Civil law (legal system)
Civil law is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, most notably with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Unlike common law systems, which rely heavily on judicial precedent, civil law systems are characterized by their reliance on legal codes that function as the primary source of law. Today, civil law is the world's most common legal system, practiced in about 150 countries.
The civil law system is often contrasted with the common law system, which originated in medieval England. Whereas the civil law takes the form of legal codes, the common law comes from uncodified case law that arises as a result of judicial decisions, recognizing prior court decisions as legally binding precedent.
Historically, a civil law is the group of legal ideas and systems ultimately derived from the Corpus Juris Civilis, but heavily overlain by Napoleonic, Germanic, canonical, feudal, and local practices, as well as doctrinal strains such as natural law, codification, and legal positivism.
Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules. It holds case law secondary and subordinate to statutory law. Civil law is often paired with the inquisitorial system, but the terms are not synonymous. There are key differences between a statute and a code. The most pronounced features of civil systems are their legal codes, with concise and broadly applicable texts that typically avoid factually specific scenarios. The short articles in a civil law code deal in generalities and stand in contrast with ordinary statutes, which are often very long and very detailed.
Overview
The civil law system is the most widespread system of law in the world, in force in various forms in about 150 countries.Origin and features
Civil law is sometimes referred to as neo-Roman law, Romano-Germanic law or Continental law. The expression "civil law" is a translation of Latin jus civile, or "citizens' law", which was the late imperial term for its legal system, as opposed to the laws governing conquered peoples ; hence, the Justinian Code's title Corpus Juris Civilis. Civil law practitioners, however, traditionally refer to their system in a broad sense as jus commune. It draws heavily from Roman law, arguably the most intricate legal system before the modern era.In civil law legal systems where codes exist, the primary source of law is the law code, a systematic collection of interrelated articles, arranged by subject matter in some pre-specified order. Codes explain the principles of law, rights, and entitlements, and how basic legal mechanisms work. The purpose of codification is to provide all citizens with manners and a written collection of the laws which apply to them and which judges must follow. Law codes are laws enacted by a legislature, even if they are in general much longer than other laws. Rather than a compendium of statutes or catalog of case law, the code sets out general principles as rules of law.
While the typical French-speaking supreme court decision is short, concise, and devoid of explanation or justification, in Germanic Europe, the supreme courts can and do tend to write more verbose opinions, supported by legal reasoning. A line of similar case decisions, while not precedent per se, constitute jurisprudence constante. While civil law jurisdictions place little reliance on court decisions, they tend to generate a phenomenal number of reported legal opinions. However, this tends to be uncontrolled, since there is no statutory requirement that any case be reported or published in a law report, except for the councils of state and constitutional courts. Except for the highest courts, all publication of legal opinions is unofficial or commercial.
Subcategories
Civil law systems can be divided into:- those where Roman law in some form is still living law but there has been no attempt to create a civil code: Andorra and San Marino
- those with uncodified mixed systems in which civil law is an academic source of authority but common law is also influential: Scotland and the Roman-Dutch law countries
- those with codified mixed systems in which civil law is the background law but has its public law heavily influenced by common law: Puerto Rico, Philippines, Quebec and Louisiana
- the Scandinavian legal systems, which are of a hybrid character since their background law is a mix of civil law and Scandinavian customary law and they have been partially codified. Likewise, the laws of the Channel Islands mix Norman customary law and French civil law.
- those with comprehensive codes that exceed a single civil code, such as France, Germany, Greece, Italy, Japan, Chile, Mexico, Russia, Spain: it is this last category that is normally regarded as typical of civil law systems, and is discussed in the rest of this article.
Prominent civil codes
- the law of persons
- property law, and
- commercial law.
- The General Part, covering definitions and concepts, such as personal rights and legal personality.
- Obligations, including concepts of debt, sale and contract;
- Things, including immovable and movable property;
- Domestic relations ; and
- Succession.
History
Roman law continued without interruption in the Eastern Roman Empire until its final fall in the 15th century. However, given the empire's influence on the continent in Late Antiquity and then multiple incursions and occupations by Western European powers in the late medieval period, its laws became widely implemented in the West. It was first received in the Holy Roman Empire partly because it was considered imperial law, and it spread in Europe mainly because its students were the only trained lawyers. It became the basis of Scots law, though partly rivaled by received feudal Norman law. In England, it was taught academically at the universities of Oxford and Cambridge, but underlay only probate and matrimonial law insofar as both were inherited from canon law, and maritime law, adapted from lex mercatoria through the Bordeaux trade.
Consequently, neither of the two waves of Roman influence completely dominated in Europe. Roman law was ultimately a secondary source that was applied only when local customs and laws were found lacking on a certain subject. However, after a time, even local law came to be interpreted and evaluated primarily on the basis of Roman law, since it was a common European legal tradition of sorts, and thereby in turn influenced the main source of law. Eventually, the work of civilian glossators and commentators led to the development of a common body of law and writing about law, a common legal language, and a common method of teaching and scholarship, all termed the jus commune, or law common to Europe, which consolidated canon law and Roman law, and to some extent, feudal law.
Codification
An important common characteristic of civil law, aside from its origins in Roman law, is the comprehensive codification of received Roman law, i.e., its inclusion in civil codes. The earliest codification known is the Code of Hammurabi, written in ancient Babylon during the 18th century BC. However, this, and many of the codes that followed, were mainly lists of civil and criminal wrongs and their punishments. The codification typical of modern civilian systems did not first appear until the Justinian Code.Germanic codes appeared over the 6th and 7th centuries to clearly delineate the law in force for Germanic privileged classes versus their Roman subjects and regulate those laws according to folk-right. Under feudal law, a number of private custumals were compiled, first under the Norman empire, then elsewhere, to record the manorial—and later regional—customs, court decisions, and the legal principles underpinning them. Custumals were commissioned by lords who presided as lay judges over manorial courts in order to inform themselves about the court process.
The use of custumals from influential towns soon became commonplace over large areas. In keeping with this, certain monarchs consolidated their kingdoms by attempting to compile custumals that would serve as the law of the land for their realms, as when Charles VII of France in 1454 commissioned an official custumal of Crown law. Two prominent examples include the Coutume de Paris, which served as the basis for the Napoleonic Code, and the Sachsenspiegel of the bishoprics of Magdeburg and Halberstadt which was used in northern Germany, Poland, and the Low Countries.
The concept of codification was further developed during the 17th and 18th centuries AD, as an expression of both natural law and the ideas of the Enlightenment. The political ideals of that era was expressed by the concepts of democracy, protection of property and the rule of law. Those ideals required certainty of law; recorded, uniform law. So, the mix of Roman law and customary and local law gave way to law codification. Also, the notion of a nation-state implied recorded law that would be applicable to that state. There was also a reaction to law codification. The proponents of codification regarded it as conducive to certainty, unity and systematic recording of the law; whereas its opponents claimed that codification would result in the ossification of the law.
In the end, despite whatever resistance to codification, the codification of Continental European private laws moved forward. Codifications were completed by Denmark, Sweden, Prussia, France, and Austria. The French codes were imported into areas conquered by Napoleon and later adopted with modifications in Poland, Louisiana, Canton of Vaud, the Netherlands, Serbia, Italy and Romania, Portugal and Spain. Germany, and Switzerland adopted their own codifications. These codifications were in turn imported into colonies at one time or another by most of these countries. The Swiss version was adopted in Brazil and Turkey.
Louisiana is the only U.S. state whose private civil law is based heavily on the French and Spanish codes, as opposed to English common law. In Louisiana, private law was codified into the Louisiana Civil Code. Current Louisiana law has converged considerably with American law, especially in its public law, judicial system, and adoption of the Uniform Commercial Code and certain legal devices of American common law. In fact, any innovation, whether private or public, has been decidedly common law in origin.
In theory, codes conceptualized in the civil law system should go beyond the compilation of discrete statutes, and instead state the law in a coherent, and comprehensive piece of legislation, sometimes introducing major reforms or starting anew. In this regard, civil law codes are more similar to the Restatements of the Law, the Uniform Commercial Code, and the Model Penal Code in the United States. In the United States, U.S. states began codification with New York's 1850 Field Code. Other examples include California's codes, and the federal revised statutes and the current United States Code, which are closer to compilations of the statute than to systematic expositions of law akin to civil law codes.
For the legal system of Japan, beginning in the Meiji Era, European legal systems—especially the civil law of Germany and France—were the primary models for emulation. In China, the German Civil Code was introduced in the later years of the Qing dynasty, emulating Japan. In addition, it formed the basis of the law of the Republic of China, which remains in force in Taiwan. Furthermore, Taiwan and Korea, former Japanese colonies, have been strongly influenced by the Japanese legal system.