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Systems of jurisprudence - English precedence versus the Napoleonic code

reefedjib

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I recently learned of differences between England and France in the area of jurisprudence. England's system is familiar to us as they are based on precedence. A law is passed then interpreted by the court and that precedence is used in subsequent cases to inform how the law is interpreted in unique circumstances. In France and Germany, they follow the Napoleonic code, where explicit laws must be passed and there is no interpretation by the courts.

Which is the better system and why?
 

Jetboogieman

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To even begin to answer that question would involve decades of research, and I just don't have the time right now :2razz:

In short.

Both have their positives and negatives. The only issue I find with the Napoleonic code, is that the law would have to be worded so finely, and so specifically that it could be implemented in the way you described.

From what I see in the states, the laws are worded so generally, that quite frankly if you didn't allow the courts to interpret the law and set a presedence there'd be chaos.

Edit: To truly understand which one is better. You would have to do a lot of research into its effects on society.
 
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reefedjib

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To even begin to answer that question would involve decades of research, and I just don't have the time right now :2razz:

In short.

Both have their positives and negatives. The only issue I find with the Napoleonic code, is that the law would have to be worded so finely, and so specifically that it could be implemented in the way you described.

From what I see in the states, the laws are worded so generally, that quite frankly if you didn't allow the courts to interpret the law and set a presedence there'd be chaos.

Edit: To truly understand which one is better. You would have to do a lot of research into its effects on society.
The need for research shouldn't prevent us from discussing it! I am no expert here.

What do you see as the positives and negatives?

The way I see it is that it is an issue of flexibility. The precedence system allows for unforeseen applications to be handled. As you point out, the Napoleanic code requires finely crafted law that somehow expects new situations and provides for its own flexibility. From what I hear, this is often not the case. How could it be?
 

samsmart

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I know that with one con concerning English Precedence is that the rulings you get in court change so often, and are dependent from judge to judge.

You can have the same case tried the same exact way with two different judges presiding and wide up with two different rulings. And if one side doesn't like the ruling, they'll simply appeal to the next level. And if one side doesn't like that outcome, they'll appeal to the level above that.

So under one judge a man may go free, while under a different judge that same man may go to jail. Doesn't exactly give off a vibe of legal consistency in this country.
 

Goshin

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Part of the problem in the USA is that our Congress enacts laws like a machine-gun: rapidly, hastily, in large numbers and rarely with any pause for true reflection. To call our laws "crafted" would be an insult to artisans everywhere. ;)

The Napoleonic notion of "finely crafted" laws applied without judicial discretion sounds appealing in some ways: remove the "human element" as much as possible to avoid error... but I think it lacks not only flexibility but the allowance for how circumstances play into a given judgement. Not every criminal deserves the same penalty, in every case. I think Napoleonic law would be most cumbersome to pass as legislation, and to use in jurisprudence.

However, I would like to see our lawmakers bound by some kind of rule that requires them to at least READ the damn law before they pass it!!!
 

samsmart

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Part of the problem in the USA is that our Congress enacts laws like a machine-gun: rapidly, hastily, in large numbers and rarely with any pause for true reflection. To call our laws "crafted" would be an insult to artisans everywhere. ;)

The Napoleonic notion of "finely crafted" laws applied without judicial discretion sounds appealing in some ways: remove the "human element" as much as possible to avoid error... but I think it lacks not only flexibility but the allowance for how circumstances play into a given judgement. Not every criminal deserves the same penalty, in every case. I think Napoleonic law would be most cumbersome to pass as legislation, and to use in jurisprudence.

However, I would like to see our lawmakers bound by some kind of rule that requires them to at least READ the damn law before they pass it!!!
Oh, I agree that the Napoleonic Code is a cumbersome way to do law. I was just pointing out how inconsistent English Precedence is.

Personally, I'd rather have it so that every law automatically sunsets after 20 years. This way, lawmakers would have to re-up laws every single year. Some years they could do this instead of passing new stupid laws just to say that they as government officials are doing something.
 
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