24 November 2021

Enes Akin

INTRODUCTION TO LAW
Lecture 5: Legal science and legal process
Program for today

• Rittenhouse case

• Recap

• Role of the judge

• Legal history and science

• Legal process
https://www.youtube.com/watch?v=iryQSpxSlrg

Disclaimer: graphic content (violence)

• What could have been different had Kyle Rittenhouse been tried
in a civil law system?
 Civil law tradition

• Roman civil law

• Justinian – codification

• Systematic, comprehensive legal texts

• Legal logic

• Attempt to cover everything – successful?

 Enlightenment and French revolution

• Discovery of rationality and human mind

• Strong criticism of the past – deviation

• Antireligion, antifeudal

• Judicial aristocracy!

• Nationalism

• Secular (nation-)states
 Civil law tradition characteristics

• Legislative positivism

• Sharp separation of powers

• Comprehensive codification – successful?

• Legal certainty

• Denial of equitable powers of the judge

• Denial of stare decisis

Common law tradition

• Norman Conquest in 1066

• Central authority of the kings

• writs, or royal orders – highly formalized

• Courts of equity (or Chancery) applying several sources of law

Sources of law

• Both systems share similar sources of law

• The weight of these sources may differ

• Civil law  legislation very important, will of the people

• Case law plays an inspirational role
• Precedence is a secondary source, only a suggestion
• Clear hierarchy among the sources

• Common law  no clear hierarchy among the sources

Certainty and equity

• Law must be predictable

• Hard cases, unjust decisions, unrealistic decisions are necessary evils

• Fairness?

• Flexibility?

• Balance
Role of the judge

• Civil law  judge establishes the facts and apply the provisions
of the relevant law
• Judge investigates, hears witnesses, gets the facts straight
• Judges professional bureaucrats, mid-level actors

• Common law  Judge an impartial referee, jury decides on the

facts
• Judge is the hero of the system
Central actor in shaping law

• Civil law  legal scholar

• Judge works in a framework established by a codified set of laws
• Law is what the scholar tells it is

• Common law  judge

• Judge creates law
• Law is what the judge tells it is
Role of legal scholars

• Civil law  law of the professors

• Roman tradition of jurisconsults
• Views of some scholars considered binding on judges
• Cases sent to law faculties for decision
• Scholars affect politicians, administrators, judges
• Doctrine carries significant weight

• Common law  law of the judges

Legal history

• Civil law  discussions among legal schools of thought

• Disputes among legal scholars

• Common law  legal rules and institutions in the economic,

social, historical context
• Important events and cases
 Legal science in the civil law tradition

• Civil law  legal science as natural science

• Legal science systematic as physics or chemistry

• New legal data (principles) integrated into the system

• Legal science ‘pure’, excludes other disciplines

• High level of abstraction

• Focus on theoretical scientific structure

• How about solving concrete problems?

Legal science in the common law tradition

• Judges problem solvers rather than theoricians

• Sociological jurisprudence (or sociology of law)

• Legal realism
 Public law – private law distinction

• Strict distinction and separate systems in the civil law

tradition

• Public law  Criminal, Administrative, Constitutional

• Private law  contract, property, torts, commercial,
corporate, competition, labor
Legal process in the civil law tradition

• Civil law  scholars avoid non-legal matters

• Maintain the system by investigating
• Focus on perfection of prior legislation
• Judges operators of law
• Task of judge is simple: find the correct solution
• If not possible, someone did not do their job properly!

• Does that make sense?

• Abstraction brings necessity for interpretation!
Division of jurisdiction (Turkey vs USA)