Civil Law

November 24, 2012 4:07 pm

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Civil Law
I INTRODUCTION
Civil Law, term applied to a legal tradition originating in ancient Rome and to the contemporary legal systems based on this tradition. Modern civil law systems, which were originally developed in Western European countries, have spread throughout the world. Civil law is typically contrasted with common law, a system that evolved in medieval England and that is the basis of law in most of the United Kingdom, Canada, and the United States. Civil law was the tradition followed by European scholars who developed the law for many nations, as well as the system of international law used worldwide today.
The term civil law also applies to all legal proceedings (whether taking place in a civil law or a common law system) that are not criminal in nature (see Criminal Law). Under this definition laws regulating marriage, contracts, and payment for personal injury are examples of civil law.
II CHARACTERISTICS OF CIVIL LAW
The most obvious feature of a civil law system is the presence of a written code of law. The code is a systematic and comprehensive compilation of legal rules and principles. Although the contents of codes may vary widely from country to country, all codes are intended as a blueprint of social regulation that attempts to guide individuals through society from birth to death.
The civil law tradition makes a sharp distinction between private and public law. Private law includes the rules governing civil and commercial relationships such as marriage, divorce, and contractual agreements. Public law consists of matters that concern the government: constitutional law, criminal law, and administrative law. In many countries with civil law systems, two sets of courts exist—those that hear public law cases and those that address matters of private law.
The role of judges in civil law jurisdictions differs considerably from that of judges in common law systems. When different facts or new considerations arise, common law judges are free to depart from precedent and establish new law. The civil law tradition views judges as government officials who perform essential but uncreative functions. Civil law judges administer the codes that are written by legal scholars and enacted by legislators. They may also consult legal treatises on the issue in question. The civil law system assumes that there is only one correct solution to a specific legal problem. Therefore, judges are not expected to use judicial discretion or to apply their own interpretation to a case.
Civil law systems do not have any process like the common law practice of discovery—the pretrial search for information conducted by the parties involved in the case. The trial of a case under civil law also differs substantially from a common law trial, in which both parties present arguments and witnesses in open court. In civil law systems the judge supervises the collection of evidence and usually examines witnesses in private. Cross-examination of witnesses by the opposing party’s attorney is rare. Instead, a civil law action consists of a series of meetings, hearings, and letters through which testimony is taken, evidence is gathered, and judgment is rendered. This eliminates the need for a trial and, therefore, for a jury.
Systems of common law and civil law also differ in how law is created and how it can be changed. Common law is derived from custom and precedents (binding judgments made by prior judicial decisions). In the common law system, the precedent itself is law. Therefore, the judges who decide which party will prevail in any given trial are also the creators of common law. Civil law, on the other hand, is made by legislators who strive to supplement and modernize the codes, usually with the advice of legal scholars. Civil law judges administer the law, but they do not create it.
III HISTORICAL DEVELOPMENT
The civil law tradition traces its origin to the Roman Republic, a city-state that emerged in the 6th century bc and became an important commercial and military power (see Ancient Rome). The early custom and laws of Rome were put in writing for the first time in 451 and 450 bc, when they were inscribed on 12 bronze tablets (see Roman Law). The principles contained within these Twelve Tables constituted the basis for all Roman civil law.
In the 4th century bc the leaders of the Roman Republic created a magistrate’s office, known as the praetorship, to hear cases involving civil (as opposed to criminal) matters. The sources of law applied by the praetors included the Twelve Tables, resolutions of the Roman Senate, edicts (proclamations) of the praetors, and, after Augustus (Octavian) declared himself emperor in the 1st century bc, pronouncements of the emperor.
In the 6th century Emperor Justinian I reunified the Roman Empire, which had been divided into eastern and western parts as a result of invasions during the 5th century. Justinian sought to restore the legal system throughout the empire and appointed a commission to collect and consolidate existing sources of Roman law. In 533 and 534 this commission published three books that were collectively known as the Corpus Juris Civilis (Body of Civil Law), or the Justinian Code. The Corpus Juris Civilis embodied many generations of legal pronouncements as well as interpretations by great jurists (legal scholars).
In compiling the Corpus Juris Civilis, Justinian sought to rescue the Roman legal system from years of deterioration and to restore it to its former glory. The vast quantity of material written on the civil law convinced him that the code should eliminate error, resolve conflicts, and retain what was of value in a systematic way. In particular, Justinian was concerned about the large number of legal treatises written by jurists, and he sought to abolish the authority of all treatises except those by the most distinguished jurists. He also sought to make it unnecessary for more law to be written and to abolish all prior law that was not included in the Justinian Code.
Much of the western part of the Roman Empire was reconquered by various invaders in the last half of the 6th century. In the resulting chaos, the influence of the Corpus Juris Civilis in those areas diminished. The new rulers did not completely adopt Roman law or impose their own system. Instead, over the next several hundred years a partial fusion of local law and the law of the invaders occurred. For example, simple versions of Roman civil law heavily influenced by Germanic legal customs were brought by invaders to what is now Italy.
Toward the end of the 11th century, when wars subsided in Europe and trade flourished, scholarly interest in the law resurfaced, especially in Italy. The legal scholars who attempted to revive Roman law sought to establish the study of law as a science by interpreting and analyzing the Corpus Juris Civilis. Their method was known as the gloss, and the practitioners of this method became known as the Glossators. Beginning in the 13th century, a group known as the Commentators attempted to integrate the Glossators’ interpretations of the Corpus Juris Civilis with customary law and canon, or religious, law. The Commentators focused on the development of a comprehensive legal theory. At this same time, the Corpus Juris Civilis began to be more commonly enforced as legal authority in France and Italy. The revival of the Roman civil law tradition eventually formed the basis for a common legal language throughout Europe.
The rise of nationalism that began in the 18th century led to the adoption of distinct civil codes for each European country, of which the French Code Napoléon of 1804 is the most famous. In the early 1900s Switzerland and Germany adopted similar codes. The subject matter of all these codes is almost identical with the first three books of the Corpus Juris Civilis.
IV GEOGRAPHIC EXPANSION
Beginning in the 15th century, many European countries extensively colonized North and South America, Africa, and parts of Asia (see Colonialism and Colonies). Colonial expansion spread the civil law system as colonizers imposed their system of law on their colonies. After achieving independence, some former colonies retained the legal system established by the colonizer. For example, the African nation of Senegal has retained the civil law system established by France. Other former colonies chose a modified civil law system. The state of Louisiana, unlike all other American states, has a civil law system for noncriminal matters. This system originated during the period when Louisiana was a colony of France and then Spain.
Some former colonies based their new legal systems not on the specific civil law system of their colonizer, but on the civil law tradition in general. For example, Bolivia, a former Spanish colony, adopted a system closely modeled on the French code. A few countries that were never colonized by countries with civil law systems, such as South Korea and Greece, have independently adopted the civil law model.
A few countries maintain a mixed legal system, combining elements of civil law with other legal influences. For example, Scotland’s legal system includes elements of civil and common law. Several African and Middle Eastern countries have civil law systems that contain elements of Islamic law.
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