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Re: [OT] Droit d'auteur vs. free software?



 --- Kai Henningsen <kaih@khms.westfalen.de> からのメッ
セージ:
> neroden@twcny.rr.com (Nathanael Nerode)  wrote on
> 19.05.03 in <20030520015900.GA1309@doctormoo>:
> 
> > How different are things really on the Continent? 
> Is *everthing* codified?

[...]

The important point being drawn out here is that the
common law (U.S. U.K. et al) tradition relies on a notion
of law drawn from a variety of sources but with special
emphasis on past opinions of Courts, eg. precedent or
stare decisis.

In the "continental" or civil law approach drawing on
Roman iustinian code and other traditions, laws are those
found on the books, and the role for justices of a court
has traditionally been much more constrained.

Jurisdictions like Japan, Israel, and Canada I find
especially interesting because they tend to mix these
approaches more liberally.

Note Japan, for example, who's statutes are called the
"ROPPO" or six books after the German legal codes adopted
during the Meiji Restoration in the 1860's.  Despite this
strong civil law tradition today there is a revolution in
attorney licensign and a strong emphasis on modelling new
legal practice on the common law approach.

Also it's of note that many here in the U.S. also observe
that there are ebbs and flow on emphasis on statutory
(civil codes) and Court based precedent.  Two good
examples are debates on what to do about IP and anti-trust
(competition) law.  Some argue make property rights
robust, well defined, and rely on the courts to work
things out.  Others argue for more interventionary
(regulatory) approaches with laws to spell out the
permitted and prohibited acts.

Google will give you mostly Law School syllabus refs, but
you can glean something here on Comparative law discussion
of civil/common law. 
http://www.ejil.org/journal/Vol10/No1/br10.html.  

Also Luke Nottage, COMMENT ON CIVIL LAW AND COMMON LAW:
TWO DIFFERENT PATHS LEADING TO THE SAME GOAL, provides an
interesting discussion of maybe how things aren't usually
all that different in practice anyway.. 
http://www.upf.pf/recherche/fichiers%20RJP7/17Nottage.doc


> Please note that Germany is neither "common law" nor
> Napoleonic Code. We  
> have our own legal traditions. (Going back to Rome,
> in fact.)

[legal vs. sittenwidrig discussion]

I agree it is not Napoleonic.  You would agree it is a
civil law jurisdiction, though right?

> Really, Europe is much more diverse legally than
> people seem to think.

I agree; a very important point.

It is a common problem to accept propositions based on "I
read in xx that yy is illegal" kind of research and
analysis.

There may certainly be circumstances where such
conclusions will be warranted but *unfortunately* "the
law" is in practice usually much more complicated to nail
down.  None to often it takes a case in your jurisdiction
to give you a definitive response.

I do read that there are a variety of efforts in the EU
moving codes to harmonization.  IP is an obvious example. 
Perhaps you could comment on this trend?

> MfG Kai

--
James Miller
jamiller@yahoo.co.jp


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