Civil Law Case Study

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Deciding Cases in the Common Law and Civil Law Systems
I Problems with Retroactive Rule-Making
Retroactive rule-making is applying a legal rule or law to conduct that has already occurred before the making of the rule. What makes the rules of a legal system legitimate is justice. People need to know the law and what it is so they can follow it.

Legal systems frown upon or may prohibit retroactive rule-making because it does not enable people to predict the legal implications of their actions or behaviour. The purpose of the law is it makes a person aware of the consequences of their actions which may change their behaviour depending on the consequences of the law.

J. Bentham said: “When your dog does anything you want to break him
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Furthermore, following the event of where an action took place, a retroactive rule was made the person liable for damages if their actions applied to the rule. Common Law courts do engage in retroactive rule-making as J. Hall states: “in a literal sense all case-law, including judicial interpretations of statutes or codes, operates retroactively.”

However, Case 4 was heard in a civil court. Retroactivity does occur in civil law courts but less so than common law courts. Unlike common law courts, civil law courts interpret legislation. In Case 4, it was said that the judge’s “admit to themselves that the answer to this question is not obvious from the plain language of Article 1832” whether to make one liable for damages for “every conceivable harm” or “harm that was reasonably likely to result”. Case 4 was slightly retroactive as the language in Article 1832 was unclear.

Civil court ruling in Case 4 differs from Cases 1-3, as the rulings in common law courts (Cases 1-3) were altered and additions were added to rulings of newer cases in regards to the Case 1 making one liable/not liable for damages. Whereas in Case 4 the ruling was decided on the meaning of the Code in respect to legislative history and parliament

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