In article ,
Peter Parry wrote:
> 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
Can you let me have an example of spheres of life that are covered by
law in France and not in the England?
>
> 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.
That's why countries that have this structure of law put in safeguards
(articles 1-19 of the German Constitution are binding law, concerned
with human rights and unalterable) - that are sorely lacking in England.
What you say only makes sense if you consider English law to be
anti-authoritarian and progressive. What's your evidence for that?
> 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.
Ah, the 42 days rule in the UK. There are certainly drawbacks to the law
in France. There are also many to the law in England.
> 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.
So, to turn your phrase on its head (as you seem to think this is the
difference between codified law and English common law) because the law
in France is silent about permission to hammer in a nail on Sunday, you
believe it's therefore prohibited to hammer in a nail on a Saturday in
France. The French law is silent on marriages between people whose
surnames begin with the same letter, i.e. it doesn't expressly permit
these. According to your theory, they would therefore be 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.
I suspect the direction in England, with increased legislation and the
establishment of a Supreme Court, will lead into a de facto codification
as more and more situations are covered by law. Only, the English being
who they are, they'll never admit to it... |