Civil law, or civilian law, is a legal system originating in Europe, intellectualized within the framework of Roman law, the main feature of which is that its core principles are codified into a referable system which serves as the primary source of law. This can be contrasted with common law systems, the intellectual framework of which comes from judge-made decisional law, and gives precedential authority to prior court decisions, on the principle that it is unfair to treat similar facts differently on different occasions (doctrine of judicial precedent, or stare decisis ).
Historically, a civil law is the group of legal ideas and systems ultimately derived from the Corpus Juris Civilis , but heavily overlaid by Napoleonic, Germanic, canonical, feudal, and local practices,as well as doctrinal strains such as natural law, codification, and legal positivism.
Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules.It holds case law secondary and subordinate to statutory law. Civil law is often paired with the inquisitorial system, but the terms are not synonymous.
There are key differences between a statute and a codal article. The most pronounced features of civil systems are their legal codes, with brief legal texts that typically avoid factually specific scenarios.The short articles in a civil law code deal in generalities and stand in contrast with statutory systems, which are often very long and very detailed.
The purpose of codification is to provide all citizens with manners 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.It draws heavily from Roman law, arguably the most intricate known legal system dating from before the modern era.
Where codes exist, the primary source of law is the law code, a systematic collection of interrelated articles,arranged by subject matter in some pre-specified order, that explain the principles of law, rights and entitlements, and how basic legal mechanisms work. Law codes are simply laws enacted by a legislature, even if they are in general much longer than other laws. Other major legal systems in the world include common law, Islamic law, Halakha, and canon law.
Civil law countries can be divided into:
The Scandinavian systems are of a hybrid character since their background law is a mix of civil law and Scandinavian customary law and they have been partially codified. Likewise, the laws of the Channel Islands (Jersey, Guernsey, Alderney, Sark) mix Norman customary law and French civil law.
A prominent example of a civil-law is the Napoleonic Code (1804), named after French emperor Napoleon. The code comprises three components:
Rather than a compendium of statutes or catalog of case law, the code sets out general principles as rules of law.
Unlike common law systems, civil law jurisdictions deal with case law apart from any precedent value. Civil law courts generally decide cases using codal provisions on a case-by-case basis, without reference to other (or even superior) judicial decisions.In actual practice, an increasing degree of precedent is creeping into civil law jurisprudence, and is generally seen in many nations' highest courts. While the typical French-speaking supreme court decision is short, concise and devoid of explanation or justification, in Germanic Europe, the supreme courts can and do tend to write more verbose opinions, supported by legal reasoning. A line of similar case decisions, while not precedent per se, constitute jurisprudence constante . While civil law jurisdictions place little reliance on court decisions, they tend to generate a phenomenal number of reported legal opinions. 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. Except for the highest courts, all publication of legal opinions are unofficial or commercial.
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 , literally "common law", meaning the general principles of law as opposed to laws specific to particular areas. (The use of "common law" for the Anglo-Saxon systems may or may not be influenced by this usage.)
Civil law takes as its major inspiration classical Roman law (c. AD 1–250), and in particular Justinian law (6th century AD), and further expanded and developed in the late Middle Ages under the influence of canon law.The Justinian Code's doctrines provided a sophisticated model for contracts, rules of procedure, family law, wills, and a strong monarchical constitutional system. 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, given the multiple incursions and occupations by Western European powers in the late medieval period, its laws became widely implemented in the West. It was first received in 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 lex mercatoria through the Bordeaux trade.
Consequently, neither of the two waves of Roman influence 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, 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 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.
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 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 in 1454 commissioned 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 ideals of that era was expressed by the concepts of democracy, protection of property and the rule of law. Those ideals required certainty of law, recorded, uniform law. So, the mix of Roman law and customary and local law gave way to law codification.
Also, the notion of a 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 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 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), Serbia (1844), Italy and Romania (1865), Portugal (1867) and Spain (1888). Germany (1900), 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).
In the United States, U.S. states began codification with New York's "Field Code" (1850), followed by California's codes (1872), and the federal revised statutes (1874) and the current United States Code (1926).
In Japan, at the beginning of the Meiji Era, European legal systems—especially the civil law of Germany and France—were the primary models for the judicial and legal systems. In China, the German Civil Code was introduced in the later years of the Qing dynasty, emulating Japan. In addition, it formed the basis of the law of 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.
Some authors consider civil law the foundation for socialist law used in communist countries, which in this view would basically be civil law with the addition of 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.
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.
The table below contains essential disparities (and in some cases similarities) between the world's four major legal systems.
|Common law||Civil law||Socialist law||Islamic law|
|Other names||Anglo-American, English, judge-made, legislation from the bench||Continental, Romano-Germanic, European Continental||Soviet||Religious law, Sharia|
|Source of law||Case law, statutes/legislation||Statutes/legislation||Statutes/legislation||Quran|
|Lawyers||Judges act as impartial referees; lawyers are responsible for presenting the case||Judges dominate trials||Judges dominate trials||Secondary role|
|Judges' qualifications||Career 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|
|Juries||Provided at trial level in some jurisdictions||May adjudicate in conjunction with judges in serious criminal matters||Often used at lowest level||Allowed in Maliki school, 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, United Kingdom (except Scotland), Israel, India, Cyprus, Nigeria, Republic of Ireland, Singapore, Hong Kong, United States (except Louisiana), Canada (except Quebec), New Zealand, Pakistan, Malaysia, Bangladesh||All European Union states (except the UK, Ireland, and Cyprus), all of continental South and Middle America (except Guyana and Belize), Quebec, all of East Asia (except Hong Kong), all of North Africa, Francophone and Lusophone Africa, Azerbaijan, Kuwait, Iraq, Russia, Turkey, Egypt, Madagascar, Lebanon, Indonesia, Vietnam, Thailand, Louisiana||Soviet Union, China (except Hong Kong and Macau), North Korea||Many Muslim countries have adopted parts of Sharia Law. Examples include Saudi Arabia, Afghanistan, Iran, United Arab Emirates, Oman, Sudan, Malaysia, Pakistan and 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 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
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.
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 four 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 germanistic elements due to the geopolitical alliances of the time.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.
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. Polish 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. 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.
Louisiana private law is primarily a Napoleonic system. Louisiana is the only U.S. state partially based on French and Spanish codes and ultimately Roman law, as opposed to English common law. [ citation needed ] Quebec law, whose private law is also of French civil origin, has developed along the same lines, adapting in the same way as Louisiana to the public law and judicial system of 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.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. In fact, any innovation, whether private or public, has been decidedly common law in origin.
Several Islamic countries have civil law systems that contain elements of Islamic law. —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.As an example, the Egyptian Civil Code of 1810 that developed in the early 19th century
Japanese Civil Code was considered as a mixture of roughly 60 percent of the German civil code and roughly 30 percent of the French civil code and 8 percent of Japanese customary law and 2 percent of the English law.The code includes the doctrine of ultra vires and a precedent of Hadley v Baxendale from English common law system.
Common law is the body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of "common law" is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.
Canon law is a set of ordinances and regulations made by ecclesiastical authority, for the government of a Christian organization or church and its members. It is the internal ecclesiastical law, or operational policy, governing the Catholic Church, the Eastern Orthodox and Oriental Orthodox churches, and the individual national churches within the Anglican Communion. The way that such church law is legislated, interpreted and at times adjudicated varies widely among these three bodies of churches. In all three traditions, a canon was originally a rule adopted by a church council; these canons formed the foundation of canon law.
Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves the study of the different legal "systems" in existence in the world, including the common law, the civil law, socialist law, Canon law, Jewish Law, Islamic law, Hindu law, and Chinese law. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative law has increased enormously in the present age of internationalism, economic globalization, and democratization.
The Napoleonic Code (French: Code Napoléon; officially Code civil des Français, referred to as Code civil) is the French civil code established under the French Consulate in 1804.
A civil code is a codification of private law relating to property, family, and obligations.
Legal history or the history of law is the study of how law has evolved and why it changed. Legal history is closely connected to the development of civilisations and is set in the wider context of social history. Among certain jurists and historians of legal process, it has been seen as the recording of the evolution of laws and the technical explanation of how these laws have evolved with the view of better understanding the origins of various legal concepts; some consider it a branch of intellectual history. Twentieth century historians have viewed legal history in a more contextualised manner more in line with the thinking of social historians. They have looked at legal institutions as complex systems of rules, players and symbols and have seen these elements interact with society to change, adapt, resist or promote certain aspects of civil society. Such legal historians have tended to analyse case histories from the parameters of social science inquiry, using statistical methods, analysing class distinctions among litigants, petitioners and other players in various legal processes. By analysing case outcomes, transaction costs, number of settled cases they have begun an analysis of legal institutions, practices, procedures and briefs that give us a more complex picture of law and society than the study of jurisprudence, case law and civil codes can achieve.
Jus commune or ius commune is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" in English law. While the ius commune was a secure point of reference in continental European legal systems, in England it was not a point of reference at all. The phrase "the common law of the civil law systems" means those underlying laws that create a distinct legal system and are common to all its elements.
The Egyptian Civil Code is the primary source of civil law for Egypt.
A code of law, also called a law code or legal code, is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the code was enacted, by a process of codification. Though the process and motivations for codification are similar in different common law and civil law systems, their usage is different.
In academic terms, French law can be divided into two main categories: private law and public law. This differs from the traditional common law concepts in which the main distinction is between criminal law and civil law.
The law of Germany, that being the modern German legal system, is a system of civil law which is founded on the principles laid out by the Basic Law for the Federal Republic of Germany, though many of the most important laws, for example most regulations of the civil code were developed prior to the 1949 constitution. It is composed of public law, which regulates the relations between a citizen/person and the state or two bodies of the state and the private law (Privatrecht) which regulates the relations between two people or companies. It has been subject to a wide array of influences from Roman law, such as the Corpus Juris Civilis, to Napoleonic law, such as the Napoleonic Code.
The canon law of the Catholic Church is the system of laws and legal principles made and enforced by the hierarchical authorities of the Catholic Church to regulate its external organization and government and to order and direct the activities of Catholics toward the mission of the Church. It was the first modern Western legal system and is the oldest continuously functioning legal system in the West, while the unique traditions of Oriental canon law govern the 23 Eastern Catholic particular churches sui iuris.
Roman-Dutch law is an uncodified, scholarship-driven, and judge-made legal system based on Roman law as applied in the Netherlands in the 17th and 18th centuries. As such, it is a variety of the European continental civil law or ius commune. While Roman-Dutch law was superseded by Napoleonic codal law in the Netherlands proper as early as the beginning of the 19th century, the legal practices and principals of the Roman-Dutch system are still applied actively and passively by the courts in countries that were part of the Dutch colonial empire, or are influenced by former Dutch colonies: Guyana, South Africa, and Sri Lanka, Indonesia and Suriname, and the formerly Indonesia-occupied East Timor. It also heavily influenced Scots law. It also had some minor impact on the laws of the American state of New York, especially in introducing the office of Prosecutor (schout-fiscaal).
Law in the state of Louisiana is based on a more diverse set of sources than the laws of the other 49 states of the United States. Private law—that is, substantive law between private sector parties, principally contracts and torts—has a civil law character, based on French and Spanish codes and ultimately Roman law, with some common law influences. Louisiana's criminal law largely rests on American common law. Louisiana's administrative law is generally similar to the administrative law of the U.S. federal government and other U.S. states. Louisiana's procedural law is generally in line with that of other U.S. states, which in turn is generally based on the U.S. Federal Rules of Civil Procedure.
International law, also known as public international law and law of nations, is the set of rules, norms, and standards generally accepted in relations between nations. It establishes normative guidelines and a common conceptual framework to guide states across a broad range of domains, including war, diplomacy, trade, and human rights. International law thus provides a means for states to practice more stable, consistent, and organized international relations.
The law of Europe is diverse and changing fast today. Europe saw the birth of both the Roman Empire and the British Empire, which form the basis of the two dominant forms of legal system of private law, civil and common law.
The Burgerlijk Wetboek is the Civil Code of the Netherlands. Early versions were largely based on the Napoleonic Code. The Dutch Civil Code was substantively reformed in 1992. The Code deals with the rights of natural persons, legal persons, patrimony and succession. It also sets out the law of property, obligations and contracts, and conflict of laws. Proposed amendments will add a Book on intellectual property. The codification of laws is still being used in Indonesia as a pinnacle of the private laws besides Sharia law and custom laws. The laws initially applied only to Dutch settlers and foreign traders such as Chinese traders, Indian traders and Arab traders during the Dutch colonial era in Dutch East Indies, but after the independence of Indonesia in 1945, the government decided to retain the old Dutch law, expanded in use to indigenous people and Muslims voluntarily. The 1992 reformed version does not apply in Indonesia.
Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.
Since the early Islamic states of the eighth and ninth centuries, Islamic law always existed alongside other normative systems.
|Wikisource has the text of the 1905 New International Encyclopedia article Civil Law .|