Civil law (legal system)

• 1. Introduction

  ›

  Civil law governs the lives of people in about 150 countries, making it the most widespread legal system on Earth. Its roots reach back to the Roman Empire, yet most of its recognizable shape arrived only in the 19th century. In 1804, France enacted the Napoleonic Code. In 1900, Germany's Bürgerliches Gesetzbuch went into effect. These were codes: systematic written collections of rules meant to be read by any citizen and obeyed by any judge. How did a system born in ancient Rome come to be rewritten across Europe and then carried to colonies on every continent? Why do its judges treat case law as secondary, when so much of the world's legal tradition does the opposite? And why does one American state, alone among the fifty, build its private law on French and Spanish foundations rather than English ones?

• 2. The Logic Of Codes

  ›

  Jus civile, Latin for citizens' law, gives civil law its name. The phrase was the late imperial term for Rome's own legal system, set against jus gentium, the laws governing conquered peoples. The Justinian Code carried the title Corpus Juris Civilis from this idea. Practitioners, though, traditionally describe their tradition more broadly as jus commune.

  The primary source of law in these systems is the code itself, a collection of interrelated articles arranged by subject in a fixed order. Codes explain principles, rights, and entitlements, and how the basic machinery of law works. The purpose of codification is to give every citizen a written body of the laws that apply to them and that judges are bound to follow. A code is not a compendium of statutes or a catalog of case law. It sets out general principles as rules of law.

  The most pronounced feature of these systems is the texture of their codes. The articles are short, concise, and broadly applicable, and they deliberately avoid factually specific scenarios. They deal in generalities. Ordinary statutes, by contrast, are often very long and very detailed. Civil law proceeds from abstractions, formulates general principles, and separates substantive rules from procedural ones. It holds case law subordinate to statutory law.

  The way courts write reveals the difference in style. A typical French-speaking supreme court decision is short, concise, and devoid of explanation or justification. In Germanic Europe, supreme courts tend to write more verbose opinions supported by legal reasoning. A line of similar decisions, while not precedent itself, forms what is called jurisprudence constante.

• 3. From Rome To Jus Commune

  ›

  Classical Roman law, dated roughly from AD 1 to 250, is the major inspiration for civil law, and Justinian law of the 6th century AD sits at its core. The Justinian Code offered a sophisticated model for contracts, rules of procedure, family law, wills, and a strong monarchical constitutional system. In the late Middle Ages, canon law expanded and developed this inheritance further.

  Roman law was received differently from place to place. In some countries it entered into force wholesale by legislative act, becoming positive law. In others it spread through society by way of increasingly influential legal experts and scholars. In the Eastern Roman Empire it continued without interruption until that empire's final fall in the 15th century.

  The Holy Roman Empire received Roman law partly because it was considered imperial law, and it spread across Europe largely 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 at the universities of Oxford and Cambridge, yet it underlay only probate and matrimonial law, both inherited from canon law, and maritime law, adapted from lex mercatoria through the Bordeaux trade.

  Neither wave of Roman influence ever completely dominated Europe. Roman law remained a secondary source, applied only when local customs and laws fell short on a subject. Over time, though, even local law came to be interpreted on the basis of Roman law, which then influenced the main source of law in turn. The work of civilian glossators and commentators produced a common body of law, a common legal language, and a common method of teaching, all termed the jus commune, consolidating canon law, Roman law, and to some extent feudal law.

• 4. Custumals And Kings

  ›

  The Code of Hammurabi, written in ancient Babylon during the 18th century BC, is the earliest known codification. It and many codes that followed were mainly lists of civil and criminal wrongs and their punishments. The kind of codification typical of modern civilian systems did not appear until the Justinian Code.

  Germanic codes appeared over the 6th and 7th centuries to delineate the law for Germanic privileged classes against their Roman subjects, regulating those laws according to folk-right. Under feudal law, private custumals were compiled to record manorial and later regional customs, court decisions, and the principles behind them. The first came under the Norman empire, the Très ancien coutumier of 1200 to 1245. Lords who presided as lay judges over manorial courts commissioned these to inform themselves about court process.

  Monarchs soon used custumals to consolidate their kingdoms. In 1454, Charles VII of France commissioned an official custumal of Crown law to serve as the law of the land. The Coutume de Paris, written in 1510 and revised in 1580, became the basis for the Napoleonic Code. In northern Germany, Poland, and the Low Countries, the Sachsenspiegel of around 1220, from the bishoprics of Magdeburg and Halberstadt, served a similar role.

  The 17th and 18th centuries developed codification as an expression of natural law and Enlightenment ideas. Democracy, protection of property, and the rule of law demanded certainty: recorded, uniform law. The notion of a nation-state implied recorded law applicable to that state. Proponents argued codification brought certainty, unity, and systematic recording. Opponents warned it would cause the ossification of the law.

• 5. The Codes Take Shape

  ›

  The Napoleonic Code of 1804, named after the French emperor Napoleon, stands as a prominent example of a civil law code. It comprises three components: the law of persons, property law, and commercial law. French judges were expressly forbidden from pronouncing general principles of law.

  The German Civil Code, the Bürgerliches Gesetzbuch or BGB, went into effect in the German empire in 1900. It is divided into five parts. The General Part covers definitions and concepts such as personal rights and legal personality. Obligations include debt, sale, and contract. Things, or property law, cover immovable and movable property. Domestic relations address family law, and Succession addresses estate law. The German code proved highly influential, inspiring civil codes in Japan, South Korea, and Switzerland in 1907.

  Codifications spread in a long sequence across Europe. Denmark completed one in 1687, Sweden in 1734, Prussia in 1794, France in 1804, and Austria in 1811. French codes were imported into areas conquered by Napoleon, then adopted with modifications in Poland, Louisiana in 1807, the Canton of Vaud in 1819, the Netherlands in 1838, Serbia in 1844, Italy and Romania in 1865, Portugal in 1867, and Spain in 1888. Germany followed with its own in 1900 and Switzerland in 1912.

  These codifications were carried into colonies by most of these countries. The Swiss version was adopted in Brazil in 1916 and in Turkey in 1926. Civil law codes are meant to go beyond a compilation of discrete statutes, stating the law in a coherent and comprehensive piece of legislation, sometimes starting anew.

• 6. Families And Hybrids

  ›

  Legal comparativists and economists promoting the legal origins theory subdivide civil law into distinct groups rather than treating it as one mass. The Napoleonic group includes France, Italy, the Netherlands, Spain, Chile, Belgium, Luxembourg, Portugal, Brazil, Mexico, Malta, Romania, and much of the Arab world where Islamic law is not used. The Germanistic group includes Germany, Austria, Switzerland, Russia, Greece, Turkey, Japan, South Korea, Taiwan, and Thailand. The Nordic group covers Denmark, Finland, Iceland, Norway, and Sweden.

  The Chilean Code is an original work of the jurist and legislator Andrés Bello. The Napoleonic Code is traditionally considered its main inspiration, but this holds only for the law of obligations and the law of things, not for family and successions. Ecuador, El Salvador, Nicaragua, Honduras, Colombia, Panama, and Venezuela adopted it integrally. Latin American experts of the time, like Augusto Teixeira de Freitas and Dalmacio Vélez Sársfield, regarded it as the most important legal accomplishment of Latin America.

  Many systems are more correctly described as hybrids. The Italian civil code of 1942 replaced the original of 1865, introducing German elements as a result of Italy's World War II Axis alliance. Portugal in 1966, the Netherlands in 1992, Brazil in 2002, and Argentina in 2014 imitated this approach, many unifying their civil and commercial codes. 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 progressive reforms and secularization.

  Polish law shows how tangled this can become. After the reunification of Poland in 1918, five legal systems were merged into one: the French Napoleonic Code from the Duchy of Warsaw, the German BGB from Western Poland, the Austrian ABGB from Southern Poland, Russian law from Eastern Poland, and Hungarian law from Spisz and Orawa. The Japanese Civil Code is itself a blend, drawing roughly 60% from the German code, 30% from the French, 8% from Japanese customary law, and 2% from English law.

• 7. Precedent And Its Limits

  ›

  Stare decisis, the doctrine of binding precedent, has no place in the French civil law tradition. Civil law judges tend to give less weight to judicial precedent than common law judges, who place great weight on it. Civil law codes must be changed constantly, because the precedent of courts is not binding and because courts lack authority to act when there is no statute.

  Law reports tell part of this story. France has regular, good-quality law reports, but consistent reporting is not the practice across many civil law jurisdictions. In French-speaking colonial Africa there were no law reports at all, and what little is known of those historical cases comes from publication in journals. There is generally no statutory requirement that a case be reported, except for councils of state and constitutional courts. Outside the highest courts, publication is unofficial or commercial.

  The judiciary's power varies sharply. In some civil law jurisdictions, judges cannot invalidate legislative provisions. After the fall of the Soviet Union, the Armenian Parliament, with substantial support from USAID, adopted new legal codes. Some introduced problems the judiciary was not empowered to adjudicate under common law principles of contract; judges could only apply the code as written.

  Colombia shows how precedent can creep back in. Its system is grounded in the Political Constitution of 1991, with codes such as the Colombian Civil Code and the General Code of Procedure. Under Article 230 of the Constitution, jurisprudence and legal doctrine serve as auxiliary criteria. In the landmark decision C-836/01, the Constitutional Court held that judges, while bound first by the Constitution and the law, must consider prior jurisprudence so that similar cases are decided consistently. Departure from established jurisprudence is permitted only when justified through clear and reasoned arguments.

• 8. Mixed Soil

  ›

  Louisiana is the only U.S. state whose private civil law rests heavily on the French and Spanish codes rather than English common law. Its private law was codified into the Louisiana Civil Code. Over time Louisiana law has converged considerably with American law, especially in public law, its judicial system, and its adoption of the Uniform Commercial Code, except for Article 2. Any innovation there, private or public, has been decidedly common law in origin.

  Puerto Rico resembles Louisiana in this respect. Its Civil Code is based on the Spanish Civil Code of 1889, and its available jurisprudence has tended to rely on common law innovations because of the code's age and, in many cases, obsolete nature. Quebec, whose private law is also of French civil origin, has adapted to the public law and judicial system of Canadian common law, while its private law has innovated mainly from civil sources. Texas and California, once part of the Spanish Empire, retained aspects of Spanish civil law such as community property.

  Several Islamic countries run civil law systems containing elements of Islamic law. The Egyptian Civil Code of 1949 remains in force in Egypt and serves as the basis for civil law in many countries of the Arab world. It is based on the Napoleonic Code, yet its primary author, Abd El-Razzak El-Sanhuri, sought to integrate principles and features of Islamic law in deference to the circumstances of Egyptian society.

  Nordic countries refuse easy classification. Over time, the civil law systems of Sweden, Norway, and Denmark, together with Finland, Iceland, and others, deviated significantly from their classical Roman and German models. They are said to form a special Nordic version of jurisprudence, neither truly civil law nor part of the British-derived common law. Even within the heartland of codes, the boundaries of this tradition keep shifting, which is why an increasing degree of precedent is now creeping into civil law jurisprudence in many nations' highest courts.