Civil Code: also looking to Europe
Posted by Manuel Casal | section of Andorra private law - Sources
In recent weeks the press Andorran echoed the opinion of several lawyers Andorran for or against the adoption of the Civil Code of Andorra. The debate in the legal field is not new, because since the adoption of the Code Napoleon (1804) states have not raised the gensmenys momentous decision as articulating the rules of private law and who determines its content, to govern such important aspects of people's lives such as family relations, property, contracts, or the fate of their property after death. So far from being a debate that interest only to lawyers, the adoption of either system has a clear and effective involvement in the protection of our rights everyday.
In favor of the coding was invoked legal certainty, based on the equality of all citizens (French revolutionary principle par excellence), because the coding allows citizens to know the progress of the content of their rights and provide ' No conflict resolution, establishing a process of deductive or nearly direct link between regulation and forecasting solution to the problem, and therefore, a priori, less judicial intervention.
The arguments against consolidation are committed to a better adaptation of law to the reality that its vocation is to regulate, which hardly contains a general rule provided for a host of cases that may become outdated over time , opting for a more flexible law, although less likely, based on the concept that the rule requires an inductive process from particular case, avoiding the mechanical application of law.
The adoption of either system contains a specific concept of separation of powers. Codification seeks to expand the scope of legislative power is the ultimate expression of the regulatory monopoly of the state, the displacement of the usual benefit of the law, a closed and complete legal system and therefore an authoritarian conception of entitled to the benefit of a deductive process of legal argumentation. Conversely the absence of coding lies in the conception of a strong and independent judiciary, without legislation, justice beyond the cult of letter of the law, according to an inductive process cases, and the legal argument.
Often those who promote the codification of private law express a distrust of judges who do not share.
The discussion of encryption is also topical in Europe, then the unification process has also led to consider the need for harmonization of private law, not only in the economic force that already has instruments, but the aspiration shared by the same European regulation over personal rights. The project s'endegà in 1989 by a resolution of Parliament, to which others have followed.
In the area of private law in Europe as we know, two systems coexist: the mainland from the Roman law encoded, and the Anglo-Saxon based on precedent and without coding. The impetus for the unification of European private law has been made from various working committees, committees of the initial Lando and Gandolfi in favor of general principles and imperatives of not encoding respectively the current Study Group and Acquis Group, along with others that make up the Joint Network on European Private Law, essentially betting that the CFR or guiding principles in a non-imperative, with the anticipation that their work is published in the course of 2009, following the methodology of the American Restatements, which would also end a systems-based approach of the Civil Law with the Romanist concept of Anglo-Saxon common law globally.
The Andorran private law incorporates elements of two existing models in Europe: the foundation of Roman law codes inspired by the European Code of Justinian and the nature of common law jurisprudence that has no encoding. This dual system of Andorra is the model which seems to converge towards the unification of European private law, in addition to placing the Andorra model as a possible reference, sets a clear interest in Andorra on the work that the currently underway in Europe.
The countries that have driven major changes in their coding or private law, have been concerned before collecting expressions of identity and their legal culture, have driven compilations to collect what Ihering said in the spirit of the law, ensuring that the coding does not constitute a break in the regulation of private affairs, loss of cultural heritage and also the loss of sovereignty with the adoption of foreign systems.
The institutions of private law Andorran have traditionally gravitated to the concept of traditional Andorran home, including the family and heritage, and from these two institutions organized around the private law. The customary nature of our private law has for centuries allowed their adaptation to the needs of the extraordinary evolution of society in the twentieth century. I think this scheme, with the necessary regulatory support, remains valid for the XXI century.
In any case the process of coding or compilation Andorra should not underestimate the contributions of lawyers and Fiter Rossell from Andorra, to Obiols, Shoemaker, Puig Ferriol Bruguera, or Pigot Brutails among others, the tradition of Catalan civil law according Mieres, Oliva, Cancer, Fontanella, brocade, Duran i Bas, Cots, Pella and Forgas, Borrell, Vives and Cyprian, Mas Pons and especially the jurisprudence of the Andorran courts, which have been debugged with the resolutions private law in force in Andorra. As stated by the same Anthony Shoemaker a small country, a condition that undoubtedly possesses Andorra, need lawyers, not law, while still alive the appeal by Ramon Villers in 1986 in a study published in the press " As you lose the habits and customs. "
I understand that the debate on the codification of private law to Andorra should be raised about the preservation of our legal culture, on a non-codified law that requires much more than a lawyer, but that much seniority bonuses to the extent that achieves the best Thus the ideal of justice and equality, and finally the rights of citizens. We should reflect on whether our size allows the drafting of a local civil code, or against this project will not be an adaptation of the codes in our area, as has happened in other laws. And if necessary adopt a system of private law far removed from our identity, it is better to accommodate ourselves to the project of European unification.
Given the need to clarify and preserve the private right and be a source of renewal to the new needs of society in, in our civil law suits new Manual Digest, under the new European context, and not a code civil, following the reflection of Josep Maria Porcioles when he said: the problem is not the Principality of innovation but of renewal and adaptation. Amid the future human bases determinants of Andorra, still full force. Just what is institutionalized in the spirit of all claims that the land itself, that is what the Manual Digest was able to discern.
18/1/09
Tags: Civil Code , European
