Civil law is a legal system with origins tracing back to mainland Europe, and it has been widely adopted across the globe. This legal framework is characterized by its structured and codified nature, setting it apart from other legal systems like common law. In this article, we’ll delve into the fundamental aspects of civil law, its historical journey, key principles, distinctive features, and its distinction with common law system.
What is Civil Law?
Civil law is a term that can refer to two different things, depending on the context. In some countries, civil law is a legal system that is based on written codes and principles derived from ancient Roman law. In other countries, like the United States, civil law is a branch of law that deals with disputes between private parties, such as individuals, organizations, or businesses. Either way, Civil law is a legal system that encompasses a legal framework governing interaction between individuals and entities as opposed to criminal, military, or religious affairs. It is the most pervasive legal system in existence, existing in various versions in about 150 different nations.
The civil law system is intellectualized within the framework of Roman “jus civile” or civil law, and with core principles codified into a referable system, which serves as the primary source of law. This expansive domain finds its application in a diverse range of matters, including personal rights, property dynamics, intricate contractual obligations, and broader legal relationships.
What is Common Law? Historical Development and Common Law vs. Civil Law
According to Salmond’s perspective, Civil Law is defined as “the law of the state or of the land, the law of lawyers and the law courts.” It constitutes the positive law within a jurisdiction. This legal system is marked by uniformity established through judicial precedents, ensuring consistency and predictability. Its constancy is pivotal, serving as a contrast to a chaotic legal environment. Civil Law’s jurisdiction extends to the inhabitants of a specific state, underpinned by the authority of judicial processes and the might of the state. Its imperative nature is reinforced by legal sanctions and territorial limitations.
The common law system, which had its beginnings in medieval England, is sometimes compared with the civil law system. While the common law historically developed from uncodified case law that resulted from judicial decisions and recognized earlier court decisions as legally binding precedent, the civil law traditionally takes the form of legal codes.
Civil law has an imperative character and has legal sanction behind it. It is essentially of territorial nature. It applies within the territory of the state concerned. It is not universal but general. Civil Law’s significance lies in its capacity to create legal rights, both fundamental and secondary, within a particular jurisdiction. Any infringements of such rights is met with appropriate punitive measures such as, attachments, fine or imprisonment, or some other form of punishment which the society inflicts on the wrong-doer to show its displeasure against the person who violates the law.
While not as prevalent as in the past, the term “positive law” has gained traction as a synonym for Civil Law. Notably, a debate between scholars Holland and Salmond surrounds the preference for either term, indicating the evolution of legal nomenclature over time. While, holland prefer to use the term positive law, Salmond prefer to use the term civil law over the positive law and observes, “the term civil law, as indicating the law of the land, has been partially superseded in recent times by the improper substitutes, positive law. Jus positivum was a title invented by the mediaeval jurists to denote law made or established buy human authority as opposed to the jus naturale which was uncreated and immutable. It is from this contrast that the term positive derives all its point and significance. It is not permissible, therefore, to confine positive law to the law of the land. All law is positive that is not natural. International law, for example, is a kind of jus positivum, no less than the civil law itself.”
However, the key principles of civil law are codification, legal certainty, proportionality, equality before the law, and individual autonomy. Here, codification ensures that the law is accessible to the public and that it is applied consistently. Legal certainty means that people know what the law is and how it will be applied. Proportionality means that decisions and remedies are proportionate to the severity of the violation or breach. Equality before the law means that everyone is subject to the same laws, regardless of their social status, wealth, or power. Individual autonomy means that individuals have the freedom to make their own decisions and to enter into contracts.
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Key Features of Civil Law
Civil law is a legal system that is based on the codification of law. This means that the law is written down in a systematic and organized manner, usually in a code. The key features of civil law are:
Codification: The law is written down in a systematic and organized manner, usually in a code. This ensures that the law is accessible to the public and that it is applied consistently.
Inquisitorial system: Judges play an active role in investigating and deciding cases. This is in contrast to the adversarial system, which is used in common law countries, where the parties to a case are responsible for presenting their own evidence and arguments.
Civil code: There is a single source of law that covers all aspects of private law. This means that there is a clear and consistent set of rules that apply to all people, regardless of their location.
Continental legal family: Civil law countries share a common legal heritage and culture. This is due to the fact that many civil law countries were once part of the Roman Empire or were influenced by Roman law.
Legal education: Lawyers are trained in universities rather than in professional schools. This means that they have a strong foundation in the law and are able to think critically and analytically.
These features are what distinguish civil law from common law, which is the other major legal system in the world. Common law countries, such as the United States and the United Kingdom, do not have codified law and rely on judicial precedents and case law to decide cases. The adversarial system is also used in common law countries, and there is no single source of law for private law.
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Origin and Historical Development
Origin of Civil Law
Civil law is the legal system of continental Europe, based on an admixture of Roman, Germanic, ecclesiastical, feudal, commercial, and customary law. It is distinguished from the common law of the Anglo-American countries, which is derived from the judicial decisions of English courts and their precedents. Civil law has been adopted in much of Latin America as well as in parts of Asia and Africa.
The origin of civil law can be traced back to the Roman Empire, which developed a sophisticated legal system based on the concept of jus civile (civil right). The Roman jurists used rational reasoning and analogies to create legal principles and rules that were codified in the Corpus Juris Civilis (Body of Civil Law), a collection of laws and commentaries compiled by Emperor Justinian I in the 6th century AD. The Corpus Juris Civilis consisted of four parts: the Digest, the Code, the Institutes and the Novels. The Digest contained excerpts from the writings of prominent Roman jurists, the Code contained imperial decrees and edicts, the Institutes served as a textbook for students and the Novels contained new laws issued by Justinian.
Historical Development of Civil Law
The historical development of civil law was influenced by various factors, such as the spread of Christianity, the barbarian invasions, the feudal system, the rise of cities, the growth of trade, and the emergence of nation-states. The Roman law was preserved and transmitted by scholars and jurists in the Byzantine Empire and in Western Europe. In the Middle Ages, civil law was enriched by the customs and traditions of different peoples, such as the Franks, the Lombards, and the Visigoths. The canon law of the Roman Catholic Church also contributed to the development of civil law, especially in matters of family and inheritance. However, The historical development of civil law can be divided into three stages: the reception, the codification and the modernization.
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The Reception (11th – 18th centuries): Rediscovery and Integration
This stage refers to the period when the Roman law was rediscovered and received by the European countries from the 11th to the 18th centuries, especially by Italy and France. The Roman law was preserved and transmitted by the Byzantine Empire, which compiled the Corpus Juris Civilis (Body of Civil Law) under Emperor Justinian in the 6th century CE. The reception was facilitated by the rise of universities, where scholars studied and taught Roman law, and by the emergence of a class of professional lawyers, who applied Roman law in courts and councils. The reception also involved the integration of local customs and traditions with Roman law, resulting in different variations of civil law across Europe.
The Codification (18th – 19th centuries): Organized and Written Codes
This stage refers to the process by which civil law was systematically organized and written into codes by various European countries from the 18th to the 19th centuries. The codification was motivated by the need for legal certainty, uniformity and simplicity, as well as by the ideals of the Enlightenment and the French Revolution. The most influential codification was the French Civil Code of 1804, also known as the Code Napoleon, which was drafted by a commission appointed by Napoleon Bonaparte. The French Civil Code was based on Roman law, but also incorporated elements from canon law, feudal law and natural law. The French Civil Code served as a model for many other civil codes in Europe and beyond, such as the German Civil Code of 1900, the Swiss Civil Code of 1907, the Italian Civil Code of 1942 and the Japanese Civil Code of 1896.
The Modernization (20th century onwards): Adaptation and Expansion
This stage refers to the period when the civil law countries revised and updated their codes of law to reflect the social and economic changes of the modern world. The modernization movement was driven by the need to adapt to the challenges of industrialization, urbanization, globalization and human rights. The modernization process involved not only amendments and additions to the existing codes, but also the introduction of new codes or branches of law, such as commercial law, labor law, administrative law, constitutional law and environmental law. The modernization process also involved the incorporation of some elements of common law, such as judicial review, precedent and equity.
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Civil law Vs. Common law
Civil law and common law are the two main legal systems in the world. They differ in a number of ways, including:
- Codification: Civil law is based on codified law, which means that the law is written down in a systematic and organized way, usually in a code. Common law, on the other hand, is based on case law, which means that the law is derived from the decisions of judges in previous cases.
- Inquisitorial system: Civil law countries typically use an inquisitorial system, in which judges play an active role in investigating and deciding cases. Common law countries, on the other hand, typically use an adversarial system, in which the parties to a case are responsible for presenting their own evidence and arguments.
- Civil code: Civil law countries typically have a single source of law for private law, known as a civil code. Common law countries, on the other hand, do not have a single source of law for private law.
- Continental legal family: Civil law countries share a common legal heritage and culture, known as the Continental legal family. Common law countries, on the other hand, do not share a common legal heritage and culture.
- Legal education: Lawyers in civil law countries are typically trained in universities, while lawyers in common law countries are typically trained in professional schools.
The choice of which legal system is best suited for a particular country will depend on a number of factors, such as the country’s history, culture, and economic needs. However, both civil law and common law have their own advantages and disadvantages.
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Conclusion
Civil law stands as a testament to the enduring impact of historical legal systems. Tracing its origins to Roman law, civil law has evolved to become a foundational element of legal frameworks worldwide. Its codified nature, key principles, and distinctive features contribute to legal clarity and accessibility. As legal systems continue to evolve, civil law’s influence remains pervasive, highlighting its enduring relevance in shaping modern jurisprudence.
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