> laws should have two parts, an "intent" part and an "implementation"
That's a common opinion between lawyers, the opposite opinion is that since the law was created by a large group of people, it can never have a clear intent. There are judges that assign to both of those.
Anyway, IMO there's fundamentally inhumane and evil consequence to the idea that laws don't have intent. Even if it's objectively true. The entire dichotomy is broken.
Normally during the legislative process a record is kept about deliberations leading up to the proposals for texts, and amendments etc..
In a 'normal' European democracy judges and lawyers use these deliberations to argue what the intent of the legislative branch was, when it created the law. And to interpret it in that light.
I'd be surprised if there was no equivalent in the USA.
I suppose therein lies the root of the Scalia doctrine though, which is too strictly 'originalist' for my taste. But in this instance I'd wager the rules of seizure were given a lot of legislative attention, similar as Habeas Corpus, because illegal seizure is an obvious tool of tyrants. It was often used by Roman Emperors and medieval Kings.
Civil Law systems will prioritize being clear and precise in the language of the laws. Where a law allows interpretation, it will likely literally state that.
There are clear limits to how to interpret laws and most of the case law comes from which provision is applicable to a particular case. There's often no need to resort to "deliberations" part to interpret the law for a judge, just find the law that most precisely applies in a particular situation and there's no law that is in conflict.
Basically in a Civil Law system if the law states that you're not allowed to drive while drunk, that doesn't extend to being high. Unlike Common Law systems, where a judge could accept that drunk and stoned are close enough for both to be banned. (this is a hyperbolized example, not exactly how it would work)
Incidentally, none of the characteristics you listed are actually true.
A) In the Netherlands and Switzerland the articles of the law don't always mention if they allow deviation by agreement. In those cases the assumption is: No, unless the legislative process documented that it was intended to be. I haven't checked but I recall the same is true for France and Germany.
B) The refere-legislatif (pre-judicical question) first appears in the Eastern Roman Civil Law (Byzantium) where Emperors use it to guide the interpretation of their law. But nothing about Civil Law systems presuposses it. EU Law does use it. But courts in the Netherlands don't. Instead, they are required to adjudicate as best they can. And if they screw up, a higher court can be used for appeal.
C) Appeals, these also exist in Common Law and many other legal systems. This doesn't require elaboration.
Your example concerning drunk-driving is troubling, because that would usually be treated as a misdemeanor or a crime. Not as part of a Civil Code violation. You could claim damages under the Civil Code, but then you are asserting a violation of the 'Public Order' Code, which you then have to prove.
The 'Public Order' Code is itself subject to strict Human Rights codes from various sources. Both international as well as EU Charter of Rights. Which translate into specialized courts and stricter rules of evidence and defense. Guild by proximity to a crime is an example of a scenario that this prevents. Whereas the Civil Law can (and sometimes does) assume causation based on balance of probabilities, due to proximity and lack of counter statements refuting said probabilities.
> In the Netherlands and Switzerland the articles of the law don't always mention if they allow deviation by agreement. In those cases the assumption is: No, unless the legislative process documented that it was intended to be.
That's literally what I wrote. Why are you telling me that I'm wrong, when you're restating my point.
> Your example concerning drunk-driving is troubling, because that would usually be treated as a misdemeanor or a crime. Not as part of a Civil Code violation. You could claim damages under the Civil Code, but then you are asserting a violation of the 'Public Order' Code, which you then have to prove.
Even in a Civil Law system, there still exist fundamental principles (like the one from the GP that would disallow US-style property seizing), badly written, and conflicting laws that judges have plenty of space to interpret.
There's a major difference you missed - in a Civil Law system the judge has significantly less leeway to interpret the laws and commonly will refer to a superior (up to the constitutional court level) court to get clarification.
That's a common opinion between lawyers, the opposite opinion is that since the law was created by a large group of people, it can never have a clear intent. There are judges that assign to both of those.
Anyway, IMO there's fundamentally inhumane and evil consequence to the idea that laws don't have intent. Even if it's objectively true. The entire dichotomy is broken.