Law of Francisville
The Francillian law was the legal system developed in the Democratic Duchy of Francisville which later extended into certain areas of jurisdiction within the Federal Republic of Francisville. It contained elements of both civil law and common law. It was therefore considered to be an uncodified hybrid legal system in which civil law was a principle source of academic authority but where customary law was heavily influential. Its development drew principally upon Scots law and Roman-Dutch law with English law influencing some aspects of legal procedure.
Sources of law
The supreme law of the Democratic Duchy of Francisville was the 4th constitution adopted on 15 May 2009. Laws contrary to the constitution were invalid regardless of whether they derived from civil law or common law. The constitution was fundamentally influential in the development of the body of Francillian law since a significant body of law was derived directly from the constitution as a legal document. Book 2 ("Rights of the People") established and protected the fundamental rights and liberties of Francillians. These included right to life, freedom of speech, freedom of assembly, right to a fair trial, and the prohibition of slavery. These rights were directly influential upon the development of Francillian common law since principles underlying significant elements of Francillian common law were usually pursuant to legal rights already guaranteed by the constitution. The crime of murder for example was established under common law but its customary definition emerged to satisfy the right to life protected by the constitution. Legal scholarship considered such crimes to be customarily established "pursuant to constitutional mandate" or "customary necessity" with illegality of the action being considered necessary sensus communis in order for constitutional rights to be justly satisfied.
In addition, certain crimes were also directly "established by constitutional mandate" including the attempt to establish conditions of slavery (Article 16), abandonment of a child (Article 21), illegal possession of firearms (Article 55), and unlawful abortion (Article 24). Aspects of Francillian civil law were also adopted on the grounds that the constitution demanded the legislative regulation of certain activities. Principle examples included electoral fraud (Article 48), joint local jurisdiction of macronational law (Article 94), and military law (Article 102). The constitution therefore exerted a threefold influence upon the legal system through:
- Providing the ultimate source of law and legal principles.
- Defining and restraining the type of laws that ought to exist.
- Influencing the appropriate division between civil law and common law.
Common law was an important legal source in the Democratic Duchy of Francisville, extending across borth criminal law and civil law. Francillian common law inherited certain "inheritable jurisdictions" with Scots law being the most significant influence in its development. A distinction should be drawn between the models of English common law and Francillian common law, the latter being more accurately defined as a form of customary law whereby certain uncodified laws were inherited from the legal sources of relevant macronational jurisdictions rather than being created from scratch by judge-made case law. Sources of common law in Francisville were however decided by the legal precedents set by the decisions of the Francillian courts. Common law was inherited from previous local jurisdictions, such as Scots and English law, and then absorbed into the body of Francillian common law, pursuant to the constitution and adapted by the case decisions of the Francillian courts. Inherited common law would be suitably modified to accommodate both the constitution and the letter of civil law. Court decisions treated the adoption of common law according to the following three stages of inheritance:
- Legal Inheritance: The inheritable jurisdiction of Francillian common law was based principally upon the common law already established in the regions where Francisville held jurisdiction. These were known as the "inheritable jurisdictions" from which Francillian common law was cutomarily derived. With the historical roots of the Francisville lying within Scotland, Scots law exerted the greatest influence although English law and Roman ius commune were also cited. Inheritable jurisdictions provided the default historical source for common law and their legal principles were considered important sources of argument in Francillian legal scholarship.
- Legal Concordance: Inheritance of common law required consideration for its compatibility with Francillian law more broadly and the overall consistency of the legal system. Certain crimes were inherited "pursuant to constitutional mandate" whereby personal rights and legal principles established by the constitution required the illegality of an action without the adoption of codified civil law. Such crimes included murder, theft, sexual offences, and fraud. In theory, all inheritable sources of common law could be absorbed into Francillian law provided that they were not incompatible with existing law. However, established practice was that no law was inherited which was not considered necessary to either satisfy the constitution, legal consistency, or derivative legal principles. Other offences were left within the jurisdiction of Francillian civil law.
- Legal Precedent: Common law was firmly established by the precedent set by the courts of Francisiville having judged it to be in accordance with legal principles and being willing to pursue prosecution for such crimes. The law was thereby established opinio juris.
The following crimes and precedents in criminal law and civil law were customarily accepted as being established by common law within the Democratic Duchy of Francisville:
|Criminal law||Civil law|
|Crimes against the person
• Murder (including infanticide)
• Assault (common or aggravated)
• Aggravated Sexual Misconduct (including rape)
• Culpable Public Endangerment
• Culpable Bodily Injury
• Unlawful Imprisonment
• Inflicted Suffering (torture)
• Bodily Mutilation
Crimes against truth
• Theft (including aggravated robbery and theft of private communication)
• Perverting the course of justice
• Untrustworthy Impersonation (impersonation for criminal purposes)
Crimes against property
• Violation of the home (including illegal searching)
• Arson & Explosive Damage
• Animal Cruelty
Crimes again public order and morality
• Disturbance of the peace
• Aggravated mobbing
• Incitement to violence
• Public indecency
• Disturbing religious worship
• Personal intrusion (stalking)
• Marital Fraudulence (bigamy)
|Property and land law|
• Rules governing the definition and extent of property rights including the customary distinction between heritable ('immovable' or 'real') and personal ('movable') property. Heritable property extended only to land and buildings. Personal possessions, money, and other movable items were considered personal property, including products subject to intellectual property rights such as patent ownership.
• Rules of the transfer and inheritance of property. Property transfer could take place either through consensual transfer included sale by contract, gifting, or inheritance granted explicitly in last will and testament, or through inherited transfer through uncontested inheritance laws or rules governing the abandonment of possessions. Transfer of heritable property required the transfer of legal deeds whereas less solemn means were required for the transfer of personal property.
• Right of use and disposal was granted only to owners of property, both heritable and personal. Rules concerning the use and disposal of joint property were principally established under marital and corporate law with the right of survivorship applying beyond any other considerations.
• Rights of access to land were fully established under common law. Unlike many jurisdictions, Francillian law did not recognize an exclusive right of access attached to rights of use and disposal. Right of access to land was assumed automatically. Access to land therefore had to be specifically restricted rather than granted. Restrictions were granted only on the grounds of protecting the right of use (for example, prevent damage to items within the usable rights of the property) or guaranteeing the inviolability of the home. Trespassing was not recognized as a crime thereby established an almost unhindered freedom to roam through most land.
• Definition of contact was a bilateral arrangement consented to by all relevant with acknowledge of legal consequences of contractual non-fulfillment. Distinguished from a 'promise' which was understood to be a unilateral agreement with no grounds for binding legal obligation.
• Rules governing consideration which was considered unnecessary in Francillian law. However, the existence of written consideration in particular contracts could affect the decision in particular cases.
• Limited liability in corporate contracts was recognized in Francillian law thus establishing legal personality of corporate entities. However, the corporate legal personality was not inviolable and the dissolution of corporations was accepted as a customary legal principle.
Civil law was established by statutory legislation adopted by institutions with legislative authority. The Chamber of Deputies held supreme legislative sovereignty within the Democratic Duchy of Francisville. Legislation passed by the Chamber of Deputies had to conform to the constitution which itself was considered to the supreme source of civil law. The constitution itself was modifiable only by a process initiated within the Chamber of Deputies. Constitutional amendments required a two-thirds majority in the first reading of the amendment following by a majority vote in a subsequent vote held no less than one month following the first reading. In addition, constitutional amendments to Title II: Rights of the People required popular consent by means of a referendum in order to be adopted into law. Except for constitutional considerations, the Chamber had the right to pass legislation upon any matter within the Duchy. This established the principle that civil law trumped common law. Scholarship has debated the exact nature of the Francillian legal system in this regard. Whilst it is often referred to as a 'mixed' or 'hybrid' legal system, it has been thought more accurate to classify it as a principally civil law system but without extensive codification. Crimes not established by customary inheritance into common law were not created by novel judge-made case decisions but instead were referred to the civil authorities for statutory adoption. The following crimes and principles were established exclusively by civil law as defined by relevant statutes:
|Criminal law||Civil law|
|Crimes again the person
• Unlawful abortion (distinct from infanticide); [Article 24 of the Constitution]; lawful abortion permitted under [Abortion Act (2009)], conforming largely to the law in the United Kingdom.
• Abandonment of children and vulnerable adults; [Article 21 of the Constitution].
• Slavery (including attempts to establish); [Article 16 of the Constitution].
Crimes against truth
• Electoral fraud; [Electoral Integrity Act (2009)].
Crimes against public order and morality
• Illegal Firearms Possession; [Possession of Weaponry Act (2009)].
• Public concealment of firearms; [Possession of Weaponry Act (2009)].
• Public Intoxication; [Alcohol Behavior Act (2008)].
Crimes again the state
• Treason; [Defense of the Realm Act (2008)].
• Espionage & Sedition; [Defense of the Realm Act (2008)].
• Profiteering; [Defense of the Realm Act (2008)].
• Charge against the sovereign; [Defense of the Realm Act (2008)].
• Misconduct in public office; [Public Servant Behavior Act (2010)].
• Marriage & Divorce: Definition of marriage as the legal union of two consenting adults of age sixteen and above [Article 20 of the Constitution]. The Marriage & Divorce Act (2008) established the legal procedures for the conduct of marriage and the process of divorce. Marriages conducted outwith the Duchy were recognized in Francillian law provided that (i) they conformed to the constitutional definition and (ii) notice or certification of marriage could be provided as proof to the civil registry. Foreign divorce was not automatically accepted on the same ground but required a Demand for Dissolution to be presented to the Provost.
• Rules concerning the raising of children, the obligations of parents, adoption, and family dissolution were in principle within the realm of civil law. Despite this, no statutory laws upon these matters were adopted at any time within Francisville's history.