Civil law (legal system)
Civil law is a
Historically, a civil law is the group of legal ideas and systems ultimately derived from the
Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes
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
Unlike
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 (South Africa, Zimbabwe, Sri Lanka and Guyana)
- 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 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
A prominent example of a civil law code is the Napoleonic Code (1804), named after French emperor Napoleon. The Napoleonic code comprises three components:
- the law of persons
- property law, and
- commercial law.
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]
- The General Part, covering definitions and concepts, such as personal rights and legal personality.
- Obligations, including concepts of debt, sale and contract;
- Things (property law), including immovable and movable property;
- Domestic relations (family law); and
- Succession (estate law).
History
This section needs additional citations for verification. (January 2024) |
Civil law takes as its major inspiration classical
Roman law continued without interruption in the
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
Codification
This article needs additional citations for verification. (January 2024) |
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
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
The concept of codification was further developed during the 17th and 18th centuries AD, as an expression of both
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
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
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
There is no doctrine of
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:
- Napoleonic: France, Italy, the Netherlands, Spain, Chile, Belgium, Luxembourg, Portugal, Brazil, Mexico, other CPLP countries, Macau, former Portuguese colonies in India (Goa, Daman and Diu and Dadra and Nagar Haveli), Malta, Romania, and most of the Arab world (e.g. Algeria, Tunisia, Egypt, Lebanon, etc.) when Islamic law is not used. Former colonies include Quebec (Canada) and Louisiana (U.S.).
- Dalmacio Vélez Sársfield(main author of the Argentinian Civil Code), it is the most important legal accomplishment of Latin America.
- Cameroon, a former colony of both France and United Kingdom, is bi-juridical/mixed
- Germanistic: Germany, Austria, Switzerland, Latvia, Estonia, Roman-Dutch, Czech Republic, Russia, Lithuania, Croatia, Hungary, Serbia, Slovenia, Slovakia, Bosnia and Herzegovina, Greece, Ukraine, Turkey, Japan, South Korea, Taiwan and Thailand
- South Africa, a former colony of the Netherlands and later the United Kingdom, was heavily influenced by English colonists and therefore is bi-juridical/mixed.
- Nordic: Denmark, Finland, Iceland, Norway, and Sweden
- Chinese (except Hong Kong and Macau) is a mixture of civil law and socialist law.[22][23][24] Presently, Chinese laws absorb some features of common law system, especially those related to commercial and international transactions. Hong Kong, although part of China, uses common law. The Basic Law of Hong Kong ensures the use and status of common law in Hong Kong. Macau continues to have a Portuguese legal system of civil law.
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
Germanistic to Napoleonic influence: The
Some systems of civil law do not fit neatly into this typology, however.
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.
Countries with civil law systems
Some countries where civil law is practiced includes:[29][30]
- Continental Europe (except Andorra, including Armenia, Azerbaijan, and Georgia)
- Turkey)
- )
- Lusophone Africa, and Francophone Africa (such as Egypt, Angola, and Cote d'Ivoire)
See also
- Civil law notary
- International Roman Law Moot Court
- List of national legal systems
- Rule according to higher law
- Tort
References
- ^ 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
- ISBN 978-0-19-993535-2.
- ^ Charles Arnold Baker, The Companion to British History, s.v. "Civilian" (London: Routledge, 2001), 308.
- ^ "The Napoleonic Code | History of Western Civilization II". courses.lumenlearning.com. Retrieved 30 January 2021.
- ^ Michel Fromont, Grands systèmes de droit étrangers, 4th edn. (Paris: Dalloz, 2001), 8.
- ^ ISBN 978-0-19-879088-4.
- ^ “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).
- ^ "The World Factbook". cia.gov. Archived from the original on 2017-12-01. Retrieved 2010-12-11.
- ^ 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.
- ^ "Glossary of Legal Terms", 12th District Court – Jackson, County, MI, retrieved on 12 June 2009: [1]
- ^ a b c d e f Reynolds 1998, p. 58.
- ^ Reynolds 1998, p. 59.
- ^ a b "German Civil Code | German law code". Encyclopedia Britannica. Retrieved 2020-05-27.
- ^ "Roman Law and Its Influence". Infoplease.com. Retrieved 2011-08-18.
- ^ 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.
- ^ "How the Code Napoleon makes Louisiana law different". LA-Legal. Archived from the original on 2006-10-31. Retrieved 2006-10-26.
- ^ "Louisiana – Judicial system". City-data.com. Retrieved 2011-08-18.
- ISBN 978-0-19-881023-0
- ISBN 978-1-84542-013-0
- .
- ^ 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."
- ^ 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.
- . Retrieved 20 November 2022.
- ISBN 9781315491479.
- ^ "Towards a civil code: the italian experience". teoriaestoriadeldirittoprivato.com.
- ^ Franklin, Mitchell (April 1951). ""On the Legal Method of the Uniform Commercial Code" by Mitchell Franklin". Duke.edu. 16 (2): 330–343.
- ^ "Civil Law Archived 2009-10-28 at the Wayback Machine". Microsoft Encarta Online Encyclopedia 2009.
- ^ 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
- ^ "What is the Civil Law? | LSU Law – Civil Law Online".
- ^ "Legal system - The World Factbook". www.cia.gov.
Bibliography
- Glendon, Mary Ann, Paolo G. Carozza, & Colin B. Picker. Comparative Legal Traditions in a Nutshell, 4th edn. West Academic Publishing, 2015.
- Glendon, Mary Ann, Paolo G. Carozza, & Colin B. Picker. Comparative Legal Traditions: Text, Materials and Cases on Western Law, 4th edn. West Academic Publishing, 2014.
- Glenn, H. Patrick. Legal Traditions of the World, 5th edn. Oxford: Oxford University Press, 2014 (1st edn 2000).
- Hamza, G. "Origine e sviluppo degli ordinamenti giusprivatistici moderni in base alla tradizione del diritto romano", Andavira Editora, Santiago de Compostela, 2013.
- Kischel, Uwe. Comparative Law. Trans. Andrew Hammel. Oxford: Oxford University Press, 2019.
- Lydorf, Claudia. (2011). Romance Legal Family. Mainz: Institute of European History.
- MacQueen, Hector L. "Scots Law and the Road to the New Ius Commune." Electronic Journal of Comparative Law 4, no. 4 (December 2000).
- Moreno Navarrete, M. A. The Concept of Civil Law. Historical Dimension. Revista de Derecho Actual, vol. III, 2017.
- John Henry Merryman & Rogelio Pérez-Perdomo. The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America, 4th edn. Stanford University Press, 2018.
- Moustaira, Elina N. Comparative Law: University Courses (in Greek), Ant. N. Sakkoulas Publishers, Athens, 2004, ISBN 960-15-1267-5
- Reynolds, Thomas H. (1998). "Introduction to Foreign and Comparative Law". In Rehberg, Jeanne; Popa, Radu D (eds.). Accidental Tourist on the New Frontier: An Introductory Guide to Global Legal Research. F.B. Rothman. pp. 47–86. ISBN 978-0-837-71075-4.
External links
- A collection of Roman Law resources maintained by professor Ernest Metzger.
- The Roman Law Library by Professor Yves Lassard and Alexandr Koptev
- A Primer on the Civil Law System from the Federal Judicial Center
- Brasil Law Articles in English
- A Civil Law to Common Law Dictionary by N. Stephan Kinsella, Louisiana Law Review (1994)
- Brehon Law (King Ollamh Fodhla)
- The Concept of Civil Law. Historical Dimension. Moreno Navarrete, Miguel Ángel
- The O.J. Inquisition: A United States Encounter With Continental Criminal Justice by Myron Moskovitz, Vanderbilt Journal of Transnational Law (November 1995)