Civil law (legal system)

From Wikipedia, the free encyclopedia
Jump to: navigation, search
For the article on the area of common law systems dealing with disputes between private parties, see Civil law (common law).
Legal Systems of the World      Civil law      Common law      Bijuridical (civil and common law)      Customary law      Shariah

Civil law (or civilian 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 (as in common law) determined 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 with a limited ability to interpret law.

Contents

[edit] Overview

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[citation needed]. 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:

The Scandinavian systems are of an intermediate character, as they have a background of Roman and customary law together with partial codification. The laws of Louisiana and Quebec may also be considered as hybrid systems, 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).

[edit] History

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.

[edit] Codification

An important characteristic, beyond Roman law foundations, is the extended codification of the adopted Roman law, i.e. its inclusion into civil codes. The system of codification has its origins in the Code of Hammurabi, written in ancient Babylon during the 18th century BC.

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 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 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 Emperor Napoleon I 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 some Eastern European countries reverted back to the pre-Socialist civil law following the fall of socialism while others continues the use of the system, established during 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]

[edit] 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, Sharia Law
Source of law Case law, legislation Statutes/legislation Statutes/legislation Religious documents, case law[8][10]
Lawyers Control courtroom Judges dominate trials Judges dominate trials Secondary role
Judges' qualifications Experienced lawyers 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[8][10]
Juries Provided at trial level May adjudicate in conjunction with judges in serious criminal matters Often used at lowest level Allowed in Maliki school,[10] 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, England, Hong Kong, Ireland, USA (except Louisiana), Canada (except Québec), Pakistan, India, Malaysia All European Union states except UK and Ireland, USA (Louisiana), Brazil, Japan, Mexico, Québec, Switzerland, Turkey Soviet Union Pakistan, Saudi Arabia, Afghanistan, Bangladesh, Gambia, Iran, Libya, Mauritania, Morocco, Oman, Sudan, Yemen

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.[11]

[edit] 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, 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] The law of Québec, which is similarly a civil-law jurisdiction in an otherwise common-law country, has developed somewhat similarly, although the relative size of the province relative to the rest of Canada has reduced the degree of convergence considerably.

Several Islamic countries have civil law systems that contain elements of Islamic law.[14] As an example, the Egyptian Civil Code of 1949—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.

[edit] See also

[edit] Bibliography

[edit] 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. ^ a b c Badr, Gamal Moursi (Spring, 1978), "Islamic Law: Its Relation to Other Legal Systems", The American Journal of Comparative Law (The American Journal of Comparative Law, Vol. 26, No. 2) 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, http://jstor.org/stable/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. ^ a b c Makdisi, John A. (June 1999), "The Islamic Origins of the Common Law", North Carolina Law Review 77 (5): 1635–1739 
  11. ^ Smits, Jan (ed.); Dotevall, Rolf (2006), Elgar Encyclopedia of Comparative Law, "63: Sweden", Edward Elgar Publishing, ISBN 1845420136, http://books.google.com/?id=qQK_RBUyX9cC 
  12. ^ "How the Code Napoleon makes Louisiana law different". LA-Legal. Archived from the original on 2006-10-31. http://web.archive.org/web/20061031041737/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.

[edit] External links

v • d • e
Law
Core subjects Scales of justice
Other subjects
Legal systems
Legal theory
Legal institutions
Category · Portal
Retrieved from "http://en.wikipedia.org/wiki/Civil_law_(legal_system)"
Personal tools
Namespaces
Variants
Actions
Navigation
Interaction
Toolbox
Print/export
Languages