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Civil law legal system (as oppossed to Common law legal system)

 
 

Civil law is a legal system derived from Roman law and commonly used in Europe . It is mainly contrasted against common law.

See also civil law for the branch of law dealing with citizens.

Overview

Civil or civilian law is a legal tradition which is the basis of the law in the majority of countries of the world, especially in continental Europe, but also in Quebec (Canada), Louisiana (USA), Japan, Latin America, and most former colonies of continental European countries. The Scottish legal system is usually considered to be a mixed system in that Scots law has a basis in Roman law, combining features of both uncodified Civil law dating back to the Corpus Juris Civilis and common law with medieval sources, further influenced by English law after the Union of 1707.

In the United States, civil law is formally the basis of the law of Louisiana (as circumscribed by federal law and the U.S. Constitution ), although in western and southwestern parts of the U.S., laws in such diverse areas as divorce and water rights show the influence of their Iberian civil-law heritage, being based on distinctly different principles from the laws of the northeastern states colonized by settlers with English common-law roots.

History

The civil law is based on Roman law, especially the Corpus Juris Civilis of Emperor Justinian , as later developed through the Middle Ages by mediæval legal scholars.

Originally civil law was one common legal system in much of Europe, but with the development of nationalism in the 17th century Nordic countries and around the time of the French Revolution , it became fractured into separate national systems. This change was brought about by the development of separate national codes. The French Napoleonic Code and the German and Swiss codes were the most influential ones. Around this time civil law incorporated many ideas associated with the Enlightenment.

Because Germany was a rising power in the late 19th century when many Asian nations were introducing civil law, the German Civil Code has been 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 that civil law later 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.

Civil vs Common law

Civil law is primarily contrasted against common law, which is the legal system developed among Anglo-Saxon peoples, 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 develops out of the Roman law of Justinian's Corpus Juris Civilis proceeding from broad legal principles and the interpretation of doctrinal writings rather than the application of facts to legal fictions .

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 , but civil codes with a lasting influence were promulgated only after the French Revolution, in jurisdictions such as France (with its Napoleonic Cod), Austria, Quebec, Spain, the Netherlands and Germany. However, codification is by no means a defining characteristic of a civil law system, as e.g. the civil law systems of Scandinavian countries remain largely uncodified, whereas common law jurisdictions have frequently codified parts of their laws, e.g. in the U.S. Uniform Commercial Code . There are also mixed systems, such as the laws of Scotland , Namibia and South Africa .

Thus, the difference between civil law and common law lies less in the mere fact of codification, but in the methodological approach to codes and statutes. In civil law countries, legislation is seen as the primary source of law. By default, courts thus base their judgments on the provisions of codes and statutes, from which solutions in particular cases are to be derived. Courts thus have to reason extensively on the basis of general principles of the code, or by drawing analogies from statutory provisions to fill lacunae . By contrast, in the common law system, cases are the primary source of law, while statutes are only seen as incursions into the common law and thus interpreted narrowly.

The underlying principle of separation of powers is seen somewhat differently in civil law and common law countries. Common law countries, especially the United States, see judges as balancing the power of the other branches of government. By contrast, the original idea of separation of powers in France was to assign different roles to legislation and to judges, with the latter only applying the law (the judge as la bouche de la loi ). Today, it is widely recognized that this is unworkable in practice. Case law (or, more properly, jurisprudence ), plays a considerable role in virtually all civil law countries, even though the development of "judge-made law" through the rule of stare decisis is not formally recognized. As a practical matter, the dichotomy should thus not be overemphasized.

It should not be overlooked that there are considerable differences between the legal methodologies of various civil law countries. For example, it is often said that common law opinions are much longer and contain elaborate reasoning, whereas legal opinions in civil law countries are usually very short and formal in nature. This is in principle true in France, where judges cite only legislation, but not prior case law. (However, this does not mean that judges do not consider it when drafting opinions.) By contrast, court opinions in German-speaking countries can be as long as American ones, and normally discuss prior cases and academic writing extensively.

There are, however, certain sociological differences. Civil law judges are usually trained and promoted separately from attorneys, whereas common law judges are usually selected from accomplished and reputable attorneys. Also, the influence of academic writing by law professors on case law tends to be much greater in civil law countries.

Criminal procedure

Civil and common law system also differ considerably in criminal procedure. In general, the judge in a civil law system plays a more active role in determining the facts of the case. Also, civil law systems rely much more on written argument than oral argument.

It is a common but incorrect belief that civil law systems do not offer the presumption of innocence when in fact they do.

Subgroups

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 three distinct groups:

  • French civil law: in France, the Benelux countries, Spain and former colonies of those countries;
  • German civil law: in Germany, Austria, Switzerland, Greece, Japan, South Korea and the Republic of China (Taiwan);
  • Scandinavian civil law: in Denmark, Sweden, Finland, Norway and Iceland .

Portugal and Italy have evolved from French to German influence, as their XIX century civil codes were close to the Napoleonic Code and their XX century civil codes are much closer to the German BGB . Legal culture and law schools have also come near to the German system. The law in these countries is often said to be of a hybrid nature.

The Dutch law or at least the Dutch civil code cannot be easily placed in one of the mentioned groups either, and it has itself influenced the modern private law of other countries. The present Russian civil code is in part a translation of the Dutch one.

Economic implications

According to the legal origins theory promoted by some economists, civil law countries tend to emphasize social stability, while common law countries focus on the rights of an individual. In this theory, this has a considerable impact of different countries' financial development, but it is not obvious that there is a difference between American, British and Australian development on one side and Norwegian, German and Italian development on the other.


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