Latin Stuff
A rubrica
Reasoning from the title
Stare Decisis
To stand with precedent and not disturb settled points
What is Patrimony?
Every person has a patrimony; their assets and liabilities
What is the Exegetical Method?
When text needs interpretation you look at legislative intent.
The Text (Letter) + The Context (The Spirit of the Law)= Legislative Intent
Civil Law is based out of what?
Roman Law
What logical process says interpretation leading to an absurd result must be resisted. Laws must be reasonable.
Ab absurdum
Ratio Decidendi
The underlying principle of a precedent that makes up its authoritative element
Inferred from relevant or material facts
What is Jurisprudence Constante?
A long line of consistent decisions that is seen as highly persuasive
What four sources does the Exegetical Method use to interpret legislation?
Legislative History
Doctrine and Jurisprudential Interpretation
Logical Processes
Maxims of Interpretation
Gaius' Institutes created what two divisions?
Persons
Things
A pari ratione vs. A fortiori
A pari ratione- (analogy) Extending rule to a similar situation. Reason behind law is similar.
What are the alternatives to overruling?
Passing a statute to change the law prospectively OR judges distinguishing their cases from precedent so they don't have to use it
What is the difference between a code and a digest?
A digest is a collection of laws, but a code is a type of legal system
What is Free Scientific Research?
Where there is a new problem that the legislature hasn’t anticipated the judge must act as a legislator and find a reasonable solution based on what is opportune and equity
Common Law
Explain The Royal Courts vs. The Chancellor in England
The Royal Courts were similar to modern day courts that had judges who heard cases based on writ of actions and with juries. They were split into Criminal, Civil, and Revenue.
The Chancellor judged on behalf of the king and decided based on Equity.
Pro subjecta materia vs In pari materia
Pro subjecta materia- (per subject matter) we may use location of a provision in the code for sake of interpretation
In pari materia- (on the same matter) interpreting the law in a way consistent with what the law says in other places on the same matter.
Hierarchy of Common Law Sources
Constitution
Statute
Regulations
Case Law
Maybe Doctrinal Work
Hierarchy of Civil Law Sources
Constitution
Code
Custom and Jurisprudence
Doctrine
Gap Fillers, Natural Law, General Principles, Free Scientific Research
What three resources do judges use in Free Scientific Research to create a solution?
1. Principles of Positive Law
2. Jurisprudence and Doctrine
3. Sociology and Economics
The French Civil Code was a compromise between?
Custom and Roman Law
The Ancient Regime and the Revolution
Specialia generalibus derogant
Specialia generalibus derogant- special provisions (Revised Statute) derogate from general provisions (Civil Code)
What are the three layers of common law?
Statutory Remedies
Equitable Remedies
Legal Remedies
Explain the difference between Usufruct and Lease in terms of rights
Usufruct is a real right in which the usufructuary has a right to enjoy the property. The lease is a personal right in which the lessee has a right against the owner to enjoy the property.
Name one of the five modern methods of interpretation that is not Free Scientific Research.
The Method of the Social End
The Evolutive Method
The Structuralist Medthos
Free Scientific Research
The Teleological Method
Gaius broke up Things into what three categories
1) Moveable v. immoveable
2) Corpreal v. noncorpeal
3) Actions