Civil Law

I INTRODUCTION

Civil Law, a term applied to the body of private law used in those countries in which the legal system is based on the ancient Roman law as modified by medieval and modern influences. Civil law is used in most nations in Europe and Latin America, as well as in some countries in Asia and Africa. The law of the United States, Canada, and a number of other nations is based on English common law, which differs from civil law in origin and other important respects.

In the United Kingdom, the term “civil law” is used to distinguish that part of the legal system which deals with disputes between individuals (such as property disputes, divorce, or personal injury claims) from the criminal legal system.

II HISTORICAL DEVELOPMENT

The civil law originated in ancient Rome. One of the principal characteristics of Roman civilization was the development of strong legal institutions. The principles and rules of Roman law were based partly on legislation and partly on the utterances of great legal scholars who were routinely asked for their opinions by judicial officers confronting difficult legal issues in the determination of lawsuits. In the 6th century, a commission appointed by the emperor Justinian collected and consolidated all the sources of law, including the opinions rendered by the great legal scholars during previous centuries. The result was the Corpus Juris Civilis (Body of Civil Law), also called the Justinian Code, a comprehensive code embodying the accumulated wisdom and experience of many generations of Roman jurists.

Justinian’s realm was essentially limited to the eastern half of the Roman Empire; the western half had already been overrun by Germanic invaders. Thus, Justinian’s Corpus Juris had no immediate effect in western Europe, where the period from the 5th to the 10th century was one of cultural decline. In the course of the intellectual reawakening that occurred in the second half of the 11th century, the Corpus Juris was rediscovered in Italy. About the same time, the study of academic law was instituted at the newly founded University of Bologna, where the law professors based their teaching on the Corpus Juris. Other European universities followed suit, and the Justinian Code became an important element in the development of Continental law until relatively modern times. Other elements were canon law and the customs of merchants. Together they formed a body of written transnational law (known as jus commune) preserved by academic legal scholarship, with which lawyers and judges throughout continental Europe were familiar. Eventually, local statutes and numerous local customs, often of Germanic origin, were also committed to writing. In the frequent cases in which these local statutes and local customs did not furnish an answer, however, courts and lawyers tended to be guided by the transnational jus commune.

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During the 17th and 18th centuries, the authority of the Corpus Juris began to decline as its rules were re-examined in the light of reason. The stage was then set for the systematic and comprehensive codification of modern civil law. The most influential, although not the first, codification effort was the enactment, during the Napoleonic period, of the five basic codes of France: the Civil Code (Code Napoléon of 1804), the Code of Civil Procedure (1807), the Commercial Code (1808), the Penal Code (1811), and the Code of Criminal Procedure (1811). In the course of the 19th century, most civil-law countries similarly codified the bulk of their legal statutes. The German Civil Code (effective in 1900) and the Swiss Civil Code (1907) both exerted influence the world over.

Codification of the civil law had several major consequences. After their enactment, the codes constituted comprehensive and authoritative legal texts that superseded all earlier authorities in the teaching of law as well as in legal practice. Within each nation state, the codes brought about a strong measure of national unification of the law. Such unification, along with systematization and reform, enhanced the certainty and predictability of the law. In their substance, the codes differed from one nation to another, thus marking a shift from the transnational jus commune to separate national legal systems. In recent years, however, vigorous efforts have begun, in the nations of the European Union and elsewhere, to replace certain isolated national laws with international legal practices.

III GEOGRAPHICAL EXPANSION

From its origins in continental Europe, the civil law gradually spread to all of the areas in Africa, Asia, and Latin America that were colonies of France, the Netherlands, Belgium, Spain, or Portugal. When they gained independence, most of the former colonies continued the civil-law orientation of their legal systems. Other nations that voluntarily adopted civil-law systems include Japan, South Korea, Thailand, and Turkey.

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In a number of countries, moreover, the civil law constitutes an important component of a mixed legal system. For example, in Scotland, South Africa, and Sri Lanka the legal system combines civil- and common-law elements. In North America the same phenomenon can be observed in the state of Louisiana and in the province of Quebec. The legal systems of many North African and Middle Eastern nations are strongly influenced by the French civil-law codes, even though in some areas of law—especially those relating to the family and to family property—these countries tend to follow Islamic tradition (see Shari’ah Law).

IV COMPARISON OF CIVIL LAW AND COMMON LAW

The codes of civil law and court procedures vary widely, but in general, they are distinguished from the common law in several significant ways. In contrast to the uninterrupted evolution of common law, the development of civil law was marked by a major break with the past, which occurred as the result of the 19th-century codification efforts. In civil law, judicial interpretations are based primarily on this system of codified written law, rather than on the rule of precedent that is emphasized in the common law. The law of evidence, so important in common-law countries, has no counterpart in the civil law.

Much more systematically than the common law, the civil law separates public and private law. In most civil-law nations, public law disputes are determined by a hierarchy of administrative courts, which are separate from the ordinary courts that have jurisdiction over private-law disputes and criminal cases. In common-law countries, private- and public law disputes are usually determined by the same courts.

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Trial by jury, a major feature of the common-law system, is not often used in the civil law. In the United Kingdom, a jury is never employed in the determination of civil disputes. In some civil-law countries, lay people participate in the adjudication of criminal cases; generally, however, these laypeople do not sit as jurors but act as judges who, together with professional judges, decide on the innocence or guilt of the accused and on the sentence to be imposed.

Other differences are also apparent. The approaches of the two types of legal systems differ, for example, in matters of contractual law and freedom of testation. The civil-law systems go further in implementing the principle of freedom of contract, by specifically upholding almost all contractual promises and by enforcing penalty clauses. Freedom of testation, on the other hand, is more restricted in civil-law nations, where the testator’s children—and not only a surviving spouse—receive a certain portion of a parent’s estate regardless of the provisions of the will.

The differences between civil law and common law, however, should not be overstated. Despite divergences in methods and terminology, a basic similarity is found in the ultimate results reached by both systems. The trend is towards a closer relationship between the approaches of the common law and the civil law.

Reviewed By:
Simon Levene