Civil law (legal system)


Civil law (legal system)
Legal Systems of the World
  Civil law
  Bijuridical (civil and common law)

Civil law (or civilian law) is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different occasions.[1][2]

Conceptually, it is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Germanic, ecclesiastical, feudal, and local practices,[3] as well as doctrinal strains such as natural law, codification, and legislative positivism.

Materially, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules.[4] It holds legislation as the primary source of law, and the court system is usually inquisitorial, unbound by precedent, and composed of specially trained judicial officers with a limited authority to interpret law. Juries separate from the judges are not used, although in some cases, volunteer lay judges participate along with legally trained career judges.

Contents

Overview

The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow. It is the most widespread system of law in the world, in force in various forms in about 150 countries,[5] and draws heavily from arguably the most intricate legal system we know of from before the modern era. Colonial expansion spread the civil law which has been received in much of Latin America and parts of Asia and Africa.[6]

Where codes exist, the primary source of law is the law code, which is a systematic collection of interrelated articles,[7] arranged by subject matter in some pre-specified order,[8] and that explain the principles of law, rights and entitlements, and how basic legal mechanisms work. Law codes are usually created by a legislature's enactment of a new statute that embodies all the old statutes relating to the subject and including changes necessitated by court decisions. In some cases, the change results in a new statutory concept. Other major legal systems in the world include common law, Halakha, canon law, and Islamic law.

Civilian countries can be divided into:

  • those where civil law in some form is still living law but there has been no attempt to create a civil code: Andorra, Malta, 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 Roman-Dutch law countries (South Africa, Zambia, Zimbabwe, Sri Lanka and Guyana)
  • those with codified mixed systems in which civil law is the background law but has had its public law heavily influenced by common law: Louisiana, Quebec, Puerto Rico, Philippines
  • those with comprehensive codes that exceed a single civil code, such as France, Germany, Greece, Japan, Mexico: it is this last category that is normally regarded as typical of civil law systems, and is discussed in the rest of this article.

The Scandinavian systems are of a hybrid character since their background law is a mix of civil law and Scandinavian customary law and have been partially codified. Likewise, the laws of the Channel Islands (Jersey, Guernsey, Alderney, Sark) are hybrids which mix Norman customary law and French civil law.

A prominent example of a civil-law code would be the Napoleonic Code (1804), named after French emperor Napoleon Bonaparte. The Code comprises three components: the law of persons, property law, and commercial law. Rather than a compendium of statutes or catalog of caselaw, the Code sets out general principles as rules of law.[7]

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 (jus gentium).

History

The civil law takes as its major inspiration classical Roman law (c. AD 1–250), and in particular Justinian law (6th century AD), and further expounding and developments in the late Middle Ages under the influence of canon law.[9] The Justinian Code's doctrines provided a sophisticated model for contracts, rules of procedure, family law, wills, and a strong monarchical constitutional system.[10] Roman law was received differently in different countries. In some it went into force wholesale by legislative act, i.e., it became positive law, whereas in others it was diffused into society by increasingly influential legal experts and scholars.

Roman law continued without interruption in the Byzantine Empire until its final fall in the 15th century. However, subject as it was to multiple incursions and occupations by Western European powers in the late medieval period, its laws became widely available in the West. It was first received into 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 Oxford and Cambridge, but underlay only probate and matrimonial law insofar as both were inherited from canon law, and maritime law, adapted from the law merchant through the Bordeaux trade.

Consequently, neither of the two waves of Romanism completely dominated in Europe. Roman law was 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 (it being a common European legal tradition of sorts), thereby in turn influencing the main source of law. Eventually, the works 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. Codification of the type 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 (Très ancien coutumier, 1200–1245), 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 commissioned in 1454 an official custumal of Crown law. Two prominent examples include the Coutume de Paris (written 1510; revised 1580), which served as the basis for the Napoleonic Code, and the Sachsenspiegel (c. 1220) 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 ideal of that era was expressed by the concepts of democracy, protection of property and the rule of law. That ideal required the creation of certainty of law, through the recording of law and through its uniformity. So, the aforementioned mix of Roman law and customary and local law ceased to exist, and the road opened for law codification, which could contribute to the aims of the above mentioned political ideal.

Another reason that contributed to codification was that the notion of the nation-state required the recording of the law that would be applicable to that state.

Certainly, 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 European private laws moved forward. Codifications were completed by Denmark (1687), Sweden (1734), Prussia (1794), France (1804), and Austria (1811). The French codes were imported into areas conquered by Emperor Napoleon and later adopted with modifications in Poland (Duchy of Warsaw/Congress Poland; Kodeks cywilny 1806/1825), Louisiana (1807), Canton of Vaud (Switzerland; 1819), the Netherlands (1838), Italy and Romania (1865), Portugal (1867), Spain (1888), Germany (1900), and Switzerland (1912). 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 (1916) and Turkey (1926).

Because Germany was a rising power in the late 19th century and its legal system was well organized, when many Asian nations were developing, the German Civil Code became the basis for the legal systems of Japan and South Korea. In China, the German Civil Code was introduced in the later years of the Qing Dynasty and formed the basis of the law of the Republic of China, which remains in force in Taiwan.

Some authors consider civil law to have served as the foundation for socialist law used in communist countries, which in this view would basically be civil law with the addition of Marxist–Leninist ideas. Even if this is so, civil law was generally the legal system in place before the rise of socialist law, and some Eastern European countries reverted back to the pre-Socialist civil law following the fall of socialism, while others continued using their socialist legal systems.

Several civil-law mechanisms seem to have been borrowed from medieval Islamic Sharia and fiqh. For example, the Islamic hawala (hundi) underlies the avallo of Italian law and the aval of French and Spanish law.[11]

Differentiation from other major legal systems

It should be noted that it has been said that little is known of continental European civil law systems from a comparative law perspective.[12] The table below contains essential disparities (and in some cases similarities) between the world's four major legal systems.[7]

Common law Civil law Socialist law Islamic law
Other names Anglo-American, English, judge-made Continental, Romano-Germanic Social Religious law, Sharia Law
Source of law Case law, statutes/legislation Statutes/legislation Statutes/legislation Religious documents, case law[11][13]
Lawyers Control courtroom Judges dominate trials Judges dominate trials Secondary role
Judges' qualifications Experienced lawyers (appointed or elected) Career judges Career bureaucrats, Party members Religious as well as legal training
Degree of judicial independence High High; separate from the executive and the legislative branches of government Very limited Ranges from very limited to high[11][13]
Juries Provided at trial level May adjudicate in conjunction with judges in serious criminal matters Often used at lowest level Allowed in Maliki school,[13] not allowed in other schools
Policy-making role Courts share in balancing power Courts have equal but separate power Courts are subordinate to the legislature Courts and other government branches are theoretically subordinate to the Shari'a. In practice, courts historically made the Shari'a, while today, the religious courts are generally subordinate to the executive.
Examples Australia, UK (except Scotland), India (except Goa), Ireland, Hong Kong, USA (except Louisiana), Canada (except Quebec), Pakistan, Malaysia, Norway(to some extent) All European Union states except UK (excluding Scotland) and Ireland, Brazil, Canada (Quebec only), China (except Hong Kong), Japan, Mexico, Russia, Switzerland, Turkey, USA (Louisiana only), India (Goa only) Soviet Union and other communist regimes Pakistan, Saudi Arabia, Afghanistan, Bangladesh, Gambia, Iran, Libya, Mauritania, Morocco, Oman, Sudan, Yemen

Civil law is primarily contrasted with common law, which is the legal system developed first in England, and later among English-speaking peoples of the world. Despite their differences, the two systems are quite similar from a historical point of view. Both evolved in much the same way, though at different paces. The Roman law underlying civil law developed mainly from customary law that was refined with caselaw and legislation. Canon law further refined court procedure. Similarly, English law developed from Norman and Anglo-Saxon customary law, further refined by caselaw and legislation. The differences of course being that (1) Roman law had crystallised many of its principles and mechanisms in the form of the Justinian Code, which drew from caselaw, scholarly commentary, and senatorial statutes; and (2) civilian caselaw has persuasive authority, not binding authority as under common law.

Codification, however, is by no means a defining characteristic of a civil law system. For example, the statutes that govern the civil law systems of Sweden and other Nordic countries or Roman-Dutch countries are not grouped into larger, expansive codes like those found in France and Germany.[14]

Subgroups

Subgroups in Europe

The term "civil law" as applied to a legal tradition actually originates in English-speaking countries, where it was used to lump all non-English legal traditions together and contrast them to the English common law. However, since continental European traditions are by no means uniform, scholars of comparative law and economists promoting the legal origins theory usually subdivide civil law into four distinct groups:

Portugal, Brazil and Italy have evolved from French to German influence, as their 19th century civil codes were close to the Napoleonic Code and their 20th century civil codes are much closer to the German Bürgerliches Gesetzbuch (BGB). More recently, Brazil's 2002 Civil Code took inspiration from the Italian civil code, aiming at the unification of private law; legal culture and law schools have also come near to the German system. The other law in these countries is often said to be of a hybrid nature.

Some systems of civil law do not fit neatly into this typology, however. The Polish civil law developed as a mixture of French and German civil law in the 19th century. After the reunification of Poland in 1918, five legal systems (French Napoleonic Code from the Duchy of Warsaw, German BGB from Western Poland, Austrian ABGB from Southern Poland, Russian law from Eastern Poland, and Hungarian law from Spisz and Orawa) were merged into one.

Louisiana private law is primarily based on civil law. Louisiana is the only U.S. state partially based on French and Spanish codes and ultimately Roman law, as opposed to English common law.[15] 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, its judicial system, and adoption of the UCC and certain legal devices of American common law.[16] The law of Quebec, whose private law is similarly of French civilian origin, has developed along the same lines, having been forced in the same way as Louisiana to adopt the public law and judicial system of the common-law majority as a pre-condition for its incorporation.

Several Islamic countries have civil law systems that contain elements of Islamic law.[17] As an example, the Egyptian Civil Code of 1949—which remains in force in Egypt is the basis for the civil law in many countries of the Arab world where the civil law is used— is based on the Napoleonic Code, but its primary author Abd El-Razzak El-Sanhuri attempted to integrate principles and features of Islamic law in deference to the unique circumstances of Egyptian society.

See also

Notes

  1. ^ Washington Probate, "Estate Planning & Probate Glossary", Washington (State) Probate, s.v. "common law", [htm], 8 Dec. 2008: <http://www.wa-probate.com/Intro/Estate-Probate-Glossary.htm>, retrieved on 7 November 2009.
  2. ^ Charles Arnold-Baker, The Companion to British History, s.v. "English Law" (London: Loncross Denholm Press, 2008), 484.
  3. ^ Charles Arnold Baker, The Companion to British History, s.v. "Civilian" (London: Routledge, 2001), 308.
  4. ^ Michel Fromont, Grands systèmes de droit étrangers, 4th edn. (Paris: Dalloz, 2001), 8.
  5. ^ "CIA - The World Factbook," retrieved on 30 November 2010
  6. ^ "Civil law (Romano-Germanic)". Encyclopædia Britannica.
  7. ^ a b c Neubauer, David W.,and Stephen S. Meinhold. Judicial Process: Law, Courts, and Politics in the United States. Belmont: Thomson Wadsworth, 2007, pg.28.
  8. ^ "Glossary of Legal Terms", 12th District Court - Jackson, County, MI, retrieved on 12 June 2009: [1]
  9. ^ "Roman Law and Its Influence". Infoplease.com. http://www.infoplease.com/ce6/society/A0859206.html. Retrieved 2011-08-18. 
  10. ^ Kenneth Pennington, "Roman and Secula Law in the Middle Ages", Medieval Latin: An Introduction and Bibliographical Guide, edd. F.A.C. Mantello and A.G. Rigg (Washington, D.C.: Catholic University Press of America, 1996), 254-266; [html], available at [2], retrieved 27 August 2011.
  11. ^ a b c Badr, Gamal Moursi (Spring, 1978), "Islamic Law: Its Relation to Other Legal Systems", The American Journal of Comparative Law (The American Journal of Comparative Law, Vol. 26, No. 2) 26 (2 [Proceedings of an International Conference on Comparative Law, Salt Lake City, Utah, February 24–25, 1977]): 187–198 [196–8], doi:10.2307/839667, JSTOR 839667 
  12. ^ European Union Committee of the House of Lords (2008). The Treaty of Lisbon: an impact assessment, 10th report of session 2007-08. 2. London: Stationary Office. p. E-131. ISBN 9780104012444. http://books.google.com/books?id=WjcvGFqc2BEC&pg=SL5-PA131. "One problem we have is that little is known about continental systems of criminal justice. It is an area that has hardly ever been studied. There are no university chairs of comparative law that specialize in comparative criminal procedure, anywhere in the British Isles." 
  13. ^ a b c Makdisi, John A. (June 1999), "The Islamic Origins of the Common Law", North Carolina Law Review 77 (5): 1635–1739 
  14. ^ Smits, Jan (ed.); Dotevall, Rolf (2006), Elgar Encyclopedia of Comparative Law, "63: Sweden", Edward Elgar Publishing, ISBN 1845420136, http://books.google.com/?id=qQK_RBUyX9cC 
  15. ^ "How the Code Napoleon makes Louisiana law different". LA-Legal. Archived from the original on 2006-10-31. http://web.archive.org/web/20061031041737/http://www.la-legal.com/modules/article/view.article.php?c8/29. Retrieved 2006-10-26. 
  16. ^ "Louisiana - Judicial system". City-data.com. http://www.city-data.com/states/Louisiana-Judicial-system.html. Retrieved 2011-08-18. 
  17. ^ "Civil Law". Microsoft Encarta Online Encyclopedia 2009. Archived 2009-10-31.

Bibliography

External links


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