Civil Law | Research & Encyclopedia Articles

Civil law is one of the two major legal systems of the world, common law being the other. The civil-law system is principally associated with Europe—especially France and Germany—but may also be found in Latin America, parts of Africa, and even countries of the Far East. The common-law system functions in the United States (except Louisiana), England, and nations that were once part of the British Empire.

If there is a single defining characteristic of the civil-law system, it is the codification of most, if not all, areas of law. Codification refers to the act by which a country, usually through a legislative body, attempts a comprehensive statement of given fields of law (for example, contracts supplanting all prior rules and customs), the idea being to anticipate at least in a general way all the issues likely to arise in connection with that field of law. Undoubtedly the most famous code is the French Code Civil, or Napoleonic Code, developed under the direction of Emperor Napoleon Bonaparte (1769–1821) and published in 1804. Almost immediately it became the template for codes throughout Europe. The German Civil Code of 1900 (Bürgerliches Gesetzbuch), widely hailed for its scientific draftsmanship, is also important. Both codes dealt with private, as opposed to public, law—similarities in private law, in fact, being the primary basis for classifying countries as belonging to one legal system or another.

A distinction is often made between the codes of civil-law countries and the so-called unwritten, or judge-made, law of common-law countries. This distinction, however, is subject to serious qualification, since many common-law countries have codified at least some areas of their law (e.g., the commercial codes of the United States), and some civil-law countries rely on judicial decisions to fill in the gaps where the codes are silent.

Another traditional distinguishing characteristic of civil law is that decisions of higher courts have no binding effect; that is, they are not themselves considered laws which the lower courts in the system must follow. The allegiance of all courts applies directly to the language of the codes (and constitutions), not to the decisions of judges. In common law, on the other hand, in addition to following a country's constitution and statutes, lower courts must also abide by judicial decisions of high courts interpreting those laws or addressing areas not covered by them.

Civil-law countries also share a common heritage of Roman law. In the sixth century the Emperor Justinian I (483–565), sitting in Constantinople, commissioned a group of scholars to reduce, systematize, and harmonize Roman law, which they accomplished with remarkable success. They created a summary of the best writing of the classical Roman jurists (the Digest), a systematic treatise for use by students (the Institutes), a summary of the decrees of the Roman Emperors (the Code), and a collection of later imperial enactments (the Novels). Justinian's Corpus Juris Civilis, as it came to be known, would in time influence legal thinking and the law of many countries in Europe. But for several centuries following the barbarian invasions in Western Europe, Justinian's compilations tended to be largely forgotten.

It was not until the twelfth century that scholars, particularly Irnerius (c. 1025–1125) in Bologna, rediscovered the Roman law of Justinian and began to lecture about its virtues. Students flocked from all over Europe to learn from the masters, subsequently returning to their homelands trained in the new legal science to spread what they had learned and promote Roman law's reception.

Along with Irnerius, scholars known as Glossators added their embellishments to Justinian's compilation, and later scholars known as Commentators included their own explanations, while the canon law of the Catholic Church, which itself incorporated many elements of classical Roman law and customs (largely Germanic in nature) contributed to what was emerging as a distinctive legal system. Other rules and customs not associated with Roman law, such as those of the law merchant, were also absorbed.

The Romanesque law of Justinian found its way to England, where it was taught in the universities. But as scholar Henry Wigmore has pointed out, the law never really took hold in English courts, which were greatly influenced by legal thinkers championing a native legal system and a strong legal profession practicing a unified common law.

The Romanesque legal system remained in continuous development throughout Europe when, at the end of the eighteenth century, Prussia undertook the first attempt at comprehensive codification. Napoleon's monumental Code Civil followed soon after, and by the mid-twentieth century civil law, mixed with distinctive local elements, could be found in countries as geographically disparate as Japan and Turkey.

It is impossible to speak of the development of civil law without considering its political and historical context. In France, for example, activist judges under the ancient regime had been considered particularly repressive. Accordingly, following the French Revolution (1789–1799) and Napoleon's efforts to control its excesses, judges were assigned a role whereby they were expected to strictly apply the law, not to create it—a concept that characterizes civil law to this day. In contrast, judges of the common law, particularly in the Anglo-American courts, are endowed with significantly more discretion. In addition, judges in civil-law countries are often recent graduates of the law schools, whereas in the common-law countries, judges typically are older, more experienced lawyers who have established independent reputations in other areas of the law, such as advocacy, teaching, or politics.

Although since the 1990s a few civil-law countries have adopted modified versions of jury trials in a limited number of cases, juries are not traditionally associated with civil law. In contrast, a jury of citizens randomly summoned to determine the facts of a case and decide the guilt or innocence of an accused party remains one of the hallmarks of the common-law system, albeit more so in the United States than England.

Historically, trial proceedings in civil-law countries have also been distinctive. Witnesses, including parties, have less direct contact with the judges (the principle of immediacy); instead, the judges tend to base their decisions primarily on documentary evidence, including written statements of witnesses. Even when witnesses do testify in person (the principle of orality), they are usually interrogated by the judge, not by lawyers for the parties involved. Additionally, civil-law proceedings do not tend to be concentrated affairs (the principle of continuity); rather, they often extend over a longer period of time and involve successive court sessions. Conversely, in the common-law system, witnesses usually have direct contact with the judge and are subject to cross-examination by attorneys for both parties, while trials almost always proceed continuously from beginning to end and do not adjourn from week to week or month to month.

The civil-law systems of Europe have been considerably augmented since the 1990s. For example, the law of the European Union (EU) as applied by the European Court of Justice covers all member states with regard to both economic and social matters. Similarly, the European Court of Human Rights, established by treaty in the aftermath of World War II (1939–1945), adjudicates in binding fashion cases of alleged human-rights violations. In effect, a common law of Europe has been developing that represents an important overlay on the region's traditional civil-law regimes.

At the same time, there has been considerable convergence between civil and common law, especially since World War II (1939–1945). For example, France, Germany, and Spain have imported the Anglo-American concept of the jury for the purposes of trying certain serious criminal offenses. Furthermore, various civil-law countries have embraced at least partially the common-law principles of orality, immediacy, and concentration. In addition, France, Germany, and Italy, among other states, have established constitutional courts with the power to make constitutional decisions that, to varying degrees, have a binding effect throughout the country, similar to decisions of the Supreme Court in the United States. Other procedural devices of the common law, such as alternative dispute-resolution techniques and court governance and case management methods, have also been adopted by several civil-law countries.

After coming to power, French military leader and emperor Napoleon Bonaparte (1769–1821) introduced a civil-law legal system to France. The Code Napoleón, or Napoleonic Code, went into effect in 1804, regulating such civil rights as individual liberty, religious freedom, and divorce.

When Napoleon became emperor, the French legal system was made up of varying sets of laws. In southern France, Roman law dominated, but in the north, laws had developed out of feudal system mandates. The Napoleonic Code was created to provide a uniform set of laws that were based on reason rather than on ancient custom or church tradition.

The code's first book covers personal status and lays out laws governing civil rights, marriage, divorce, and guardianship. The second book includes laws regarding personal property rights and ownership, while the third book covers the acquisition of rights, such as laws governing succession and marriage settlements.

The code served as a model for many other civil codes that went into effect during the nineteenth century throughout much of Europe and Latin America. While the code has been amended slightly over the years, it remained fairly intact in the early twenty-first century.

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