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10 - Da mihi factum dabo tibijus: a problem of demarcation in English and French law

from IV - The parties and the judge

Published online by Cambridge University Press:  18 December 2009

J. A. Jolowicz
Affiliation:
University of Cambridge
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Summary

Acts performed in the ‘real’ world affect people in their ‘real’ lives, and it is one of the functions of the law to specify when and under what conditions one person is entitled to have another do or refrain from doing something in that world. In complex modern societies it is not, of course, always possible to describe the real world without recourse to the law and legal concepts, and this is most obviously the case when one person invokes the assistance of the legal process in the pursuit of his demand that another person, or the State itself, confer upon him some advantage. It would, for example, be difficult for an author to demand monetary compensation from the publisher of a pirated version of his book without reference to the legal concept of copyright, and it is impossible to reify divorce without reference to the legal structure of society: at the secular level neither marriage, which is different from cohabitation, nor divorce, the principal characteristic of which is conferment of the right to remarry, is comprehensible unless seen against the background of the law. Nevertheless, it has to be recognised that civil litigation takes place when one person demands some advantage for himself - usually, but not always, at the expense of another - and that advantage proves in the event to be one that he cannot obtain without the intervention of the court.

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On Civil Procedure , pp. 185 - 204
Publisher: Cambridge University Press
Print publication year: 2000

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