On 27 Mar 2008 12:01:15 GMT, Norbert Liecfeldt
wrote:
>I read this a lot. Can you point me to a reference that says unless
>something is *expressly* permitted in the Code Napoleon it's actually
>illegal?
There is no reference as it is inherent in any Codex. Napoleonic law
is Codex law (not the only one - there were others) where the law is
codified to control the life of all citizens. Courts do not have the
power to make or alter codified law. Codified law tells you what you
can do, it permits you to do things. There is nothing outside of it.
All spheres of life are dealt with and regulated by a unitary system
of law
If the law says you have freedom to do something it is because your
freedom is given to you by the law and can just as easily be taken
away by the law. By its nature Codex law is authoritarian and
conservative. The Code was designed to place individuals into a
structure that benefited the State and was regulated by the State.
Although the principle of "guilty until you prove yourself innocent"
has been mistakenly attributed to Napoleonic Codex law "Remanded in
custody for years until we decide to get around to your case"
certainly applies.
Common law is a far less well organised collection of precedence and
interpretation of law by courts. Anything is legal as long as it is
not specifically prohibited.
It is difficult for both systems to co-exist in harmony. Courts have
a role in common law which they don't in Codex law. Trying to fit
Directives meant for Codex law into a tradition of common law isn't
easy or often successful. The problem will probably go away in the
future as the EU is working towards a European Civil Code.
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