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The civil law is one of the large legal families in the world. It is widespread in Europe, Central and South America, and in many parts of Asia and Africa. It differs from other legal families not only in its defining history but also in its structure, application, and development. This research paper provides an introduction to some of its significant aspects and to its continued influence on the development of the law in various parts of the world. It also notes some of the differences in legal education and professional practice.
- Structural Aspects
- Sources of Law
- Primary Sources
- Secondary Sources
- Developing the Law
- Legal Education and the Legal Profession
In the comparative study of law, legal systems are often seen as belonging to ‘legal families.’ These may be religious-based legal systems (for instance, Islamic and Judaic laws), they may be geographically or historically defined (for instance, tribal law on United States Indian reservations and the Roman law origins of Roman–Dutch law in South Africa), or they may be distinct because of their structure and methodology (the civil law and the common law) (see Zweigert and Kotz, 1998, pp. 63–73).
In particular, scholars frequently contrast the families of the common law and the civil law, which differ in terms of structure and methodology. This contrast holds despite the fact that both legal families have their roots in the Corpus Iuris Civilis of Justinian (AD 534, see infra). The common law has preserved some of these traditions to this day, while developing its own methodology. At the same time, the civil law has moved closer to the common law in some areas. Hence, the contrast may not be as stark today as it once was.
With respect to both families, it is dangerous to generalize: There can indeed be marked differences between legal systems belonging to the same ‘family.’ Thus, the use of codes (e.g., the Uniform Commercial Code (UCC)), the existence of a large body of statutory law, and the adoption of the influential Restatements (the summaries of prevailing case law, stylistically in statutory form, prepared by the American Law Institute, a private organization) may make the legal system of the United States appear closer to the civil law than to its English roots (see Farnsworth, 1996, p. 227). Such a conclusion, however, would misconceive the role and function of statutory law and of the methodology in its application in the civil law, on the one hand, and in common law legal systems on the other hand.
Codes and statutes consist of rules in all legal systems. These may be very specific, or they may be stated with some degree of generality. In some areas, common law codes and other legal texts display extraordinary detail, attempting to anticipate every eventuality. The common law judge, as a consequence, will begin with the factual circumstances of the case, and after examining, comparing, and weighing the factual elements of the case, will attempt to find a rule that fits it. This rule may be one of statutory law or derive from prior decisional law, including decisions authoritatively and bindingly interpreting and applying statutory law – the doctrine of stare decisis (Hay, 2010, p. 9, also infra). The civilian judge, in contrast, sees the case as a problem to be solved within the legal structure of the legal system. First, the problem at hand must be fitted into a legal category. Next, subcategories and sub-subcategories must be identified until ‘legal rule’ or ‘concept’ and the problem at hand match. Civilians proceed by deductive reasoning, while the common law approach employs an inductive methodology.
Categorization, as a structural characteristic of the civil law, also results in the drawing of sharp distinctions between different areas of the law. Private law deals with legal problems that arise between natural persons or between natural and legal persons (such as corporations), while public law (for instance, constitutional law, administrative law, and criminal law) addresses the relationship between citizen and state. In some civil law systems, this bifurcation results in the establishment of special courts to deal with these different areas of the law. In Germany, for instance, there are so-called ordinary courts with competence for private law and criminal law, and separate court systems with competence for questions of administrative law, labor law, and social law, with each system having its own supreme court. Since many cases will obviously involve mixed questions (e.g., of labor and private contract or tort law), there may be contradictory rules of law, with no unifying supreme court. In France, the Conseil d’Etat stands beside the Cour de Cassation, with exclusive competence in certain public fields of law. The exclusivity of the Conseil’s competence avoids some of the German problems. Germany and Italy, for example, have constitutional courts, while most other civil law countries do not. While the divisions are more pronounced in Germany than elsewhere, categorization of fields of law and the establishment of specialized courts unavoidably leads to a high degree of specialization within the legal profession, among both lawyers and judges. These lines are much more fluid in common law countries.
The central role of the legal rule in civil law legal systems also explains why precedent (i.e., the binding effect of a prior court decision on a different, but similar subsequent case) is quite different from what it is in the common law. The civilian judge applies the law but is not bound (obviously with some exceptions) by earlier decisions of a higher court. In common law countries, in contrast, it is the decision of the highest court that ultimately is the law and therefore binds inferior courts – the doctrine of stare decisis. Subsequent discussion will return to these points.
Roman law had no comprehensive codification before Justinian’s Corpus Iuris Civilis. Law, such as it was, was divided into iuscivile and iusgentium. The former applied among Roman citizens; the latter applied to legal relationships among others (Romans and foreigners, foreigners among themselves, and slaves). Judicial functions were exercised by praetores. The praetor peregrinus administered the iusgentium and conceived and developed legal concepts unknown to the strict Roman iuscivilis. In a different context, of course, the English chancellor – at the beginning of the equity jurisprudence – performed equally creative functions. Similar ideas – for equity and judicial creativity – underlie the ‘general clauses’ of the civil law (see infra, p. 9).
With population growth and increasing urbanization, a new profession – that of the jurisconsult – arose. They were legal advisors who prepared written opinions for cases. As the number of opinions grew, principles could be derived from them that could be taught to students and serve as a basis for advice to judges. The development of principles fosters more abstract ways of thinking. Categories are conceived, and problems are classified for assignment to various categories. Under Emperor Justinian, opinions, decisions, and other materials were gathered and the Corpus Iuris Civilis was prepared.
The Corpus Iuris stands at the beginning of what Roman law means today. This code evolved in subsequent times as a result of the work of the glossators and commentators. These sources taken together constituted the ‘Ius Commune,’ the common law of Europe before countries and areas began to grow in different ways and today’s ‘different families’ began to take shape. England developed the common law (although, especially in the early period, with many Roman law elements). The Scandinavian countries, France, and Germany had a leading role in developing the civil law. Once again, ‘civil law’ is not homogeneous. There are differences among civil law countries, and these differences are also reflected in the legal systems of those countries that modeled their codes or statutes after earlier rules of others. Two codifications in particular replaced the earlier ‘Ius Commune’ and proved very influential: the French code civil of 1804 and the German Burgerliches Gesetzbuch of 1896 (see also the Austrian Allgemeines Burgerliches Gesetzbuch of 1811). The French code not only influenced the development of legal systems in many European (especially Latin and Eastern) countries but also spread to the Near East, Central and South America, and even to parts of North America (e.g., Louisiana). The German code influenced the law of Eastern and Southern Europe (e.g., Hungary, the Czech Republic, Slovakia, former Yugoslavia, the Baltic States, and Greece) as well as of Japan and China (see Zweigert and Kotz, 1998; pp. 154–156). In 2010, the People’s Republic of China promulgated a new law (effective in 2011) on the ‘Application of Laws to Foreign-Related Civil Relations,’ which mirrors modern European codification on private international law in many respects.
Roman law still exists in Southern Africa as Roman–Dutch law, an admixture of Roman law and old Dutch customary law that interacted with English common law (see Zweigert and Kotz, 1998, p. 232). Codification not only extended, in these and in other countries, to private law and private-law relationships but also encompassed criminal law, commercial law, and both civil (private) and criminal procedures.
Sources of Law
Civil law systems draw a sharp distinction between primary and secondary sources. Primary sources are enacted law, custom, and ‘general principles of law.’ Of these, the main source is the enacted (statutory) law; it predominates in civil law systems.
A code in a civil law system consists of general principles, arranged in order of importance. At the beginning, there may be general rules regulating basic problems that need to be addressed before the particular problem can be analyzed. For example, if a plaintiff seeks damages for breach of contract, preliminary analysis must determine whether a contract was validly concluded. Provisions dealing with invalidity and avoidance of contracts usually are found in the general part of a civil code. Such a general part may be followed by particular parts dealing with individual fields of law, such as torts, contracts, property, or the law of succession. The main or basic codes are supplemented in increasing number by special statutes or codes of limited coverage with which the legal system reacts to new societal problems. Examples include consumer protection, telecommunication, and news media.
Custom is also a primary source of law. Customs are unwritten rules, developed and observed over years and now part of social and economic thinking. Customary law tends to be less important in practice because it is often difficult to prove its pervasive observance in society.
‘General principles of law’ are what the term expresses: Basic principles of the legal system that pervade it and derive from norms of positive law. Civil law judges resort to ‘general principles of law’ as guidelines in the interpretation of statutory norms both for the purpose of defining their interrelation and for their application. This is of particular importance when dealing with statutory norms that are rather abstract in their formulation. It is tempting to consider this process to be not very different from the case law methodology of the common law. There is an important difference, however. The common lawyer derives the appropriate rule by reliance on precedent and its interpretation and, only lacking precedent, resorts to general principles or to policy considerations. The civilian judge is not so restricted but derives the appropriate rule from the structure of the legal system and from the general principles of law that pervade it; nor will the decision in the present case have a necessary effect on later cases. This is not to say that later cases may not reach the same conclusion: At the point when decisions consistently reach the same result – what French lawyers call jurisprudence constante and German lawyers standige Rechtsprechung – such decisional law may itself be regarded as having risen to the position of ‘general principles of law.’
In the civil law, secondary sources consist of case law (see section Primary Sources) and the legal literature. The legal literature consists of monographs and contributions to the legal periodical literature as well as commentaries. The last are particularly important in civil law countries that follow or are close to the Germanic legal tradition. Commentaries are detailed annotations of each provision of a particular code, consisting of an analysis that brings together all case law dealing with this provision, opinions of others as expressed in the periodical literature, and the commentator’s own evaluation and summary.
Case law by itself, as already mentioned in other contexts, does not have the same central importance in a civil law system as it does in a common law system. It is indeed a secondary source, for the judge is bound only by the enacted law, except in the few cases in which – as discussed before – the decisional law has reached the level of jurisprudence constante, or in systems in which a ‘constitutional court’ has power to bind other courts (e.g., Germany). To repeat, however, such cases are rare. Judges will read commentaries and the legal literature in general, just as lawyers do. The process of ‘law finding’ and its application, however, does not restrict the court to these sources.
Developing the Law
If ‘law’ is a norm in the form of a statutory codification or a ‘general principle’ derived from such statutory norms, how can a judge decide a case for which no norm or general principles exist, and, in the absence of legislative action, how can law develop further? (For comparative discussion see Adriaansen, 1998, p. 107; Hazard and Dondi, 2006)
Legislative action is of course the classic instrument for legal change. However, the process, from the drafting of a bill until its ultimate passage and entry into force, can be long. A commission for the revision of the German law of obligations, for instance, worked on this project for more than a decade. The final report of the commission was published in 1992. On January 1, 2002, the so-called Act on the Modernization of the Law of Obligations (Gesetz zur Modernisierung des Schuldrechts) came into force. The Act is considered the most important reform of the German Civil Code (Burgerliches Gesetzbuch – BGB) since it came into effect in 1900. Thus, problems may need to be addressed that existing legal norms do not cover. The Swiss Civil Code is unique in its candid grant of discretion to the judge to fill the gap. It provides in Art. 1, x2: “if the Code does not furnish an applicable provision, the judge shall decide in accordance with customary law, and failing that, according to rule which he would establish as legislator.” The assumption must be, of course, that even with such a grant of authority, the judge will try to fashion a result that conforms to the general structure and tradition of the legal system. The result will not contravene existing conceptions of what the law should be, but rather will fill the gap, and thereby contribute to the evolution of the law. One way of doing this is to work by analogy, that is, to compare the present problem with other problems that similarly require a weighing of the interests of the parties in the dispute. The analogy then extends the balance struck with respect to other problems of the present case. An example is the treatment of equipment leasing in German law. The German Civil Code contains provisions on leases and for sales (Section 535 et seq. for leases and Section 433 et seq. for sales), but not for leasing. Since leasing is regarded as possessing elements from both fields of law, case law and literature now derive rules from both and apply them to the phenomenon of leasing (even though in most cases the rules for leases are applied primarily, see Graf von Westphalen and Thusing, 2012, Part ‘Klauselwerke,’ III, paras. 16–17, 24–26).
The Swiss provision just quoted confers discretion. However, it was suggested that no court will exercise unfettered discretion but will seek to follow the structure and implement the values of the particular legal system. This has also been the experience in other civil law legal systems, for instance, the German. The German Civil Code, as do others, contains provisions of great breadth and, consequently, lack of specificity. These are ‘general clauses,’ of which Section 242 of the German Civil Code is perhaps the best example. It requires parties to a contract to perform their obligations in ‘good faith.’ Section 242 has become the source of an extensive body of case law and of legal concepts not addressed specifically in the civil code. When the economic upheavals of the 1930s threatened parties to contracts with economic ruin, the German Supreme Court invoked x 242 to develop a doctrine of ‘frustration of contract’ (Wegfall der Geschaftsgrundlage) that permits courts in appropriate cases to adjust the obligations of the parties. Good faith, so the German court stated, requires the protection of both parties: Cancellation of the contract (by analogizing the situation to one of impossibility) would be unfair to one party; enforcing it in full (against the background of totally different and unexpected circumstances) would be similarly unfair to the other party. The French Conseil d’Etat – but not the Cour de Cassation – developed a similar remedy, the doctrine of imprevision (see Waline, 2010, paras. 452–455). It is interesting that a similar doctrine (and a remedy akin to the German) were never accepted to that extent in the United States despite the greater freedom of common law courts to fashion law through decisions and despite an express provision in the UCC imposing an obligation to deal in good faith (UCC Section 1–203).
The civil law doctrine of culpa in contrahendo furnishes another example. The obligations of parties to a contract begin with its conclusion, but expectations will have been created earlier, and their disappointment may cause damage. Such a situation could be dealt with under the law of Delikt (tort), but sometimes the preconditions for a remedy in tort will be lacking. Again, the extension of an existing provision may provide relief. Section 276 of the German Civil Code provides for liability for damage caused intentionally and negligently. For liability to arise, there must be some relationship, some duty owed to the other party. Such a relationship, the case law states, again invoking the parties’ good faith obligation, is created by the contract negotiations. Parties thus have a precontractual duty of care to each other and may have a remedy for its breach. This is the doctrine of culpa in contrahendo. The common law again is less flexible; it generally does not impose contract law-based liability for precontractual misconduct; when it does not, a remedy must be sought in tort for negligent or intentional infliction of damage (Hay and Rasmussen- Bonne, 2011, p. 108).
The civilian judge, despite the different theoretical structure and focus of the legal system, thus can and does display the same creativity as do common law judges, with the principal – perhaps only – distinction that the decision in the individual case does not ‘make law.’ That new concepts can become part of the law, through repeated practice, is shown by the example just given.
At that point, while sources and methodology may differ, the practical result often no longer does.
The basic conceptual difference between common law and civil law finds reflection in still another area: the role of a judge and the conduct of a case. In common law jurisdictions, particularly the United States, litigation is ‘fact driven.’ The facts need to be established, and the applicable precedent must then be found. With such an emphasis on the facts of a case, the role of the lawyers is a particularly active one. The judge functions as a neutral arbiter; judges of courts of appeal ultimately decide questions of law (Hay, 2010, p. 90). In a civil law court, the judge starts with the rule of law, as outlined, and searches for the facts that he or she needs for the further categorization of the case. The judge’s role thus is much more active. Facts are elicited by the judge; lay judges may participate as members of the court (particularly in commercial matters), but there is never a lay jury in private law matters. The judge also ascertains the applicable law, and, if the applicable rule happens to be one of foreign law because of the international aspect of the case, he or she may even have to ascertain the content of the foreign rule of law ex officio. As a result, decisions of civil law appellate courts will read quite differently from those of appellate courts of common law countries. Attention to factual detail will be very slight (this is particularly true of high French courts) and the emphasis will be on legal norms, rather than the other way round.
Legal Education and the Legal Profession
In the United States of the eighteenth and nineteenth centuries, a young person could become a lawyer by ‘reading law in the chambers of a lawyer,’ in other words by serving as a clerk. In the civil law countries of Continental Europe, legal education has been the monopoly of the universities for centuries. With ‘doctrine’ – not case law – the heart of the legal system, law faculties served as the only way of entry to the profession, and its faculty members equaled in stature the position of the high judges in common law systems (see Dawson, 1978). In earlier centuries, German appellate and supreme courts routinely sent case files to the prominent law faculties, virtually for final decision on doctrinal grounds. (For the practice of ‘Aktenversendung,’ see Rheinstein, 1938, p. 7.) The influence of law professors on the development of legal doctrine thus has a long tradition and continues to this day. The course of study reflected, at least until recent times, both the strict categorization of the legal system into specific fields of law and the high level of abstraction that characterizes the deductive analytic method of the civil law. Practical training of the young lawyer was left to a period of time required to be spent in an official training program (such as the Referendariat in Germany) or as a junior lawyer under the direction of a licensed lawyer, combined with additional training (such as in France). Full admission to the practice of law then occurred with the completion of these additional requirements. The mindset of the young lawyer had been formed, of course, by the time the university studies were completed.
In more recent times, law curricula increasingly reflect the offering or requirement of election of interdisciplinary subjects. There is also increasing instruction in the use of new technologies, for instance, how to access and use legal databases. In addition, increased emphasis on international compatibility and equivalence of academic degrees has led to the introduction of baccalaureate programs in law (for instance, in Germany). The resulting bachelor’s degree certifies academic study of law but is not the equivalent of the German Referendar for purposes of entry into the profession; additional study would be required for the latter. Neither increased ‘skills training’ nor the new degree programs affect the structure of the legal system.
Civil law systems differ among themselves, as noted initially. This also holds true for the course of study and the practical training required to become a lawyer. As a result, a lawyer – as in the case of other professionals – may face impediments in attempting to establish a practice in another country or even to render occasional services there. In the European Union, the 1988 so-called Diploma Directive was one of the first steps to implement the European Community’s freedom-of-establishment and free-supply-of-services provisions. The 1998 ‘Establishment Directive’ requires foreign lawyers wanting to work permanently in another European Community country to pass an aptitude test or to have 3 years of practical experience in the state where they want to work. Today, requalification is governed by the 2005 ‘Recognition of Professional Qualifications Directive,’ which replaced the 1988 ‘Diploma Directive.’ In addition, the 2006 ‘Directive on Services in the Internal Market’ also touches on the legal profession. The Council of Bars and Law Societies of the European Community is an organization that includes the national associations of lawyers of the member states of the European Union, the European Economic Area, and Switzerland. It has published the ‘Charter of Core Principles of the European Legal Profession and Code of Conduct for European Lawyers.’
In the European Union, civil law meets common law in a shared organizational structure. Administrative regulatory action to facilitate the transborder practice of law has been accompanied by efforts to harmonize areas of private law. Legal scholars are documenting the doctrinal commonalities in various fields of law – under titles such as ‘European-wide tort law’ (see von Bar, 1996; van Dam, 2006; Koziol and Schulze, 2008), or ‘Property law in Europe’ (von Bar and Drobning 2004; van Erp et al., 2012) – and there has been discussion of the feasibility of a European Civil Code (see Kotz, 1996).
A number of efforts have borne fruit. In the European Union, the joining of many countries with a civil law tradition and two common law countries (the United Kingdom and Ireland), the ‘Brussels I’ and ‘Brussels II’ regulations provide common rules for jurisdiction and judgment recognition in civil and commercial matters and for divorce and child custody, respectively, while the ‘Rome I, II, and III’ regulations provide uniform rules of private international law (conflict of laws) for contract, tort, and divorce. The first two of the Rome regulations apply in all EU countries, except Denmark, the third in a more limited number of countries. In 2011, the Commission of the European Union proposed a regulation on a ‘Common European Sales Law’ as an optional alternative to national law. The European Union thus serves as a laboratory for accommodating the civil law and common law systems. In 2012, effective in 2015, the Brussels Regulation was revised.
While there is, then, some movement toward a new ius commune in Europe – which, moreover, may ultimately extend to additional countries as a result of further enlargement of the European Union – many other civil law countries around the world will not participate directly in these developments. The ‘new European law’ not only seeks to bridge differences among the civil law countries and between them and the common law but may also be expected to effect reforms and innovations within the civil law generally. These may well serve as models for other civil law countries, for instance, for those in South America that grow together through similar processes of economic cooperation and integration.
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