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TraditionsCivil
Traditions study guide, Moreteau
| Question | Answer |
|---|---|
| sui generis | something all its own, of a unique nature that cannot be categorized along with other concepts; like unlawful in "unlawful and malicious" |
| civil law methodology: analyzing statutes | 1. interpretatio cessat in claris 2. exegetical method a. textual analysis of the source of law b. grammatical interp/legis (common + technical meaning) 3. historical interp 4. teleological method 5. adaptive method |
| interpretation ends in clarity | interpretatio cessat in claris |
| 1. interpretatio cessat in claris | 1. all good analogy begins w/domain of legal interp 2. one should only move on from plain meaning if: --social insufficiency, i.e. solution from plain meaning leads to unfair, bad, or ill-suited-for-times result --clerical error |
| 2. exegetical method (a+b) | a. textual analysis is a particularly good approach for civil bc legis is a primary source of law b. interp based on basic grammatical rules --common meaning of the words; face value --apply technical meaning of technical words |
| source of law | rules that comes from an authority that has the right to create the rule and the right to see that the rule is observed |
| 2. exegetical method (c) | c. logical interpretation: what did the legislature mean to say? what is the logical meaning of the legislation? |
| 3. historical method (list a, b, c, d), A=analysis | a. A of preparatory works (drafts, floor speeches ...) b. source (of legislation) A --ancient interp --modern interp c. circumstances contemporary w/enactment d. incorporation analysis -- did they take language from jurisprudence or doctrine? |
| 3a. analysis of preparatory works | --look@ drafts, floor speeches, committee reports, etc. to determine intent of legislature --note: this is bad bc the intent of one legislator doesn't show intent of legislature |
| 3b. source analysis | looks at materials legislature drewon to write legislation ancient interp: what did the people from whom we took the materials think of them when we took them? modern interp: what do they think of matls today? |
| 3c. circumstances contemporary with enactment | what circumstances (political, customs, etc.) were going on when the legislature was enacted? |
| 3d. incorporation analysis | did the legislature tacitly incorporate (or not incorp) an adoption from jurisprudence or doctrine? (i.e. courts made decision on a subject; someone has written article on subject ... the legislature specifically took into account the holding/doctrine) |
| 4. apply the teleological method L=legislation | a. this method strives to be true to intent of L, or spirit of law b. steps: -ID purpose of L -ID result occurring if you're approach is correct -does result achieve purpose of L w/o going too far? c. problem: all depends on what you say purpose is |
| 5. apply the adaptive method | a. basis: legislatures don't always think very far ahead & times change such that original text needs to be re-interpreted b. must have one of following problems ... c. questions to ask once ID'd one of above problems d. free scientific research appro |
| 5b. to use the adaptive method, there must be one of the following problems: | 1. social prob L was designed to deal w has changed 2. or no longer exists 3. means to tackle the original social problem have changed |
| 5c. after establishing the problem, ask one of the following: | 1. what would the original legislature do today if they knew of the problem? 2. what would legislature do today if they had to answer the problem? |
| 5d. place to mention free scientific research (FSR) | 1. FSR says judge can act as a legislator and put together a totally new rule based on: (i) knowledge, (ii) experience, (iii) needs of society |
| 5d. free scientific method, extra points | i. this is only used in Swiss civil society and is looked at (from civil perspective) as judges making law ii. if the society is a spawn of French civil society, this is bad approach bc puts too much trust in judges iii. LA doesn't use this approach |
| ad absurdum | 1. argument from absurdity 2. end result is absurd, so it should be rejected |
| a pari | 1. by analogy 2. there is no specific statute for the case, but there is a statute that is similar; apply same principle of similar statute 3. apply with a fortiori |
| a fortiori | 1. of greater justification 2. it makes greater sense to apply the rule in this situation than in the one written 3. apply with a pari |
| a contrario | 1. by contrast 2. because one thing is included, the other thing is inherently not included |
| a rubrica | 1. from title 2. take into account the title of the code article 3. apply with pro subjecta materia |
| pro subjecta materia | 1. from subject matter 2. take into account the place the statute is found within the code 3. apply with a rubrica |
| ab inutilitate | 1. from superfluity 2. you cannot omit words in a statute; the words are not superfluous |
| in pari materia | 1. from context 2. read articles in light of other articles 3. always mention this approach if you are reading multiple articles together |
| ejusdem generis | 1. by genre 2. the catch-all at the end of the list should be read to be like the other items listed |
| ratio legis | spirit/purpose of article and wording of the statute |
| ratio juris | spirit/over-arching principle of the code |
| word for gap in code | lacuna |
| order followed by sample exam: against gay marriage | 1. custom a. so clearly settled that never brought to court b. jurisprudence doesn't create custom, but reflects it c. doctrine 2. jurisprudence a. no constante, but from cassation, so more persuasive 3. equity |
| order followed by sample exam: for gay marriage | 1. bc code doesn't speak/ GM may be gap 2. FSR a. doctrine improper bc looking to intentions/drafters improper b. clearly society changed 3. interpret code provisions strictly if written so 4. equity 5. clear custom (new mayor, what Belgium d |
| order followed by sample exam: other exam | 1. look to code first: clear and unambiguous? 2. exegesis: grammar, logic, other sources of law 3. jurisprudence a. not binding, but persuasive if JC; here cassation b. DON'T focus on facts/distinguishing cases = common 4. equity 5. doctrine |
| doctrine, few notes | 1. if unambiguous and uncontradicted, doctrine is very strong 2. not a "source", but given much more weight in civil than common |
| jurisprudence, few notes | 1. not binding, but highly persuasive, especially if reaches level of JC 2. landmark and from highest court (cassation) also persuasive |
| beyond the code, but through the code | au dela du Code civil, mais par le Code civil |
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