This article is about the legal system originating in France and Italy. For non-criminal law under the common law legal system originating in England, seeCivil law (common law). For other uses, seeCivil law (disambiguation).
Legal systems of the world.[1] Civil law-based systems are in blue, with mixed systems incorporating elements of both civil law and common law in pink.
Civil law is alegal system rooted in theRoman Empire and was comprehensively codified and disseminated starting in the 19th century, most notably with France'sNapoleonic Code (1804) and Germany'sBürgerliches Gesetzbuch (1900).[2][3] Unlikecommon law systems, which rely heavily on judicialprecedent,[4] civil law systems are characterized by their reliance onlegal codes that function as the primary source of law.[5][6] Today, civil law is the world's most common legal system, practiced in about 150 countries.[7]
The civil law system is often contrasted with thecommon law system, which originated inmedieval England. Whereas the civil law takes the form of legal codes, the common law comes from uncodifiedcase law that arises as a result of judicial decisions, recognizing prior court decisions as legally bindingprecedent.[8]
Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishessubstantive rules fromprocedural rules.[10] It holdscase law secondary and subordinate tostatutory law. Civil law is often paired with theinquisitorial system, but the terms are not synonymous. There are key differences between astatute and a code.[11] The most pronounced features of civil systems are theirlegal codes, with concise and broadly applicable texts that typically avoid factually specific scenarios.[12][11] The short articles in a civil law code deal in generalities and stand in contrast with ordinary statutes, which are often very long and very detailed.[11]
Civil law is sometimes referred to as neo-Roman law, Romano-Germanic law or Continental law. The expression "civil law" is a translation of Latinjus civile, or "citizens' law", which was thelate imperial term for its legal system, as opposed to the laws governing conquered peoples (jus gentium); hence, the Justinian Code's titleCorpus Juris Civilis. Civil law practitioners, however, traditionally refer to their system in a broad sense asjus commune. It draws heavily from Roman law, arguably the most intricate legal system before the modern era.[citation needed]
In civil law legal systems where codes exist, the primary source of law is thelaw code, a systematic collection of interrelated articles,[14] arranged by subject matter in some pre-specified order.[15] Codes explain the principles of law, rights, and entitlements, and how basic legal mechanisms work. The purpose of codification is to provide all citizens with manners and a written collection of the laws which apply to them and which judges must follow. Law codes are laws enacted by alegislature, even if they are in general much longer than other laws. Rather than a compendium of statutes or catalog ofcase law, the code sets out general principles as rules of law.[14]
While the typicalFrench-speakingsupreme court decision is short, concise, and devoid of explanation or justification, inGermanic Europe, the supreme courts can and do tend to write more verbose opinions, supported by legal reasoning.[16] A line of similar case decisions, while not precedentper se, constitutejurisprudence constante.[16] While civil law jurisdictions place little reliance on court decisions, they tend to generate a phenomenal number of reportedlegal opinions.[16] However, this tends to be uncontrolled, since there is no statutory requirement that any case be reported or published in alaw report, except for the councils of state and constitutional courts.[16] Except for the highest courts, all publication of legal opinions is unofficial or commercial.[17]
those with codified mixed systems in which civil law is the background law but has its public law heavily influenced by common law:Puerto Rico,Philippines,Quebec andLouisiana
those with comprehensive codes that exceed a single civil code, such as France, Germany, Greece,Italy,Japan,Chile, Mexico,Russia,Spain: it is this last category that is normally regarded as typical of civil law systems, and is discussed in the rest of this article.
A prominent example of a civil law code is theNapoleonic Code (1804), named after French emperorNapoleon. The Napoleonic code comprises three components:
Another prominent civil code is theGerman Civil Code (Bürgerliches Gesetzbuch or BGB), which went into effect in the German empire in 1900.[18] The German Civil Code is highly influential, inspiring the civil codes in countries such as Japan, South Korea andSwitzerland (1907). It is divided into five parts:[18]
The General Part, covering definitions and concepts, such as personal rights and legal personality.
Obligations, including concepts of debt, sale and contract;
Things (property law), including immovable and movable property;
Civil law takes as its major inspiration classicalRoman law (c. AD 1–250), and in particularJustinian law (6th century AD), and further expanded and developed in the lateMiddle Ages under the influence ofcanon law.[19] The Justinian Code's doctrines provided a sophisticated model forcontracts, rules of procedure,family law, wills, and a strongmonarchicalconstitutional system.[20] Roman law was received differently in different countries. In some it went into force wholesale by legislative act, i.e., it becamepositive law, whereas in others it was diffused into society by increasingly influential legal experts and scholars.
Roman law continued without interruption in theEastern Roman Empire until its final fall in the 15th century. However, given the empire's influence on the continent in Late Antiquity and then multiple incursions and occupations by Western European powers in the late medieval period, its laws became widely implemented in the West. It was first received in theHoly Roman Empire partly because it was consideredimperial law, and it spread in Europe mainly because its students were the only trained lawyers. It became the basis ofScots law, though partly rivaled by received feudalNorman law. In England, it was taught academically at the universities ofOxford andCambridge, but underlay onlyprobate andmatrimonial law insofar as both were inherited from canon law, andmaritime law, adapted fromlex mercatoria through theBordeaux trade.
Consequently, neither of the two waves of Roman influence completely dominated in Europe. Roman law was ultimately a secondary source that was applied only when local customs and laws were found lacking on a certain subject. However, after a time, even local law came to be interpreted and evaluated primarily on the basis of Roman law, since it was a common European legal tradition of sorts, and thereby in turn influenced the main source of law. Eventually, the work of civilianglossators and commentators led to the development of a common body of law and writing about law, a common legal language, and a common method of teaching and scholarship, all termed thejus commune, or law common to Europe, which consolidated canon law and Roman law, and to some extent,feudal law.
An important common characteristic of civil law, aside from its origins in Roman law, is the comprehensivecodification of received Roman law, i.e., its inclusion in civil codes. The earliestcodification known is theCode of Hammurabi, written in ancientBabylon during the 18th century BC. However, this, and many of the codes that followed, were mainly lists of civil and criminal wrongs and their punishments. The codification typical of modern civilian systems did not first appear until the Justinian Code.
Germanic codes appeared over the 6th and 7th centuries to clearly delineate the law in force for Germanic privileged classes versus their Roman subjects and regulate those laws according tofolk-right. Underfeudal law, a number of privatecustumals were compiled, first under theNorman empire (Très ancien coutumier, 1200–1245), then elsewhere, to record themanorial—and later regional—customs, court decisions, and the legal principles underpinning them. Custumals were commissioned by lords who presided as lay judges over manorial courts in order to inform themselves about the court process.
The use of custumals from influential towns soon became commonplace over large areas. In keeping with this, certain monarchs consolidated their kingdoms by attempting to compile custumals that would serve as the law of the land for their realms, as whenCharles VII of France in 1454 commissioned an official custumal of Crown law. Two prominent examples include theCoutume de Paris (written 1510; revised 1580), which served as the basis for the Napoleonic Code, and theSachsenspiegel (c. 1220) of thebishoprics ofMagdeburg andHalberstadt which was used in northern Germany, Poland, and theLow Countries.
The concept of codification was further developed during the 17th and 18th centuries AD, as an expression of bothnatural law and the ideas of theEnlightenment. The political ideals of that era was expressed by the concepts ofdemocracy, protection ofproperty and therule of law. Those ideals required certainty of law; recorded, uniform law. So, the mix of Roman law and customary and local law gave way to law codification. Also, the notion of anation-state implied recordedlaw that would be applicable to that state. There was also a reaction to law codification. The proponents of codification regarded it as conducive to certainty, unity and systematic recording of the law; whereas its opponents claimed that codification would result in theossification of the law.
In the end, despite whatever resistance to codification, the codification of Continental European private laws moved forward. Codifications were completed by Denmark (1687), Sweden (1734), Prussia (1794), France (1804), andAustria (1811). The French codes were imported into areas conquered by Napoleon and later adopted with modifications in Poland (Duchy of Warsaw/Congress Poland; Kodeks cywilny 1806/1825), Louisiana (1807), Canton of Vaud (Switzerland; 1819), theNetherlands (1838),Serbia (1844), Italy and Romania (1865), Portugal (1867) and Spain (1888).Germany (1900), andSwitzerland (1912) adopted their own codifications. These codifications were in turn imported into colonies at one time or another by most of these countries. The Swiss version was adopted in Brazil (1916) and Turkey (1926).
Louisiana is the onlyU.S. state whose private civil law is based heavily on theFrench andSpanish codes, as opposed to Englishcommon law.[21] In Louisiana, private law was codified into theLouisiana Civil Code. Current Louisiana law has converged considerably with American law, especially in itspublic law, judicial system, and adoption of theUniform Commercial Code (except for Article 2) and certain legal devices of American common law.[22] In fact, any innovation, whether private or public, has been decidedly common law in origin.[citation needed]
In theory, codes conceptualized in the civil law system should go beyond the compilation of discrete statutes, and instead state the law in a coherent, and comprehensive piece of legislation, sometimes introducing major reforms or starting anew.[11] In this regard, civil law codes are more similar to theRestatements of the Law, theUniform Commercial Code (which drew from European inspirations), and theModel Penal Code in the United States. In the United States,U.S. states began codification with New York's 1850Field Code (laying down civil procedure rules and inspired by European and Louisiana codes).[23] Other examples include California'scodes (1872), and the federalrevised statutes (1874) and the currentUnited States Code (1926), which are closer to compilations of the statute than to systematic expositions of law akin to civil law codes.
For thelegal system of Japan, beginning in theMeiji Era, European legal systems—especially the civil law of Germany and France—were the primary models for emulation. In China, the German Civil Code was introduced in the later years of theQing dynasty, emulating Japan. In addition, it formed the basis of the law of theRepublic of China, which remains in force in Taiwan. Furthermore, Taiwan[24] and Korea, former Japanese colonies, have been strongly influenced by the Japanese legal system.
Civil law is primarily contrasted with the Englishcommon law that influenced the legal traditions of theEnglish-speaking countries.
The primary contrast between the two systems is the role of written decisions and precedent as a source of law (one of the defining features of common law legal systems).[25] While common law systems place great weight on precedent,[26] civil law judges tend to give less weight to judicial precedent.[27] For example, theNapoleonic Code expressly forbade French judges to pronounce general principles of law.[28] There is no doctrine ofstare decisis in the French civil law tradition. There are regular, good-quality law reports in France, but it is not a consistent practice in many of the existing civil law jurisdictions. In French-speaking colonial Africa there were no law reports and what little is known of those historical cases comes from publication in journals.[29] Civil law codes must be changed constantly because the precedent of courts is not binding and because courts lack authority to act if there is no statute.[30]
In some civil law jurisdictions the judiciary does not have the authority toinvalidate legislative provisions.[31] For example, after the fall of theSoviet Union, theArmenian Parliament, with substantial support fromUSAID, adopted new legal codes. Some of the codes introduced problems which the judiciary was not empowered to adjudicate under the established principles of the common law of contracts - they could only apply the code as written.[32][33]
Codification, however, is by no means a defining characteristic for all civil law systems. For example, the civil law systems ofNordic countries over time have deviated significantly from their classical Roman and German models. Instead, the Scandinavian countries (Sweden,Norway, andDenmark) together withFinland, theFaroe Islands,Greenland,Åland (self-governing) andIceland may be said to have a special"Nordic" version ofjurisprudence that is neither a truly civil law system nor a part of the British-derived common law legal system.[34][35]
In actual practice, an increasing degree of precedent is creeping into civil lawjurisprudence, and is generally seen in many nations' highest courts.[16]
Some authors consider civil law the foundation forsocialist law used incommunist countries, which in this view would basically be civil law with the addition ofMarxist-Leninist ideals. Even if this is so, civil law was generally the legal system in place before the rise of socialist law, and some Eastern European countries reverted to the pre-socialist civil law following the fall of socialism, while others continued using a socialist legal system.[citation needed]
The termcivil law comes from English legal scholarship and is used in English-speaking countries to lump together all legal systems of thejus commune tradition. However,legal comparativists and economists promoting thelegal origins theory[who?] prefer to subdivide civil law jurisdictions into distinct groups:
Napoleonic: France, Italy, the Netherlands, Spain, Chile, Belgium, Luxembourg, Portugal, Brazil, Mexico, otherCPLP countries, Macau, formerPortuguese colonies in India (Goa,Daman and Diu andDadra and Nagar Haveli), Malta, Romania, and most of the Arab world (e.g. Algeria, Tunisia, Egypt, Lebanon, etc.) when Islamic law is not used. Former colonies include Quebec (Canada) and Louisiana (U.S.).
The Chilean Code is an original work of jurist and legislatorAndrés Bello. Traditionally, the Napoleonic Code has been considered the main source of inspiration for the Chilean Code. However, this is true only with regard to thelaw of obligations and thelaw of things (except for the principle of abstraction), while it is not true at all in the matters of family and successions. This code was integrally adopted by Ecuador, El Salvador, Nicaragua, Honduras, Colombia, Panama and Venezuela (although only for one year). According to other Latin American experts of its time, likeAugusto Teixeira de Freitas (author of the "Esboço de um Código Civil para o Brasil") orDalmacio Vélez Sársfield (main author of the Argentinian Civil Code), it is the most important legal accomplishment of Latin America.
Cameroon, a former colony of both France and the United Kingdom, is bi-juridical/mixed
Germanistic: Germany, Austria, Switzerland, Latvia, Estonia,Roman-Dutch, Czech Republic, Russia, Lithuania, Croatia, Hungary, Serbia, Slovenia, Slovakia, Bosnia and Herzegovina, Greece, Ukraine, Turkey, Japan, South Korea, Taiwan and Thailand
South Africa, a former colony of the Netherlands and later the United Kingdom, was heavily influenced by English colonists and therefore is bi-juridical/mixed.
Nordic: Denmark, Finland, Iceland, Norway, and Sweden
Chinese (except Hong Kong and Macau) is a mixture of civil law and socialist law.[36][37][38] Presently, Chinese laws absorb some features of the common law system, especially those related to commercial and international transactions. Hong Kong, although part of China, uses common law. The Basic Law of Hong Kong ensures the use and status of common law in Hong Kong. Macau continues to have a Portuguese legal system of civil law.
However, some of these legal systems are often and more correctly said to be of hybrid nature:
Napoleonic to Germanistic influence: The Italian civil code of 1942 replaced the original one of 1865, introducing German elements as a result of itsWorld War IIAxis alliance.[39] This approach has been imitated by other countries, including Portugal (1966), the Netherlands (1992), Brazil (2002) and Argentina (2014). Most of them have innovations introduced by the Italian legislation, including the unification of thecivil andcommercial codes.[40]
Germanistic to Napoleonic influence: TheSwiss civil code is considered mainly influenced by the German civil code and partly influenced by the French civil code. The civil code of the Republic of Turkey is a slightly modified version of the Swiss code, adopted in 1926 duringMustafa Kemal Atatürk's presidency as part of the government's progressive reforms and secularization.
Some systems of civil law do not fit neatly into this typology, however.Polish law developed as a mixture of French and German civil law in the 19th century. After the reunification of Poland in 1918, five legal systems (French Napoleonic Code from theDuchy of Warsaw,German BGB from Western Poland, Austrian ABGB from Southern Poland, Russian law from Eastern Poland, and Hungarian law fromSpisz andOrawa) were merged into one. Similarly,Dutch law, while originally codified in the Napoleonic tradition, has been heavily altered under influence from the Dutch native tradition ofRoman-Dutch law (still in effect in its former colonies).Scotland'scivil law tradition borrowed heavily from Roman-Dutch law. Swiss law is categorized as Germanistic, but it has been heavily influenced by the Napoleonic tradition, with some indigenous elements added in as well.
Quebec law, whose private law is also of French civil origin, has developed along the same lines, adapting in the same way as Louisiana to the public law and judicial system ofCanadian common law. By contrast, Quebec private law has innovated mainly from civil sources. To a lesser extent, other states formerly part of the Spanish Empire, such as Texas and California, have also retained aspects of Spanish civil law into their legal system, for examplecommunity property. Thelegal system of Puerto Rico exhibits similarities to that of Louisiana: a civil code whose interpretations rely on both the civil and common law systems. BecausePuerto Rico's Civil Code is based on the Spanish Civil Code of 1889, available jurisprudence has tended to rely on common law innovations due to the code's age and, in many cases, obsolete nature.
Several Islamic countries have civil law systems that contain elements ofIslamic law.[41] As an example, theEgyptian Civil Code of 1810 that developed in the early 19th century—which remains in force in Egypt and is the basis for the civil law in many countries of theArab world where the civil law is used— is based on the Napoleonic Code, but its primary authorAbd El-Razzak El-Sanhuri attempted to integrate principles and features of Islamic law in deference to the unique circumstances of Egyptian society.
Japanese Civil Code is considered a mixture drawing roughly 60% from the German civil code, roughly 30% from the French civil code, 8% from Japanese customary law, and 2% fromEnglish law.[42] Regarding the latter, the code borrows the doctrine ofultra vires and the precedent ofHadley v Baxendale from English common law system.
^"Legal Traditions | Judiciaries Worldwide".judiciariesworldwide.fjc.gov. Retrieved2024-12-04.Civil law predates common law by nearly 1500 years. Its origins can be seen in written laws as early as the fifth century BC in ancient Rome. These laws were meant to be comprehensive and authoritative; they were meant to address every conceivable issue, and the answer derived from a centralized imperial authority. Civil law takes its name from the Corpus Juris Civilis, the first effort to codify all of the Roman law, compiled under the rule of Justinian in the sixth century AD.
^"The Common Law and Civil Law Traditions"(PDF). Berkeley Law. 2016.Archived(PDF) from the original on 2024-11-22. Retrieved2024-12-03.Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports. The precedents to be applied in the decision of each new case are determined by the presiding judge.
^"The Common Law and Civil Law Traditions"(PDF). Berkeley Law. 2016. p. 1.Archived(PDF) from the original on 2024-11-22. Retrieved2024-12-03.Civil Law, in contrast, is codified. Countries with civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense.
^"Legal system - The World Factbook".www.cia.gov. Retrieved2024-12-04.Civil Law - the most widespread type of legal system in the world, applied in various forms in approximately 150 countries.
^"The role of legislation is to set, by taking a broad approach, the general propositions of the law, to establish principles which will be fertile in application, and not to get down to the details. . . ." Alain Levasseur, Code Napoleon or Code Portalis?, 43 Tul. L. Rev. 762, 769 (1969).
^abNeubauer, David W., and Stephen S. Meinhold. Judicial Process: Law, Courts, and Politics in the United States.Belmont: Thomson Wadsworth, 2007, p. 28.
^"Glossary of Legal Terms",12th District Court – Jackson, County, MI, retrieved on 12 June 2009:[1]
^Kenneth Pennington, "Roman and Secular Law in the Middle Ages",Medieval Latin: An Introduction and Bibliographical Guide, edd. F.A.C. Mantello and A.G. Rigg (Washington, D.C.: Catholic University Press of America, 1996), 254–266; [html], available at"Roman and Secular Law in the Middle Ages". Archived fromthe original on 2011-09-27. Retrieved2011-08-27., retrieved 27 August 2011.
^Clark, David S. (2019), Reimann, Mathias; Zimmermann, Reinhard (eds.), "Development of Comparative Law in the United States",The Oxford Handbook of Comparative Law, Oxford University Press, pp. 147–180,doi:10.1093/oxfordhb/9780198810230.013.6,ISBN978-0-19-881023-0
^Wang, Tay-Sheng (2014), Haley, O. John; Takenaka, Toshiko (eds.) 4.1 "The influence of Japanese law on Taiwan law,"Legal Innovations in Asia, pp. 233-242ISBN9781783472789
^Black's Law Dictionary – Common law (10th ed.). 2014. p. 334.
^It is characteristic of the common law to adopt an approach based "on precedent, and on the development of the law incrementally and by analogy with established authorities".Robinson v Chief Constable of West Yorkshire Police[2018] UKSC 4 at para. 21
^Garoupa, Nuno; Liguerre, Carlos Gomez (2011). "The Syndrome of the Efficiency of the Common Law".Boston University International Law Journal.29: 298.
^The Common Law and Civil Law Traditions, Robbins Collection, University of California at Berkeley.[2]Archived 22 April 2016 at theWayback Machine
^Judicial Discretion in the Civil Law In the common talk among lawyers, it has even been said that in the Civil Law system legislators are almost like gods, and judges not even men."
^"In some cases, according to some expert observers, important principles were not included in the legislation because the drafters, not having any experience in commerce, could not appreciate the importance of the principles and the advisors could not convince them of the necessity of certain principles. For example, under legislation adopted, boards of directors can be held criminally and civilly liable if the corporation does not turn a profit, not exactly a great incentive to risk-taking. It illustrates the difficulty of changing societal norms. At the same time, in deciding commercial cases, the judges are not to examine the prevailing practices regarding what agreements mean within the trade at the time the contract was entered into, a fundamental concept in western commerce and judicial practiceRule of Law Assistance Impact Assessment: Armenia
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