By R. C. van Caenegem
At the foundation of ten concrete examples the writer exhibits by means of what method and for what historic purposes continental legislations and customary legislation have become so assorted. In so doing van Caenegem offers a old advent to continental legislations comprehensible to readers accustomed to the typical legislation, and vice-versa. This learn is derived from the professor's lectures at Cambridge in 1984-85, during which legal professionals from Europe, nice Britain and the us participated. Judges, Legislators and Professors doesn't stick to the normal direction of describing the improvement of rules, yet attempts a brand new procedure through reading felony historical past as, to a wide quantity, EEthe results of an influence fight.
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Extra info for Judges, Legislators and Professors: Chapters in European Legal History (Goodhart Lectures)
This fundamental law contained not a word about judicial review, so that in Belgium too it was left to the courts, and particularly the Court of Cassation, to decide whether they should exercise judicial review or not. Not long after the promulgation, in 1849, Belgium's highest court of law decided that judicial review was not in its competence, and the final responsibility for the constitutionality of the laws was to be left to the lawgiver. It is interesting to reflect on this difference between two countries which both had a recent liberal constitution, based on the principle of the separation of powers.
It should be noted, however, that in this view he was far from being alone. 68 Finally, codification came quite naturally to be associated with Napoleon Bonaparte, with whom Britain was involved for many years in a life-or-death struggle and who came to belong to that country's most cherished demonology. Some readers may wonder why on the Continent, where conservative judges were not unknown, the codification movement has been so successful. It is indeed fitting that attention should be turned to this question — and the question also asked why, at least right to the end of the nineteenth century and even the First World War, such important continental countries as Germany and Russia, like England, lacked codification (albeit not because of the power and influence of the judiciary).
Thus James Otis, Advocate General in Massachusetts, refused to appear on behalf of the 'writs of assistance' 2-9 The common law is different: ten illustrations (search warrants against houses of suspected smugglers). In 1761 he argued that such writs, even if authorised by Parliament, were null and void. e. against the fundamental (customary) principles of the common law. Here can be seen the almost imperceptible glissando from the common law to a constitution. It is interesting in this context to have a look at 'laws' which have been considered at various times so fundamental as to be out of the reach of the whim of the legislator of the day, thus protecting the citizen against the sundry laws issued by powerful monarchs or popular meetings.