Civil law (legal system)

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Legal systems of the world.[1] Civil law-based systems are in blue.

Civil law is a

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, recognising prior court decisions as legally binding precedent.[2]

Historically, a civil law is the group of legal ideas and systems ultimately derived from the

canonical, feudal, and local practices,[3] as well as doctrinal strains such as natural law, codification, and legal positivism. The Napoleonic Code is the most widespread system of law in the world, in force in various forms in about 120 countries.[4][unreliable source?
]

Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes

legal codes, with concise and broadly applicable texts that typically avoid factually specific scenarios.[7][6] 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.[6]

Overview

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 (jus gentium); 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. The civil law system is the most widespread system of law in the world, in force in various forms in about 150 countries.[8] It draws heavily from Roman law, arguably the most intricate known legal system before the modern era.[citation needed]

In civil law legal systems where codes exist, the primary source of law is the

canon law
.

Unlike

Germanic Europe, the supreme courts can and do tend to write more verbose opinions, supported by legal reasoning.[11] A line of similar case decisions, while not precedent per se, constitute jurisprudence constante.[11] While civil law jurisdictions place little reliance on court decisions, they tend to generate a phenomenal number of reported legal opinions.[11] 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.[11] Except for the highest courts, all publication of legal opinions is unofficial or commercial.[12]

Subcategories

Civil law systems can be divided into:

Prominent civil codes

A prominent example of a civil law code is the Napoleonic Code (1804), named after French emperor Napoleon. The Napoleonic code comprises three components:

Another prominent civil code is the German Civil Code (Bürgerliches Gesetzbuch or BGB), which went into effect in the German empire in 1900.[13] The German Civil Code is highly influential, inspiring the civil codes in countries such as Japan, South Korea and Switzerland (1907). It is divided into five parts:[13]

  1. The General Part, covering definitions and concepts, such as personal rights and legal personality.
  2. Obligations, including concepts of debt, sale and contract;
  3. Things (property law), including immovable and movable property;
  4. Domestic relations (family law); and
  5. Succession (estate law).

History

Civil law takes as its major inspiration classical

Middle Ages under the influence of canon law.[14] The Justinian Code's doctrines provided a sophisticated model for contracts, rules of procedure, family law, wills, and a strong monarchical constitutional system.[15] 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

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

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

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

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

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 (1687), Sweden (1734), Prussia (1794), France (1804), and

Switzerland
(1912) 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 (1916) and Turkey (1926).

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.[16] 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 (except for Article 2) and certain legal devices of American common law.[17] In fact, any innovation, whether private or public, has been decidedly common law in origin.[citation needed]

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.[6] In this regard, civil law codes are more similar to the Restatements of the Law, the Uniform Commercial Code (which drew from European inspirations), 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 (laying down civil procedure rules and inspired by European and Louisiana codes).[18] Other examples include California's codes (1872), and the federal revised statutes (1874) and the current United States Code (1926), which are closer to compilations of statute than to systematic expositions of law akin to civil law codes.

For the

Republic of China
, which remains in force in Taiwan. Furthermore, Korea, Taiwan, and Manchuria, former Japanese colonies, have been strongly influenced by the Japanese legal system.

Comparison with other legal systems

Civil law is primarily contrasted with common law, the legal system developed first in England and later among English-speaking peoples worldwide. 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 case law and legislation. Canon law further refined court procedure. Similarly, English law developed from Anglo-Saxon customary law, Danelaw, and Norman law, further refined by case law and legislation. The differences are

  • Roman law had crystallized many of its principles and mechanisms in the form of the Justinian Code, which drew from case law, scholarly commentary, and senatorial statutes
  • Civilian case law 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 and the Roman-Dutch countries are not grouped into larger, expansive codes like those in French and German law.[19]

Some authors consider civil law the foundation for

Marxist-Leninist ideals. 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 to the pre-socialist civil law following the fall of socialism, while others continued using a socialist legal systems.[citation needed
]

There is no doctrine of

stare decisis in the French civil law tradition. There are regular, good quality law reports in France, but it is not a consistent practice in civil law jurisdictions. In French-speaking Africa there were no law reports and what little we know of the historical cases comes from journals.[20] Civil law codes must be changed constantly because the precedent of courts is not binding.[21]

Subgroups

The term civil law comes from English legal scholarship and is used in English-speaking countries to lump together all legal systems of the jus commune tradition. However, legal comparativists and economists promoting the legal origins theory [who?] prefer to subdivide civil law jurisdictions into distinct groups:

However, some of these legal systems are often and more correctly said to be of hybrid nature:

Napoleonic to Germanistic influence: The Italian civil code of 1942 replaced the original one of 1865, introducing German elements as a result of its

Axis alliance.[25] This approach has been imitated by other countries, including Portugal (1966), the Netherlands (1992), Brazil (2002) and Argentina (2014). Most of them have innovations introduced by the Italian legislation, including the unification of the civil and commercial codes.[26]

Germanistic to Napoleonic influence: The

Swiss civil code is considered mainly influenced by the German civil code and partly influenced by the French civil code. The civil code of the Republic of Turkey is a slightly modified version of the Swiss code, adopted in 1926 during Mustafa Kemal Atatürk
's presidency as part of the government's progressive reforms and secularization.

Some systems of civil law do not fit neatly into this typology, however.

Spisz and Orawa) were merged into one. Similarly, Dutch law, while originally codified in the Napoleonic tradition, has been heavily altered under influence from the Dutch native tradition of Roman-Dutch law (still in effect in its former colonies). Scotland's civil law tradition
borrowed heavily from Roman-Dutch law. Swiss law is categorized as Germanistic, but it has been heavily influenced by the Napoleonic tradition, with some indigenous elements added in as well.

Canadian common law. By contrast, Quebec private law has innovated mainly from civil sources. To a lesser extent, other states formerly part of the Spanish Empire, such as Texas and California, have also retained aspects of Spanish civil law into their legal system, for example community property. The legal system of Puerto Rico exhibits similarities to that of Louisiana: a civil code whose interpretations rely on both the civil and common law systems. Because Puerto Rico
's Civil Code is based on the Spanish Civil Code of 1889, available jurisprudence has tended to rely on common law innovations due to the code's age and in many cases, obsolete nature.

Several Islamic countries have civil law systems that contain elements of Islamic law.[27] As an example, the Egyptian Civil Code of 1810 that developed in the early 19th century—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.

Japanese Civil Code is considered a mixture drawing roughly 60% from the German civil code, roughly 30% from the French civil code, 8% from Japanese customary law, and 2% from English law.[28] Regarding the latter, the code borrows the doctrine of ultra vires and the precedent of Hadley v Baxendale
from English common law system.

Countries with civil law systems

Some countries where civil law is practiced includes:[29][30]

See also

References

  1. ^ Alphabetical Index of the 192 United Nations Member States and Corresponding Legal Systems Archived 2016-07-22 at the Wayback Machine, Website of the Faculty of Law of the University of Ottawa
  2. .
  3. ^ Charles Arnold Baker, The Companion to British History, s.v. "Civilian" (London: Routledge, 2001), 308.
  4. ^ "The Napoleonic Code | History of Western Civilization II". courses.lumenlearning.com. Retrieved 30 January 2021.
  5. ^ Michel Fromont, Grands systèmes de droit étrangers, 4th edn. (Paris: Dalloz, 2001), 8.
  6. ^ .
  7. ^ “The role of legislation is to set, by taking a broad approach, the general propositions of the law, to establish principles which will be fertile in application, and not to get down to the details. . . .” Alain Levasseur, Code Napoleon or Code Portalis?, 43 Tul. L. Rev. 762, 769 (1969).
  8. ^ "The World Factbook". cia.gov. Archived from the original on 2017-12-01. Retrieved 2010-12-11.
  9. ^ a b Neubauer, David W., and Stephen S. Meinhold. Judicial Process: Law, Courts, and Politics in the United States. Belmont: Thomson Wadsworth, 2007, p. 28.
  10. ^ "Glossary of Legal Terms", 12th District Court – Jackson, County, MI, retrieved on 12 June 2009: [1]
  11. ^ a b c d e f Reynolds 1998, p. 58.
  12. ^ Reynolds 1998, p. 59.
  13. ^ a b "German Civil Code | German law code". Encyclopedia Britannica. Retrieved 2020-05-27.
  14. ^ "Roman Law and Its Influence". Infoplease.com. Retrieved 2011-08-18.
  15. ^ Kenneth Pennington, "Roman and Secular 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 "Roman and Secular Law in the Middle Ages". Archived from the original on 2011-09-27. Retrieved 2011-08-27., retrieved 27 August 2011.
  16. ^ "How the Code Napoleon makes Louisiana law different". LA-Legal. Archived from the original on 2006-10-31. Retrieved 2006-10-26.
  17. ^ "Louisiana – Judicial system". City-data.com. Retrieved 2011-08-18.
  18. .
  19. ^ See the Italian Civil Code art. 12: "if a controversy can not be decided by a precise provision, consideration is given to provisions that regulate similar cases or analogous matters; if the case still remains in doubt, it is decided according to the general principles of the legal order of the State."
  20. ^ Zhang, Mo (2010). "The Socialist Legal System with Chinese Characteristics: China's Discourse for the Rule of Law and a Bitter Experience" (PDF). Temple International & Comparative Law Journal. 24: 1–64. Retrieved 20 November 2022.
  21. . Retrieved 20 November 2022.
  22. .
  23. ^ "Towards a civil code: the italian experience". teoriaestoriadeldirittoprivato.com.
  24. ^ Franklin, Mitchell (April 1951). ""On the Legal Method of the Uniform Commercial Code" by Mitchell Franklin". Duke.edu. 16 (2): 330–343.
  25. ^ "Civil Law Archived 2009-10-28 at the Wayback Machine". Microsoft Encarta Online Encyclopedia 2009.
  26. ^ 和仁陽「岡松参太郎 – 法比較と学理との未完の綜合 – 」『法学教室』No.183 (in Japanese) p. 79
  27. ^ "What is the Civil Law? | LSU Law – Civil Law Online".
  28. ^ "Legal system - The World Factbook". www.cia.gov.

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External links