Civil law (legal system)
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- This article is concerned with the legal system known as Civil law. For the area of law in common law countries governing relations between private individuals, see Civil law (common law)
Civil law, or continental law, is the predominant system of law in the world, with its origins in Roman law, and sets out a comprehensive system of rules, usually codified, that are applied and interpreted by judges. Modern systems are descendants of the nineteenth century codification movement, during which the most important codes (most prominently the Napoleonic Code and the Bürgerliches Gesetzbuch (BGB) came into existence.
However, codification is not an essential characteristic of a civil law system. For example, the civil law systems of Scotland and South Africa are not codified, and the civil law systems of Scandinavian countries remain largely not codified. The civil law system is contrasted with the common law originating in England and generally adopted by those countries of the world with a history as British territories or colonies.
As a body of laws comprising the official legal system of a nation or state, especially in reference to the rights and privileges of private citizens, civil law becomes the necessary law in which freedom and necessity are unified.
Civil or civilian law is a legal tradition which is the base of the law in the majority of countries of the world, especially in continental Europe and the former Soviet Union, but also in Quebec (Canada), Louisiana (U.S.), Puerto Rico (a U.S. territory), Japan, Latin America, and most former colonies of continental European countries. The Scottish legal system is usually considered to be a mixed system in that Scots law has a basis in Roman law, combining features of both uncodified and Civil law systems. In western and southwestern parts of the U.S., laws in such diverse areas as divorce and water rights show the influence of their Iberian civil law heritage, being based on distinctly different principles from the laws of the northeastern states colonized by settlers with English common law roots.
The acceptance of Roman law had different characteristics in different countries. In some of them its effect resulted from legislative act; that is, it became positive law, whereas in other ones it became accepted by way of its processing by legal theorists.
Consequently, Roman law did not completely dominate in Europe. Roman law was a secondary source, that was applied only as long as local customs and local laws lacked a pertinent provision on a particular matter. However, local rules too were interpreted primarily according to Roman law (it being a common European legal tradition of sorts), resulting in its influencing the main source of law also.
A second characteristic, beyond Roman law foundations, is the extended codification of the adopted Roman law, namely its inclusion into civil codes.
The concept of codification developed especially during the seventeenth and eighteenth 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 factor that contributed to codification was that the notion of the nation state, which was born during the nineteenth century, 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.
Despite resistance, the codification of European private laws moved forward. The French Napoleonic Code of 1804, the German civil code (Bürgerliches Gesetzbuch) of 1900, and the Swiss codes were the most influential national civil codes.
Because Germany was a rising power in the late nineteenth century, when many Asian nations were introducing civil law, the German Civil Code became the basis for their legal systems. Thus Japan and South Korea operate under civil law. 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 Peoples' Republic of China, which remains in force.
Civil law served as the foundation for socialist law used in Communist countries, with major modifications and additions from Marxist-Leninist ideology. For example, while civil law systems have traditionally put great pains in defining the notion of private property, how it may be acquired, transferred, or lost, Socialist law systems provide for most property to be owned by the state or by agricultural co-operatives, and have special courts and laws for state enterprises.
The term "civil law" as applied to a legal tradition actually originates in English-speaking countries, where it was used to group 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 usually subdivide civil law into four distinct groups:
- French civil law: In France, the Benelux countries, Italy, Spain, and former colonies of those countries;
- German civil law: In Germany, Austria, Switzerland, Greece, Portugal, Turkey, Japan, South Korea, and the Republic of China;
- Scandinavian civil law: In Denmark, Norway, and Sweden. Finland, and Iceland inherited the system from their neighbors.
- Chinese law is a mixture of civil law and socialist law.
Portugal, Brazil, and Italy have evolved from French to German influence, as their nineteenth century civil codes were close to the Napoleonic Code and their twentieth century civil codes are much closer to the German Bürgerliches Gesetzbuch. Legal culture and law schools have also come nearer to the German system. The law in these countries is often said to be of a hybrid nature.
The Dutch law, or at least the Dutch civil code, cannot be easily placed in one of the mentioned groups either, and it has itself influenced the modern private law of other countries. The Russian civil code is in part a translation of the Dutch one.
Civil versus common law
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 (Corpus Iuris Civilis).
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 eighteenth century, but civil codes with a lasting influence were promulgated only after the French Revolution, in jurisdictions such as France (with its Napoleonic Code), Austria, Quebec, Spain (Código Civil), the Netherlands, and Germany. However, codification is by no means a defining characteristic of a civil law system. For example, the civil law systems of Scandinavian countries remain largely uncodified, whereas common law jurisdictions have frequently codified parts of their laws, such as in the U.S. Uniform Commercial Code. There are also mixed systems, such as the laws of Scotland, Louisiana, Quebec, Namibia, and South Africa.
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 judgments 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, cases are the primary source of law, while statutes are only seen as incursions into the common law 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; "the mouth 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), and that certain civil law systems are based upon the inquisitorial system rather than the adversarial system.
There are other notable differences between the legal methodologies of various civil law countries. For example, it is often said that common law opinions are much longer and contain elaborate reasoning, whereas legal opinions in civil law countries are usually very short and formal in nature. 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. Civil law judges are usually trained and promoted separately from attorneys, whereas common law judges are usually selected from accomplished and reputable attorneys. Also, the influence of articles by legal academics on case law tends to be much greater in civil law countries.
With respect to criminal procedure, certain civil law systems are based upon a variant of the inquisitorial system rather than the adversarial system. In common law countries, 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 (ECHR) adopted under the auspices of the Council of Europe in 1950 to protect human rights and fundamental freedoms. Article 6 of the ECHR guarantees "the right to a fair trial" and the presumption of innocence. Some Civil law nations also have legislation that predates the Convention and secures the defendant the presumption of innocence.
When the presumption of innocence is present, what distinguishes the 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 one civilian and two trained legal professionals. 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.
Civil and common law systems also differ considerably in criminal procedure. In general, the judge in a civil law system plays a more active role in determining the facts of the case. Most civil law countries investigate major crimes using the inquisitorial system. Also, civil law systems rely much more on written argument than oral argument.
According to legal origins theory, a controversial idea promoted by economists such as Andrei Shleifer and Robert W. Vishny, civil law countries tend to emphasize social stability, while common law countries focus on the rights of an individual. The basic thrust of the theory is that common law, as opposed to French civil law, and to a lesser degree to German and Scandinavian civil law, is associated with more orientation towards institutions of the market (instead of state interventionism), which is why common law countries tend to be economically more developed.
ReferencesISBN links support NWE through referral fees
- Debrusche, Anne-Francoise. 2006. Civil Law Reasoning. Ottawa: University of Ottawa Civil Law Section.
- Drummond, Susan G. 2007. Civil Law. Toronto: Osgoode Hall Law School.
- Harr, Jonathon. 1995. A Civil Action. New York: Random House. ISBN 0-394-56349-2
- Moustaira, Elina N. 2004. Comparative Law: University Courses (in Greek). Athens: Ant. N. Sakkoulas Publishers.
All links retrieved February 23, 2017.
- Roman Law Resources A very good collection of resources maintained by professor Ernest Metzger.
- Full text of the European Convention on Human Rights
- MacQueen, Hector L. "Scots Law and the Road to the New Ius Commune." Electronic Journal of Comparative Law 4, no. 4 (December 2000).
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