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For the article on the area of common law systems dealing with disputes between private parties, see civil law (common law).

Civil law is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not determined, as in common law, by judges.[1] 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,[2] 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.[3] 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.

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 prevalent and oldest surviving legal system in the world. Colonial expansion spread the civil law system and European civil law has been adopted in much of Latin America as well as in parts of Asia and Africa.[4] The primary source of law is the legal code, which is a compendium of statutes, arranged by subject matter in some pre-specified order[5]; a code may also be described as "a systematic collection of interrelated articles written in a terse, staccato style." [6] 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. The two other major legal systems in the world are common law and Islamic law.

Civil law systems may be subdivided into further categories:

  • Countries where Roman law in some form is still living law and there has been no attempt to create a civil code: Andorra and San Marino
  • Countries with mixed systems in which Roman law is an academic source of authority but common law is also influential: Scotland and the Roman-Dutch law countries (South Africa, Zambia, Zimbabwe, Sri Lanka and Guyana)
  • Countries with codes intended to be comprehensive, such as France: 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 an intermediate character, as they have a background of Roman and customary law together with partial codification. The law of Quebec may also be considered as a hybrid system, in that a French-type civil code coexists with pre-revolutionary French customary law and considerable common law influence.

A prominent example of civil law 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 catalog of judicial decisions, the Code consists of abstractly written principles as rules of law. [6]

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).

Contents

History

Legal Systems of the World      Civil law      Common law      Bijuridical (civil and common law)      Customary law      Fiqh

The civil law system takes as its major inspiration Roman law, and in particular the Corpus Juris Civilis of Emperor Justinian, and subsequent expounding and developments during the Middle Ages.[7] 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 was in place in the Byzantine Empire until its final fall in the 15th century. However, subject as it was to multiple incursions and occupations in the latter Middle Ages, its laws became widely available in Western Europe. 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 feudal Common law. In England, it was taught academically at Oxford and Cambridge, but underlay only probate and matrimonial law, inherited by canon law when secularized, 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.

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Codification

A second characteristic, beyond Roman law foundations, is the extended codification of the adopted Roman law, i.e. its inclusion into civil codes. The concept of codification dates back to the Code of Hammurabi in ancient Babylon.

The concept of codification was further developed during the 17th and 18th century, 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, which was born during the 19th centuryCitation needed(possibly incorrect), required the recording of the law that would be applicable to that state.

Certainly, there was also reaction to the aim of 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 Bonaparte and later adopted with modifications in 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 Eastern Europe reverted back to civil law following the fall of socialism.

Several legal institutions in civil law were also adapted from similar institutions in Islamic law and jurisprudence during the Middle Ages. For example, the Islamic Hawala institution is the basis of the Avallo in Italian civil law and the Aval in French civil law.[8]

Differentiation from other major legal systems

The table below contains essential disparities (and in some cases similarities) between the world's four major legal systems.

Major legal systems of the world[9]
Common law Civil law Socialist law Islamic law
Other names Anglo-American, English, judge-made Continental, Romano-Germanic Communist Religious law
Source of law Case law, legislation Statutes, legislation Statutes, legislation Qur'an
Lawyers Experienced lawyers Judges dominate trials Judges dominate trials Secondary role
Judges' qualifications Control courtroom 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 Very limited
Juries Provided at trial level May adjudicate in conjunction with judges in serious criminal matters Often used at lowest level Not allowed
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 subordinate to the Shari'a
Examples Australia, England, Hong Kong, Ireland, USA (except Louisiana), Canada (except Québec), Pakistan, India, Malaysia France, Spain, Germany, Louisiana, Brazil, Japan, Mexico, Québec, Switzerland, The Netherlands Soviet Union Saudi Arabia

Civil law is primarily contrasted with common law, which is the legal system developed among Anglophone people, especially in England.

The original difference is that, historically, common law was law developed by custom, beginning before there were any written laws and continuing to be applied by courts after there were written laws, too, whereas civil law developed out of the Roman law of Justinian's Corpus Juris Civilis (Body of Civil Law).

In later times, civil law became codified as droit coutumier or customary law that were local compilations of legal principles recognized as normative. Sparked by the age of enlightenment, attempts to codify private law began during the second half of the 18th century (see civil code), but civil codes with a lasting influence were promulgated only after the French Revolution, in jurisdictions such as France (with its Napoleonic Code), Duchy of Warsaw/Congress Poland (see Kodeks cywilny 1806/1825), Austria (see ABGB), Quebec (see Civil Code of Quebec), Italy (Codice Civile), Portugal (Código Civil), Spain (Código Civil), the Netherlands (see Burgerlijk Wetboek), and Germany (see Bürgerliches Gesetzbuch).

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 are not grouped into larger, expansive codes like those found in France and Germany.[10] Furthermore, many common law jurisdictions have codified parts of their laws, for example, the federal statutes in the United States Code, and much Australian criminal law. There are also so-called "mixed systems" that combine aspects of both common and civil law systems, such as the laws of Scotland, Louisiana, Namibia, the Philippines, Quebec, Sri Lanka, Mauritius, South Africa, and Zimbabwe.

Thus, the difference between civil law and common law lies not just in the mere fact of codification, but in the methodological approach to codes and statutes. In civil law countries, legislation is seen as the primary source of law. By default, courts thus base their judgements on the provisions of codes and statutes, from which solutions in particular cases are to be derived. Courts thus have to reason extensively on the basis of general rules and principles of the code, often drawing analogies from statutory provisions to fill lacunae and to achieve coherence. By contrast, in the common law system, case law is a major source of law, while statutes are often seen as supplemental to judicial opinions and thus interpreted narrowly.

The underlying principle of separation of powers is seen somewhat differently in civil law and common law countries. In some common law countries, especially the United States, judges are seen as balancing the power of the other branches of government. By contrast, the original idea of separation of powers in France was to assign different roles to legislation and to judges, with the latter only applying the law (the judge as la bouche de la loi, or 'mouth-piece of the law'). This translates into the fact that many civil law jurisdictions reject the formalistic notion of binding precedent (although paying due consideration to settled case-law), or restrict the power to set precedents to a competent Supreme Court.

This is in principle true in France, where judges cite only legislation, but not prior case law. (However, this does not mean that judges do not consider it when drafting opinions.) By contrast, court opinions in German-speaking countries can be as long as English ones, and normally discuss prior cases and academic writing extensively.

There are, however, certain sociological differences. In some Civil law countries judges are trained and promoted separately from attorneys, whereas common law judges are usually selected from accomplished and reputable attorneys. In the Scandinavian countries judges are attorneys who have applied for the position, whereas France has a specialized graduate school for judges.

With respect to criminal procedure, certain civil law systems are based upon a variant of the inquisitorial system rather than the adversarial system. This kind of judicial organization is sometimes criticized as lacking a presumption of innocence. Most European countries, however, are parties to the European Convention on Human Rights and Article 6 guarantees "the right to a fair trial" and the presumption of innocence. The Convention is ratified by all the members and as such part of their national legislation. Some civil law nations, for example Germany, also have legislation that predates the Convention and secures the defendant the presumption of innocence, implicitly or explicitly. Another example is Norway, where the presumption is guaranteed by uncodified customary law and validated theory[11] recognized by the Supreme Court in plenary (effectively forming a precedent).

While the presumption of innocence is present, what distinguishes the more inquisitorial system is the frequent lack of a jury of peers, which is guaranteed in many common law jurisdictions. Inquisitorial systems tend to have something akin to a "bench" trial made up of a single judge or a tribunal. Some Scandinavian nations have a tribunal that consists of two civilian and one trained legal professional. One result of the inquisitorial system's lack of jury trial is a significant difference in the rules of trial evidence. Common law rules of evidence are founded on a concern that juries will misuse, or give inappropriate weight to unreliable evidence. In inquisitorial systems the rules of evidence are sometimes less complicated because legal professionals are considered capable of identifying reliable evidence. Most noteworthy of these is the lack of a hearsay rule.[citation needed]

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. More recently, the Brazil's 2002 Civil Code was inspired on 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 code civil 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.

Law in the state of Louisiana is based in part 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.[12] In Louisiana, private law is based on the Louisiana Civil Code. The current state of Louisiana law has converged considerably with US law.[13]

Several Islamic countries have civil law systems that contain elements of Islamic law.[14]

See also

Bibliography

  • MacQueen, Hector L. "Scots Law and the Road to the New Ius Commune." Electronic Journal of Comparative Law 4, no. 4 (December 2000).
  • Moustaira Elina N., Comparative Law: University Courses (in Greek), Ant. N. Sakkoulas Publishers, Athens, 2004, ISBN 960-15-1267-5

Notes

  1. ^ "Legal Terms", Armstrong Lawyers, retrieved on 11 June 2009: [1].
  2. ^ Charles Arnold Baker, The Companion to British History, s.v. "Civilian" (London: Routledge, 2001), 308.
  3. ^ Michel Fromont, Grands systèmes de droit étrangers, 4th edn. (Paris: Dalloz, 2001), 8.
  4. ^ "Civil law (Romano-Germanic)". Encyclopædia Britannica.
  5. ^ "Glossary of Legal Terms", 12th District Court - Jackson, County, MI, retrieved on 12 June 2009: [2]
  6. ^ a b Neubauer, David W.,and Brendan C. Slowe. Judicial Process: Law, Courts, and Politics in the United States. Belmont: Thomson Wadsworth, 2007, pg.28.
  7. ^ Roman Law and Its Influence
  8. ^ Badr, Gamal Moursi (Spring, 1978), "Islamic Law: Its Relation to Other Legal Systems", The American Journal of Comparative Law 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 
  9. ^ Neubauer, David W.,and Stephen S. Meinhold. Judicial Process: Law, Courts, and Politics in the United States. Belmont: Thomson Wadsworth, 2007, pg.28.
  10. ^ Smits, Jan (ed.); Dotevall, Rolf (2006), Elgar Encyclopedia of Comparative Law, "63: Sweden", Edward Elgar Publishing, ISBN 1845420136, http://books.google.com/books?id=qQK_RBUyX9cC 
  11. ^ Eskeland, 510
  12. ^ "How the Code Napoleon makes Louisiana law different". LA-Legal. http://www.la-legal.com/modules/article/view.article.php?c8/29. Retrieved 2006-10-26. 
  13. ^ http://www.city-data.com/states/Louisiana-Judicial-system.html
  14. ^ "Civil Law". Microsoft Encarta Online Encyclopedia 2009. Archived 2009-10-31.

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