Civil Law research

Civil Law research

What is Civil Law? Generally refers to those countries whose legal systems developed out of Roman Law First the Justinian Code, later the Napoleonic Code Characteristics of the Napoleonic Code: – All encompassing – Rationally codified – Clear to laymen – Conservative yet easily changed – System shaper

Civil Law Jurisdictions Sources of Law Differ Code is important Doctrine is important No Stare Decisis Style of Civil Lawyers Public/Private Law Distinction Legal Research Differences

Hierarchy of Civil Law Primary Sources – give rise to binding legal norms Secondary Sources “Authorities” – may have weight when primary sources are absent, unclear or incomplete but are never the basis of law. In practice they are relied upon.

Primary Sources Constitution Code Laws Customs General Principles

Secondary Sources or “Authorities” Case law Doctrinal materials Treatises and commentaries of legal writers, generally expressed in the form of systematic expositions and discussions on broad legal principles “Molds the minds of students, gives direction to the work of practitioners and to the deliberations of judges, and guides the legislators towards consistency and systemization”

Religious/Mixed/Customary systems

Religious and Canon Law: Basic Concepts Religious Law: Generally apply to specific topical areas, such as banking/finance, family law, succession, etc., and application can vary by country or by region within a particular country Examples include Islamic (Shari’ah), Jewish (Hallakah), Hindu, and Buddhist laws Very few countries have a purely religious legal system; religious law is most often found within mixed jurisdictions Submission to religious law may be compulsory or by choice, depending upon the religion, country, and situation Can affect the development of common law or civil law in a country where it is applied

Where To Find Islamic Law Sources Print: Quran Hadith Written records of Islamic jurisprudence Secondary and topical sources Online resources: Various versions of the Quran online: check date of translation, translator’s reputation, reliability, etc. Hadith Collection Online: http://www.hadithcollection.com/ http Islamic Family Law at Emory University: http://www.law.emory.edu/ifl/ Centre of Islamic and Middle Eastern Law, University of London http://www.soas.ac.uk/cimel/ Yearbook of Islamic and Middle Eastern law (available through HeinOnline)

Where To Find Jewish Law Sources Online Jewish Law Research Guide at University of Miami School of Law – http://www.law.miami.edu/library/judaicguide.php Jewish Law: Examining Halacha, Jewish Issues and Secular Law – http://www.jlaw.com/ Jewish Encyclopedia – http://www.jewishencyclopedia.com/articles/14216talmudic-law Soncino Edition of the Talmud Online – http://halakhah.com/indexrst.html

Where To Find Canon Law Sources Online: The Vatican website: – http://www.vatican.va/phome en.htm – The Resource Library on the Vatican Website includes full texts of Roman Catholic documents, including the Code of Canon Law and the Roman Catholic Bible, in a number of languages. CLSA Advisory Opinions (Canon Law Society of America) – http://www.clsa.org/?page advisoryopinions – Designed to provide interpretations of the meaning of the canons established by the revised 1983 Code of Canon Law of the Catholic Church. – Interpretations are unofficial and must be weighed against the official Latin text of the canons themselves. The Catholic Encyclopedia: http://www.newadvent.org/cathen/

What is customary law? There are two types of customary law about which you need to be aware: Customary International Law – A source of public international law. – Determined by looking at evidence that all or most countries follow the custom (for example, diplomatic papers or legislative acts of international organizations.) Domestic Customary Law – Consists of practices or beliefs such as tribal law, folk law, or indigenous law, within a single jurisdiction. – Exists for the most part only in mixed jurisdictions; almost no country operates under a purely customary system. – Embodied in the form of custom or belief, and usually not written down.

What is customary law? –In the domestic context, “customary law” is law that is based on deeply rooted concepts and customs that have taken on the force of law over time. The critical element is not that people keep observing the same custom, but that they do so because the custom has taken on the force of law and because they understand the custom to represent a legal obligation.

Researching Customary Law –Customary law is one of the most difficult types of law to research, because the law is often simply understood and accepted by the population, without ever being written down or codified. –Customary laws are also very subjective and open to manipulation, and it can be difficult to pin down exactly what the laws are.

Researching Customary Law – The best strategy is usually to research secondary sources that discuss the customary law in a particular jurisdiction. Treatises and law review articles IGO/NGO reports Topical/comparative sources, such as the International Encyclopaedia of Laws

Foreign legal databases

Foreign legal databases Think of these as foreign equivalents of Lexis/Westlaw We do not subscribe to many of them, but the ones we do subscribe to can be found on our Electronic Resources page under Foreign Law – By Jurisdiction: http://lawlib1.lawnet.fordham.edu/ eresources/erlinks/for jur.html

LawInfoChina Coverage includes full-text Chinese case law from the Supreme People's Court or the Supreme People's Procuratorate in the areas of administrative disputes, civil disputes, criminal offences, economic disputes, intellectual property law and maritime disputes; laws, regulations, rules, judicial interpretations, local regulations, and local rules in more than ninety legal areas; and legal news in English. All documents provide the original Chinese text alongside the English translation for comparison if necessary.

Example #1 Locate the law that governs arbitration in China On what grounds can one challenge an arbitrator in China?

Other sites Locate the relevant arbitration law/code for one of the following jurisdictions: LawAfrica (Kenya and Tanzania) Juta (South Africa) Manupatra or SCC Online (India) BeckOnline (Germany) Legifrance.gouv.fr (France) – Free resource, includes official English translations of leading codes

Worldliis http://www.worldlii.org/ The World Legal Information Institutes are free, independent and non-profit access to worldwide law for a variety of jurisdictions, particularly good for UK materials (BAILII), Australia (AustLII) South Africa (SAFLII) Asian-Pacific jurisdictions (AsianLII and PacLII)

RECAP: 5 Steps Of Foreign Legal Research 1. 2. 3. 4. 5. What is the structure of the legal system you are intending to research? Identify exactly what you need—a case, a statute or law, etc.—and how you need it Identify the sources of law for the country and locate those sources Alternatively, start with a comparative source rather than locate individual jurisdictional sources, or consult a secondary source [will discuss next week!] When all else fails, ask a librarian!!

Real-world questions

What I did yesterday I’m looking for a law from Saudi Arabia. It’s called Decision of the Council of Ministers No. 233 dated 16/09/1427H (October 9, 2006G), and it’s about establishing an insurance company. I also will need some secondary sources to help understand insurance law in Saudi Arabia.

Example #1 1/8/2010 2:20 PM Alison: In the oddball category of inquiries, are you aware of any English language translations of the Hasn-ho, which is the Japanese Bankruptcy Litigation Statute. Thanks, Alumnus, class of 1978

Example #2 3/4/2010 11:40 AM I am looking for a Russian telecommunications law (in English) called "Resolution on the Order of Acquisition, Use, and Provision of Geospatial Information." The only thing I have for a citation is "No. 326 from 28.05.2007." Thanks Guy from University of Nebraska-Lincoln

Example #3 6/19/2009 5:29 PM Good Morning, I am trying to locate a current version of the German Code of Civil Procedure (ZPO - Zivilprozessordnung), translated into English. Thank-you. Regards, Australian Librarian