the provisions of the main
international instruments ratified by Romania in this area. Based on free marriage
mutual consent between spouses and their equality, as well as the rights and duties of parents to
to ensure the growth and education of children, the family enjoys protection from society and
of the state, which is obligated to support it through economic and social measures, in order to
the development and consolidation of it. The principle of equality before the law is enshrined in the Code.
children born out of wedlock with those resulting from marriage and with those adopted, as well as
the principle of the child's best interest in accordance with the provisions of the Convention
United Nations regarding children's rights and those from the 10 New codes in
The Evolution of Romanian Law; Collection of Studies
Magdo, The New Civil Code and Human Rights, Universul Juridic Publishing, Bucharest, 2010, p.25 and
Law no. 272/2004 on the protection and promotion of children's rights, with
the changes that have occurred.

Of course, the application of the legal provisions regarding family relations falls to
the competence of the guardianship court, called to establish the necessary measures and to resolve
disputes of this kind. It is for the first time since 1954 that spouses are offered
the possibility of choosing the matrimonial regime. In the case of those who do not wish to be subject to
The current regulations regarding the legal community allow for agreements to be concluded.
matrimonial, which offers spouses the possibility to choose between the community regime
conventional and that of the separation of property. In the case of the marriage contract, we emphasize
the fact that this is concluded, under the penalty of nullity, in authentic form, with
the expressed consent of the parties. If concluded before marriage, it produces
effects between parties from the conclusion of the marriage, and that perfected during the marriage has its
produce the effects from the date specified by the parties or, in the absence of this, from the date of its conclusion. Compared to

Third parties, the matrimonial regime is enforceable from the date of fulfilling the publicity formalities.
provided by law, and the failure to fulfill this formality causes the spouses to be considered in
report of third parties of good faith as being married under the matrimonial regime of community
legal. We consider that the right of spouses to enter into a marital agreement or to
modifies, illustrates their equality in exercising their property rights and
the patrimonial independence of the spouses, consisting of each spouse's right to dispose of
assets according to the adopted matrimonial regime and the income earned from the exercise
their profession. Spouses are obliged to provide each other with material support, to contribute to
report on financial means for marriage expenses independent of the regime
matrimonial, of course if the matrimonial agreement does not stipulate otherwise. Bearing
These expenses should not fall solely on one of the spouses.

The activity of either spouse in the household and for the upbringing of children represents a
contribution to marriage expenses, and the husband's actual participation in the activity
the professional of the other spouse, if this participation exceeded the limits of material support,
but the obligation to contribute to the expenses of the marriage translates into his right to a
compensation in the measure of the enrichment of the other. It cannot be derogated, under penalty of nullity.
absolute, according to the matrimonial convention of the legal provisions regarding the matrimonial regime
except in cases specifically provided by law. Equality between
spouses, parental authority or legal succession delegation, without excluding however
the insertion of the right of pre-emption. The family's property interests are protected within
the matrimonial regime of legal or conventional community, against abusive acts
but the other spouse, through which he jeopardizes these interests. This is achieved through
the court's pronouncement of judicial separation of assets, which has as a consequence
the termination of the previous matrimonial regime and the application of the matrimonial regime of separation of
goods from the date of filing the application or, as the case may be, from the actual separation of the spouses. Institution
divorce is regulated according to the principle of symmetry, consisting of the spouses' agreement in
the conclusion and dissolution of marriage and in the absence of agreement, its reason and foundation.
The dissolution of marriage by mutual consent through judicial means can be requested regardless of
data of the marriage dissolution and the existence or non-existence of minors resulting from the marriage.

The essential condition for this way of dissolving marriage is free consent and
the negligence of each spouse. The dissolution of marriage through administrative means, at the civil status or
The municipality of the place where the marriage was concluded or the last common residence is conditioned by
the agreement of the spouses and the non-existence of minor children from the marriage or adopted. It intervenes
only if at the end of the two months of reflection, the spouses consent to divorce and regarding
the name that will be carried after the divorce; otherwise, the civil status officer issues a
decision to reject the divorce request, directing the parties to the court. This
pronounces the divorce due to the fault of the defendant or both spouses, based on the evidence presented, and
divorce requested after a de facto separation of at least 5 years is pronounced for fault
of the claiming spouse, unless the defendant agrees to the divorce,
a situation in which he speaks without any mention of guilt. The same goes for divorce.
remedy is pronounced without any mention of blame.

The new Civil Code regarding actions for establishing filiation brings novelties concerning the law.
the person to have a certain civil status, with the possibility of formulating against
of the state when the heirs against whom the action can be brought do not exist or
they have renounced their succession. Regarding assisted reproduction with a third party
Donor, the filial relationship is not established between the child and the donor but between the donor and the spouse.
Mamei, who consented to this method of reproduction. The child's parentage cannot be
challenged in this case, and the denial of paternity by the mother's husband is only accepted if
he did not consent to such a mode of reproduction. In the New Civil Code is
only the adoption with full effects is regulated, which creates the parent-child relationship between
adopted person and adopter and family ties between the adopted person and the relatives of the adopter.
The coordinates of adoption, the conditions, procedures, and effects of which are established by special law,
they adhere to the principle of the best interest of the child, of his upbringing and education in a
family environment, taking into account ethical, linguistic, and cultural background. Adoption is
approved by the guardianship court. The Code in Title IV refers to the authority
parental. Here is incorporated the set of rights and duties related to both
a person as well as the child's property, which belongs equally to both parents. Always
the exercise of parental authority is carried out in the best interests of the child, with
respect due to the individual, involving the child in all 62 decisions that concern him.
I observe, taking into account age and maturity level. Evaluation test: 1. What are
What are the main Codes adopted by our country? 2. In which major system does the system fit?
Romanian legal system, currently?

MODULE 4 THE GERMAN LEGAL SYSTEM

German law represents the second main source of national systems that they
we can also call them Romanists, the second channel through which the great system of law was fed
Romano-Germanic.

The research into the history of German law easily highlights the fundamental unity.
among these and French law, a unity that justifies their framing within one and the same
a legal system. There is, of course, as I have shown before, a difference between the French system and
the German differences, which are sometimes significant. They exist in the normative content, but also in
the technical expression of these differences which are important for the specialist
special. However, all these differences remain on the surface of things. Delving inside
One can easily observe a common normative background due to the parallel reception of the law.
Roman, as well as numerous identical elements that could be found in customs
French and German, which have transitioned into modern codifications. The structure must then be noted.
identical to the system of sources of law, in which written law holds a dominant position,
as well as the main place it occupies in both cases, the civil codes. In fact, the code
France represented an example - even if it was only partially followed - for
the authors of the German civil code project. 64 The connection between the two systems appears
evident if we try to compare them with the other great Western legal system:
The differences between this and "continental law" highlight the deep...
similarities between the subsystems of the latter, the French and the German one. Period
the origins of the German system are situated in the second and third century of the millennium
the period in which the exclusivity of custom as a source of law is recognized.

Starting from the 13th century, those consolidations of customs that bear their appearance emerge.
the name 'Mirrors'. Over this customary right has overlapped, starting from the century
The 15th century, Roman law. The impact between customary law and Roman law left traces. Law
Roman has become applicable, but only as a subsidiary title. However, this subsidiarity has been
deeply rooted in a procedural rule, which has made its way over time, according to
to which the party invoking Roman law norms in support of its claims is entitled
fundamental intention, in the sense that it was the opponent's task to prove the existence of a
German law that replaced the Roman rule. In case such evidence does not
it could be done, Roman law applies without any reservation. A significant moment in the process
the formation of the German system is represented by the codification carried out in Prussia in the year
1794. The initiative for developing a general code, which would include not only the subject of law
private, but also that of constitutional law, administrative law, canon law, and even
the right to criminal law belonged to Frederick the Great.

The General Land Law, comprising 17,000 paragraphs, is the work of a great jurist.
practitioner of the time, Carl Gottlieb Svarez. The great period of flourishing of German law
remained in the 19th century. The fragmentation of the German Empire did not lead to
the definition of private law, which under the name of 'common law' has remained the same in
many of the states that emerged on the ruins of the former empire. A uniform doctrine and jurisprudence
they facilitated the application of this "common law". It is the flourishing era of the famous School 65
historical, illustrated by names such as that of Friederic Karl von [Link],
Pufendorf, Dernburg. According to this school, the so-called distinguished in German law.
"law of the pandects" or "current Roman law" on one side and "private law"
German, whose institutions had developed outside the influence of Roman law, on the other hand
The first part gave rise to the 'pandectis' movement, particularly illustrated by the works
Louis Savigny, The System of Present Roman Law
Dernburg, Pandects, or his Windseheid, Manual of the Law of the Pandects (Textbook of the Pandects)
Pandects Law.

The second one was also illustrated by important works, the most famous of which is
the work of Otto Gierke. German Private Law. The most significant legislative achievements of
this century the civil code (Burgerliches Gesetzbuch) was enacted in 1869 and came into
in force, with the beginning of the new century, on January 1, 1900, and the general Austrian civil code
(General Civil Code). Moreover, the entire development of private law in
The German-speaking countries revolved around these two codes. The desire for unification of
the private law of the German countries (except Austria) was the idea that guided those
dintâi. Justus Thibaud, professor at Heidelberg, published in 1814, on the positions of the school
natural law, a book titled "On the Necessity of a Common German Civil Law"
emphasizing that the unification of private law in Germany would have contributed to
the standardization of morals and customs. In the year 1849, a commercial code was adopted
unified for all German states and the decision was made to elaborate a common code of
obligations, which was never finalized. It is interesting to note that
the legislative unification of all Germany, which was achieved nearly a century later
than that of France, was delayed by a constitutional obstacle. Its constitution
Bismarck did not confer upon the central power the competence to issue codes in this regard.
private law. In 1873, two leaders of the national-liberal party, Miquel and Lasker, proposed
the drafting of the civil code.

However, it was not until the year 1888 that the commission published the first draft of the code. The draft, in the ...
two versions were submitted to the Reichstag in the year 1896, but it was not adopted until after
the implementation of a new series of substantial modifications. Its entry into force was set,
As shown, on January 1, 1900. The German civil code, known by its initials
its name, B.G.B. (Bürgerliches Gesetzbuch), represents one of the most
important, as well as more original legislative monuments of the great Roman legal system
the technical language it promotes, certain particularities in the definition of some
basic concepts, its original structure, all of these make it differ to a certain extent
significant by the French civil code, ensuring it a particular position within the great system
of Roman-Germanic law. One of the main sources of the normative content of
the code was Roman law. Thus, most of the solutions promoted by the code have
I find the source in that "common law" German of Roman origin. The structure of this code.
includes a general part of the code, which encompasses all the principles that underlie
regulation of civil relations. Apart from this general part, which represents book I of
of the project, the B.G.B. includes four special parts. The first of these parts (the first book)
two) includes the matter of obligations. It is interesting to note that this part is
divided into a general part and a special part. Therefore, Part I should not be confused with
the code, which is the subject of book I, with the general part of the law of obligations that makes
the subject of the second book in the code. The third book includes the matter of goods, the fourth one
refers to family law, while the fifth and last part regulates the matter.
of successions. The language of the German code is inaccessible to those who are not knowledgeable.
A characteristic of this style is that each term has an invariant meaning, 67 the code
without changing expressions for the sake of style elegance.

Studying the code becomes even more difficult due to the technique of references from one paragraph to
another. It can be said that the B.G.B. abuses such references. Another specific element of
The B.G.B. is what, in German doctrine, has been called 'abstract casuistry'. If
this code has such a great extent due to the fact that the law must
regulate in detail all consequences, to cover all aspects that could arise
presentation of the courts. For this, the German code avoids general formulations, rules with a
broad content. so frequent in French code, for a plethora of rules of
details that make distinctions of excessive subtlety. Compared to French-type codes, which
the intervention of case law is requested to clarify the consequences it entails
legal texts, therefore until the courts resolve all the complications, the system of
rules cannot be fully known, in the case of the B.G.B., most consequences will
one can know from the text of the code itself, the intervention of jurisprudence no longer being necessary.
This advantage cannot, of course, be contested. It adds to the other qualities.
which is revealed by the rigor of the formulation and the perfection of the systematization. The question that remains,
In our view, it is open to question whether these undeniable qualities prevail nonetheless.
on the clarity, flexibility, and accessibility of French-style codes.

The beginning of the 20th century marked a period of strong development in Germany.
economic and cultural, which helped the new civil code to demonstrate a
powerful liberalism and individualism. Another characteristic feature of the German code is
represented by the existence of so-called general clauses, which give it a certain appearance
own. One of the most important general clauses is the one regarding good faith.
The principle of good faith is referred to in German law as 'Treue und Glauben'.
(fidelity and faith). The meaning of this clause is that, in the interpretation of contracts, it is necessary to
68 took into account the requirement of legality and mutual trust. In this way, the courts have
gained the ability to carry out a true work of creation, beyond the letter of the text,
developing what is called a "jurisprudence of equity". Over time, there were created, in
this way, new rules of law. The parallelism with the phenomenon that occurred in English law at
the appearance of equity is quite significant.

Like the French code, the B.G.B. does not sanction abuse of rights. The idea of appearance, too
a characteristic of German law, was used by jurisprudence for the purpose of ensuring a
certain securities of civil and commercial circuits. German law goes further thus,
in the desire to promote legal commerce, than Roman law, which never sacrificed
the interests of the true owner. The absence of formalism, in any case, the nature more
the reduction of this in relation to French law is one of the most typical features
but of German law. One of the most important aspects for understanding the B.G.B.
this is represented by property regulation. A special regulation is dedicated to
real estate, which the code grants a rather inappropriate regime to ensure a
easy circulation of the lands. Such a system led to the generalization of the book
functioning.

The German code does not recognize the real estate transcription system from the French code. Any
the transmission is to be registered in the land register, regarding which it is specified that
fulfills three functions: a defensive one, presuming the holder as the owner of the asset and
assuming, at the same time, each mention or deletion as exact: a second, translative,
the registration being added to the agreement of will, in order to complete the transmission, and finally,
an advertising one, making the transfer opposable to third parties. The particular elements meet and
in the regulation of possession. A characteristic of the German code is that it does not distinguish
qualified possession, exercised with the intention of keeping, from precarious detention, in both
cases 69 the holder enjoying the presumption of ownership. After the appearance of the code,
when the courts were faced with the serious issues posed by the entry
In force, the specialized literature has begun to address a series of aspects.
theoretical. The issue that was addressed concerned the role of the judge in interpreting the text.
as a rule when it was not clear or complete. Moreover, the German legal school has
he posed this question even before the civil code appeared. The answer he had given
At that time it was called Begrijjsjunsprudenz (conceptual jurisprudence). According to the theory
Remember, the role of the judge consists, in the case of legislative deficiencies or gaps, in...
construct, therefore recompose from the isolated texts of the law, the general principles that are
support this and then, through a descent from the general to the particular, deduce from these
principles of response to the problems faced. School of conceptual jurisprudence
it took the place of the so-called 'jurisprudence of interests' (Interessenjurisprudenz) promoted
from the school of Tuebingen. The cardinal idea of this movement is to weigh in the balance
the interests that are confronted during a process.

By making such an assessment, the judge must place themselves in the position of the legislator, to
I perceive what specific interests he was protecting, in order to promote them in turn. This
orientation, however, was the only factor that connected the judge, who could practically do anything.
the solution was deemed appropriate. During the Nazi era, new trends emerged in orientation
judicial practices. Through an extremely rich doctrine, with the strongest arguments
sophisticated, judges were offered as a criterion for assessing their solutions
"the national-socialist instinct" or even "the sense of the Führer." These have, in fact, found
to be consecrated in the Nazi laws from Nuremberg. After the war, the B.G.B. remained applicable in
both German states. In the German Democratic Republic, it was applied with a series of
amendments - until the year 1976, when a new civil code of a radical nature was adopted
different. In turn, in the Federal Republic of Germany, the B.G.B. has undergone a series of 70 amendments.
significant. It should be mentioned that there is a certain strengthening of the egalitarian and liberal trends that
it began to manifest immediately after the collapse of the Nazi regime.

In 1957, the old marital regime of property union was replaced by which
only the husband had the power, through a separation regime, which protects the rights of the wife. Among
Changes include the regulation of adhesion contracts, the law restricting rights.
the economically stronger party. It was only in 1969 that a law was adopted
on the status of illegitimate children, which, if it has not achieved full equality among children
born within marriage and those born outside it, however considerably strengthened the position
the latter. The B.G.B. did not recognize any inheritance rights for the illegitimate child, in
while the new law recognized his right to come to his father's succession. Another law
important, regarding the authentication of legal documents, was also adopted in 1969.
The code thus maintained, to a certain extent, the inequality between 'natural' children and those born out of wedlock.
of marriage. A form of traditional agricultural property was maintained that hinders
the fragmentation of wealth in the case of opening an inheritance, finally, a series of remained in the code
preferential provisions for merchants and workshop owners. "Despite all
these changes - writes Fritz Sturm, a relentless critic of the German legal system - the code
civil has retained its original characteristic features. It continues to bear the mark
his time. A fruit of the pandectist school and of German legal conceptualism from the 19th century
The 19th, he takes abstraction to the extreme and expresses himself in a language that is both rigorous and
of incomprehensible for the layman.” The second legislative monument - perhaps not quite as
noted as the B.G.B., but which must be noted in this overview
The German Commercial Code is about private law.

Four decades older than the Civil Code Allgemeine Deutsches 71 Commercial Code
(abbreviated A.D.H.) the general German commercial code dates back to 1861. The B.G.B. adopted a
a series of rules that had been established earlier in A.D.H., such as those relating to
the conclusion and interpretation of contracts or the acquisition in good faith, which had to
This abrogated. The B.G.B. thus became the common law in the field of private law.
The commercial code has been revised. The main reform, which has brought about a significant change
of orientation in the matter, was represented by the abandonment of the objective criterion of the act of
trade and its replacement with the subjective criterion, legally based on the quality of the party entering into it. Thus,
The central notion of commercial law has become that of a commercial enterprise.
(Trade or business). These changes that took place in 1897 were both
is significant enough that from this date we can speak of a new commercial code. The first
The volume of the code deals with merchants, commercial registers, registration, and deregistration.
firms etc. The second includes the matter of commercial companies, the third
regulates the subjects of contracts, the shipment of goods, transportation, etc. While the other
The patrol is responsible for regulating maritime trade. In 1892, a maritime law
also introduced an innovation: the limited liability company,
an institution that had such a wide spread in modern commercial law being received
in Portugal (1901), in Austria (1906), in Poland (1923), in Bulgaria (1924), in France
(1925), in Turkey (1926), in Hungary (1930) etc.

Another law on the same subject is that regarding joint-stock companies, adopted in 1965.
The purpose of this was to eliminate a law, adopted in 1937, during the full Nazi regime, which
regulate the matter in the spirit of that Fuhrerprinzip, granting the general director powers
exorbitant. The new law reintroduced the structure and functions of the traditional organs of society
German Anonymous: 72 the management board (Vorstand) and the supervisory board (Aufsichtsrat).
After the reunification of Germany and the disappearance of the GDR, the entire applicable legislation was that of
Federal Germany. The spread of German law in the world Greece and Japan Among the states
where the German influence was particularly strong, we will first mention Greece.
This state had a particular position, in that in its case, until the year 1946,
Roman law was applied directly, without being introduced by a law. The Greek state
independent is considered the successor of the Byzantine Empire, so the application of Roman laws
it appeared to be natural. In the absence of normative acts, lawyers turned to understand
the rules of law, Byzantine legal manuals. Among them, the greatest authority had-
the famous Hexabiblos (six books), a commentary on the Basilicas, dating from the year 1345 and
due to Harmenopulos. The affinity with German law can be explained by the fact that in the states
germane, as we showed above, Roman law was applied directly itself, with
title of "common law". The legal science of modern Greece has thus been able to benefit considerably
on Romanist doctrine from Germany. A large number of young Greeks have studied law in
German universities bring back to the country not only the habit of quoting authors
Germans, pandects were fashionable in Greece, but also a certain legal mentality, a perspective.
formatted at the German school of law. The history of the Greek civil code is, however, profoundly indebted.
the struggle between political parties, which was reflected in the confrontation between two projects,
each supported by one of these parties.
Thus, in 1940, work began on the drafting of a civil code, which, however, fell from
its supporters were abandoned, adopting a total invoice code in 1945
different. However, this code did not last more than a year, because in 73 1946, coming back to
the power of the party under whose initiative the code project of 1940 was developed, this one
hurried to repeal the code and to enforce the project that had been abandoned. Carefully drafted
remarkable, the new code, based on in-depth comparative law studies, was modeled after the code
The Greek code falls into the category of normative acts inspired by German.
otherwise, the only subject in which it diverges substantially from the German model
this is about family relationships, where the strong influence of the Orthodox Church manifests
felt in full. From his provisions, we note the following regarding the exclusive character of
religious marriage that makes, as I have shown before, Greek citizens of religion
orthodoxes should only be able to marry individuals of the same religion, the officiating being done
only in front of the priest, then the specific regulation of impediments to marriage that
translate the doctrine of the Orthodox Church or, finally, the prohibition of the fourth marriage,
rule, also of theological inspiration. If the reception of the B.G.B. in Greece can
it seemed strange, the influence that German codification had on the legal system
Modern Japanese is likely to evoke awe.

We are faced with one of the most suitable examples of the reception of a legal system
it was done, not due to military occupation or political influence but, simply, due to
the prestige of legal science. Until the end of the 19th century, Japan was governed by
a traditional legal system. The trends of modernization, which were increasingly making their presence felt
I pronounced towards the end of the last century, they complained about the abandonment of this archaic system, of
feudal invoice and the adoption of a modern private law capable of fully responding
the requirements of capitalism in affirmation. Thus, it happened that the Japanese government requested a
a prominent French jurist of the time, Boissonade, a project for a civil code. This, in the year 1899,
he submitted a project evidently inspired by the French code, which however faced resistance
fierce from an entire category of young lawyers who had recently returned to studies.
from Germany and who were demanding a code modeled after the German one. These young people, over time
in positions of responsibility, they imposed their viewpoint and managed to eliminate his project
Boissonade leading to the adoption in its place, in the year 1898, a German-style project.
This code did not represent a faithful translation of the B.G.B. The differences between society
the German and the Japanese of the time were so significant, the traditions that ruled life
so entrenched in Japanese culture that in certain respects, such as personal matters,
family, inheritance, regulation differs almost entirely from the German model. Thus,
For example, women under 30 years old or men under 25 years old cannot marry without
the consent of the head of the family, under the penalty of being excluded from the family. Another aspect
a characteristic of the regulation is the ease with which divorce can be obtained, the code stipulating
the possibility of dissolving the marriage through a mutual consent, notified only to the officer
of civil status. Except for the aforementioned subjects, the Japanese code retains in
especially regarding assets and obligations, a very close alignment with the code
Austrian Law Austrian law is considered to be one of
multiple variants of German law.

A closer investigation reveals that, apart from the language in which they are written, the code
German Civil Code (B.G.B.) and the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch)
A.B.G.B.) do not have many elements in common. More precisely, the similarities between the two
normative acts are by no means more numerous than, for example, those in the code
Austrian and the French. In reality, as I have shown before, each of these three
Legislative acts express a common legal thought, promoted at the end of the century.
in the eighteenth and the beginning of the nineteenth whose roots can be found in the law
Roman. It is precisely that shared spirit which gave cohesion to the legal system that it ...
we call it Romano-Germanic. Historical research highlights the fact that although the date
its promulgation for the entire empire is subsequent to that of the Napoleonic civil code,
The Austrian code is actually the oldest of the civil codes still in existence.
in force on the European continent, except for those in the Scandinavian countries. Maria Theresa
In 1752, a legislative commission was appointed to draft a code that was to
it is called the Codex Theresianum. Although the initial project of this code was rejected,
it was considered too tributary to Roman law only in the year 1786, during the reign of Joseph
the second one, a second known project was completed, named after it,
the name of the Josephine Code.

The Napoleonic Wars significantly delayed the entry into force of the code, only on the 1st
January 1812 the code came into force throughout the Austrian territory, except for Hungary,
care has maintained its own legal system. The scope of the code has expanded significantly
gradually, covering, after a period of time, the entire Austro-Hungarian Empire. Thus,
it was applied in Hungary from 1853 to 1861, as well as in Transylvania, Bohemia, Moravia,
Galicia, Lombardy-Venetia, Slovenia, Istria. The code was received even beyond the borders.
of the empire, using as the main source of inspiration for the Calimachi code, which was applied
in Moldova from 1817 to 1875 (when the current Romanian civil code came into effect).
Austrian law had a significant influence on that of Moldova. A special role in
The elaboration of the Calimachi code was handled by the jurist Cristian Flechtenmacher. The Austrian code was
introduced in 1846 in the Principality of Liechtenstein, where it later suffered
important changes. The Austrian Code is a comprehensive one, consisting of 1502 articles.
divided into three parts: the first concerns the rights of individuals, including the subject of marriage, of
the relationships between parents and children, as well as that of guardianship and curatorships.

The second part of the 76th includes property law and covers the subject of real rights.
including the succession regime and the rights of individuals over property including
the subject of legal acts and contracts, finally, part three includes common provisions
the law of persons and property representing the subjects of consolidation and modification
rights and obligations, their extinguishment, extinctive prescription and usucapion. The second
a characteristic feature of the Austrian code (A.B.G.B.): the great freedom granted
the judge. The conclusion and the small number of texts leave him a field of action
considerable. The difference compared to the B.G.B. which, with its close case law, seems to want to
regulates everything, it becomes impressive. It can be explained this way that this sea
the freedom of movement has allowed A.B.G.B. to remain in force for such a long time
long-lasting, despite the large number of political regimes that have succeeded each other in Austria.
The originality of the Austrian code is also found in the field of family relations, the difference
find evidence both in relation to the German code and in relation to the French one. According to a concordat,
intervened between the Austrian Empire and the Vatican in the year 1856, for marriages between Catholics
the provisions of the canonical matrimonial law were applicable. After the First World War,
Austria has lost its status as a great power. The post-war social upheavals have led to a
some liberalization in terms of marriage, in an attempt, if not to replace, at least
to evade that provision, so uncomfortable, imposed by the Catholic Church, of the prohibition
to divorce (According to Article 115 of the A.B.G.B., divorce was only allowed for the followers of religions
Christians and non-Catholics for serious reasons, appreciated according to the conceptions of their religions.

The code evokes several extreme situations that make divorce extremely rare). A prefect of
province, named Sever, invented a system whereby individuals who had obtained
the separation from the body could remarry, based on an administrative dispensation. 77
The practice was clearly illegal, as, unlike divorce, separation of body does not have as
effect of the termination of marriage. This is why, in the year 1930, the Constitutional Court has
pronounced in the sense that all 'Sever marriages' are null. Only in the year 1938, as a result
the extension of German family legislation in occupied Austria, the subject of marriage and
the divorce has been completely secularized. The texts regarding divorce have remained repealed and
after the reconquest of independence. The A.B.G.B. suffered, as was natural, over time.
significant changes. However, Austrian jurists preferred, instead of technique, express modifications of
of the text of the code, the use of the amending one. This technique consists of adopting certain laws
called novels, which resume the regulation of certain chapters from the code, modifying them in
this implicit way. a) in 1914, a first novel regulated various aspects regarding
the right of individuals, of the family, and of intestate succession. The main sources of
the inspiration for this novella is the Swiss code and the German Civil Code. b) The second novella
dates back to 1915 and concerns the demarcations and rectifications of land boundaries.

The reform became necessary - it is noted in the literature of the time - especially for the regions
Galicia and Bukovina, which were then part of the Habsburg Empire and in which, due to
of the war, the boundaries of many properties could no longer be established precisely. c) In the year 1916, a
the third of the novellas has been issued. This has even introduced some institutions
unknown to Austrian law, such as the assumption of debt and delegation. In addition to the novellas
Note that the A.B.G.B. has also been modified through special laws. We mention among
the law on land books (1929), the one regarding automobile accidents (1908)
from the airplane ones (1919). After the war, the A.B.G.B. underwent a series of modifications, one of
the priority intervention domains being that of family relationships. It is provided, 78
in the context of other legislations (Hungarian, Chinese), divorce by mutual consent, the law
requesting that the spouses conclude, in this case, a written agreement to establish
the rights and personal obligations between them and their minor children, the manner of exercise of
the right of visitation of the parent to whom the child has not been entrusted, maintenance obligations of
of children and maintenance between spouses, as well as mutual property claims. The court
there is the possibility to suspend the process for a period of 6 months for conciliation, after
what must pronounce the divorce. It has also been introduced in the matter of
divorce the possibility of dissolving the marriage against the will of the defendant spouse, thus in cases of
the complainant returns. In matters of divorce, it is established that both the conditions and
the effects of divorce must be assessed according to the personal law of the spouses, which, if not
the court allows the divorce cannot dissolve the marriage, thus avoiding a fraud at
law. Hungarian law The Austrian civil code was applied for a time even beyond the territory of Austria.
from today. In the year 1852, the A.B.G.B. was extended to the territory of Hungary, at which point the jurists
Hungarians considered this measure illegal and managed to determine its organization.
a conference known as Judexkurial Konferenz that established the return
in the old system, with the corrective represented by the maintenance in force of a few imperial laws.
Moreover, Hungary was the only European state that, at the end of the second war
global, did not yet have a written civil legislation. Hungarian private law was of origin
customary.

Customary norms formed, in the Middle Ages, the object known by the consolidation under the name
The Tripartite work of customary law of the illustrious Kingdom of Hungary has found its consolidation.
applied for several centuries, in all provinces over which it has spread, in a
period or another, the Hungarian kingdom. This Tripartitum was a vast collection of provisions that
did not include, as one might think, only principles of civil law, but also norms from the most
various other branches of law, such as criminal or administrative law. Its scope
Its considerable nature made it difficult to consult in practice and therefore difficult to apply. This is why in
the face of the courts does not usually apply the Tripartitum, but rather a summary of it, bearing
the name of Planum tabularum. Under these conditions, a special role in shaping
the legal system had jurisprudence. The conference of supreme judges issued in
Over time, a series of rules have emerged from the practice of the courts, which have
acquired the power of true laws. The specialized literature from the neighboring country mentions
the efforts made in the 19th century towards the realization of a civil codification. Thus, in
In the year 1848, through a law bearing the number XV, the feudal marriage regime was abolished and was
the drafting of a civil code which, however, has never been achieved. The drafting of the Code
civil ungar began in 1953, the project being widely debated in scientific forums and
universities, as well as in judicial courts. However, the entry into force took place only in
1960. The code begins with a very brief section of preliminary provisions,
mentioning only the purpose of the law and specifying how the exercise of rights and...
of obligations and prohibiting abuse of rights. The Hungarian legislator has therefore waived the
the system of the general part. The considerations that led to this, explained in detail in
The justification of the code is merely a reiteration of logical arguments.
care, at their time, were formulated against the general part of the B.G.B. The second
this part is dedicated to the matter of persons, the third regulation of property, the one of
the fourth book of the law of obligations and the fifth and final book concerns inheritance law.
The Hungarian legislator took special care to avoid definitions. The practical character of...
The regulation was clearly evident in the aversion it inspired to the idea of starting.
the code with an essentially dogmatic general part.

The authors aimed to leave the understanding of certain concepts to the public's opinion, and the
especially those with a higher degree of technicality, on the field of legal science.
The Hungarian codification of 1959 represents an interesting legislative achievement that knew how to
retains from traditional law a series of institutions with a pronounced technical character. The significant
transformations that took place in Hungary in the years since the entry into force of the Civil Code
they imposed a reform of the code. Through a law from October 1977, a series of
amendments and completions of the old code, followed by a republication, intended to present a
true renewed civil code. One of the most important interventions of the legislator
look at "the protection granted to individuals for their civil rights". Among the aspects
relating to modern life, which are reflected in the code, we highlight the texts according to which
any abuse related to photographing or printing a person's voice represents a
violation of personal rights, the text requesting the consent of the person concerned for
the publication of the photograph or for the recording of voice for broadcasting purposes, except for those
records made in public performances.

Significant chapters where numerous modifications have been introduced are those concerning
intellectual creation rights, common property of spouses, etc. The changes brought about
The amendments to the civil code in 1977 were not essential, but there were numerous circumstances that
it made the mentioned decree play a special role in shaping Hungarian civil law.
Hungarian law recognized divorce by mutual consent, according to which marriage is
can be undone based on the concordant declaration of the spouses, unaffected from outside
and based on a definitive decision made by them, provided that the spouses' agreement is
approved by the court. Regarding the dissolution of marriage, divorce by mutual consent
mutual, it could only be pronounced if the spouses agreed on the entrustment and
support for the children, 81 regarding contacts with them, support for the spouse in need and
the use of the common dwelling. Once the country returned to democracy, then with its accession to
The Council of Europe and the European Union, the entire legislation has undergone massive changes, in
the meaning of returning to contemporary legal institutions adapted to international standards
current. Swiss law and its reception in Turkey If between the two branches of the large
the French system and the German one, there have been mutual loans and influences, from the date
this allows us to talk more than that, about a true synthesis between the two
branches. No other national system could conclude this chapter better than the one
Swiss.

Appeared in territories that had previously applied either German law or French civil code.
The Swiss and its complement, the code of obligations, simultaneously testify to a strong
German inspiration, as well as, not to be neglected, a reception of French law. The result of
was one of the most famous achievements of codifications in Western Europe. The civil code
adopted in 1907 came into force in 1912. It replaced a series of civil codes
promulgated in various cantons during the 19th century, some of which reproduced
The Napoleonic Code, others the Austrian code, and others, the B.G.B. The most accomplished among these was
without a doubt the civil code of Zurich, adopted in 1855 and drafted by the jurist J. C.
Bluntschli, who provided valuable material for the federal code, as well as the code of obligations.
Alongside this, we will note the civil code from the canton of Grisons adopted in 1862, which is inspired by both
from the Zurich Code as well as from the Napoleonic Code. It is worth noting that between the date of publication and the one
the entry into force of the civil code, more precisely in the year 1881, another code was adopted in
Switzerland: the code of obligations. Mostly inspired by German legislation, it presented
characteristic of regulating both civil and commercial matters at the same time. 82
The Swiss code is written in a simple language, easily accessible to the uninitiated and has been
written in multiple languages. Thus, there is an official text in German and translations,
Officially, in French and Italian. The code opens with a preliminary title,
which is followed by five books regarding personal matters, family law, inheritances,
real rights and obligations.

Switzerland does not have a commercial code. I have shown above that that code of obligations includes both
provisions of civil law, as well as commercial law. In reality, it encompasses more than
thorough, containing a whole series of provisions of commercial law, which exceed the subject matter
actual obligations, thus representing a comprehensive regulation of the relations of
commerce. The prestige of the code was illustrated by its reception in Turkey. It is explained by the fact that,
victorious, the Young Turks revolution led by Kemal Ataturk aimed to erase the traces
of the imperial past and along with it, the strong Islamic tradition. The renunciation of the right
Islamic thus had the significance of a revolutionary act of secularization. The reception
Swiss codes took place in 1926. The obligations code was translated word by word.
word. In contrast, the civil code required a series of interventions in the matter of persons,
family relationships and inheritances. Significant changes were necessary also because
Unlike the Swiss Confederation, the Republic of Turkey is a unitary state.
that imposed the removal of all provisions that found their rationale in the specific structure
state. It is noteworthy that the abolition of Islamic family law and its replacement with a
Western invoicing regulation was implemented without significant social unrest. In
Indeed, at the moment of the collapse of the Ottoman Empire, the morals had evolved considerably.
many of the traditional institutions of Islamic law 83 and, primarily, polygamy,
They have long been practiced. It is interesting to note that, alongside the code of obligations,
Turkey felt the need for a commercial code.

The reception of Swiss law was perfected by the adoption of a code of procedure.
civil, translated from the code of the canton of Neuchâtel. Thus, one of the most took place
interesting phenomena in contemporary law. Scandinavian law Some broad treaties
traffic as it would be signed by Arminjon, Nolde and Wolff, I see in relation to the states
Scandinavia: Sweden, Denmark, Norway, Iceland and Finland, a large legal system
distinct from Roman-Germanic law, but also from common law. The applicable law in countries
The Scandinavian does not depart from the characteristic elements of Roman-Germanic law:
the preponderance of the written normative act, the non-existence (or very limited existence) of the rule
the judicial precedent, the minor role of custom, and last but not least the tradition of law
Professor university doctor Victor Dan Zlătescu highlighted in his works dedicated to law
comparatively, Scandinavian law must be considered a major legal system, but that
this is placed, it is true, in a marginal position and with many particularities in
the framework of the Roman-Germanic system. The position of Scandinavian law cannot be understood without a
a brief incursion into Swedish, Danish, Norwegian, Finnish, and Icelandic law, just
due to the fact that the tribulations of history have caused these states to be united at times, in a
formula or another, when separated. The systems of the mentioned countries had different weights and
the development of the legal systems of Denmark and Sweden, in reality the largest states,
they had a strong influence on the others. This can be explained by the political history of
of the mentioned states. From 1387 until 1814 Norway was united with Denmark, in 1389
Sweden was conquered by the Danish kings, but this occupation did not last long.
1448, when it gained its independence.

From the year 1264, Iceland was a Norwegian province until 1918, when it became independent.
of Norway, became an independent and sovereign state, linked to Denmark by a
real union, which lasted until 1944. On the other hand, Finland was conquered as early as
the 13th century by the Swedes, their domination ended only in 1808, when the country was
attached to Tsarist Russia. Only in 1918 exercising the right to self-determination proclaimed by
Lenin, the Finnish state became independent. It should also be added that since
From 1814 to 1905, Norway formed a real union with Sweden, for mutual understanding.
I regret the close historical relationship of these countries and their common legal roots. Private law of
The Scandinavian countries can be divided into two groups of legislation: the Danish-Norwegian and the
pseudo-Finnish. In the 20th century, the Scandinavian countries underwent a constant operation of
modernization of their rights, appealing to European systems, but filtering the principles
to these, adapting them and sometimes perfecting them, in the light of the national legal culture.
This modernization work was carried out in collaboration, as we will show below, through
the concerted effort of the five states, achieving a vast area of unified legislation, without
precedent in the world. This modernization process, which resulted in the introduction of some
numerous institutions and regulations similar in content to those in European states
western, of Roman-Germanic character.

The major codes, which stand, at least from a historical point of view, at the foundation of the legislation of the states
Scandinavian, are the Danish Code from 1683 (Danske Lov), the Norwegian Code from 1687 (Norske
Love) is an almost faithful copy of the first, a fact explainable by the fact that they were
adopted, both, during the reign of the same King Christian V and the Swedish Code of
1734, known as 85 Sveriges Rokes Allruanna Leg. The latter represents a
codifying Swedish law that took more than half a
century. The most well-known and most discussed of the Scandinavian legislative monuments, it has at
it is based on the old Swedish laws and customs, yet reflects the principles in numerous aspects
Roman law. This fact can be explained by the fact that, starting from the 17th century, numerous
Swedish youths studied at German universities, where Roman law in the form in which
it applies in Germany, that "Today's Roman Law" that Savigny spoke of.
Comparing the structure of the mentioned codes, we will notice that the Danish and Norwegian ones have a
a structure much more primitive than the Swedish one, being rather collections of concrete solutions,
while the Swedish one reveals a more elaborate structure. The former are more similar
to all contemporary codes in Russia or Germany, including regulations on
judicial organization of canon law, maritime law, civil law (obligations), criminal law.
The Swedish code is divided into the following titles (which are called 'balk'): about
marriage, successions, real estate, constructions, trade, crimes and penalties, means of execution
judicial procedure. Without revealing the eclecticism of the Danish and Norwegian codes, it is evident
that the Swedish code is not uniform either, referring to - although it makes marked distinctions between the subjects
different - between private law regulations, public law, and administrative law. Of
Note that Iceland does not have a civil code, but Danish and Norwegian laws have long been in place.
applicable also in this country.

Finnish law has had a somewhat particular evolution due to the contortions it has undergone.
known the history of this country, but which has not gone beyond the general framework of Scandinavian legislation.
A thorough study of the evolution of this right shows us how, after experiencing a
primitive period in which the application of local customs and traditions found its place
contained in the Kalevala, the national epic, in the year 1734 the General Code was adopted.
because, however, over time, various amendments were introduced during the influence
Russia (the Tsar of Russia was also the Grand Duke of Finland) revealed a tendency towards rapprochement with
the legislation of this country, especially that legislative monument called 'Zvod Zokonov'
"Tsarist Russia" (The Code of Laws of Tsarist Russia). In the 20th century, after the proclamation of the Republic,
a series of normative acts covering various matters of civil law have been adopted,
as would marriage and contracts (in reality the law of obligations) in the year 1929. The purpose
the purpose of these normative acts was to adapt the General Code from 1934, which is still in
validity, the needs of modern legislation. Since 1919, Finland has joined the movement
pan-Scandinavian unification, coordination, and legislative cooperation, its results being of the highest quality
greater significance for shaping the Finnish legal system. The trend of
legislative unification began to be manifested as early as 1879, initially between Denmark,
Sweden and Norway, so that, after the passage of years, both Finland and
Iceland. One last feature that we note regarding the Scandinavian is the role
marked that is called to play the custom. It is easy to explain why, in an area with
modern regulations that do not exhaust the entire legal order, with outdated codes and
outdated, the appeal to custom is frequent.

There are entire subjects in civil law that, not being regulated by written legislation, remain
custom. Among these, we highlight the matter of civil liability and that of contracts.
special. It must be emphasized that this custom, which is not recorded in any customary law book,
as in Germany or France, it must be established jurisprudentially. The proximity is evident
of common law from Anglo-Saxon law and the considerable departure from custom
extrajudicial as seen in all countries on the European continent. The law
Roman-Dutch law, which is not the applicable legal system
in the Netherlands as we might expect but in South Africa and Sri Lanka (Ceylon), there
presents the researcher as a true original legal system. That is why it is difficult to
included in a certain large legal system, whether it is the 'continental' Romano-Germanic one or the...
"insular" Common-law. The systems from which the Roman-Dutch system draws its substance.
I am the Romanian, the Dutch, who himself is a product of the reception of French law, in
the historical conditions I have shown above and that of common law. The name of 'system
"Romanian-Dutch" was given by Simon Van Leeuven in the year 1652. It is originally that
"Roman-Dutch" law applicable in the metropolis until May 1, 1809, the date when it came into
in force "Napoleonic Code" arranged for the Kingdom of the Netherlands, which was in force for a
a fairly short period of time. After this date, he continued to apply himself
to the Europeans in the Dutch colonies. The English who between 1811 and 1816, as a result of the defeat
he Napoleon, actually ruled all the Dutch colonies, did not change anything in the system
of applicable law but, as we will show below, laid the foundations of an influence that has
slow exercise, but which led to a serious change in the very content of the system.
the numerous Dutch colonies that, one after another, adopted French-type codes, the law
Romanian-Dutch is no longer applicable as I have shown, except in South Africa and
Ceylon, until gaining independence. In the southern parts of Africa (it should be emphasized that
the phenomenon occurred not only within the boundaries of the state now called South Africa, but also beyond
From this, how the current Zimbabwe is, Roman-Dutch law was brought by the Boers,
farmers, Dutch settlers, and survived not only the era in which state formations
respective they were British colonies, but also later, when they gained independence,
becoming members of the Commonwealth. These systems - and we refer primarily to
the South African - have permanently enriched themselves. The main source of enrichment was common-
law-ul. Modern legislation in South Africa represented by laws of a high standard
professional, gives expression to a massive reception of British law in a legislated form.
This has created a heterogeneous legislation, whose sources are, on one hand, the law
Roman, and on the other hand - common law. Custom also plays a significant role in this system. As in
in all African states, customary law has played an important role in the works of
specialties provide examples of how certain customary institutions replace
the corresponding provisions of Roman-Dutch law. The influence of English law has
felt and through jurisprudence, which has particularly penetrated procedural law,
the supreme court contributing substantially to this Britishization of Roman law
Dutch.

The explanation for this trend lies in the fact that even today a large number of South Africans
they study in the United Kingdom, being more familiar with common law than with Roman law.
An essential aspect of this process is the unconditional application of the state principle.
stare decisis, meaning the absolute value of judicial precedent. A more in-depth analysis of
legal regulations in South Africa show us how numerous the institutions are
common law has penetrated the law of this state. The South African example urges us to
we affirm that in the confrontation between the great legal systems we encounter strong systems and systems
weak. Strong countries, evidently, eliminate the application of the weak. The strength level of a system.
It must be established concretely from case to case, in relation to the particular circumstances.
to each country. If in the case of South Africa common law has proven to be stronger, not so in
Things are in Quebec or Louisiana. 89Assessment test: 1. What legal systems do
received legal regulations from German law?
Swiss in Turkey? 90

MODULE 5 THE GREAT COMMON-LAW SYSTEM

For centuries, the development of legal systems has occurred in parallel on the continent.
European, on the one hand, in the British Isles, on the other, without too much mutual contact.
frequent and especially without any of these systems exerting a real influence on
the other. In this way, two different legal environments were created, two closed legal worlds,
the 'continental' and 'island' one. The role played by English law in international trade
has been and is considerable. The dominance that England has exercised for more than a
centuries on world trade have imposed in the practice of commercial relations the types of
English contracts even when the parties had other nationalities as well as competence
English arbitration courts. The strong economic influence of States in our time.
The United States has emphasized the rise of common law institutions. The entire law of
international trade is profoundly influenced by English and American contractual techniques.
Know-how contracts, factoring, leasing, franchising, trust practice or agency
so widespread in international economic cooperation relations, I use
the technical elements 91 of the common law system. This legal system, very different under
The technical report on the systems called "continental" is not easy to know. It is
the product of a long evolution that took place under the specific conditions of the British Isles,
the fruit of a legal mentality completely different from that found on the European continent,
distinct from Cartesian traditionalism, indebted to a pragmatic way of thinking. Common law
represents a legal system that governs vast territories that far exceed the limits
Great Britain.

If the British Isles are not entirely governed by this system, an aspect regarding
to which we will return below, English law has imposed itself due to colonial expansion
British, in vast territories in Africa, Asia, and America. Of course, the British Empire no longer
is today just a memory. Most of the former colonial possessions have
acquired independence in our days. The ties that it still maintains within.
The Commonwealth, the so-called 'British Commonwealth of Nations,' has more of a
economic character, excluding, in the vast majority of cases, political dependence. It is
Interestingly, all these former colonies have preserved the legacy of the common system-
law. This applies not only to the Commonwealth states, but also to others,
as the United States of America. The permanence of the legal system created in the islands.
British, surprising at first glance, however finds solid explanations. In many, even in
the vast majority of territories that once belonged to the British crown, the introduced law
the colonizers found a vacant land, as they represented the first populations that ruled
effective territories in question, and which brought with them their own legal system. In other
territories, the rights of the colonists were confronted with local legal systems, often archaic and
customs, which were far from the perfection of common law, could not represent a
exchange solution. Finally in other countries, such as India or Pakistan, from the confrontation
English law with well-defined and deeply rooted legal systems, such as the one 92
Hindus and Muslims resulted in hybrid regulations that borrowed from both.
the qualities, as well as the shortcomings of both systems. A significant role in the strong implantation of
the English law was played by the Judicial Committee of the British Privy Council, which had
the status of the supreme court over all jurisdictions in the colonial territories, except for
of India, Pakistan, and Canada, a court that conducted a broad and thorough work of
unification of the rights of colonial territories according to the English model.

English law applies in England, Wales, and Ireland, but does not extend over
Scotland, which remains subject to its own legal system. Also, Common law does not-
and finds integral application neither in the Orkney and Shetland Islands. The Isle of Man is governed
from an old custom of Scandinavian origin, dating back to the 8th century, while
The islands of Jersey and Guernsey in the English Channel are subject to ancient laws of origin.
French. Regarding extra-European theories, it is necessary to distinguish between two categories of
The first is made up of the domains where British colonization did not succeed.
of any European country, such as Canada - except for the province of Quebec which, thus
As I showed, it continues to apply a French-type legal system - Australia, New Zealand.
Zealand or Terra Nova. In the case of these states, the year they officially became colonies.
The British have essential significance. The precedent system makes both common law,
in a narrow sense as well as equity or statute-law, with all their accompanying rulings
judicial, applicable in the metropolis until that date, should be transplanted into the new colonies.
As for the second category of territories, namely those that were subjected before
the English crown belonged to other colonial powers, such as South Africa (ruled by
previously of the Boers), Zimbabwe (also previously under Boer rule), the province
Quebec (former French colony) etc. The principle from which it started was maintenance.
the existing legal systems before the British occupation, such as the so-called law
Romanian-Dutch to the bulls, insofar as they have not been repealed by regulatory acts of
British colonial authorities or through a rule later established by local authorities.

The new independent states have partially retained these legal systems, which were subsequently
developed, according to the same rules of common law, by national courts. To
characterizes the English system, the most significant element is the way of formation. After
Bentham's expression, English law is a judge-made law, a creation of jurisprudence. With
that the place occupied, especially nowadays, by written law is considerable, law
English remains, especially due to the mentality of insular jurists, a right of precedents.
The judicial precedent undoubtedly represents the most important mechanism in the formation
this system. It is still common today in front of English courts to invoke certain decisions
judicial dating back centuries. Things go so far that, even in the presence of a text
of the law or a rule of customary law, judges prefer to invoke the rulings
judges who previously applied them, rather than directly applying the text
the rule that establishes the seat of matter. This right of precedent includes, most
often, extremely technical and formal rules, accessible only to specialists, made
for courts, and not for litigants. The formation mechanism largely explains,
the original character of English law. External influences are not numerous. They are rare.
the modern legal systems that have remained so little affected by the developments that occurred in
the law of other countries such as English law. Not even Roman law - with all its long-standing
the Roman rule of the British islands did not have a significant influence at its time,
significant.

English law has shown itself, from its earliest beginnings, to be conservative and unresponsive. The system
common law is characterized by the coexistence of three normative subsystems
autonomous and parallel, which regulate, each sometimes in different ways or even
contradictory, social relations: common-law (in a restricted sense 94), equity and statute-law. They
actually expresses the three main sources of English law. The oldest of them
this common law. (The term "common law" has, as can be easily understood,
two acceptances of different scope. By common law in the broad sense, it is referred to as the great
legal system of English origin. In a narrow sense, the term indicates one of the three
sources, or subsystems, or more precisely branches of regulations that are typical of the large
law system). Common law (the term comes from commune ley - common law) has its
find their origins in the customs in force before the Norman conquest and which have been
maintained even after this, through a declaration by William the Conqueror. He reflects the work of
to unify these local customs into a common law for the entire kingdom. After the conquest
In Normandy, there were a large number of jurisdictional bodies that each applied customs and
different regulations. The king only exercised what was called 'supreme justice', which
he rarely acted except when the "peace of the kingdom" was threatened. The royal court,
the royal court represented an exceptional jurisdiction. Over time, from this separated
The royal courts of justice, which have expanded their competence and have stopped following the king
During their travels, they settled in Westminster.
 In the 13th century, there were three such Courts: a) the Court of the Exchequer,
competence mainly in financial matters, b) Court of Common Pleas,
competence primarily in the field of land property and real estate possession and c)
The King's Bench, competent in criminal matters and disturbance of the peace
"Rule". Over time, the division of competence between the three courts has disappeared, each of...
it gaining a general competence. In the middle of the Middle Ages, the royal courts remained
the only judicial bodies in England. The organization of the superior courts has varied over time
of time. In the years 1873, 1875, these Courts were reorganized, the laws bearing
the name of Judicature Acts, creating a unique superior court, Supreme Court of
In 1971, a law titled Courts Act provided for the organization within the Court.
Supreme has three distinct judicial entities: High Court of Justice, Crown Court and Court of
Appeal. To understand how common law was created, it is necessary to
We know how the royal Courts functioned. The referral to these Courts did not represent, at least
until the year 1875, a right of the litigants. It could only be done based on a
the privilege that the litigants acquired by addressing the Chancellor - a high officer of the Court
regale. This was to grant him a writ that certifies the party's right to notify
Royal courts. Over time, the writs were not granted on a case-by-case basis; instead, it was established.
a list called course syllabus.

This list provided certain litigious situations in which, in exchange for a sum of money,
The royal chancery issued the writ. Little by little, the list of writs grew, widening in a way
it continues the competence of the royal court to the disadvantage of the senior jurisdictions. This was of
nature to determine a reaction of the aristocracy that felt frustrated by the power to judge
and also an important source of income. After in the year 1215 King John Lackland had been
constrained by the nobles to grant that act known as the Magna Carta of Liberties, an expression of
the compromise between royalty and nobility, a document, according to some authors, of the highest
of greater importance for the history of English law, the second statute from Westminster has
expressed, for its part, the same compromise, based on a status quo. No new writ anymore
The power to create was held only by the Parliament; the court brief was frozen. The royal courts were to follow...
judge only according to the categories of writs, in similar cases, in those situations that presented
a great similarity with those in which writs had already been issued. The evolution of English law has
continuing on a new path, that of actions on 96 the case, in which the courts took note
alone, based on a statement made by the claimant. However, it was only in 1875 that a reform
it recognized the right of any citizen to address the courts directly
Judicial. Viewed from the outside, common law appears as a sum of precedents. The rule
The precedent began to take shape starting from the late 18th century.
The decisions of the courts of justice: The High Court, the Court of Appeal, the House of Lords (the court
supreme) are imposed on lower-ranking jurisdictions. The Court of Appeal - higher in rank - can
cancels a decision made by the High Court, and the House of Lords can cancel a decision made by
Court of Appeal. The new precedent cancels the old one.

The decisions made by the Court of Appeal bind her, except in cases where they are
incompatible with those of the House of Lords or in which have been pronounced per incuriam, therefore
are - in our language - illegal. The House of Lords - the supreme judicial body - is
always linked to its decisions. A dispute that has lasted for centuries has arisen around
issues regarding the reasons of the authority of the precedent. The given decision represents, it
represents a testimony of the judge regarding the existence of the norm, which the other judges
they are called to follow it. Closer to us, Salmond and Dacey propose abandoning these
thesis, recognizing that judges have their own legislative power, which they exercise in a way
open and legal. Modern authors, however, seem to bring certain qualifications to this statement.
Arminjon and his collaborators also emphasize that the effect of the principle of stare decisis consists in
that it effectively makes the judge a legislator. They emphasize, however, that in theory, at least,
the judge does not have the power to modify the existing custom. He is only presumed to
declares that it explains it, that it develops it. However, the cited authors are forced to
recognize that in reality the judge establishes new rules of law. Putting face to face
the advantages and disadvantages of this common law system, a contemporary English author
note in the first row: a) the correctness on 97 that it provides for solving
each case that is essentially similar; b) the possibility of growth, of adoption
permanent establishment of new legal rules, adapted to the new circumstances and the requirements of a
constantly changing societies; c) wealth in detailed rules; d) the practical character being
easily responds to daily needs.

Among the disadvantages are mentioned: a) the rigidity of a rule once fixed, it can no longer be
modified; the danger of some illogical distinctions that could lead to the application of certain rules in
situations for which they were not created; c) the volume and complexity that hinder
considerable knowledge of the applicable norms. Due to these very serious inconveniences
- the principle of stare decisis suffers in practice from certain mitigations. Judges themselves sometimes resort
to certain artificial distinctions, to downright biased reasoning, in order to reach
to different or even opposing decisions from the precedent they start from. They are exempted to
I resort to such actions when the precedent is manifestly irrational.
it presents disadvantages (plainly unreasonable and inconvenient), or if it is in
opposition with a rule considered "cardinal" in English law. These mitigations, of a nature to
eliminate some of the reported disadvantages, they only increase power.
to the judge who can essentially legislate unrestrained. Regarding this method of elaboration
the law, the legal norm itself presents a certain specificity in the English system. Legal rule
presents a lower degree of generality than the legal norm in the systems
continental. Equity represents essentially a corrective to the rules of common law. The Sea
any legal system based on precedents suffers from obsolescence.

Long-lasting, the law created by precedents becomes unresponsive to

social impulses, hostile to any evolving society. Originally, equity gave expression to
the idea that in the face of an unjust law, subjects can appeal to the king who - based on
the imperatives of conscience - could act against the law, restoring the violated equity. In
In fact, it was not the king, but his 98th official, the Chancellor, who resolved the complaints.
The Chancellor's intervention has never been presented as being of a nature to change the law.
On the contrary, one of the most well-known maxims of English law on which we will
Equity follows the law.
always beware of declaring the rule of law inapplicable. Its means - during the period
initial at least - was that of refusing to issue a writ, a circumstance that was absent in one
on the rights to bring a case to court, delaying the execution through certain orders
certain acts or imposing on him to carry out others intended to negate the intervention of justice.
In case of disobedience, the Chancellor could order the imprisonment of the disobedient or confiscation.
of its assets. The Chancellor's Court has thus carried out a creative work, especially
in civil matters.

Over time, she began to solve all the cases that - as a result of the absence of some
special writs - could not be resolved by common-law courts, as well as, more
late, even causes that would have been within their competence, when the action was dismissed in
right, or when the remedy - the solution given by them - was not effective. It was created in this way,
over the centuries, the Chancellor's Court considering itself, in turn, bound by the principle
of the previous one, a second legal regulation, parallel and sometimes contradictory to the first.
The application of one regulation or the other has come to depend on whether the claimant is
the address of the Courts of Westminster or the Court of Chancery. The role of equity in development
English law is enormous. It is enough to mention that many of the most...
significant of this as the trust, uses, injunctions were created by the Chancellor. Equity ...
also some essential improvements and additions to certain institutions of
common law. However, equity has not succeeded in becoming a complete normative system that
covers a regulatory area similar to common law, remaining rather a
a collection of somewhat disparate norms, of corrections made to it. 99 These norms have
I find coherence in the light of some maxims, drawn from the secular practice of the court
equity.

Their knowledge allows for the understanding of the system they govern and the relationships that
there is a distinction between common law and equity. The most well-known of these states that 'equity'
Equity acts in personam, not in rem.
he has practically lost interest. Originally, injunctions - the orders given by the Chancellor's Court -
they were directed against the debtor's person, and not against their assets. Only
later, the Court of Chancery began to issue a writ for sequestration, which granted a
action on property. A second maxim stated: "equity does not admit that a violation of
equity does not suffer a wrong to be without a sanction
remedy"). This principle grants the Court of equity the right to resort to new remedies -
sanctions or unconventional solutions - when they consider that those offered by common law are not
sufficient, in this regard, for example, the Chancellor can order the actual execution of a
contract if they believe that the damages awarded according to the common-law solution do not
is efficient. 'Equity follows the Law' (Interesting to
noting that the term law 'lege' designates, by excellence, in the language of lawyers
English, common law in a narrow sense) is the principle according to which common law represents
the case law base of the Court of Equity, from which it only diverges when
moral commandments impose. It also expresses the idea according to which the Court of
equity applies, by analogy, the rules of common law. 'When from the perspective of him
equity, the parties are in a situation of equality, common law applies” (“Where the Equities
are equal, the Law shall prevail.

According to this principle, common law appears in a somewhat subsidiary position, in the hypothesis
in which both parties in dispute are equally holders of arguments drawn from
the rules of equity. With the principle: "when appropriate to equity, the parties are in a situation of
equality, the first in time prevails ("where the Equities are equal, the first in time has the advantage.
time prevails), English law expresses the principle known from the maxim: 'prior tempore,
"potior jure" encountered for the first time in Roman law. The sixth prince
establishes that: "he who wants an equitable remedy must act in equity"
seeks equity must do equity), which means that remedies (equitable solutions) cannot be
obtained using the common-law procedure. In the same realm of analogies, we cannot help but
we remember the principle Romania chosen one way. Unusual in its formulation is
the principle: "he who resorts to equity must do so with clean hands"
equity must come with clean hands". It is a principle difficult to explain without knowledge
the basis of the mechanism of English law. An example is given for illustration of a lawyer.
care, after advising its clients to fulfill certain acts that would violate their
the obligations arising from a trust cannot subsequently, as a party in the relations
legal entities created within the same trust shall be directed against the former. The thought we have
"no one is considered to allege their own shame," known to all
continental legal systems. Original in the way it finds its application is
the principle: 'delay defeats equity,' formulated, also, in
Equity helps the diligent, not the indifferent.
and not indolent). In the language we are accustomed to, the principle shapes the idea of a
extinctive prescriptions. What characterizes this type of prescription is the fact that it does not
operates in relation to a predetermined term, but rather to certain 'rational limits' - which
therefore, an assessment from case to case - in which the law must be exercised. For a
judgment in equity, the concept is very appropriate. Another principle establishes that: "equity
Equity looks to the intent, and not to the form.
The most interesting among these principles seems to be: "equity 101 is considered to be"
done what ought to have been done
done). In this case, we encounter a judicial concept analogous to that formulated by canonists and
other medieval jurists - in this sense the names of Pope Innocent IV and of him are cited
Jaques de Revigny, known by the name of the doctrine of 'jus ad rem'.

According to it, any right concerning a specific determined good would give rise to
A right against any third-party acquirer in bad faith. Based on this principle,
for example, if the seller of a good has transferred his ownership rights
the buyer, he, according to him, is treated as if the transfer of ownership would
The eleventh principle establishes that: 'equity presumes the intention to
fulfill obligations" ("Equity impute an intention to fulfill an obligation"). Fraud against the law
it is prohibited in all legal systems. English law recognizes the principle: 'equity does not
admit that a written law can become an instrument of fraud" ("Equity does not allow a statute
to be made an instrument of fraud). Another maxim that we will mention in this context
this "equity means equality" principle has significant applications in
different fields, especially in matters of property and obligations. The mentioned principles
they are certainly not the only ones that can be drawn from the vast jurisprudence that
they represent equity. They seem sufficient to us to form an image of what
this normative system means, this exceptional right, a sum of the corrections that are made
another normative system. It is important to note that equity itself has evolved.
where, in its beginnings, it expressed a system in which, in reality, the judge
innovating each time, not being practically bound by any rules, from the 17th century the Court
The chancellor has begun to reflect on his own decisions. The system
the precedent - the fundamental mechanism of English law - 102 began to operate and
Here. Equity has consequently become a parallel and competing normative system with common law.
of the law. Under these conditions, it was expected that a conflict would occur between the two
categories of jurisdictions that applied two different regulations. In relation to the court to which it
the claimant addressed, the solution could be in one direction or another.

The conflict was largely avoided through the judicial reforms of the years 1873 and 1875, when
The Division of the Chancellery has thus become one of the sections of the High Court of Justice,
included in turn in the Supreme Court of Justice. In terms of substantive law, it has not
it was definitively settled only in 1873, when a special law established that, in
the hypothesis of a conflict between equity and common law, the former will prevail. Another feature
the characteristic of the common law system derives from the fact that English law does not know
neither implicit repeal nor obsolescence: as a result, a number remains in force
enormous normative acts that have never been expressly repealed and which date back to
centuries. This makes it extremely difficult for the judge to have exact knowledge of the law, which does not
there is never certainty that the provisions of the law in force have been applied exactly. In order to
to facilitate the understanding of statutes, compilations of statutes have been created over the centuries.
We mention among these The Statutes of the Real, which include the laws edited between the years 1011
and 1713, The Public General Act (from 1714), The Revised Statutes (1870-1897), The
Statutes at Large (1815-1870), Halsbury’s Statutes of England etc. Contemporary statutes
are published in supplementary issues of Law Reports. These collections of statutes do not
they must be understood as conditions. English law remained hostile to the idea for centuries
of codification. However, there are in England some partial codifications in the field of
joint-stock companies, commercial effects, maritime transport, etc., considered very
success. It should be mentioned that nowadays, the importance of written law only does 103 but
grow. After the Second World War, especially, we are witnessing a significant movement
legislative.

In 1966, an entity was established - the Law Commission - whose tasks are reminiscent of
the decisions of our Legislative Council. Thus, the Commission is tasked with investigating
the reforms that need to be made in English law and to draft, in this regard, projects of
It is often said, in England, about a time-honored general custom that would
it represents the foundation of common law as judicial decisions would find their basis in it.
the legal foundation and moral authority. Viewed this way, the entire English law would appear as
having a customary origin. The thesis is certainly inaccurate. This ancient custom has not been
in reality rather than a simple fiction, intended to dispel the suspicion that judges would
arbitrate. English law has not truly had a customary character except before
the Norman conquest when indeed, throughout the entire territory of the island, the law was applied
Anglo-Saxon customs. The emergence of common law is linked precisely to the process of
to consolidate the powers of the Norman kings, who wanted to replace the old customs with a
right of precedents - a work of the royal courts - to become the common law of England.
The customs currently applicable remain, furthermore, local customs. Therefore, there is no
general custom, applicable throughout the entire country. Two conditions are necessary to
fulfill a custom in order to be considered by justice: to originate from ancient times
immemorial and to be rational. Unlike the law of other countries, which recognizes the value
customs if they have been established for a long time, English law requires more than
they should be immemorial.

The rule was established by a law dating back to 1265, which is still in force. According to
this law is an immemorial custom that existed already in the year 1189. The mentioned law
however, it produces significant judicial consequences by providing a fine for non-acceptance
categorical in the event that it is proven that a custom could not exist at the mentioned date.
The rule of immemoriality is such that it removes the application of a large number of
custom. The place occupied by custom is by no means negligible. It is true, however, that the most
most of the customs in force operate in other areas of law than in civil law.
The idea that reason represents a source of law has always circulated in law.
In the face of a gap in jurisprudence and the law, the judge can and must
appeal to reason, to provide a fair solution. Reason is fundamentally at the base of the most
many jurisprudences. It has played a considerable role in the formation of the system of
English law. A great medieval jurist, Coke, showed that, although common law is nothing else
than reason itself, this must be understood as a 'artificial reason of the law' (artificial
the reason of the law), in other words, is the reason as understood by judges, with
the essential concern of building a coherent legal system. Moving from the comparison
formal legal norms, which take into account the sources of law, in the structural comparison, which
regarding the institutions of legal systems, we will make only two clarifications. We mention,
the fact that English law does not know the division into branches, so common in systems of
on the continent. Legal systems, with their branches, are the fruit of Cartesian thinking,
incompatible with the fundamental pragmatism of English law.

Not even the division into public law and private law, fundamental for the Roman system -
Germanic is not operative in English law. The term 'branches' is often found
use in English law only that does not refer to civil, commercial, criminal law, etc.
the three typical parallel normative systems: common law, equity, statute law. Each
Among these, it will include rules from what we are used to calling civil law,
penal, commercial, etc. In contemporary English doctrine, there is also, as
the 105 shows Schmithoff - a tendency to divide the law according to the known criteria
contingent. Thus, we speak about a family law (a term that has gained prominence especially due to
Bromley's treaty with this title), about a mercantile law (commercial law) or about
a criminal law (penal law) or a labour law (labour law). The second clarification
look at the prominence of procedural law over material law. 'Remedies precede rights'
this fundamental principle of English law precisely expresses such prominence.
For the English lawyer, it is more important to find the procedural path that can
promote a certain interest rather than the substantial law that governs it. The dominant idea,
even in today’s days, it is that the person summoned to court - in criminal or civil -
they must have a fair trial, therefore they should be judged fairly, which is not possible, in
the conception of English jurists, only under the due process of law, that is, with respect to
strict observance of procedural forms. If the procedural form is strictly followed, the solution to
wherever the judge reaches, it can only be the good one. Such a mentality is explained, of course,
under the historical conditions of the formation of English law. There being no system of norms of
well-defined substantive law, the judge being therefore the one called to clarify the legal norm
applicable, it was natural for the way in which it operates to become the relevant factor.
Important particularities can also be observed regarding the execution routes. English law.
it is infinitely more operational in this regard than that of many countries on the continent.
The refusal to execute a court ruling is inconceivable.

The enforcement procedure, lengthy and costly, is unknown. Thus, of

For example, cancelling an administrative act - administrative litigation is current in law
the court will order the administrative body through a writ of mandamus to adopt
to a certain extent. Through a writ of habeas corpus, she can also order
the police to release a person held illegally. The landscape of judicial life
the lawyer profession is particularly vivid and colorful. It confirms that the legal profession represents
a well-rated career, very well paid and which allows access to the highest peaks
but of English society. Characteristic institutions for common law Some of these,
as the trust was, they have been exported, becoming today frequently used institutions in
the right of many states. Others, however, are so tied to British legal traditions and, more
deeply ingrained in the social stratification characteristic of Great Britain, that they have remained as
true identifying elements of the common law system. The most typical for
this last category is the regulation of property rights. Conservatism
English law has led to the preservation of a feudal-type structure of property.

This structure is, however, only apparent, as beneath the medieval forms lie
very favorable methods of defending private capitalist property. Property law, law
property, encompasses a considerably different technique of protecting real rights, compared to
the one that can be found in any of the legal systems on the continent. The main
the distinction that common law makes in this regard is between real property and
personal property. In a considerably simplified explanation, real property would include those
subjective rights that are protected through real actions, while personal property is
cover the sphere of rights protected by personal actions. The concept of personal property
it assumes two categories of goods. Some are the so-called choses in possession -
goods susceptible of being possessed - such as corporeal and incorporeal goods,
the others bearing the name of choses in action, are excluded from the protection that
confers the specific actions of the first category. Here we find the receivables, actions, trademarks of
factory and commerce, copyright and inventor.107 Possession - an institution governed
exclusive common law in a narrow sense, grants as in French law, a true
presumption of ownership that prima facie evidence of ownership.

The main action enjoyed by the possessor is that of trespass. A tort action for
origin, trespass has become over time a very broad concept intended to sanction
any damage caused to the property through a physical act, regardless of how it might occur.
The action of trespass continues and is completed in that of trover, which, unlike
from the very first, it can be directed not only against the author but also against anyone
subsequent acquirer, whether in good or bad faith. It is noteworthy that the term
possession is used only in connection with movable property, while for immovable property
the one of seisin is used. No subject illustrates so well the feudal character of
the structure of property law and does not highlight the relationship with the same acuity
between appearance and essence in English law, like that of real property law, the system of rights
real estate. The structure of real estate ownership cannot be understood without knowing
what is called the doctrine of estates, another important feudal reminiscence.
The English legal institution that has formed the most reception objects beyond the limits
The great common law system is the trust. The success of this institution is explained by
the functions it performs. It thus serves as a donation or bequest with regulatory obligations
The dowry, of guardianship or curatorship, is intended to protect the property interests of
other persons (the aspect of protecting non-patrimonial interests makes it different from institutions
corresponding from the continental right), fulfilling, at the same time, the functions of a
executor testamentary. The trust can also be used to avoid bankruptcy
after the establishment of a real guarantee (mortgage or pledge). A trust for sale can be established in
the view of facilitating the sale of certain goods, a charitable trust performs the functions of a
foundations, a business trust takes the place of 108 capital companies. The trust consists of
the entrustment of goods to a certain person, for a special purpose, the goods
should be used for a specific purpose. The legal relationship involves three subjects. Each of them
this is a character with a well-established position in the execution of the trust, holding a
distinctive name.

Thus, the settlor is the person who establishes the trust by transferring the ownership of the assets,
the trustee is the one who is to execute the trust, receiving the ownership of these assets and, in
In the end, the beneficiary is the one in whose fund action is taken. In other words, he is not free.
to dispose of these goods as they see fit, but must use them, to
to administer or even to alienate them in the interest of this trust and in the sense in which it has
The trust has been established. In fact, the legal operation consists of allocating certain assets for the purpose of
the realization of a certain goal, goods which, formally, are removed from the assets of the settlor
to enter into that of the trustee, without him becoming a true owner, but
remaining fundamentally a simple executor. the relationships become even clearer then
when the settlor is confused with the cestui que trust. In the trustee's estate, they do not confuse.
with the property of this one, remaining to form two distinct asset pools.
Moreover - and this is likely to emphasize the idea that a trustee is not a true
owner - he has the right to be compensated from the value of the assets that are the subject of
the trust for the damages it has suffered due to the execution. However, it does not have the right to
retribution, since the trust is a free burden. One of the specific elements of
the institution is that the trust does not represent a contract and, as such, does not require an agreement of
will. It arises from the unilateral will of the constituent. A third institution upon which
We will not stop in our desire to present the most characteristic elements of the system.
The English legal term is the so-called adjective law. Of course, procedural law exists in any
legal system. In this respect, adjective-law, which is essentially nothing more than
the regulation 109 of judicial procedures does not represent anything specific. The 20th century has
the moment of simplification and systematization is significant for the English judicial procedure. With
All of this still presents itself to the foreign observer as a complicated procedure,
long-lasting and, in comparison with modern trends in procedural law,
Obsolete. Assessment test: 1. In which countries do we encounter 'judicial precedent' as a source of law.
What is meant by common law?
What are the most important institutions characteristic of the great common law system?

MODULE 6 THE LAW OF THE UNITED STATES OF AMERICA

The law of the United States of America is the result of the transplantation of English law to
the American continent. The structure of springs, the main institutions, even that way of
reason what characterizes English lawyers, they are similar. Although they are part of the same
my family, the two systems differ in certain important aspects. The differences are
is primarily due to the federal structure of the United States, which shapes the law
these significant particularities. The result of a remarkable evolution, American law
he conceives certain institutions differently.

Although the system of sources of law is similar, the weight occupied by each of
this as a whole of the system differs significantly from that in English law. Here
the influence of Romanist systems and especially of French law was felt much more
more powerful than over English law. It is worth mentioning that one of the states that falls into
the composition of the American Union, Louisiana, formerly a French colony, received the law
French. In order to understand American law, it is absolutely essential to have a look at
the way it formed, starting from the colonial period until the present.
Only in this way can the gradual detachment of American law from 'common-
law” classic and the particularities it presents today, as a substantial legal system
different from the British one. The phenomenon must be viewed starting from the colonial period. The colonies
The English in North America were never unified and did not have legal ties.
between them.

When the thirteen colonies declared independence, they became thirteen

state, living in a federation, but which have retained their legislative autonomy. The largest
Some of the colonies were initially 'proprietary colonies'. The British crown granting a
landowners in America with the right to colonize and govern in the name of the king,
against a payment. Within these, the 'owners' enjoyed a true autonomy
legal. Social and economic progress has made it necessary to adopt increasingly more institutions.
the most complex from common law. This progress emerged on American soil
the profession of jurist. The greatest difficulty in the way of reception was the lack of the great ones.
British jurisprudence collections, without which common law is inapplicable. In some way
measure, in their place, the work of Blackstone titled acquired exceptional spread
"Comments on the Rights of the English Language," which had almost become official. The issue
the applicable law in the English colonies was first established in the year 1608, in connection
with the resolution of the Calvin case. It was established that this occasion that English law follows on
British subjects when they settle in territories "that were not previously inhabited by
civilized nations." However, this is only to the extent that the norms that would be applicable are
matching the existing living conditions in these territories. Gaining independence in
1776 marked the birth of American law. The animosity that had arisen in
the relations with the former metropolis have greatly facilitated the penetration of certain conceptions and a mentality
legal inspired by French and German law. 112 If the common law rules and
equity has generally been accepted as such, those of statute law, representing written law
the former metropolis has been repudiated. Instead, a legislation of the new state has emerged, intended
to replace the English one. However, the federal structure of the United States has imposed since
the beginning of a particularity of the new legal system. The legislation of the states within the federation is
the legislation of the union will be added. The Tenth Amendment to the Constitution of the United States,
adopted in 1791, establishes the principle of legislative competence of the federal states.

Federal agencies have the competence to legislate only exceptionally in

the extent to which it is based on a text from the Constitution. However, this rule has been
interpreted very broadly by the federal courts, which have accepted an increasing number of
a number of situations where federal authorities have been recognized as competent to legislate. And
if, through this practice, the report has not been completely overturned, it is no less true
that it has been seriously modified. Undoubtedly, the most important issue it raises
this specific structure is that of the control of the constitutionality of the laws.

According to the American Constitution, it is the task of the Supreme Court of the United States to
controls, through a special appeal, the compliance of the laws issued with the Constitution
of the different member states of the Union, in words, to assess whether
these were issued according to the legislative competence of each of them. By way of
this recourse, the Supreme Court can rule, annulling the laws of the federal states, in
the extent to which they are unconstitutional. It is noteworthy the particularly significant place that it
the law occupies a place in the sources of law. Although American law remains a law of
of precedents, although, due to the nature of such a legal system, common law and equity
At least theoretically, the main sources remain; we cannot fail to notice their prevalence.
quantitative of normative acts in relation to the situation in the English system. 113 Structure
The federal state leaves its mark on common law in a narrow sense. Lawyers
Americans have long debated whether or not there is a common law in the United States.
or one can only speak about a common law specific to each state. We could
reproduce, in this context, the extensive jurisprudential and doctrinal dispute arising around
this issue. We note only that in a famous case, the Supreme Court of the United States
it has pronounced in the sense that there is no federal common law, but only specific common law
each state. (There is no federal general common-law). (The case is now known as: Eric
The Railroad Company was sued in 1938.

The specificity of American law is that it, unlike English law,

knows and the possibility of revival of jurisprudence. The Supreme Court of the United States and
The supreme courts of the states are not obligated to abide by their own decisions, and therefore can
pronounce, in other cases, differently. The importance of this is evident.
liberty. The common law in the United States thus seems to be protected - at least theoretically - from sclerosis
of which suffers the one from the British Isles. In turn, equity has evolved on the ground
American in a different way. In England, family law actions, such as those regarding
divorce or annulment of marriage are under the jurisdiction of ecclesiastical courts, the matter being
regulated by canon law, the United States recognizing neither canon law nor
ecclesiastical instances. The courts seized with such actions found themselves facing a void.
legislative. The most important, perhaps, characteristic that equity presents in the States
Unity lies precisely in the fact that he was called to fulfill this role, reaching the
solutions that are completely inconceivable in English law. Another specific element of the legal system
American presents a significance that cannot escape us. Common law and equity together.
it forms in the United States the object of systematic arrangements and collections, without whose consultation
American law cannot be understood. The first of these is the Restatement of the Law.
The restatement, a vast collection of systematized case law, is not a document.
official.

Elaborated by a private organization - American Law Institute - its strength lies not in the investment
official, but in the scientific authority it enjoys. Over the years, 19 have been published.
the volume of this work. Their knowledge presents exceptional interest for anyone
a person who studies American law. The subjects included in the Restatement are
următoarele: a) Contracte - două volume apărute în anul 1932; b) Agency (mandatul) -
two volumes published in 1933; c) Conflicts of laws - a volume published in 1934; d)
Tors (delictual civil liability) - 4 volumes published between 1934-1939; e)
Property (real rights) - 5 volumes published between 1936 - 1944; f) Security (guarantees
personal and real) - a volume published in 1941; g) Restitution (the quasi-matter
contracts) - a volume published in 1957; h) Trusts - the regulation of trusts covers a
more areas of social relations - two volumes published in 1955 and i) Judgements
(procedural issues) - a volume published in 1942. The collection made by the authors
this restatement is not accidental. They only retained the most relevant cases
representative of the American legal system. Two series of publications have come to
complete the entire 19 volumes of the restatement. The first of these is the restatement in
the courts, which represents an index regarding the cases in which each text has been cited
Restatement of the law. The second is State Annotations, which show the extent to which
The case law of different states reflects the principles of law contained in the basic collection.
Although it does not represent a source of law - it has rightly been compared to the Digests -
The Restatement enjoys a great authority in the American legal world, being frequently
citation in specialized works.

Another working tool for American lawyers is the Annotated Report System. This
a collection of jurisprudential collections, whose appearance began in 1871, is
continues today through American Law Reports published as well as the restatement of organizations
private. Although lacking official character, these collections are very consulted, without them
It's really, practically, possible for you to cope with the enormous amount of decisions pronounced by
American jurisdictions. An important role in American legal life is also played by another
jurisprudential collection - National Reporter System. This collection began to appear
Since the year 1876, in the state of Minnesota, to gain federal status in the year 1879.
The publications included in the system, divided by states, total 7: Atlantic
Reporter, North Eastern Reporter, North Western Reporter, Pacific Reporter, South-Eastern
Reporter, Southern Reporter and South-Western Reporter, each encompassing the jurisprudence
a number from 4 to 13 federal states. Since these collections only include
Union jurisprudence is complemented for the decisions of the courts in federal states.
prin: Supreme Court Reporter, Federal Reporter - first and second series, Federal
Supplement and Federal Rules Decision. There is also a New emerging since 1988.
York Supplement (first and second). The National Reporter System is characterized by the fact
that, in each decision, it publishes all the opinions expressed. In all the rulings issued, leaving
but aside from the pleadings of the lawyers and making no annotations. In order to make the connection with
previous decisions made on the matter, in each paragraph of the summary of any volume there exists
a key number, Kevnumber, which allows for the retrieval of matter in the American Digest System,
the collection of digests, which clarifies and summarizes all decisions made by the jurisdictions of the states
federal. We will also mention the collections of federal decisions, among which United
States Supreme Court Reports currently published under the name of Official Reports of the
Supreme Court includes the decisions of the Supreme Court of the United States, Federal Reporter,
Federal Cases, Shepard’s Federal Citations etc. 116 They appear, at the same time, collections of
specialized decisions on matters, such as those related to automobile accidents, insurance,
the certificates, the cinema, the taxes, the companies etc. A prominent place within the law
Legislative is occupied by the constitution.

If England still does not have a written constitution today, in the United States the constitution adopted in
the year 1878 and modified or supplemented by a number of amendments, but never
completely replaced - is undeniably viewed as a fundamental act. Unlike
The constitution, ordinary laws seem to have a lesser authority by themselves. The acts
normative are published in specialized collections, of which the most significant are
Status at Large and Session Laws. In the face of the marked tendency to proliferate laws, some
states have actually tried to adopt codes. The most well-known of these is the United States
Code Annoted. The technique, however, differs substantially from that of the Napoleonic codes.
because within it the laws are classified alphabetically. It must be taken into account, in the same
time, as this collection only relates to normative acts, leaving aside the rules
detached through jurisprudential means. Closer to the known codes on the continent
European are those adopted by some states within the federation. Thus, in California,
North Dakota and South Dakota, Georgia and Montana have civil codes, and in 25 of
state, codes of civil procedure. Indeed on these, as pointed out sharply
the same R. David, American lawyers see them more as attempts to strengthen
existing case law in the matter, rather than as true normative acts. Besides
of the mentioned codes, we will also note the laws adopted in administrative, tax, etc. matters,
in all the states of the union, which, by their significant number, create the quantitative ratio between
jurisprudence and the normative act to be brought into question. 117 Evaluation test: 1. What are
What are the characteristics and differences of American law compared to English law? 2. How
Does the federal structure of the USA influence the institutions of English law? 118 Module

7 RELIGIOUS AND TRADITIONAL LEGAL SYSTEMS

Hindu law does not represent the law of India - neither that of feudal India nor that of the former 'pearl of...
English columns", but neither of the Republic of India - but is, as it has been very precisely defined
the right of the community that, in India or in other countries of Southeast Asia, adheres to Hinduism,
with other words to Brahmanic religion." To understand the meanings of this right, one must
shown that it presupposes the existence of a certain social structure, represented by the system
castles, as well as a characteristic way of life, unprecedented as such in the countries where
Brahmanism is unknown. It is undeniable that through the act of consecrating a hierarchy
intangible social practices and some social relations arising from the mists of Asian antiquity,
which is added to a fundamental hostility against any innovation, Hindu law, alongside
The Muslim cell is revealed to be one of the most conservative legal systems known.
The caste system has essential implications, as each of the four categories of
caste: brahmin, kshatriya, vaishya and shudra, followed by the category of the casteless, apply to them
specific rules of law. Therefore, a characteristic of the Hindu system is the multiplication of the number
regulations with that of the castes. Each of these has its own custom.
The resolution of disputes among the members of the caste is done by the general assemblies of the castes,
which sometimes imposes severe sanctions, the harshest of which is exclusion from the caste,
a punishment equivalent to civil death. The main source of religious doctrine, but also of
of the law, is represented by the sacred texts called Sruti, regarded as the expression of
the truth itself. They encompass the four Vedas (Rig-Veda, Sama-Veda, Yajur-Veda, and Atharva-Veda)
Vedas), the holy books of the Brahmins.

To understand the exact configuration of the norms, Sruti alone is not sufficient, it is necessary to
to call on other books, called Sastre, It is, we could say, the second source of
right. According to Hindu doctrine, human behavior is determined by: virtue,
interest and pleasure. Without the knowledge of this conceptual division, the understanding of the meaning
The dismissal is not possible, because these sacred books develop the norms of conduct on
what subjects must accomplish in order to fulfill the higher commands included
in Sruti. To achieve virtue, they must practice the science of dharthei, to accomplish
interest is provided by the science of art, and to achieve pleasure, the science of karma.
it is evident that among these, the most significant for understanding the legal meanings is
dharma. This does not itself encompass proper legal principles, but it is relevant.
by indicating the set of concrete duties that each person has in relation
with the stage of existence that it goes through. The principles of dharma are developed in such a way-
the so-called dharmasastra, which essentially express true treatises about dharma.
We remember among them the one regarding the laws of Manu (Manava dharmasastra), those of
Yajnavalkya and those of Narada (Naradadharmasastra). Consulting the dharmasastras does not
can be fully completed without the study of the so-called nibande, which essentially represent comments
but these, elaborated between the 12th and the 17th centuries of our era by authors
often remained 120 anonymous. A special place among the Brahmanic books is occupied by
Bhagavad-Gita. As Ananda Coomaraswamy shows, this book has eighteen
the capitol is not, as has often been said, the work of a 'cult'. It is studied everywhere and,
Often, it is recited daily from memory by millions of Hindus of all beliefs.

Ba can be considered as a summary of the entire Vedic doctrine as we find it in

the first sacred books. Modern authors who have focused on the legal significance of
Hindu writings indicate that Brahmanism rejects the idea of law, that it has not seen
never in these writings a body of legal rules. The English, who starting from the century
The eighteenth century imposed its dominance in India; they were the ones who attributed legal value to it.
In reality, the rules of law do not find their legal source in these sacred books, but in custom.
shaped among the populations that live according to the precepts of these books. Not the books
represents, therefore, technically speaking, the source of law, but the custom based on their teaching.
René David says that Hindu law is actually more of a customary law.
less dominated by a religious doctrine, Hinduism, which establishes the rule of
conducted and in accordance with which the customs have been, to varying degrees, modified, oriented
but interpreted. However, it is interesting that these customs are themselves diverse and
numerous. There are regional customs, of a locality, of a tribe, of a sect, and even
of a family. All of these have legal value, the difficulty lying in knowing them.
exact. However, to understand the peculiarities of Hindu law, it is necessary
the knowledge of some of its most characteristic institutions.

Thus, marriage is considered a sacred act, Hinduism removes not only the conception
according to which, it is a legal act, but it consistently draws all conclusions that can be
detaches from here, in the sense that it does not recognize any of the impediments to marriage
encountered in modern legislations. Thus, for example, it accepts polygamy; in the past only
upper castles had this right, but in modern times it has extended to all
castes, including Sudra, with the evident condition of being able to support multiple wives.
A specific impediment to marriage was the difference in caste. Marriages cannot take place
only between members of the same caste, under the penalty of nullity. Hindu law recognizes, of
similarly, specific impediments resulting from kinship and affinity, such as those between
sapindas (the individuals who bring funeral offerings to the same ancestors). They were known, however
a little in the past, eight forms of marriage, of which four were approved and four were condemned,
to be accepted as legal effects. Currently, there are only two forms left: marriage
Brahmanical, concluded through traditio puellae ad meritum, without requiring a counter-performance.
from the man, and the marriage contract, which involves buying the bride from her parents
In traditional Hindu law, divorce is not recognized, only a similar institution.
separation of body. Only after gaining independence, divorce was introduced in
legislation. Another widely spread institution in India is adoption. Its spread is
find the justification in the desire to ensure the fulfillment of certain religious obligations by
also to ensure family continuity, the perpetuation of the name and - I have
add new - maintaining wealth within the family. Unusual elements are also found in the organization
family. Generally, there are two types of families: the patriarchal one and the collective one.
The patriarchal family includes a father and his descendants.

When the father dies, the family dissolves, giving rise to the families of his sons. In the case of the collective family
a continuity is maintained, it will exist under the leadership of the eldest son. The rules
concerning succession are complicated, influenced by family structure and are
differentiated in relation to the predominant legal school. According to the Mitakahara school,
the succession opens only over the personal estate of the deceased and not over
the one of the family or of the party that would have held it 122 from the family heritage.
There is a testamentary succession and an intestate one. The latter is divided, as in
the German system. Male descendants have primary succession rights obligated to
prepare the pinda (a type of coliva made from rice). These are the sons, grandsons of sons, and children.
In the absence of such descendants, the wives come to succession, followed by the daughters.
of the deceased and their (male) sons. All those mentioned above represent the first parenthesis. In
the absence of such relatives, the vocation passes to the second parent (father, mother, twin brothers and
cousins, grandchildren and great-grandchildren). Then follows a third parenthesis and so on.
Becoming the colonizers of India, the English found an unprecedented situation. The Mongols, who
they had ruled India for centuries, officially abolishing Hindu law and replacing it
with Islamic law. Muslim judges exclusively applied this right. However,
Hindu law has not died. A unique process has occurred here, perhaps in the history of law, which
demonstrates how attached the Indian people were to their own legal system. Right
Hindus, although it was not the legal system of state power, continued to be applied for a long time
centuries, truly in secrecy, within the panceaiatelor - the general assemblies of the caste
about which I mentioned.

In this way he maintained his vigor, even evolved, so that the English, who did not repeat
the mistake of the Mongols in imposing their own legal system on the population, they were forced to
recognize the existence of two legal systems: the Islamic one, for the Muslim population,
and the Hindu, for the Brahmanic (it should not be forgotten that the territory of the British colony
included, alongside Brahman Hindustan and the territories inhabited by the Indian population
Islamized that today forms the Islamic Republic of Pakistan and the Democratic Republic
Bangladesh). Unfamiliar with the language, ignoring the dharmashastras and nibandhas, the judges
the English found themselves unable to apply Hindu law. They were forced to resort to,
under these conditions, at the services of the pandits. Wise people from the folk, 123 presumed experts of
sacred books, enjoying great respect among the masses (Javaharlal Nehru himself carried
with pride the title of pandit), they quickly managed to become the true judges, thus
so that the English judges had no choice but to sanction the opinions they
the Pandits were giving. Their power became greater as what they applied was not
the sacred books, but the customs arising based on their prescriptions, which were all the more
difficult to know by English judges. Against the excessive power that it
the Pandits had gained, however, vehement criticisms arose, even from within
of Indian intellectualism. They were accused of often abusing this power, of falsifying
sometimes the custom and the meaning of sacred books. It is to be admitted that in relation to the de facto authority on
which they had acquired, compared to the total lack of control, these accusations could be founded.

In Hindu law, the various sources complement and explain each other. Form at school
common law, English judges have often been tempted to resort to principles and
the rules of English law which they knew better. Thus, it appeared in Hindu law
the trust, a specific institution of common law, or elements from the British system of
land ownership. As early as 1788, Sir William Jones proposed a codification of the law
Hindus, after the invaluable model of Justinian's Pandects. This was drafted by
Panditul Jagannatha, later translated into English. In 1883 the first was established.
legislative committee of India, which revived the idea of codification. In 1859, a
civil procedure code, then repealed in 1908 upon the adoption of a new one. In 1860 it was
adopted a penal code, and a year later one for criminal procedure. Besides these, there
a series of laws aimed at codifying the common-law rules defined by
the jurisprudence of colonial courts. It is noteworthy that from 1765 to 1857, justice was
entrusted to the East India Company, so that from this date it would pass under
the authority of the British crown, as the king of England also held the title of 'Emperor of India'.
We mention among these laws: Limitation Act, adopted in 1859, regarding prescription.
extinctive, Successions Act, adopted in 1863, regarding inheritance, which has been replaced
in 1925 with a new regulation. Contract Act of 1872 regarding contracts, Evidence
Act, in the same year, regarding evidence, Transfer of Property Act, in 1882, modified in 1929.
The Trusts Act of 1882 etc. The acquisition of independence meant for India the beginning of a
period of defining the legal system itself. This was contributed by a timely
judicial reorganization, as well as the progress made in the codification work. At the same
over time, the English judicial instances organized by colonial power have been removed and s-
a judicial hierarchy was created with the Supreme Court of India at the top. The main objective of
the removal of some erroneous solutions filtered into the jurisprudence
previously, the full restoration of certain principles of Hindu law
and the continuation of new directions of evolution, in the desire to adapt the traditional legal system
the modern requirements.

The constitution of the new state proclaimed the maintenance in force of the laws adopted before
the gaining of independence, but with certain corrections, imposed by the necessity of modernization
social relations, such as the prohibition of polygamy or the generalization of divorce, has been foreseen
the elaboration of a unique civil code for the entire India and proclaimed social measures of
enormous importance, such as the abolition of all caste discriminations. Thus appeared a
a legal system similar in many aspects to that of common law. The new system has
borrowed, from this, especially the case law character, the special role that is
it confers judicial precedent. Indian law is in itself a law of precedents, in
the modifications made, because, like in English law, the letter of the law is nothing else
than the establishment of norms derived from judicial practice. Indian law should not
considered as being a branch of English. There is a sum between the two systems.
differences that prevent any hasty similarity. For example, the difference between
common law and equity, essential for English law, does not find its place in Indian law.

A striking difference can also be found regarding legislative technique. Indian laws that
it addresses masses where the percentage of illiterates is considerable, and ignorance is so
widespread, I use the technique of illustrations, accompanying each rule with concrete examples, which
to ease her understanding. It is a technique that we no longer find in any system
legislative, but which is said to have been conceived by Bentham himself. It seems that the system
It has excellent results in the Indian environment. The procedure is explainable, in our opinion,
not only through the legislator's desire for accessibility, but also through the casuistic nature of
Indian legal thinking, so inspired by English law. The fund of concepts of
Hindu law, subjected to complex criticism and rigorous censorship, has provided substance.
the normative of a new legal system, which presents itself using procedures and rules
techniques borrowed from English law and enriched with corresponding concepts
modern social relations originating from the same source. The traditional Burmese system is
related to the Hindu one, at least in the part concerning the population that practices the religion.
Hinduist.

For the Buddhist population, there is a customary right based on Hindu law,
and fundamental dogmatic in 36 sacred books, called dammate, according to Dharma-Sastra
Hindus. Buddhism, as is known, is a philosophical and religious doctrine that emerged as a
reaction against Brahmanism, from this, which, according to the law of Kamma, recognizes
individual capacity to determine one's existence, achieving the goals of an individual
depending only on itself. This is, in fact, also the premise of Buddhist law.
The differences between Buddhist law and traditional Hindu law are minor. They are noted as follows.
the non-existence of preference for the male line, in matters of succession, or is it
established civil marriage, instead of the religious one, which is exclusive among Hindus. Towards
Unlike Hindu law 126, the Burmese system allows divorce, even through
mutual consent. It allows polygamy and, curiously, does not recognize the impediment
result of incest. Muslim law Muslim law still governs today
about three hundred million people. Islam is the applicable legal system - to some extent
bigger or smaller - in all Arab states, in Pakistan and in Bangladesh, in Iran and
Afghanistan or Indonesia. The only country in the Muslim world that has completely left.
the traditional system, adopting European-type legislation is, as we have shown,
Turkey, in our country, Islamic law was practiced for a quite long period.
the population of Turkish and Tatar origin from Dobrogea.

After the reintegration of Dobrogea into Romania, establishments were created in Constanța and Tulcea, and after
1913 - Silistra, Turtucaia, Bazargic, and Balcic, Muslim courts, led by cadis. They
they were competent to resolve cases regarding family organization, power
parental, marriage, divorce and successions, according to Muslim law, for the population
of the Islamic religion, the drafting of procedural acts and sentences being done in the language
Muslim law will not be able to support the comparison with the great ...
legal constructions left to us by Rome or Napoleon - writes a French jurist -
Islam (from the root selam - "submission to God") is primarily a religion,
then a state and, finally, a culture. We are dealing with an arrangement of behavioral rules
extracted, as a fundamental source, from the Quran, the holy book of Muslims, rules that
It bears, precisely for this reason, a pronounced religious character. Therefore, the sanction
the disregard of the rule of law is never inscribed in the holy book; it is the state
of sin in which the Muslim falls who does not respect the commands of divinity, so that, at least
theoretically, the punishment will be applied to him by this, at the occasion of the final judgment. Religion
Islam has two different facets. The first of them is a theology that fixes
dogma, specifying what each Muslim should believe. The second is
Sharia - which in Romanian would be translated as 'the path to follow' - encompasses the rules of which
A faithful caregiver must take into account in order to implement the fundamental principles
but the teachings of the prophet. Sharia is thus a system of rules of conduct, which does not
distinguish between civil obligations of payment, of loan repayment, etc., or obligations
diverse, such as helping the poor, observing fasts, saying prayers
etc.. The most developed subject in this body of rules is that of persons. Here, the law
a Muslim finds his entire originality.

Moreover, in Islam it is not the individual, but the family that constitutes the essential subject of law. The purpose
The purpose of marriage is procreation. In order for a man to have as many children as possible, he can have
concurrently a number of up to four wives, a privilege that is not enjoyed, however, by
habit, than those who are wealthy. According to Islamic law, marriage is viewed as a contract.
it is concluded not between the future spouses, but between their parents, a contract whose object is, on
on one side, the bride given by her parents, and on the other side, a sum of money, mahr,
which is given by the groom's side. Therefore, it can be subject, like any contract, to
methods. In Shia law, a form of temporary marriage is permitted, which produces all
the effects of an ordinary marriage, except for the succession ones. Among Sunnis, it is known
the conditional or term repudiation, established even before marriage. All of these give
the possibility for a Muslim to easily change several wives during his lifetime. A
another characteristic of Islamic law lies in the fact that not all areas of social life
they find a similar regulation. The law, the jurisprudence that can be derived from the Quran -
it is undeniably underdeveloped, which is why most Muslim states
they have been compelled to adopt Western-type regulations to cover the gaps
significant that the 128 contains the Quranic right. That is why it should not be understood as
neither as a universal system, nor as a complete one.

There must be added the great ideological diversity existing in the Muslim world.
within the Muslim community, there are a large number of rites and schools that
interpret the Quran, each in their own way. These rituals are divided into orthodox
(or Sunni) and heretical. Starting from common principles, these rites differ in
numerous detailed aspects that involve a great diversity of legal solutions. It is
It is easy to understand under these conditions how fragile the unity of Islamic law is. Another
an important aspect is the preference of Muslim jurists for reasoning
analogical reasoning (qiyas), occupies such a place in Islamic law that it has been elevated to
the source of law. The Muslim jurist is accustomed to thinking that law is made
from case solutions, given day by day, considering the temporary, momentary needs, more
rather, than from general principles established a priori, from which consequences can then be deduced in
Given the situation. This jurist will refuse any abstraction, any systematization, any
codifying, he will avoid generalization and even definition. The lack of any rigorous discipline
thus it may define the most prominent characteristic of Muslim law. The divisions of
the bases of law, as found on the European continent, in public and private law
or in branches of law, are completely foreign to Islamic law. The originality of law
Islam becomes even more evident through the research of the sources system. Muslim law is,
in Islamic conception, the fruit of divine revelation. The rules of conduct have been revealed,
according to Muslim teachings, from God, through the archangel Gabriel,
the prophet Muhammad. By the order of the caliph Abu Bakr, the teachings of the prophet were gathered
by one of his disciples, named Zaid, in a book that has been given the name Quran
(the term could be translated by the word "narration"), having become the 129th holy book of the world
Mohammedan.

Of the more than 6200 verses it contains, divided into 114 chapters, a number of
five to six hundred can serve as a material from which rules can be extracted
They express, essentially, in a very concrete form, different case decisions.
consultations offered by the prophet, upon request or to prevent certain difficulties, and refer to,
in the vast majority, in the area of family relations, inheritances, regarding the status of women.
The Quran is an incomplete legislative instrument. Regulatory gaps were required.
completed with other sources, the only condition for the development of a capable legal system
to meet the needs of a society in full expansion. However, resorting to other sources
complementary was loved, in the Muslim conception, by insurmountable difficulties. The Quran
it was considered a relevant and infallible work. It could not be easily accepted that it had
wrong, nor is it incomplete, just as it was difficult to admit that there are gaps in thinking
the archangel Gabriel, the inspirer of the prophet, should be completed through provisions that are not of
divine nature. The word innovation is a term little appreciated by Muslims. For a
a rule not found in the Quran has no chance of being imposed, it must necessarily appeal to
tradition, to what exists. The additions to the Quran have therefore found their foundation in
tradition. The body of rules that expresses it is called Sunna. However, through Sunna
Muslims only understand that tradition related to the life and activity of Muhammad. It
represents the way of being and behaving of the prophet, who must serve as
guide of the faithful. In other words, it includes behaviors, gestures, sayings, or even
the silences of the prophet, which can serve as principles of faith. In the Sunnah there are also,
including the examples given by the prophet's disciples while they were alive. Each of
The principles of faith contained in the Sunnah form the subject of Hadith 130. In the 9th century-
there have appeared famous collections of hadith, among which the most well-known are those related to
the names of El-Bokhari and Moslem. Each hadith contains two elements: the text
(text) and its basis (isnad) which expresses the chain of successive transmissions from the prophet to
our days. Verifying the authenticity of a hadith involves examining each link of
this chain, appreciating the religious spirit, age, morality, understanding ability and
the memory of each transmitter, as well as other circumstances, such as the uninterrupted nature
of the chain.

This criticism of origin is accompanied by a substantive critique of each hadith. In this case, it operates
but a quantitative criterion, typical of Muslim thinking: a hadith is considered
authentic when there are more reasons to accept it than to reject it.
It should be noted that Islam does not recognize a supreme religious authority tasked with this.
with the interpretation of sacred texts. The unit of interpretation is ensured under these conditions
in consensus, the third source of Muslim law, which provides the believer with the criterion
with the help of which he can recognize the exact meaning of sacred texts. This criterion is
the unanimous agreement of the Muslim community. Two maxims, attributed to the prophet,
it grounds the appeal to unanimous consent. The first is found in a hadith, which
"My community will never agree to a mistake." The second
this is a text from the Quran that states: "He who follows a path other than the one of righteousness...
"the faithful will go to Hell." These two sacred texts represent, in the conception
Muslim, a sufficient basis to justify the authority of the source of law of ijma.
Theoretically, it is designed to represent the unanimous agreement of all those believers,
named mujtahids, who possess the qualities required to form their own opinion,
exercising ijtihad, the intellectual activity that leads to the realization of the precepts
included in the Quran or in the Sunnah. Ijma is transmitted like the hadiths, orally, from
generation to generation. 131

In practice, idjma can be known from the treaties of great jurists. "The scholars are
the heirs of the prophet," establishes a maxim. The agreement of the great jurists on a
the problem gives rise to the solution at which the power of a legal norm has stopped. The great conquests have
brings Islam numerous followers with customs and mentalities completely different from those of
of the Arab conquerors. The holy book and the Sunna could not provide answers in these conditions to a great
number of problems. Ijtihad, the creative effort of law, has thus taken on new dimensions and has
he was called to play a role completely different from the one he was supposed to play back then when
Islam was practiced by a small human community. The wise had to resort to
consequence increasingly relying on their own reasoning, enriching their body of doctrine,
thus distancing itself, as was natural, from the orthodoxy of the early beginnings. The method with
the help of which the ijtihad took place was qiyas, reasoning by analogy. His technique
Qiyas consists of assimilating a situation arising in practice with another one considered in a
sacred text, whether in a hadith. It should not be seen in qiyas as an activity of legal interpretation.
Indeed, interpretation involves extracting the exact meaning of the law in order to apply it.
as accurately as possible to certain situations that it is intended to govern.

On the contrary, qiyas leads to the resolution of some issues for which the law has not been
made. According to traditional doctrine, qiyas includes four elements: a) the root -
the legal prescription from which the reasoning starts; b) branch - the litigated aspect that
will soon receive a resolution; c) the cause - the common quality that brings together the two terms that
follow to compare; d) judgment - the reason on the basis of which the rule is extended from a
the other end. As observed, these elements seem identical to those of
of the usual syllogism, the "root" being the major premise, the "branch" the minor premise, the "cause"
the term average, while "judgment" is the conclusion. 132 The importance that idjma represents for
Muslim law is enormous. While the Quran and Sunna are historical sources and, at
to be honest, theoretically, the main source remains idjma.

The creative effort of law - ijtihad - remains, however, it must be emphasized, a work of
of past times. It took place in the early centuries of the Arab expansion, but it ceased
when the legitimacy of any developments of the law has been challenged. Then the gate of effort
the creator (bab-el-idjtihad) was closed. The law was considered elaborated and any attempt
the way to enrich it has been prohibited. This explains why Muslim law is
he has been learned and applied for centuries according to the same books. He has shown a conservatism without
custom. In Muslim law, custom has played an important role. Custom (orf) has contributed
from the beginning to the formation of the legal system of Islam. For a custom to be able to be
taken into account, it must meet certain conditions, among which is also the one
but not contrary to idjmaei. It is worth noting that many Muslim tribes, such as the Kabyles,
The Berbers, etc. only follow their own regulations and customs. Collections of customs.
it bears, for example, the name Canoun in Algeria, and Azref, Abrid, or Aghares in Morocco.

Considering the legal system as a product of revelation, Muslims cannot, obviously, conceive
it can be modified or replaced by the temporary authority. However, it was accepted in all
the times, as this authority was competent to fulfill those regulatory areas
which were not exhausted by the sacred right. Thus, the emperors, kings, and Muslim princes have
often intervened with legislative measures, adopted with the approval of their chief advisor in
legal matters, the grand mufti or sheikh al-Islam. Many authors consider the acts of intervention
but rather as regulatory acts than legislative acts. Over time,
Many Muslim countries have adopted civil codes based on the European model.
Especially in Shia countries, the process of creating new legal rules presumes agreement of
the will of the parties has led to the establishment of unknown or sometimes contrary institutions
the law of sharia. Muslim law is a box of surprises and contradictions, which has
Let it make you weigh each statement ten times. It remains, however, according to
Prof. Univ. Dr. Victor Dan Zlătescu, like all traditional systems, a regulation
anachronistic, destined for extinction, as a result of the profound social transformations it is undergoing
third world countries. One of the criteria that defines a major legal system is that of
the existence of characteristic institutions. Thus, in Islam, marriage is not viewed as a sacrament, it is
hence released from any mystical element, being considered a simple contract. It seems that, under
this aspect, Muslim law has preserved the tradition of Arab customs prior to Islamization,
according to which marriage was nothing more than a contract by which the man bought himself
the wife of her parents. The latter was not even a party to the contract, but just a
simple object. The same concept prevails - at least in the initial period - also in law
Islamic.

Polygamy is the rule. The man - at least under the old law - could have up to four.
wives, the impediment to marriage intervening only when he wished for a fifth.
In modern Muslim states, polygamy tends to disappear and - even though it is not prohibited
by law - persons who lead a modern lifestyle are monogamous. Among
the reasons for divorce include apostasy (the conversion to another faith of one of the spouses),
adultery, repudiation, divorce by mutual consent and that pronounced by the court.
Interesting particularities can also be found in inheritance law. The fundamental rules
Regarding the dissolution of inheritance, its origins can be found in the Quran and in certain hadiths.
The characteristic is the order of sequential vocation. Three orders of 134 are known.
heirs, called: zauil-faraid, hasbah and zauil-arham. A last specific institution on
what we will retain is the wakif. By wakif or habous (in Maghreb countries) it is understood
the destination of a good for a work of a pious nature or of general interest, which exists or
which is set to come into being, the constituent retaining the ability to assign the usufruct
either the proper use of the good by some intermediate beneficiaries or even by itself. The similarity
the Anglo-Saxon trust is striking. Like this, the wakif is used to encourage
donations in favor of the poor and for mosques, schools, hospitals, ensuring the good
against confiscation, keeping them in the family, etc.

Rabbinic and Israeli Law From a scientific point of view, Israeli law represents a
interesting combination of a modern legal system, in which the influences of the system of
common law is evident, and the traditional legal system, of a religious nature, to which it belongs
certain aspects of family relationships should be highlighted from the beginning, under this
aspect, a distinction that seems essential to us between the law of the State of Israel that addresses
to all residents of this state, regardless of their religion, and the traditional right, which
governs only the citizens of the Jewish religion. Issues of personal status, for example,
are mainly regulated by the law of the parties and not by civil and territorial law of
of the state. They fall under the exclusive or concurrent jurisdiction of the courts
religious matters are thus found to be removed from the exclusive jurisdiction of civil courts. The origins
these situations are found in the Ottoman Empire. The British regime maintained this system,
so that then, Israeli law can continue it. We are, in fact, in the presence of a dualism
juridical: traditional laws and civil laws that often cause conflicts of laws and jurisdictions.
Marriage and divorce. The issues of marriage and divorce are regulated by law 135.
personal of the parties, thus the traditional law of Israeli nationals and the law
national (lex patriae) for foreigners.

Written law (Marriage Age Law, adopted in 1950 - Law regarding the age of marriage)
of marriage) intervenes with a particularly strong corrective. The law does not expressly modify the rules
traditional right, but incriminates the act of the one who celebrated or helped in the celebration
such a marriage imposing, therefore, penal sanctions and to the authorities who officiate it.
religious marriage. It is an example of how the state intervenes, in order to
it actually modifies, through indirect means, traditional law. However, the incrimination can be removed in
two situations when the court may authorize the marriage of a woman who has not turned 17 years old:
a) if she has given birth to a child or is pregnant; b) when the court finds the existence of
special circumstances that recommend marriage and if the woman has reached the age of 16. A
Regulations with a very specific character can be found in matters of divorce. The element
essential in Jewish law, traditional, from which numerous consequences arise, is that
divorce is not within the competence of the courts, but represents an act of the parties.
consists in the fact that the husband sends the wife a divorce document, referred to as ghet. The court
intervenes only in the case of disagreement between the parties, when it does not pronounce the dissolution of the marriage, but

establishes only if and under what conditions a party may be obliged to remit or to receive
a divorce decree. As a result, the court decision has no effects on the civil status of
of the parties, who remain married until the moment the divorce decree is issued. One reason
important, that automatically leads to the dissolution of the marriage, and which cannot be removed either
neither through the subsequent reconciliation of the parties, nor through the plaintiff's withdrawal from action is
the infidelity of the wife. These provisions of traditional Jewish law apply only in
the case where both spouses are of Mosaic religion. If, however, they are of different denominations,
their marriage is governed by Israeli civil law, and the divorce finds its basis
in a law from 1969, entitled Matters of Dissolution of Marriage Law
(Jurisdiction in Special Cases) - The Law on the Dissolution of Marriage (Jurisdiction in
special cases). In these "special cases" which are mixed marriages, competent are either
civil instance, is a religious court.

Among the multiple effects produced by a legally concluded marriage, we will mention,
due to the specific aspects they raise, concerning maintenance and relationships
the property relationship between spouses. The testimony of matrimonial regimes must be studied in relation to
Law on Spouses (Property Relations Law) (Law on property relations between
spouses), since 1973, entering into force on January 1, 1974. In regard to the introduction of this law, there were created
two different legal situations, that of spouses married before 1974 and that of those married after
the law. In the previous regime, a distinction will have to be made between marriages concluded under the influence of
traditional law and those governed under civil law (Israeli). Traditional law
imposes a separation of property, in the sense that the husband does not acquire a right of ownership over
the wife's assets, each remaining the holder of their own property; however, the husband becomes
the administrator of the wife's assets, acquiring the right to collect the fruits but also the obligation to
to support his wife and children.

Between spouses, with the marriage, a ketubah agreement is concluded, which stipulates an amount
representing dota. Judicial practice has introduced here an innovation of a nature, if not to
modify, at least to considerably affect the regime of separation: at
In the dissolution of marriage, the husband must return not only the dowry received (the ketubah) but also a ...
additional amount, established by the court, taking into account the financial situation of the parties
and the actual contribution of each of them to the acquisition and preservation of goods.
Israeli civil law is more consistent than traditional law in maintaining 137.
separation of goods. If it does not modify in any way the rights of the wife regarding the ketubah,
as established by traditional law, it does not recognize the husband any rights over
the wife's heritage. Israeli specialized literature specifies that, based on this
assertions of the spouses' patrimonial independence, jurisprudence has evolved towards a theory of
presumption of ownership. It is an important and meaningful development which, in essence
In our opinion, it ultimately led to a transformation of the conception of
the separate property in its opposite.

According to the mentioned presumption, the assets acquired during the marriage through efforts
the community of spouses belongs equally to both parties. Thus, it has been established,
practice a community regime clearly inspired by the French institution called:
"community reduced to acquisitions." If an asset is acquired in the name of one of the spouses,
the other automatically has the right to half and can oppose this right to both the holder and
third parties. When establishing the share of 1/2, the concrete contribution of the other spouse is not taken into account.
the acquisition of property. According to a dominant jurisprudence, the work performed by women
in household and for raising children, freeing the husband from these duties, gives him
the right to be considered the owner. Furthermore, the jurisprudence has gone as far as
there where the presumption of community was applied even in cases where the parties were not married,
they lived together in good understanding for a long time. However, it was specified that the presumption does not
applies to property acquired before marriage or before the start of cohabitation and neither to those
derived from donations or inheritances, at least if - and this clarification expresses everything
the interest of the issue - the intention of the parties to exercise co-ownership is not unequivocally evident
in the circumstances of the case. Jurisprudence has reached the idea of silent mandate. Thus, the husband
the net beneficiary is presumed to have given his consent to the act performed by the holder, in absence
a special reason to admit the contrary when the act is, evidently, affected by nullity. The
The second hypothesis concerns spouses married after 1974 under the authority of 138 Spouses (Property
Relations ) Law. The principle from which the law starts is that, in principle - if the parties do not conclude
a prenuptial agreement in the contrary sense - the spouses' estates remain distinct throughout
duration of marriage. When it ends, the interested parties or heirs are obliged to
restore the balance between the total values of the two assets, excluding
certain special goods, such as those over which they were the owners before
marriage - which, of course, are not affected in any way by the matrimonial regime, not even
of the dowry regime - or which are held with the title of succession or donation. According to art. 4
by law, the parties live under a regime of separation of assets. The law, however, allows that at
the dissolution of marriage, either by death (when the deceased spouse is represented by their heirs),
The divorce proceedings should conclude with the so-called 'resource balancing agreement'. Provisions of a
The real interests are also those related to adoption. Until 1960, when an Adoption appeared.
Children Law (Law on the Adoption of Children), the subject was regulated by law
traditional. In 1981, a new law, with the same name as the one mentioned earlier, was
to another regulation of the matter, promoting a new definition of the cases in which it can
approval of adoption. According to the new law, adoption is approved through judicial means. Another
The important provision establishes that a debtor cannot be a single person, but only a...
married couple. As for the effects of adoption, it should be noted that Israeli law does not
knows only full adoption, what we call full adoption effects.
Partial adoption, with limited effects, is not recognized in Israeli law.
Traditional Japanese law This system - essentially feudal - can no longer be found anywhere
application as such. However, there are a number of rules that have been passed down to modern legislations.
entering, as we have shown above, into the Japanese civil code. If, under other relationships,
the Japanese code showcases itself as modern legislation, of a Western type, in
the regulation of personal matters and family relationships is completely different from
European codes, as they promote regulation about which there is too little to say
we say that it is not only inspired but fully reflects traditional law. That is why it is
it is necessary to know a few elements of this system. There are, at the origins of the system
traditional Japanese, a certain influence of traditional Chinese law, due in large part to
Confucianism, a doctrine that has represented one of the sources of the Japanese national religion -
Shintoism. Most of the information about ancient Japanese law is owed to Y. Noda.
a Japanese jurist who published his works in France. The first normative acts, he shows,
they are named ritsu-ryo - known as taiho-ryo and yoro-ryo - and are dated from the century
the eighth of our era. They represent, largely, compilations of Chinese patterns.
The substance of these regulations consists in the establishment of a system of division of
of the land or, more precisely, of the rice fields, in relation to the number of members of each family.
As has been wisely noted, ritsu-ryo had not reached the concept of rights.
subjective, but they were close to the legal field remaining more like rules of behavior
not accompanied by legal sanctions as long as they established concrete obligations. In the centuries that
afterwards, the system was abandoned, leading to the formation of those shô, the Japanese feudal domains, which
they represented inviolable domains.

For its part, the shô system was abandoned so that in the 12th century we could witness
the flourishing of the military caste of the samurais, which lived under the rule of customary law, 140
encoded in the so-called buké-ho, a true code of chivalry. For the rest of the population
continued to apply the same ritsu-ryo, until the end of the 14th century, when
these have fallen into disuse. Just like in China and, probably, under the influence of the same
factors, the ideas of law and justice did not enjoy favor, they being of a nature to disturb
social peace. Instead of legal norms, there were customs, rules acting in society
behavior similar to Chinese rituals. They were very diverse, varying according to
the relationships of kinship, subordination, and other relationships, some incidental, such as
the situations of seller and buyer, creditor and debtor, that existed between different people.
Each abstract type of such relationships involves a special giro that regulates
the attitudes of those involved. The end of traditional law occurred in the middle of the century
the past (the 19th century), when, as I pointed out, Japan integrated into the exchange of values
material and spiritual with the rest of the world.

It was then - this is the so-called Meiji era - that European legislation was received; there were
adopt the first codes. Japan thus entered, at a rapid pace, into the great Roman system
The African customary law The second half of the twentieth century was
marked by the process of acquiring national independence for a large number of countries
from Africa and Asia.

The great colonial empires have disintegrated. The colonial powers had found in these territories a
indigenous customary law. One cannot speak of a single legal system, but
about an infinite number of legal systems. Since each ethnic community had its own
As a custom, there could be as many legal systems as there were communities of this kind.
exist.P. F. Gonidec classifies African customary law as a peasant right, the rules of
rights are strongly marked by the agrarian character of African civilization

In this light, for example, he observes the institution of the chief, general 141 almost in the world.
African. This conferred upon the tribal chief the character of an administrator of collective power,
that gave him the right to collect tribute from those who used this property or it
they were tasked with resolving conflicts between group members. The second characteristic
which the French author finds in African law is the collectivist character or
community. The tribal society, often still in the phase prior to slavery,
it assumed a way of life in common, corresponding, of course, to that common possession of
of the earth.

From here, the total non-existence of the concept of autonomy of will, which must have at
basis, obviously, an individualistic legal system. The third characteristic, emphasized by
Gonidec, this is the deep religious meaning of this customary right. We are talking about tribal religion, of
what dominance agricultural rituals belong to. The land, in this religion, is considered as
the property of divinity, which was entrusted to the ancestors, and they in turn to the generation
from today which does not have such a right of ownership, but rather a simple detention. In
In conclusion, it is worth noting the oral nature of African law. We are not only referring to customs,
because alongside these, as the quoted author very wisely pointed out, one can also encounter
other means of expressing the law, such as the oral decrees of the community leader, or
cele of some secret societies, age groups, commercial associations or of
craft cooperatives that, at times, legislated on the basis of a kind of delegation which
they receive from the king or from the chief.

As an exception, some attempts to draft the customs are reported. Among them
we mention those regarding Malagasy law, owed to the king
Andrianampoinimerina, from the kingdom of Imerina, at the end of the 18th century. He is known
even a "code" comprising 305 articles, attributed to Queen Ranavalona II and adopted in the year
In 1881, we can add to these characteristics yet another feature of the utmost interest.
Although it presents a great diversity, customary law is an incomplete system. Customary rules do not
represent perfect legal systems, in which the entire matter of legal relations of
private nature should find a unified, organized, systemic regulation. In the objective
only certain sectors of the field of social relations enter, such as status
personal, family, property or successions. Of course, there was a right of power.
local colonial, shaped by legislation issued by governors, but it existed above
the right of the metropolis, which became applicable in the colonies. Thus, the African territories have
become subject to the common law system or French, Italian, Spanish, Portuguese law,
Belgian or German. From the information we have, in Angola and Benin were in progress
elaborate extensive draft normative acts intended to reflect the course
political and social transformations that have taken place in recent years. As for the other countries of
the African continent, it should be noted that everywhere the process of decolonization was accompanied by
the act of creating a national right. However, this cannot be done without an undeniable connection
with European law, particularly with British and French law. The effort to create a legislation
national was not, however, of a nature to eliminate customary law which coexisted with official law.

The reasons for this survival have been shown by the President of the Supreme Court of the Coast of
Ivory: "It should not be overlooked that in our countries the means of communication are
still precarious, as some villages are still isolated deep in the forest and especially as illiteracy is
he still spreads his sad web for a certain time.
Although the number of countries in this category is large and the solutions adopted are very
diverse, it is possible, generalizing, to consider that customary law - as a legal system
traditional - finds application in two different ways. On one hand, it has represented for
many modern invoice legislations, an important source of inspiration. There was no recourse,
therefore, with a consolidation of customs, but in the texts of the new civil codes, the matter of individuals,
family, successions, include institutions clearly inspired by customary law. A
An example in this regard is provided by Senegal, where a code came into force in 1973.
family.

This codification work - writes a Senegalese author - is a work of compromise under many
aspect, it is, like its predecessor and inspiration (the French civil code), a
historic event that expresses the will of the Senegalese state to act towards development
national, adapting the most consistently applied customary rules. On the other hand, under the
the second aspect, customary law knows, to a greater or lesser extent, and a
direct application, which is however often subsidiary. In the sense that it only occurs in the case of
some gaps in the written legislation. There are also states where codification has not yet been achieved,
customary law continues to be applied as such, primarily and directly. This is the case
Niger