French Civil Law Adopted by Guatemala - Essay Example

?French civil law: adopted by Guatemala Introduction A combination of French and Italian civil laws is adopted by Guatemala. The French civil law of 1804 was adopted by numerous countries of the West. Among them one is Guatemala, an American state. Guatemala has approximately more than 300 municipalities where French civil laws are applied. During 1060’s Guatemala has experienced a destructive civil war. It was chiefly after this period that civil law in Guatemala was remodeled and new provisions were implemented. It resulted in significant changes in criminal procedural codes of Guatemala1. By adopting the French and Italian model, Guatemala has successfully designed its judicial system. The judicial reform has brought about segmentation as because often the civil laws in Guatemala have different interpretations. The fact that, the laws are based on different legal philosophies, account for this problem. On the whole, adoption of new reform has proved to be effective for controlling administration of the State. Adoption of French civil law: Guatemala. The French were the first to adopt new regulations about sodomy. Under the new regulations, criminal charges that were till then associated with sodomy were removed. This initiative was first of its kind in Western Europe, during the eighteenth century. This legal measure was later on adopted by numerous nations like Netherlands, Guatemala, Mexico, Luxemburg, Japan, Switzerland, Greece, Thailand, etc. Laws pertaining to sodomy were adopted by Guatemala in 1871, as a measure to acknowledge natural sexual orientation in human beings. Thus, the French legal norms adopted by Guatemala decriminalize sexual acts- both heterogeneous and homogenous. It was a measure taken by Guatemalan government to decrease serious physical assaults. For quite some time, Guatemala has been troubled by increasing rate of hate crimes. Gays, lesbians, and transsexuals are the usual victims of hate crimes. Often the crimes committed are too violent in nature. Due to all these, it was necessary for Guatemala to adopt a specific code of law for this issue. The French civil laws were most appropriate for this issue. After adopting the French civil lows, Guatemalan government has ensured that its citizens do not face any discrimination based on their sexuality2. The French civil laws were adopted by Guatemala with an objective to simply issues regarding oral case, role of judges, responsibilities and liberty of prosecutors, and also about investigation and evidentiary arguments. Introduction of French civil laws has helped to control crimes, for Guatemala has been experiencing crimes due high poverty and social inequalities. Slow economic progress is yet another reason for Guatemala having such a high crime rate. Moreover, the French civil laws have helped in controlling crime scenario. At the same time, it has also simplified Guatemala’s private laws. Also, the French laws have shaped by Guatemala’s commercial scenario. Thus, it could be said that France had numerous implications in Guatemala’s penal structure3. Difference between application of French civil law in France and Guatemala The civil laws were adopted by Guatemala differ in application in France and Guatemala. According to the French civil law, crimes of individual were viewed keeping in mind the relationship shared by the individual charged with criminal offences and his or her society. Due to this, French governments insists more on investigation procedure, thus making the while legal procedure a lengthy one. Also, French civil laws consider and accept every single provision, through which the accused could defend itself. The laws also hold any individual guilty only after his guilt is proven in the court of law. The French civil laws also support abolition of torture. This implies that the neither the accused nor the criminals could be subjected to cruelty and barbarism under any situation4 In France, the prisoners are even allowed to vote. Also they are not made to work or they have to attend any educational classes. When compared civil laws in France and Guatemala, there are some difference also. Guatemala has divided punishments for criminal offence in two categories. Fines and terms to be spent in prison are decided according to intensity and cruelty involved. The fines are decided by reviewing the socioeconomic conditions of the accused. However, unlike France, Guatemala judges the accused on account of their potentials to bring about harm in society. In other words they take into account the probable degree of threat the society will be subjected to, if the accused is not punished. Guatemala offers heavy penalty for homicide. Violent crimes might also result in a series of penalties. Guatemala experiences a high crime rate, especially regarding murder. This makes the government to adopt strict laws against murder charges. However, like France, Guatemala legal procedure supports violence within the prison term. The prisoners who are proved to be guilty of severe crimes are made to do works which involve heavy physical labor, like works related to agriculture or industry. Also, unlike the French, Guatemala penal laws restrains or limits freedom of prisoners as far as communication within the prison is concerned. House arrest is also supported. These are important measures keeping in mind the fast accelerating rate of violent crimes in Guatemala5. Another major difference was observed between civil laws of France and Guatemala. France in the beginning was totally opposed to sodomy. It was held as a criminal offence in early France both Protestant as well as Catholic theology. In the later years, the laws of sodomy were not accepted by France who altogether abolished it. Rather the principles of Enlightenment were emphasized. Though the French laws promise equality and non-discrimination, but it is still associated with negative values. In this regard, the French civil laws differ from Guatemala’s. But like Guatemala, France has too, decriminalized sodomy 6 Italian and French civil law: application in Guatemala Both French and Italian civil laws have helped Guatemala to categorize crime according to their nature- faltas and delitos. While the former deals with less serious types of crimes, the latter includes fatal and serious charges like theft, murder, rape, robbery and other types of serious assaults and crimes. The Guatemalan civil code contains clear provisions for prison terms, fines, arrest and other types of penalties7. The Italian civil laws that were implemented have led to formation of exclusive jurisdiction. The Italian civil law does not support position of examining magistrate. The Italian civil law while on one hand held that any mistake committed by the law is also the cause of transaction, and then similar results are taken into consideration. However, according to French civil code, there lies no virtual difference between a mistake of fact and a blunder committed by the law in interpreting facts. Conclusion Guatemala is one of those few countries which have adopted the French civil law code. French civil laws are adopted most for dealing criminal cases. Besides adopting French civil laws, Guatemala has also adopted Italian civil laws. French civil laws about sodomy have helped Guatemala to handle crimes related to sexual orientation. At the same time, they have also helped to cope up with rising global issues like same sex marriages. However, it is Guatemala’s judicial system that bears most resemblance with French civil laws. The model is basically an inquisitorial one. Besides, being influenced by French civil laws, present judicial model of Guatemala is also influenced by civil laws of Italy. The final version of civil laws were acknowledged and implemented in 19948. Legislation and Case law of England and France Introduction Case laws have its history in England as early as eleventh century. In France case laws existed from the sixteenth century. The case laws were a set of common laws that were followed in every place in England. Later on this legal tradition was popularized among English colonies. The case laws were actually the verdicts that were offered by the judges regarding controversial legal issues. In earlier days when legal procedures went unrecorded, judges tried to keep their verdicts consistent all over the country. The French laws have their own constitution for legislature related laws. Some of the aspects of legislature include civil liberties, treatment and punishments related to criminal offense, fiscal law, nationalization and privatization, laws related to property, fundamental principles and other types of social legislation. This implies that the French Constitution holds absolute power, but only about legislation. In case of England, the Parliament is the legal head for it could make and pass any law according to necessity of the nation. Moreover the English legislation allows the government to exercise certain specific powers in some specific areas. Thus, French and English have different origin and influence as far as legislative competence is considered9. Case laws of England At present times, England has a set of legal proceedings that has to be adopted under special circumstances for special cases. However, this has aroused controversies from time to time. To put it in other words, whenever any special cases occur, the judges first opt to follow the legal proceedings of previous cases and then choose to investigate really well and give out a verdict, for such verdicts are considered as new rules for the nation. The legal interpretations, too, therefore hold immense importance as far as case laws are concerned10. Judicial precedents are important as far as judicial decision making process is concerned. The precedents act as a binding factor which makes the jurisdiction passed on by the higher court to the subordinate courts. It is emphasized that the subordinate courts are not allowed to overturn their own precedents under any circumstance. According to the controlling precedents, the courts are vested with power to implement laws. But the highest amending and judicial power lies with the Supreme Court only. By binding, the courts comprise not only the constitution, but also the statues and regulations which in turn influence the case that is being governed. This constitutional model has helped the courts to give final decisions more smoothly. The case laws are thus helpful in guiding future cases with similar patterns. This also makes the court decisions appear more predictable and stable11. Though the high court as well as the subordinate courts must mandatorily follow the precedents, they might not always follow. Under certain situations a deviation could be made by holding the previous precedent as invalid and that it would be followed no longer. A deviation could also be made if in case the court is able to point certain incorrect provisions. Also if precedents become inapplicable due to certain significant social or technological change, then the precedents are treated as invalid. It is a noteworthy fact that whenever any such cases occur, it usually received huge publicity. Instances of such case laws are Brown versus Board education of Topeka, the Supreme Court ruled out a formed precedent which emphasized that whites and blacks must have separate educational system. In this particular case, the Supreme Court had deviated and had ruled in favor of equality of education. The case has been tremendously popular for it was one the first attempts for equality rights. However, a case or situation could be altogether new and there might not be any precedent available. Under such circumstances, precedents from courts of other jurisdiction, usually referred to as persuasive authorities, could be referred to. Other than this, the English court is free to judge a couple of other factors including policies, legal principles along with socioeconomic status, social customs and traditions, public policies, etc. Data and concepts associated to respective cases could also be taken into account12. Case laws of France According to French penal code, the case laws mark a significant difference between the administrative laws and the civil laws. The French precedent, both in case of common laws and civil laws greatly rely upon consistent decision making. The case laws are formed on the basis of acceptance. That is, emergence and acceptance of specific case laws depend entirely upon the legal principles as well as their social and legal acceptance. Under judicial decisions, articulation of those principles is carried on. In cases where similar legal principles are adopted, pervasiveness of judicial articulations is increased. A precedent functions by binding a set of common laws. Whatever was stated as evidence of cases during legal procedure of an issue is treated as common law. The case laws that are formed are applicable to all issues which have at least some features in common. According to French judicial system, precedents are further divided into formal and informal. Thus, cases are associated according to forms and nature of precedents. It has to be noted that persuasive force needs a series of analogous cases so as come into effect. This doctrinal formation is also referred to as ‘arret de principle’ in French, and involves a sequence of decisions which directly favor establishment of a new decree or law. However, it has to be remembered that, since the French judicial system remains neutral, the French judges are not obliged to rule in favor of any single decision or a specific case of the past. Another characteristic feature of French case laws is that the verdicts do not become a law until and unless its practice is repeated through court practices. One limitation is that when the attorneys have their personal interest, their interest in the precedent varies and the law is thus the outcomes are biased13. The case laws of France also comply with the case laws declared by the European Court of Human Rights. In France issues are often raised by religious, minority and other interest groups. Solution to these issues has given rise to certain rich case laws. A characteristic feature of case laws is that, irrespective of nature or intensity of issue, the State and the Court always makes a point to remain in a neutral state. Thus, the judges too are expected to play a neutral role. This is not always possible. This is proved by the Giniewski case. Issues that are related to international treaties and conventions are solved by combining French case laws and case laws of European Court of Human Rights. The most famous instance of French case law has been the issue of Francovich14. Conclusion Case laws are an important part of judicial system. The English case laws and the French case laws have some difference when it comes to practice and principles. Penal codes and their implication in England differ from that of France. While the English code of laws holds that in case when any sort of damage is caused to the victim, the victim could only apply to the English civil courts, whereas in France, such incidents could be taken directly to the criminal courts. However, at present, certain amendments are made. This has given a certain amount of power to the civil courts which they can exercise for receiving some compensation from the one who has committed the crime. This practice contrasts to that of France since France provides every opportunity to its accused to prove that the accused is free from guilt. The cases are directly taken to the criminal courts as a measure to save the extra time and cost requires for legal proceedings in a civil code. Also, if in case the accused applies in the civil court, there is no provision for the accused to appeal in the criminal court in future15. Thus, this paper throws a good deal of light not only into the legal systems of Guatemala, but also into case- law provisions of France and England. References 1. Bronski, M 2011, A Queer History of the United States, Beacon Press, US 2. Cairns, W. J and MacKeon, R 1995, Introduction To French Law, Routledge, UK 3. Dam, K. W 2007, The Law-Growth Nexus: The Rule of Law and Economic Development, Brookings Institution Press, US 4. Janssen, E 2009, ‘Limits to expression on religion in France’, Journal of European Studies, Vol. 5, no. 1, pp. 22-45 5. Jones, M and Johnstone, P 2011, History of Criminal Justice, Elsevier, Amsterdam 6. Miller, R. L and Jentz, G. A 2007, Business Law Today: The Essentials: The Essentials, Cengage Learning, US 7. Newman, G. R 2010, Crime and Punishment around the World: [Four Volumes], ABC-CLIO, California  8. Newton, D 2009, Gay and Lesbian Rights: A Reference Handbook, Second Edition, ABC-CLIO, California  9. Rowley, C. K and Schneider, F 2003, The Encyclopedia of Public Choice, Springer, US Read More