Civil Legal System

Civil Law Tradition Legal System

Introduction:

The Civil Law tradition is a legal system that originated in Continental Europe, particularly influenced by Roman law as codified in the Corpus Juris Civilis under Emperor Justinian. This system has spread worldwide and continues to be a predominant legal tradition, particularly in Europe, Latin America, and parts of Asia and Africa. It is rooted in written codes, and its foundation is based on systematic legal principles, as opposed to the case-based approach of Common Law systems.

Derivation of Terms:

• Civil comes from the Latin term \”Civilis\”, meaning citizen.

• Law comes from the Latin term \”Lex\”, meaning rules and regulations.

Definition:

• According to the Oxford Dictionary of Law, Civil Law is defined as: \”The system of law predominant on the European continent, historically influenced by that of ancient Rome.\”

Legal Interpretations:

• Black’s Law Dictionary: Civil law refers to the body of laws related to civil rights and disputes between private individuals or entities.

• Juristic View:

  • Salmond: \”In civil law, the plaintiff claims a right and is given such remedy as he asks.\”

  • Austin: \”In civil law, the person injured is compensated.\”

Scope of Civil Law:

According to George Mousourakis in Roman Law and the Origins of Civil Law Tradition (2015), the civil law system governs matters such as contracts, marriage, defamation, and property disputes.

Historical Development of Civil Law Tradition:

The civil law tradition developed gradually over time, with major milestones marking its growth:

1. Expansion in the 15th Century:
   The civil law system began to expand in the 15th century across European countries and later spread to South America, North America, and parts of Africa and Asia.

2. Roman Legal Foundations:
   The roots of civil law trace back to Roman law, which established the legal framework for relationships between citizens in the Roman Republic and later the Roman Empire, especially around the 2nd century BC.

3. Rise of Roman Jurists (27 BC):
   After the fall of the Roman Republic, legal experts and jurists gained prominence, contributing significantly to the development of civil law through their expertise in interpreting laws and assisting the magistrates and judges in Rome.

4. Development of Trade (150 BC – AD 250):
   Roman jurists also played a key role in facilitating trade and ensuring its regulation across the vast territories of the Roman Empire.

5. Magisterial System in Rome:
   The magistrates and judges in ancient Rome were instrumental in interpreting and applying laws. Jurists provided technical advice to magistrates and judges on legal issues.

6. The Twelve Tables (450-451 BC):
   One of the foundational legal texts in Roman history, the Twelve Tables codified laws that governed various aspects of daily life in the Roman Republic, laying the groundwork for later civil law.

7. Corpus Juris Civilis & Justinian Code (533-534 BC):
   A comprehensive legal code, the Corpus Juris Civilis (Justinian Code), was created under Emperor Justinian and became a cornerstone of the civil law tradition.

8. French Napoleonic Code (18th Century):
   The Napoleonic Code in France during the 18th century revitalized the civil law tradition in Europe, influencing the development of legal systems in Germany, Switzerland, and beyond.

Characteristics of Civil Law Tradition:

Here are the key characteristics that define the civil law system:

1. Systematic and Codified Law:
   Civil law systems are built on comprehensive, written codes that provide a clear and systematic framework of rules governing society. These codes are publicly accessible, ensuring legal certainty for all citizens.

2. Accessibility:
   Since civil law is codified, it is easier for citizens and legal professionals to access the laws. Codification ensures that laws are written down and accessible for interpretation and application.

3. Separation of Public and Private Law:

   • Public Law: Regulates relationships between legal persons (e.g., individuals and the state), including constitutional law, administrative law, and criminal law.

   • Private Law: Governs relationships between private individuals, such as property law, contract law, torts, and family law.

4. Role of Judges:
   In civil law jurisdictions, judges do not interpret laws in the same way as in common law systems. They are tasked primarily with applying the law as written in the codes and statutes, rather than making new law through judicial interpretation.

5. Role of Legislators:
   Legislators in civil law systems are responsible for creating and updating legal codes, often in collaboration with scholars, jurists, and legal professionals, to ensure the legal system adapts to societal changes.

6. Criminal vs. Civil Law:

   • Criminal Law: Deals with offenses against the state or public, such as theft, murder, or fraud.

   • Civil Law: Deals with private disputes between individuals or organizations, such as contract disputes, defamation, or property damage.

Sources of Civil Law System:

The primary sources of the civil law system include:

1. Judicial Decisions – Case Law:
   Although judges in civil law systems apply statutes, their interpretations can extend the scope of law. Courts are not bound by precedents in the same way as common law courts, but judicial decisions may influence how laws are applied and evolve.

2. Legislation:
   Legislation is the supreme source of law in civil law jurisdictions. Legal codes, such as the Civil Code, are the primary authority. Legislators continuously update these codes based on societal needs and advancements in legal theory.

3. Legal or Juristic Writings:
   Legal scholars\’ writings and commentaries on the law are highly regarded and may even influence legislative changes. Although legal writings are not legally binding, they play a significant role in interpreting and understanding the codes.

4. Customs:
   Customs are long-standing practices that have evolved within a community. While they may not hold the same authority as written law, customs often shape the application and interpretation of legal norms.

5. Corpus Juris Civilis:
   The Corpus Juris Civilis, or Justinian Code, was a foundational legal document for the development of civil law. It consolidated Roman legal principles and influenced legal systems in many parts of the world.

6. Code of Hammurabi:
   The Code of Hammurabi (circa 1754 BC) is one of the earliest known written legal codes, influencing the development of legal systems across the ancient world, including civil law traditions.

7. Codification Developments:
   Throughout history, legal scholars and jurists have worked to codify and systematize laws. This has played a major role in the formation and evolution of the civil law tradition, providing a comprehensive and creative structure to law.

Conclusion:

The civil law tradition remains a dominant legal system globally, especially in Continental Europe, Latin America, and many other regions. Its strength lies in the codification of legal principles, which provides clear and systematic rules for resolving disputes and regulating society. The civil law system continues to evolve, influenced by new legislation, judicial decisions, and scholarly interpretations, but its core remains rooted in the Roman legal tradition and the Corpus Juris Civilis.