The term ‘civil law’ is used to distinguish between several types of law, depending on the context:

  • civil law and criminal law,
  • civil (private) law and public law,
  • civil law and commercial law, and
  • civil law legal systems and common law legal systems.

The civil law legal system (sometimes called the ‘Romano-Germanic tradition’ or ‘civil law tradition’) is the subject of these notes. It is historically rooted in Roman law and has adopted a number of features of Roman law, including:

  • the practice of jurists providing technical advice to judges and influencing the development of the law,
  • comprehensive statements of the law, and
  • cases being decided independently of each other.

There are many differences between common law and civil law legal systems, including their historical influences, sources of law, legal categories or distinctions, legal methods and reasoning, and court procedure. Civil law legal systems are heavily influenced by Roman law, while common law legal systems have minimal influence of Roman law as a result of it never having been ‘received’ as in Continental Europe.

Sources of law differ between common law and civil law systems. In civil law systems legal codes are comprehensive, rational and logically ordered, whereas statutes of common law jurisdictions tend to be less exhaustive, often operate to clarify, consolidate or supplement case law, and are interpreted according to common law principles. In civil law jurisdictions case law is not a significant source of law and carries limited authority, but in common law legal systems precedent and principles developed through cases are a major source of law. Academic writing has some degree of authority in civil law systems, but has no authority in common law jurisdictions (except where the judiciary cites non-judicial sources with approval).

The legal method differs in that civil law systems move from the abstract to the particular and common law systems move from the particular to the abstract. Civil law systems are code-based and use systematic and authoritative general principles of law and cases are solved by the interpretation of those principles. By contrast, common law legal systems are case-based and work from facts of particular cases to develop principles; the law develops on an ad-hoc basis in which facts are supreme and hierarchical analogical reasoning (judicial precedent) is supreme.

Court procedure in civil law systems are characterised as ‘inquisitorial’ in which a tribunal of fact (one or more judges, sometimes laypersons) plays an active role in the gathering of evidence and the role is to find truth. Fact finding occurs during pre-trial investigation and the trial is a public showing of the dossier (the results of the investigation). Common law systems, by comparison, are characterised as ‘adversarial’ in which the tribunal of fact (one or more judges, or a jury) plays no role in the investigation and their role is primarily to ensure a fair hearing for both sides. The trial is the main fact-finding arena and is a distinct process separate from investigation.

Apple and Deyling, A Primer on the Civil-Law System

Notes drawn from: James G Apple and Robert P Deyling, A Primer on the Civil-Law System (Federal Judicial Center, 1995). Available from <http://www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf>.

  • Civil law is dominant in:
    • most of Europe,
    • all of Central and South America,
    • parts of Asia,
    • parts of Africa, and
    • discrete areas of the common-law world (eg, Louisiana, Quebec and Puerto Rico).
  • Public international law (‘PIL’) and the law of the European Community (‘EC’) have been developed primarily by persons trained in civil law.
  • Civil law is older, more widely distributed and more influential than the common law.
  • Judges and lawyers trained in common law tend to know little about the history or modern operation of civil law.
  • Basic differences between civil and common law:
    • Common law follows an adversarial model; civil law is more inquisitorial.
    • Common law is heavily case-based; civil law is more code-based.
    • Common law involves judicial interpretation; civil law follows predetermined rules.
  • Beyond these basic differences, knowledge is limited.

The history and development of the civil law system

In the beginning: ‘all roads lead to Rome’

  • Civil law has its origins in the written law and institutions of Rome.
    • The term ‘civil law’ is derived from jus civile — the civil law of the Roman Republic and Roman Empire.
  • By the end of the Republic (27 BC) legal experts (‘jurists’) had gained prominence within the legal system, separate from the courts of law.
    • Jurists were upper class males who provided advice to litigants, the lay judiciary and legal magistrates on issues, procedures and remedies.
    • Jurists were largely a product of the growth of the Roman Empire:
      • Expansion led to increased trade with conquered territories and distant border peoples, bringing more people into Rome and other cities.
      • These persons did not come under the traditional jus civile applicable to Roman citizens, but were important to the continued success of the Empire.
      • A private law regime was needed to guide relationships between citizens and non-citizens.
      • Jurists came about to meet these needs and created a unique role primarily in the classical period (150 BC–AD 250).
    • Jurists were also a consequence of a non-professional judiciary in which judges rarely had legal training.
      • There were two types of judges:
        • The magistrate (praetor) was elected for a one-year term and had a limited capacity because he conducted something similar to a pretrial hearing between prospective litigants to define issues of the dispute.
          • The praetor’s power derived from control of the remedies available.
          • The praetors’ pronouncements about the law (edicts) became a primary source of private law (legislation being only a second source).
        • The trial judge (judex) was selected on an ad hoc basis by the litigants to preside over the trial, and given authority by the praetor to decide that case alone.
    • Praetors and judices needed competent legal advice, so they turned to jurists.
    • Jurists were not government officers:
      • No official powers.
      • Activities constituted a public service.
      • Rewards were influence and popularity.
      • Did not take charge of cases.
      • Did not control litigation.
      • Did not charge for services.
      • No pay from the state.
      • Can be considered comparable to pro bono lawyers to a point.
  • Jurists assisted the chief praetor (known as ‘the Praetor’) in drafting the Edict, an annual public proclamation stating the principles by which the Praetor intended to administer his office.
    • The Edict was important for the development of equity law in Rome (jus gentium).
      • The jus gentium applied to non-indigenous Romans.
  • Jurists responded to specific questions of law in a responsa:
    • The responsa was prepared for both praetors and judices, and frequently used the interpretatio, a device in which statutory phrases served as the basis for opinion.
  • Jurists provided written technical advice to judges and others about the state of the law and interpretation of textual material (eg, the Twelve Tables, an early statement of existing law from c 450 BC, or the Edict).
  • Jurists were also almost solely responsible for the development of a comprehensive jurisprudence, independent of judicial decisions.
  • The non-professional nature of the Roman judiciary meant there was a lack of regard for the value of decisions in individual cases.
    • The limited roles of judges and their short tenure provided no continuity in litigation, so legal principles did not develop among various cases.
    • Cases were resolved on an individual basis.
  • Roman jurist Gaius did not recognise judicial decisions as a basis of Roman law.
  • In the Corpus Juris Civilis, an encyclopaedic work commissioned by Emperor Justinian in the 6th century, the notion of Roman judicial precedent was killed off with the dictum non exemplis sed legibus judicandum est (‘decisions should be rendered in accordance, not with examples, but with the law’).
  • Without precedent, jurists flourished as their written opinions were elevated.
  • Issuance of an annual Edict evolved into effective re-issuance of the Edict of the previous office holder, suitably modified by the new Praetor, resulting in an ever-lengthening document of uneven texture and content.
    • This practice ended under Emperor Hadrian (117–138 AD).
    • Jurists began using a new form of legal writing, the treatise, which covered specific aspects of law.
  • Jurists were further elevated by Caesar Augustus’ practice of ‘patenting’ jurists which singled individuals out for recognition.
    • The opinions of patented jurists were accorded special significance and weight.
    • Patented jurists eventually acquired the power to make rules.
    • The opinions of jurists became binding even on the Emperor because they had ‘the force of law.’
    • Jurists’ prestige and importance became so great they assumed the role of imperial advisers.
  • Roman law had a strong influence on history:
    • The written law of Rome had evolved from responsa to treatises prepared by jurists (later known as jurisconsults).
    • The law evolved further during the later periods of the Empire:
      • Gaius’ Institutes of the 2nd century were an extensive collection of legal principles and rules stating the private law of Rome, covering topics such as rights of citizenship, the manumission of slaves, preservation of estates, and rules of intestate succession.
        • The Institutes were designed to educate students and assist practitioners in the resolution of cases.
      • Emperor Justinian’s Corpus Juris Civilus included:
        • a refinement of Gaius’ Institutes,
        • the Digest (writings of classical jurists),
        • the Code (early imperial legislation), and
        • The Novels (Justinian’s legislation).
      • The refined version of the Institutes in Corpus Juris Civilus became the essential building block of the civil law system.

Medieval developments in Italy

  • Italy experienced a similar rise of a prominent jurist class as in Rome from the 11–15th centuries.
    • The Italian peninsula experienced the rise of Italian city-states and increased commerce and trade between them.
    • A system of law was needed to meet commercial and social needs of these cite-states.
      • Jurists filled the void left by the inadequacies of the local legal systems.
  • These new jurists came to be known as the ‘glossators of Bologna.’
  • Differences between Roman jurists and Italian glossators:
    • Glossators did not develop the law; they revived the Corpus Juris Civilis as a complete system of private law ad adapted it to meet the contemporary needs.
    • Glossators interpreted the Corpus Juris Civilis and disseminated their interpretations to other scholars, law students and lay judges.
    • Unlike Roman jurists, glossators were primarily teachers — members of university law faculties and drawn from the general public.
    • Roman jurists were case-oriented rather than dedicated to building a system of law; Italian glossators emphasised system-building and logical form:
      • Corpus Juris Civilis served as the basis for constructing legal doctrine.
      • Glossators’ basic technique was the ‘gloss’ — an interpretation or addition to the Corpus Juris Civilis.
      • Glossators used some theological substance and argumentative techniques.
      • Where the Corpus Juris Civilis and theological doctrine left gaps in the rationale for opinions, these were filled by incorporating local custom into the system.
        • There is little evidence that Roman jurists appreciated custom as a source of law.
  • Similarities between Roman jurists and Italian glossators:
    • Both provided advice to untrained lay judges.
    • Glossators prepared summae; short legal treatises that superficially resemble the responsa of Roman jurists.
    • Neither had a specific grant of political or civil authority (and glossators may not have been remunerated for their services outside law faculties).
    • Glossators’ summae evolved into complete statements of private law, similar to some of the work of later Roman jurists.
    • Accursius’ ‘Great Gloss’ (1220–1260) is comparable to Gaius’ Institutes and Justinian’s Corpus Juris Civilis as an attempt at a comprehensive statement of the law.
  • By the mid-13th century law faculties had developed, along with a systematic method of teaching law and a definitive textbook for instruction.
  • The glossators were primarily responsible for the reception of Roman law in Italy, Germany, France, Spain, Switzerland and other European countries.
  • Glossators’ influence can be explained as a consequence of their being law professors associated with the first ‘true’ universities and law faculties of Europe.
  • Graduates from the University of Bologna (the location of the first law school) spread the system to their home countries, influencing development of local legal systems.
  • Italian law faculties exerted strong influence in Spain:
    • Spanish law students studied at Bologna in the early-11th century.
    • A university was established in Salamanca, Spain, under the influence of the University of Palencia, Italy.
    • The influx of students from Spain was so great at Bologna that a Spanish college was set up within the university.
  • The result of Italian influence was the Spanish Codigo de Las Siete Partidas (‘The Code of the Seven Parts of the Law’).
    • This digest used Roman law as its primary sources.
    • The Code was prepared by Alfonso the Learned in the late-13th century.
    • It served as the basis for Spanish private law until 1889 when it was replaced by the (still current) Codigo Civil (‘Civil Code’).
    • The Codigo de Las Siete Partidas is of significant to the Central and South American jurisdictions; it served as the basis for the reception of Roman law in those regions.

Canon law and the law merchant

  • Italian law was derived from Roman law and customary (local) law.
  • The substantive law of civil law systems was affected by two medieval developments:
    • the creation of a comprehensive canon law by the Roman Catholic Church, and
    • the maturing of a law merchant — law covering commercial transactions — as commercial classes and activities grew in Europe.
  • During the 12–16th centuries a series of ecclesiastical courts evolved within the Roman church.
    • Features of these courts included:
      • Relatively uniform structures.
      • Systematic management.
      • An educated staff of judges trained and skilled in applying canon law.
    • Canon law primarily concerned the administration of the church and its rules.
      • The canon law had been developing since the 11th century when the Bishop of Worms (in Germany) collated rules and regulates of the church into a series of 20 books — the Decretum.
      • Italian ecclesiastical jurist Gratian, along with others, produced the Concordia Discordantium Canonum (c 1130–1150).
        • This became the basis for almost all canon law.
        • It was divided into three parts, similarly to the early legal codes of some post-medieval European states:
          • the nature and sources of law and ecclesiastical offices and conduct,
          • clerical behaviour, penal law and procedure, church property, religious orders, marriage and penance, and
          • sacraments and church doctrine.
  • Canon law had significant influence as a result of the pervasive influence of the church on almost all aspects of medieval life.
  • Canon law, like secular laws, was characterised by systematic expositions of the law.
    • Scholarly writings formed the bases for the decisions of ecclesiastical courts and provided guidance for church officials.
    • Reliance on scholarly collections became a norm for development of legal systems in Europe.
  • Ecclesiastical court procedures influenced secular courts:
    • Feudal courts often preferred trial by battle or ideal; ecclesiastical courts developed a reasoned system involving:
      • reception and consideration of documentary evidence and witness testimony,
      • qualified notaries to record proceedings,
      • legal arguments by parties to a case on points of law, and
      • decisions by canoncial judges.
    • These procedures contributed to the role of orderly and systematic proceedings and dispute resolution.
  • The law merchant resulted from commercial developments in Italy and elsewhere in Europe:
    • the expansion of commerce between Italian city-states and between other centers,
    • the growth of maritime commercial activities,
    • the rise in the number of fairs and markets,
    • the need to regulate commerce and transactions, and
    • the rise of merchant associations created for the purposes of:
      • safety of goods in transit,
      • financial security, and
      • expeditious resolution of commercial disputes.
  • Associations and guilds formed a community of instituions that followed local custom and practice, providing substance for the body of commercial law that followed.
  • Although influenced by Roman law (which had addressed commercial matters like negotiable instruments and contracts), there was considerable variation between regions; uniformity was not a characteristic of the law merchant.
  • Rules, practices and customs of sea transport became increasingly codified as a result of the ease and relative inexpensive nature of transport by sea.
    • Capitulare navium (‘shipping rules’) were first published in Venice in 1205.
    • In 1255 it was republished in expanded form as the Statuta et Ordinamenta super Navibus (‘Statutes and Regulations on Shipping’).
    • These rules and regulations became the maritime code preferred by Adriatic ports.
    • The Kingdom of Naples began preparing a 66-chapter maritime code in the 13th century.
  • Commercial customs developed in Genoa and Pisa influenced the most important maritime code of the period: the Catalan Consolato Del Mare (‘Consulate of the Sea’) compiled in Barcelona (now part of modern Spain).
    • It included 330 articles that covered matters such as:
      • construction of vessels,
      • circumstances requiring assistance to other vessels in distress,
      • general average (allocation of damages),
      • employment of pilots, and
      • privateering.
    • It also established a legal requirement for a ship to carry a cat to deal with rats.
    • It was translated from Catalan into Latin, French and Italian, and circulated throughout Europe in the early 16th century.
  • Increased land trade required rules to govern practices and disputes.
  • The land version of the law merchant originated from markets and fairs.
    • Markets were local events held weekly or monthly during the year.
    • Fairs were more regional in nature and held once a year.
    • Fairs are described as early as the 8th century in France.
  • Informal courts were needed to keep the peace and resolve disputes given the frequency and extent of markets and fairs.
    • In England they were known as ‘piepowder courts’ — a reference to the dusty feet of peddlers and traders who travelled from fair to fair.
    • The right to conduct a market or fair came from a grant of authority from a king or price; piepowder and similar courts evolved into official commercial courts operating under authority of the monarch.
  • Craft guilds emerged to regulate and control particular trades.
    • Municipal commercial courts emerged to handle mercantile cases.
    • The power of guilds to regulate commerce often resulted in the adoption of municipal statutes governing organisation, internal policies and commercial practices of particular crafts, based on customs of the relevant guilds that had been periodically recorded that consequently became a source of local commercial law.
  • In contrast to the maritime law merchant, extensive codification does not seem to have been a practice of the terrestrial counterpart.
    • Precedent may have been a more common feature of land-based transactions.
    • A book of precedents was maintained in Frankfurt, Germany, to assist in the arbitration and resolution of commercial disputes.
  • The establishment of special commercial courts influenced the modern practice in some European countries of separating commercial law and procedure from the rest of the law; some countries have special commercial codes and courts.
  • The substantive law that developed in medieval Europe and became the basis of modern European law was the result of the convergence of four sources of law:
    • Roman law — primarily contained in Justinian’s Corpus Juris Civilis and modified by glossators and commentators in universities.
    • Customary (local) law.
    • Canon law.
    • The law merchant.
  • Together these four sources were known as the jus commune (‘common law’ — not to be confused with the common law of England) that was common to a whole kingdom and the peoples within it.
    • The jus commune as established in France, Spain and other European monarchies was characterised by continuity and similarity of attitudes about the law (eg, bias in favour of systems and codification).

Intellectual developments leading to the codification process

  • Reliance of various written forms of law for the creation of a legal system was well-established throughout Europe in the 14–15th centuries.
  • Comprehensive codification of an entire body of law characteristic of modern civil law systems began primarily in France and Germany.
  • Three intellectual movements exerted influence on the development of the law:
    • Humanism, which grew ot of the Renaissance.
    • The natural law school of thought, following humanism.
    • The Enlightenment.
  • Humanism originated in 16th century France.
    • There was a decline in the secular influence of the Roman Catholic Church and a waning of the power and authority of the Holy Roman Empire.
    • There was also the birth of the nation-state and emphasis on strong, centralised governance.
    • These developments resulted in the creation of the modern European system of states by the signing of the Treaty of Westphalia in 1648, ending the Thirty Years War and the Holy Roman Empire.
    • Humanism emphasised rational thought and the potential for individual achievement:
      • It was inspired by the culture of antiquity (primarily Greece, but also Rome).
      • It encouraged scholarly examination of law, with a focus on the nature and function of law.
      • It provided conditions for the founding of the science of jurisprudence.
  • The school of natural law grew out of humanism.
    • Natural law has several origins.
    • The writings of the Dutch jurist and diplomat Hugo de Groot (better known as Grotius) stand out as a starting point in the development of the natural law school.
    • Grotius (1583–1645) is also known as the father of public law.
    • Grotius attempted to develop universal concepts of law that transcended national boundaries and legal systems: see especially De Jure Belli ac Pacis (‘On the Law of War and Peace’).
      • He advocated ideas such as law being based on human experiences and desires, especially the desire for an orderly and peaceful society based on reason.
      • He argued for a rational approach to the structure of law and dispute resolution.
      • He supported systematic arrangement of legal materials (eg, treatment of property and obligations) and specific rules within such arrangements.
      • Grotius was an origin for the codifying lawyers of the Enlightenment and a support for the increasingly mercantile society where good order and a clearly defined system of rules were seen as highly desirable.
    • Later writers influenced the development of the civil law and codification process:
      • Samuel Pufendorf and Christopher Wolff in Germany attempted to build a legal system based on the scientific methods of Galileo and Descartes.
        • This approach was characterised by assertion of axioms from which rules were logically deduced and tested empirically.
      • Scholars in other countries used less rigorous techniques, but their approach was essentially the same.
      • Pufendorf’s attempts to build a complete and rational system of law, and to promote law as a science, made him particularly influential both in Germany and Europe generally.
      • The modern practice of including introductory articles in codes that state the general principles that provide the framework for subsequent provisions can be attributed to Pufendorf.
    • Arguably rationally organised codification was only possible after the work of natural lawyers in building on the legal traditions that went before them.
  • The Enlightenment of the 18th was a culmination of the intellectual and social turmoil of the 15–17th centuries.
    • It included the French Revolution and the near origins of the modern European codes.
    • It was based on a belief in the fundamental importance of reason as a liberating force in intellectual life and social organisation, growing out of the precepts of the natural law school.
    • It provided the final stimulus for the creation of comprehensive modern codes.
    • Using Justinian’s Institutes as a starting point, legal philosophy encouraged law reform, including new arrangements of legal topics within the unified system.
    • The egalitarian ideals of the age required citizens to be knowledgeable on matters of law so that rights and duties were known and understood.
    • These ideals encouraged simplification of the rules and comprehensive coverage.
  • Codification affected all European states ultimately (except England), but the leaders were France and Germany.

The codification processes in France and Germany

  • 16th century codification differed from Enlightenment and post-Enlightenment periods of the 18–19th centuries.
    • Earlier codification was a restatement of the law; later codification was a rationally-organised statement of the whole field of law.
  • In France Napoleon initiated a codification process at the beginning the 19th century.
    • Napoleon was responsible for the modern French code, but also responsible for its dissemination to and reception in the countries his armies conquered.
The French Code
  • In 1800 Napoleon appointed four senior practitioners of law to develop a comprehensive legal code.
  • The practitioners were experienced jurists who had studied Grotius, Pufendorf, and others.
  • This ‘commission’ held 102 sessions over four years, devoted to drafting the code.
  • The final product was presented to and quickly passed by the French legislature.
  • It was officially designated the Code Civil des Français and issued in three volumes with 2281 articles in 1804.
    • It was later known as the Code Napoléon; in its present form it is known as the Code Civil.
  • Basic structure of the Code Civil:
    • Six articles at the beginning of Book I provide general principles of law, including publication, effects and application of the law.
    • The remainder of Book I (articles 7–515) deal with civil rights and the status of persons, as well as marriage, divorce and paternity.
    • Book II (articles 516–710) covers real and personal property, and ownership and rights relating to property.
    • Book III (articles 711–2281) deals with rights of succession, contracts, obligations (ie, general principles, specific contracts, quasi-contracts, delict/tort, security rights and property rights in marriage).
  • This structure reflects the influence of Justinian’s Corpus Juris Civilis and the Declaration of the Rights of Man produced during the French Revolution.
  • It uses simple and clear language to facilitate understanding.
  • It does not deal with procedural, commercial or criminal law — these codes were developed later and separately.
  • Although it has been amended by later legislation, the Code Civil has not been completely revised.
  • Due to the simplicity of certain provisions, an extensive body of explanatory case law has been developed and is used in court opinions and judgments.
The German Code
  • The modern German code is largely a product of codification in three Germanic states: Bavaria, Prussia and Austria.
  • These states underwent codification processes during the 18th century and like France involve commissions comprised of legal scholars.
  • The modern German code resulted from the creation of a commission by statute in 1873 to codify German civil law.
  • The result was a comprehensive code, the Bürgerliches Gesetzbuch (‘BGB’), approved in 1896 and taking effect from 1 January 1900.
  • Basic structure of the BGB:
    • Book I — general aspects including natural and juristic persons, definitions, classifications of acts and prescriptive periods.
    • Book II — law of obligations including their creation and discharge, contracts, and law of delict.
    • Book III — law of real and personal property including ownership and possession, servitudes on property and securities.
    • Book IV — family law including marriage and other familial relationships.
    • Book V — law of succession including hereditary succession, rights of heirs, wills, settlements and requirements of proof relating to inheritance.

The codes of Chile and Brazil

  • The civil law systems of Latin America are of particular significance to US judges and lawyers given proximity, ‘American’ culture and economic relations across the Americas.
  • Spanish law was responsible for the reception of Roman law in Central and South America (including Brazil, as even though it was a Portuguese colony, Portugal itself was under Spanish control from 1580–1640).
  • Latin American legal systems were also influenced by legal developments in North America, mostly in the areas of constitutional theory and practice and structure of government; many countries absorbed the ideas promulgated during the American Revolution, adapting them to meet their needs and circumstances.
  • Nevertheless, the legal system conformed very much to the European civil law tradition.
  • The reception of Hispano-Roman law was not well-ordered:
    • After the Spanish conquests, Spanish law became a jumble of codes, legislation and judicial decisions.
    • Spanish law was not consolidated into one code until the 1803 digest Nueva Recopilación.
    • The appropriateness of applying the pre-1803 Spanish law to the New World was questionable given no attempt was made to adapt it to the local situations or cultures.
  • The codification processes in Chile and Brazil are significant:
    • The Chilean code was extremely influential on many other Latin American countries.
    • Brazil is a large country with a high degree of influence of Latin American affairs, and has a uniqueness of situation as a former Portuguese colony.
  • Modern codification processes in Latin America began in the mid-19th century.
  • The process began in Chile with the self-taught jurist Andres Bello, who migrated from Venezuela in 1829.
    • Bello began drafting a new civil code for Chile within two years of arriving there, and without any grant of authority.
    • In 1840 the Chilean legislature created a commission of five members from the two legislative bodies (one of whom was Bello, who had been elected as a Senator) which completed an entirely new civil code, approved in 1856 and entered into force in 1857.
    • The Chilean code was adopted with only minor amendment by Colombia and Ecuador, and also served as a model for the civil codes of Argentina, Paraguay, Venezuela, El Salvador and Nicaragua.
      • It remains viewed as the most advanced and influential among the Spanish-speaking countries of Latin America.
    • It incorporated a number of sources, including:
      • Roman law (again, mostly from the Corpus Juris Civilis),
      • Spanish law (including the Codigo de Las Siete Partidas),
      • the Code Civil of France,
      • other European civil codes (such as from Prussia and Austria), and
      • the writings of Spanish and French jurists.
    • The Chilean code has undergone major revisions but remains in force.
  • Brazil inherited its law and legal system from Portugal.
    • Portuguese law had a distinct Spanish influence.
      • Portugal was united with Spain in the late-16th and early-17th centuries during which time its law underwent a major revision and recompilation.
      • The Ordinances of Philip II (1603) was comprehensive legislation covering many aspects of private and criminal law, and was based on:
        • Roman law,
        • canon law,
        • customary law,
        • municipal charters and statutes, and
        • early Portuguese legislation.
    • The Ordinances were received in Brazil and formed a major component of Brazilian private law until a new civil code was adopted in 1916.
    • Modern codification began in Brazil in the 19th century:
      • 1830 — penal code adopted.
      • 1833 — criminal procedure code adopted.
      • 1850 — commercial code adopted.
      • 1916 — new civil code adopted.
    • The Brazilian legal system is characterised by:
      • legalism (regulation of social relations by legislation), and
      • formalism (insistence on legal formalities for many routine activities).
    • These factors have resulted in an obsession with legal codes; Brazil has adopted several other specific codes, including:
      • a water code,
      • an air code,
      • a mining code,
      • a health code,
      • an industrial property code,
      • a telecommunications code,
      • a traffic code,
      • a tax code, and
      • an electoral code.
    • The Brazilian Civil Code has a similar structure to the German BGB, being divided into general principles; the law of persons, things and rights; and the law of family, property, obligations and succession.
    • It has remained in force with amendment since 1916.
    • It is primarily influenced by the French Code Civil.
    • A new penal code reflects the influence of the contemporary German criminal code.

The development of the role of jurists in modern systems

  • As European legal systems develop, the role of jurists diverged.
  • European civil codes emphasise form, structure and enumeration of abstract and concrete principles of law within a unified whole.
  • The reasoning process is deductive: conclusions are reached about specific situations from general principles.
  • Jurists analyse basic codes and legislation for the formulation of general theories, extracting, enumerating and expounding on the principles of law derived from them.
    • They use deductive reasoning to suggest appropriate judgments or results in specific cases.
    • Historically the works took the form of treatises and commentaries that became the ‘doctrine’ used by judges in deliberating about specific cases, lawyers when advising clients, and legislators when preparing statutes and regulations.
    • Doctrine is an inherent part of the system and is indispensable to understanding.
    • Brazilian legal scholar Pontes de Miranda’s 62-volume Treatise on Private Law remains the basic reference work for Brazilian lawyers, judges and legislators.
  • In Germany the status of jurists and juristic doctrine was enhanced; in France it was diminished.
    • Germany elevated the role of the jurist because in the 16–17th century German courts were staffed by lay judges untrained and unsophisticated in the law.
      • At first German judges sought advice, but eventually asked for a draft of a decree or judgment, and then began sending entire files to law professors for collective and binding decisions.
      • The result was that the academic jurists of Germany eventually assumed the role of unofficial and unappointed judges whose views and opinions were incorporated into the private law of the state.
      • Legal precedent had little purpose and no particular force as jurists would follow their own developed doctrine.
    • In France the monarchy encouraged a legally trained judiciary.
      • Judges were not compelled to seek legal advice like their German counterparts.
      • French legal scholars and law professors were never able to achieve standing and power comparable to their German colleagues.
      • Most leading jurists in France were practicing lawyers and judges.
      • The leading jurists before the Napoleonic period in France were Charles Dumoulin (1500–1566), an advocate and consultant, and Robert Pothier (1699–1772), a judge.
      • The current French code is the product of practitioners, not scholars.
    • The difference can be illustrated by reference to appellate cases; French cases tended to be shorter with limited source material, and German cases were long with substantially greater analysis and source material.

The civil law system as it exists and functions in the modern era

The public law-private law dichotomy

  • Modern civil law legal systems tend to divide law into ‘public’ and ‘private’ law.
  • While universally recognised, there is no agreement on the theoretical basis for this division, nor is there uniformity of scope between jurisdictions.
  • Private law is the area of law where the sole function of government was recognition and enforcement of private rights.
    • Private law today includes at least the civil and commercial codes.
    • The proper classification of other areas is often disputed (eg, civil procedure may be treated as public or private depending on jurisdiction).
    • Labor law, social security and various other areas of government regulation are often considered to be a mix of public and private law.
  • Public law focuses on effectuation of public interest by state action.
    • This encompasses at least what is recognised in common law systems as constitutional law, administrative law and criminal law.
    • Despite roots in Roman law, public law remained largely undeveloped until after the Treaty of Westphalia (1648) when centralised states began to grow in Europe.
    • With the development of administrative law it became evident to civil law lawyers that the private law rules did not lend themselves well to resolving disputes involving the state.
    • Key distinguishing features of public law:
    • It is generally not part of comprehensive civil codes.
    • It usually consists of various statutes supplemented by judge-made norms.
    • It regulates the organisation and function of public authorities and the relationship between public agencies and individual citizens.
    • It tends to be more fluid than civil codes because it may change rapidly in response to political forces.
  • The public-private distinction dictates many basic features of legal practice in civil law jurisdictions:
    • The structure and jurisdiction of courts roughly correspond with public and private law matters.
    • Private law issues tend to be dealt with in ‘ordinary’ courts and public law matters dealt with in ‘administrative’ courts.
    • Legal education and practice is typically divided along public-private lines.
      • A subject such as property law would be divided into private and public aspects taught separately.
  • The strict division has had to be rethought as a result of:
    • the expanding influence of common law,
    • the increasing role of government in legal areas traditionally treated as private,
    • a general trend toward written constitutions and judicial review,
    • the increased influence of organisations (eg, trade unions), and
    • the growth of legal fields that are not easy to categorise as public or private.

Court structure

  • Contrasting with the unified court system typical of common law jurisdictions, several separate court systems often coexist in civil law jurisdictions.
  • A case falling within the jurisdiction of one court is generally immune from jurisdiction in all others.
  • Typical common law judicial systems may be drawn as a pyramid with the highest court at the top; civil law judicial systems would be represented as a set of two or more distinct structures with no bridge between them.
  • Generally a system of ‘ordinary’ courts staffed by ‘ordinary’ judges adjudicates the vast majority of civil and criminal cases.
    • Ordinary courts are the successors of the various civil courts that existed during the jus commune period before the growth of the modern administrative state.
    • Their jurisdiction has expanded to include matters formerly addressed by ecclesiastical courts as well as commercial disputes.
    • Ordinary courts apply the law found in civil, commercial and penal codes (and supplementary legislation).
  • The French system:
    • The apex of ordinary court structure is the Cour de Cassation (Supreme Court of Cassation).
      • This court reviews only questions of statutory interpretation on a discretionary basis.
      • It is composed of about 100 judges in six rotating specialised panels (five civil, one criminal), and sometimes combined panels or plenary session.
    • The first level of the system consists of general civil and criminal trial courts, as well as several specialised courts.
      • Cases under the commercial code are heard in a commercial court in which the panels of part-time judges are businesspersons elected by their colleagues.
      • Employment disputes are heard by a labour court consisting of two elected representatives from labour and management.
        • The labour court first attempts settlement by conciliation.
        • If the case proceeds to adjudication, a professional judge sits with the lay panel.
    • Appeals from the trial-level courts proceed to a court of appeal within the territorial jurisdiction of the lower court.
  • The German model:
    • There are several independent court systems, each with its own supreme court.
    • There is a hierarchy of ordinary (civil and criminal) courts.
    • There is also separate systems of labour courts, tax courts and social security courts.
    • Lower courts generally sit in panels of three professional judges; commercial matters are heard by a panel of two lay judges and a professional judge.
    • Lay involvement in labour matters extends to the appellate level where the judge acts in consultation with labour and management representatives.
    • Final review from all of the German court systems is available in the Federal Constitutional Court, which exercises power of judicial review.
  • Latin American court structures vary greatly; some are based on separate subject matter, and others have been influenced by the US federal-state court system (eg, Mexico, Brazil).
  • Typical civil law court systems also include a set of administrative courts with independent jurisdiction.
    • Administrative courts grew out of the strong tradition of separation of powers (a result of the French Revolution) that established the legislature as the supreme source of law.
    • Within this tradition, the judiciary was not considered competent to review the legality of administrative action.
    • In France, the need for a review procedure was met through the Council of State.
      • The Council of State was a body that initially advised the monarchy.
      • Eventually it became the central point for review of government conduct.
    • The Council of State today is the principal source of French administrative law.
      • Its members are public administrators with different training to that of the ordinary judiciary.
    • Other countries followed the French model (eg, Belgium and Italy), allocating similar administrative jurisdiction to their own councils of state.
    • Germany and countries following the German model use special administrative courts.
  • Theoretically ordinary and administrative jurisdictions are separate and exclusive, but disputes can arise.
    • In France a special Tribunal of Conflicts decides the proper venue for a disputed case.
    • In Germany the court in which a matter is filed decides whether it has jurisdiction and may transfer cases if it declines jurisdiction.
      • A decision refusing jurisdiction is binding on the transferee court.
    • In other countries (eg, Italy) the Court of Cassation is the final authority on conflicts of jurisdiction.
  • The recent adoption of written constitutions (eg, Germany and Italy post-WWII) posed a problem for judicial administration:
    • Some method of reviewing legislation to determine constitutionality was needed.
    • This power could not be exercised by the judiciary without violating the doctrine of separation powers and limited the supremacy of the legislature.
    • The solution in Germany and Italy was to create separate constitutional courts.
    • It has been argued that these are not really courts, since civil law courts strictly speaking only interpret and apply the law.
      • This view has yielded as observers regard entities with powers of judicial review (eg, the French Council of State) as courts and their officials as judges.
    • The limits placed on the power of the judiciary through the separation of powers continues to apply to the work of the ordinary judiciary.
    • Separate administrative and constitutional courts are not thought to violate the separation of powers.
Civil procedure
  • Modern codes of civil procedure stress public, party-controlled proceedings.
  • Party control is actually tempered by the extensive powers of civil law judges to supervise and shape the fact-finding process, and by the role of the public prosecutor in private actions.
  • There is no formal civil law counterpart to the process of discovery in common law litigation.
  • In most cases there is no single event that could be recognised by a common law lawyer as a trial.
  • Civil action in civil law jurisdictions is a continuing series of meetings, hearings and written communications through which:
    • evidence is introduced and evaluated,
    • testimony is taken, and
    • motions are made and decided.
  • Initial pleadings are quite general and issues defined at the direction of the judge as the proceedings progress.
  • Proceedings tend to be conducted primarily in writing; the concentrated trial familiar to common law jurisdictions is not emphasised.
    • A lawyer who wishes to question a witness must submit to the judge and opposing counsel ‘articles of proof’ that describe the scope of potential questions.
    • The witness is questioned at a later hearing during which the judge will typically ask the questions.
    • Cross-examination is uncommon; opposing counsel’s role is to ensure that the record summary of the testimony is complete and correct.
  • The judge supervises collection of evidence and preparation of a summary of the record on which a decision will be based.
  • Rather than a discovery process, the parties submit proposed evidence to the judge in writing or at oral hearings; the judge delivers rulings as to relevance and admissibility of evidence.
    • Admissible evidence is presented only once — in the final hearing.
  • Many differences can be attributed to the absence of the civil jury; even where lay judges are involved they are not selected for impartiality and usually serve for continuing term.
    • There is no need for a single-event trial because there is no jury to hear the evidence, find the facts, and apply the law.
    • The absence of a jury also helps explain the relative lack of restrictions on the admissibility of evidence in civil law jurisdictions; hearsay and opinion evidence are more freely admitted; issues of evidentiary weight are left to the judge.
  • There are however similarities between common law and civil law jurisdictions:
    • American pretrial discovery reduces the amount of ‘surprise evidence.’
    • Efficiency concerns have led to civil law experimentation with more concentrated trials to resolve simple matters.
  • Nevertheless, common law leaves a great deal of work to the parties, but lawyers in the civil law system mainly argue points of law and judges more actively control the investigation and fact-finding process.
Criminal procedure
  • Criminal procedure in civil law jurisdictions typically has three phases:
    • investigative phase,
    • examining phase, and
    • the trial phase.
  • In the investigative phase a government official (generally the public prosecutor) collects evidence and decides whether it is sufficient to warrant formal charges.
  • The examining phase is primarily conducted in writing.
    • An examining judge completes and reviews the written record and decides whether the matter should proceed to trial.
    • The defendant may be questioned, but has the right to remain silent and to representation.
    • The examining judge plays an active role in collection of evidence and interrogation of witnesses.
    • There is no counterpart to common law cross-examination.
  • The trial is very different from a common law criminal trial because of the thoroughness of the examining phase.
    • The record has already been made and is available to defence and prosecution in advance of the trial.
    • The main function is to present the case to the trial judge, and if applicable the jury, and to permit the lawyers oral argument in public.
    • Some civil law jurisdictions have introduced jury trials for serious criminal matters; others may use a combination of lay and professional judges.
Appellate procedure
  • Unlike common law appeals, intermediate appellate review in the civil law tradition often involves a de novo review of both facts and law.
  • Intermediate appellate courts may obtain additional testimony, supervise collection of new evidence and seek expert opinions.
  • Some civi law systems do not involve de novo factual review, however.
    • In Germany most criminal trial decisions are subject to appeal on points of law only, and are heard by appellate courts of last resort.
  • Appellate courts of last resort generally consider only questions of law.
    • Some follow the French ‘cassation’ system in which the court decides only the question of law referred to it, not the case itself.
    • The Court of Cassation may affirm the decision or remand it for reconsideration to a different lower court.
      • The remand court is theoretically free to decide the case in the same way.
        • A second appeal may be taken to the Court of Cassation if that occurs.
        • The Court of Cassation sits in a plenary session and may issue a dispositive ruling in some cases; in others it must remand the case to a third lower court.
    • In the German system the high court may reverse, remand or modify lower court decisions and enter the judgment itself.
  • The division of legal labour in civil law jurisdictions is influenced by the traditional dogma of legal science.
  • It deeply affects the way legislators, judges and lawyers work.
  • Academic lawyers enjoy an honoured place in the civil law tradition.
  • Civil law codes were historically greatly influenced by legal scholars.
  • Judges and legislatures look to legal scholars for definitive views on the law.
  • Even though legal scholarship is not a formal source of law, the ‘doctrine’ developed by scholars is highly valued.
The legislature
  • Legislatures supplement and update the codes where legal scholars have suggested they are defective or incomplete.
  • Legislatures seek completeness and clarity, attempting to produce laws that are consistent with the tenets of legal science and compatible with the established legal order.
Judges
  • Judges typically enter judicial service at the lower levels of the judiciary.
  • Judges enter the judiciary directly from law school after passing examinations.
  • Judicial service is similar to the civil/public service.
  • The role of the judge is simple and narrow, restricted by notions of legislative supremacy.
  • Civil law judges operate the system designed by legal scientists and built by legislators.
  • Judicial discretion and interpretation is largely unnecessary given it is held that there is only one correct solution to a legal problem.
  • The basic civil law training is undergraduate education in law.
  • Courses tend to focus on general legal principles rather than professional skills and problem solving.
  • Practical skills are acquired, if necessary, through apprenticeships.
  • Students study legal treatises that expound established principles of the law.
  • Active class participation is unusual; professors typically lecture to large classes.
  • Lack of mobility within the legal professions means that students choose a branch to pursue upon graduation; choices include a career as a judge, public prosecutor, government lawyer, advocate (private practice) or notary.
  • In most civil law jurisdictions private practice is divided between advocates and notaries:
    • Advocates meet with and advise clients, representing them in court.
      • Advocates generally apprentice with experienced lawyers for several years before practicing in small firms or sole practices.
      • Private lawyers are generally governed by mandatory bar associations that set practice rules and fee schedules.
    • To become a notary a state examination us usually required.
      • Notaries have three basic functions:
        • drafting legal documents (eg, wills, corporate charters and contracts),
        • authenticating legal documents in proceedings, and
        • keeping records on, or providing copies of, authenticated documents.
  • Government lawyers serve as either public prosecutors or lawyers for government agencies.
    • The public prosecutor has two roles:
      • preparing the government’s case in criminal matters, and
      • representing the public interest in some civil cases.
    • On the theory that parties to a civil case will not provide a full picture of the facts and law, the prosecutor may intervene to assert the public interest.
    • In some countries the public prosecutor may be trained as a judge and move from one position to the other during their career.
Transition in the civil law world
  • Theory and practice are often in tension.
  • Legislative practice often fails to meet its objective to provide a clear, systematic legislative prescription for every legal problem that may arise.
  • Judges must frequently interpret vague provisions; there is a growing body of judge-made law that provides a gloss on the codes.
  • Countries with older code systems (eg, France) display obvious effects of judicial interpretation; modern French tort law is primarily the product of judicial decisions.
  • Lawyers tend to do more than simply peruse the codes for relevant provisions; law repots are published and lawyers will cite them in subsequent cases.
  • Judges rely on prior decisions to support their own case analysis.
  • Like common law systems, judges look at higher court decisions as final and authoritative rulings on statutory interpretation; a de facto system of precedent has taken root.
  • The civil law world continues to undergo transition.

The common law and a comparison of the civil law and common law systems

Origins of the common law system

  • While Italian glossators were interpreting an applying the Corpus Juris Civilis and before Accursius’ Great Gloss (1220–1260) a new legal system was developing in Britain.
  • This system was inspired by the jury system in many ways.
  • Royal power in medieval France was the origin of the modern jury stem.
    • Frankish kings would from time to time order a group of the best and most trustworthy men in the district to decide what lands the king owned in the district and what rights he had or ought to have there.
      • This was often used in place of trials by combat or ordeal.
  • After the Norman Conquest of England in 1066 sworn inquest of neighbours became a feature of government.
    • The Domesday Book (1081–1086) included a compilation of jury verdicts about boundaries.
    • Early juries were a group of individuals summoned by a public official and bound by oath to tell the truth in response to a specific question.
    • The questions put to juries were not always related to specific disputes.
  • Use of juries did not become frequent practice until Henry II decided in 1164 that juries should be a normal part of the machinery of justice.
    • In 1166 Henry II mandated a procedure requiring jury trials for persons dispossessed of land.
    • The right to a jury trial in criminal cases became so pervasive that it was enshrined in Magna Carta in 1215.
  • Roman law had been carried to post-Conquest Britain by scholars trained in Italian universities.
    • Vacarius, a master at Bologna, settled in England in the early-11th century and published a book on Justinian’s Code and Digest.
  • Canon law was the only other former of law taught at Oxford (and later Cambridge).
  • Neither Roman law nor canon law were satisfactory for the needs of the new legal system.
  • Causes for turning away from Roman law and canon law:
    • the arrival and adoption of the jury trial,
    • the creation of royal courts to dispense justice throughout the realm,
    • trained judges to preside and administer the royal courts, and
    • the rising commercial affairs in London.
  • Lawyers and judges in London created the inn of court to train lawyers in adversarial practice and advocacy.
  • Other features of the English system that emerged over the centuries:
    • expansion of jury trials to a variety of areas of law,
    • reliance on precedent, and
    • inductive reasoning based on precedent to create the substance of law.
  • Legal norms applicable to all parts of the country helped lay the foundations for a new comprehensive jurisprudence.
  • From these origins the common law system was born.

Jurists in the common law systems

  • Jurists of the type prominent in civil law systems do not exists in the common law tradition.
  • Common law elevates judicial precedent:
    • There is no need for legal scholars to devise and develop a comprehensive system of law.
    • Methods of legal science are unnecessary to arrive at a decision in a case.
    • Precedent obviated the creation of a body of jurists of the civil law kind.
  • Generalisations that can be made about common law jurists:
    • The majority of jurists have been judges (eg, Kent, Coke, Blackstone, Mansfield).
    • Legal writings of jurists are heavily endowed with reference to cases and principles or trends in law are extracted from case law (inductive reasoning rather than deductive reasoning).
    • Treatises are commentaries play a small role in judicial decision-making and legislative processes; they exert little influence on judges and legislators.
  • There are some exceptions:
    • Some ‘great works’ of legal literature have been influential on development of the law in the United States (eg, works by Samuel Williston, Arthur Corbin and John Wigmore).
    • The American Law Institute’s ‘Restatement of the Law’ series has been influential in the development of some areas of substantive law.
    • The United States’ Uniform Code series could be attributed to the collective efforts of jurists.
  • Nevertheless, jurists remain relatively unimportant in common law jurisdictions.
  • The tradition remains almost entirely case-oriented; lawyers and judges rarely consult or cite juristic texts.

Differences in the two systems

  • Influence of the Corpus Juris Civilis:
    • Significant and permanent influence in civil law systems.
    • Limited influence in common law systems.
    • Formed the basis for many of the substantive rules in major European legal codes.
    • Had some influence in common law rules and principles.
    • Roman law was taught at Oxford before the common law system emerged.
    • Nevertheless, the influence was certainly not as pervasive in common law systems.
  • Codification:
    • Derived from the Corpus Juris Civilis.
    • Civil law jurisdictions feature comprehensive legal codes.
      • They cover a number of legal topics.
      • They sometimes treat private law, criminal law and commercial law separately.
      • They are usually developed from a single drafting event.
    • Common law jurisdictions tend to have ad hoc legislative processes.
      • Codes of common law jurisdictions tend to reflect the rules enunciated in judicial decisions.
  • The existence and growth of equity law:
    • Equity originated in Rome to cover situations involving non-Roman citizens.
    • Equity developed in England to:
      • counterbalance the potentially harsh effects of judicial precedent or legislation,
      • establish different procedures that might be required for a particular issue in the interests of fairness when common law remedies were unavailable or inappropriate, and
      • deal with new problems that required different remedies to common law.
    • There is no comparable ‘equity’ in civil law countries:
      • The system orientation of the codes would not permit the growth of a new branch of law outside the framework of the system.
      • Equity would create uncertainty required in the interests of legal science.
      • Equitable principles and remedies are built into the codes as part of the system.
  • Impact of the dichotomy between codification and judicial decision-making:
    • The role of judicial decisions in making the law:
      • In civil law systems judicial precedent has historically been negligible (per Justinian’s maxim against precedent).
      • In common law jurisdictions, precedent enjoys a position of supreme prominence.
      • Starting points for resolving a case:
        • Civil law jurisdictions: code provisions.
        • Common law jurisdictions: casebooks.
    • Methods of legal reasoning:
      • The civil law tradition uses deductive reasoning processes.
        • The process moves from general principles or rules contained found in the legal codes to a specific solution.
      • Common law jurisdictions use inductive reasoning:
        • Judges derive general principles and rules of law from precedent and extract applicable rules that are applied to a particular case.
  • Court structures:
    • Common law jurisdictions favour integrated court systems with courts of general jurisdiction.
      • These courts can deal with a range of civil, constitutional, administrative, commercial and criminal matters.
    • Civil law jurisdictions favour specialist courts.
      • These courts tend to be divided into constitutional, criminal, administrative, commercial and civil/private law courts.
  • Trial processes:
    • Civil law systems do not have a single-event trial; trials involve and extended process with several hearings and consultations.
    • Procedural differences in the role of the judge:
      • In civil law system trials using the inquisitorial process the role of the judge is elevated.
        • The judge is the principal interrogator of witnesses.
        • Lawyers play a diminished role in the trial.
      • In common law jurisdictions the judge acts as a referee for the lawyers.
        • The lawyers are the primary players in the process; they introduce evidence and interrogate witnesses.
  • Judicial attitudes:
    • Civil law judges view themselves as being appliers of the law; not creators or developers of law.
    • Common law judges can search creatively for an answer to a question or issue among many potentially applicable precedents.
  • Selection and training of judges:
    • The civil law judiciary is usually part of the civil service of the country.
      • Law graduates select the judiciary as a career and follows a prescribed carer path:
        • Undertake special training at a judicial training institute.
        • Act as a judge in a geographical area and particular court system as assigned by the body responsible.
    • Common law judges are generally selected as part of the political process for a specific judicial post.
      • Common law judges hold positions for life or a specified term.
      • There is usually no system of advancement to higher courts as a reward for service.
  • Legal training:
    • Civil law jurisdictions tend to permit study of law immediately after graduation from high school.
      • There is no intermediate education in other fields of learning.
      • There is limited exposure to subjects taught in other university departments.
      • It is uncommon for law students to have a previous degree.
    • Common law jurisdictions generally permit law only as a postgraduate degree.
      • Law students are exposed to other disciplines prior to entering law school.
      • This has perhaps created a greater social consciousness among judges and lawyers about the purposes and functions of law and its application.

Notes drawn from: Maria Luisa Murillo, ‘The Evolution of Codification in the Civil Law Legal Systems: Towards Decodification and Recodification’ (2001) 11(1) Journal of Transnational Law & Policy 1.

  • There has been a fundamental transformation in the civil law tradition due to the influence of 20th century decodification and recodification processes.
  • Decodification processes relate to special legislation away from civil codes.
  • Recodification processes refer to the partial and global reform to avoid obsolescence of civil codes.
  • Latin American codification in the 19th century had a number of important characteristics:
    • It began after the independence process from Spain and Portugal in order to:
      • avoid uncertainty of applicable law,
      • stabilise the legal system, and
      • consolidate new national regimes.
    • Drafting civil codes and constitutions was the primary interest of jurists and legislators in the new republics.
    • The French Civil Code was used as a model by several 19th century civil codes.
      • Subsequently new legal approaches and doctrines were used (eg, German and Italian civil legislation).
  • During the 20th century decodification and recodification substantially transformed the content and structure of Latin American civil codes.
  • Despite the significant impact of decodification, the recodification process seemed to have substantial momentum in Europe and Latin America.
    • This indicated it would influence the development of the civil law tradition in the forseeable future.

Codification

The Development of the Codification Process

  • Codification in the 19th century was a unique socio-historical phenomenon.
  • Codes drafted in this time were radically different from compilations of Roman law, canon law or other codes.
  • Codification had its roots in the European ‘intellectual revolution’ of the 18th century:
    • the Enlightenment,
    • rationalism,
    • secular natural law,
    • bourgeois liberalism, and
    • nationalism.
  • These ideas produced a new way of thinking about society, law, economy and the state, impacting decisively the civil and common law traditions.
  • The deep influence upon western nations produced ‘dramatic events’ including:
    • the American Revolution,
    • the French Revolution,
    • the Italian Risorgimento (unification and independence movement),
    • the Latin American wars of independence, and
    • the unification of Germany.
  • The goal of codification was not compilation or consolidation of the existing law; it was planning a better society through systematic and creative law.
  • An aim of the French Revolution was to unify private law, leading to the promulgation of five codes (‘Les Cinq Codes’):
    • Le Code Civil des Français (1804),
    • Le Code de Procédure Civile (1806),
    • Le Code de Commerce (1807),
    • Le Code Pénal (1810), and
    • Le Code d’Instruction Criminelle (1810).
  • The Code Civil is the most well known for:
    • its fundamental role in consolidating the modern codification, and
    • its influence globally.
  • French codification had as a principal objective the repeal of the old legal system.
    • The institutions of the Ancien Régime (‘old regime’) were eliminated, including:
      • absolute monarchy,
      • interlocking powers of the King,
      • nobility,
      • feudalism,
      • territorial division, and
      • the existing court system.
    • Using legal codes a new legal system was institutionalised based on the principles of the French Revolution and the Enlightened Society.
    • The primacy of the statute law incorporated:
      • equality under the law,
      • individual freedom,
      • private property,
      • liberty of contract, and
      • separation of powers.
  • Drafting complete, coherent and clear legal rules was necessary to ensure accessibility; the Code Civil represented the model of coherence and simplicity.
  • In 1814 eminent German law professor Thibaut proposed codification to unify the entire legal system, following the simplicity and coherence of the French civil code.
    • Codification was postponed by several decades because Thibaut was opposed by those who believed the law was an expression of a common consciousness.
    • German political unification in 1871 led to the enactment of several codes, including the 1896 Civil Code.
    • The French code was based on the principles of rationalism and naturalism; the German code was scientific, technical and heavily influenced by the Pandectist system.
  • In the 20th century social, economic and political developments required a shift in emphasis from private law to public and regulator law.
    • The dynamics of legal changed have worked primarily through a movement away from civil codes and through:
      • code revision,
      • constitutional law,
      • harmonisation of law within the European Community, and
      • acceptance of a variety of supranational norms through international instruments.
    • Comparative law scholars have asserted a transformation has taken place in the civil law tradition, symbolised by tendencies towards:
      • decodification,
      • constitutionalisation,
      • supranational legislation, and
      • recodification.
  • From a comparative perspective, there is no highly-developed contemporary legal system that is either wholly codified or wholly uncodified.
    • The evolution of the law of torts in France is an example of judge-made law in the civil law tradition.
    • Formation of contracts in France is composed entirely of case law — the Civil Code has no provisions to solve offer and acceptance problems.
    • The United States, a common law jurisdiction, has substantially codified its law of contracts under the Uniform Commercial Code (‘UCC’).
    • American contract law has been greatly influenced by the provisions of the UCC.
  • However, comparative law scholars acknowledge the substantial differences between the roles and functions of codes under different legal systems.

Codification in Latin America in the 19th century

  • Codification occurred in 19th century Latin America to:
    • avoid uncertainty of the applicable law,
    • stabilise the legal system, and
    • consolidate new national regimes.
  • Codification was the primary interest of jurists and legislators in the new Latin American independent republics.
  • Latin American civil codes used the French Civil Code of 1804 as a model.
    • The Roman law roots of the French, Spanish and Portuguese codes allowed this without departing too far from the colonial legal structure.
  • Codification also consolidated the Roman law introduced by Spanish ad Portuguese colonial legislation.
  • Generally speaking the language and concepts of the French codes were clear and familiar for Latin American countries.
  • The most relevant and influential Latin American civil codes were drafted by:
    • Andres Bello — Chilean Civil Code.
    • Velez Sarsfield — Argentinian Civil Code.
    • Teixeira de Freitas — Brazilian Civil Code.
  • The Chilean Civil Code was adopted almost in its entirety by Ecuador (1860) and Colombia (1873).
    • Argentina, Paraguay, Uruguay, Honduras, Venezuela, El Salvador and Nicaragua adopted specific provisions in their own codes.
  • Most Latin American civil codes of the 19th century were also influenced by:
    • Roman law — the fundamental source of the civil law tradition.
    • Spanish and Portuguese laws in force before the civil codes (eg, Novísima Recopilación; Las Siete Partidas; Fuero Real).
    • Other civil codes in force at the time of drafting, including the codes of:
      • Germany,
      • Spain,
      • Switzerland,
      • Sardinia,
      • Austria
      • Prussia, and
      • the Two Sicilies.
  • The German Civil Code had a remarkable influence on the Brazilian Civil Code of 1917.
  • Cuba adopted almost entirely the Spanish Civil Code of 1889.
  • The increasing obsolescence of the early-19th century codes motivated a tendency toward legislative reforms in Latin America.
    • This follows the general tendency in civil law systems toward partial or global reforms of codes to adapt to scio-economic and legislative changes.

The theory of decodification

  • Since 1978 the decodification process has been analysed from different perspectives.
  • Codification is the proliferation of legislation separate from codes.
  • During the 20th century special legislation removed large areas of law from the civil codes.
    • This created new areas of law that differed ideologically and methodologically from the civil codes.
    • It was in response to social and economic changes.
  • Areas of diverse statutory law have developed on a variety civil code topics such as:
    • employment law,
    • urban and agrarian leases,
    • intellectual property,
    • insurance,
    • contracts of carriage,
    • competition and monopolies, and
    • consumer protection law.
  • These laws go further than supplementing or completing the code; they break up the original unity of the civil system and create a plurality of microsystems.
  • The growth of judge-made law has resulted in a type of decodification:
    • Civil law courts have created doctrines by interpreting or by developing new judge-made rules in order to adapt the codes to:
      • new conditions,
      • fill gaps,
      • clarify ambiguities, and
      • deal with incompleteness.
    • Prominent examples of judge-made law in the civil law tradition include:
      • the law of torts under the French and Spanish courts,
      • the doctrines of abuse of law, good faith, clause rebus sic sanctibus, venire contra factum propium and the general doctrine of pre-contract created by Spanish courts since the early 20th century, and
      • the application of rebus sic stantibus doctrine under the general clause section 242 of the BGB developed in German courts.
  • The growth of the public administration that interprets laws, issues, rules and makes decisions that affect citizens more directly than legislation or litigation is another relevant factor.
  • Constitutionalism is an additional form of decodification:
    • Civil codes no longer serve a constitutional function as they had previously.
    • Post-WWII, new constitutions were enacted that allowed challenges to the constitutionality of legislation.
      • Before the 1981 Family Civil Law Reform in Spain, civil codes were made void through a judicial process that tested constitutionality.
      • New European constitutions provided for the establishment of special tribunals with power of judicial review:
        • Constitutional Courts of Austria, Germany and Italy.
        • Constitutional Tribunal of Spain.
        • Constitutional Council of France.
  • National laws have been set aside with crucial consequences for civil and common law legal traditions through mechanisms including:
    • The development of supranational legislation (eg, European Union Directives).
    • Regional and sub-regional integration agreements.
    • International commercial legislation (eg, the Convention on Contracts for the International Sale of Goods).

The recodification process

Preliminary considerations

  • The obsolescence of early-19th codification triggered a tendency toward partial or global reform of codes in the 20th century.
  • The 19th century civil law systems were characterised by:
    • strong individualism,
    • legislative supremacy,
    • rigorous separation of legislative, executive and judicial power,
    • limited judicial role,
    • denial of stare decisis (legal precedent),
    • primacy of the civil code,
    • development of conceptual structure,
    • preoccupation with certainty,
    • systematisation, and
    • completeness of codes.
  • This model was subjected to transformation caused by several forces, including:
    • socio-economic changes,
    • social and economic diversity in society,
    • globalisation,
    • international trade,
    • industrial and post-industrial revolution,
    • technological development,
    • legal changes,
    • decodification,
    • recodfication,
    • supranational legislation,
    • regional and sub-regional integration,
    • unification of commercial and civil law,
    • ‘socialisation’ of the law, and
    • impact of constitutionalism.
  • Civil law countries concerned about obsolescence adapted their codes through different legal techniques, including:
    • special legislation, and
    • judicial lawmaking.
  • The proliferation of special legislation moving away from the codes caused confusion and uncertainty as to the applicable law.
  • This confusion reinforced revision of the codes, incorporating special legislation and the substitution of the entire code for a new one; ‘recodification’.
  • Depending on the circumstances, the special legislation could be incorporated or the entire system could be substituted.
    • France, Germany, Belgium, Italy, Switzerland and Spain revised and reformed partially their civil codes covering major areas of law (eg, family law, property law and individual rights).
    • Other civil law jurisdictions pursued global reforms by drafting second and third generation codes that repealed the old ones.
      • These differed substantially from the earlier ‘classical’ first generation of the 19th century.
  • The 1942 Italian Civil Code has greatly influence the second generation of codes, such as the:
    • 1966–67 Portuguese Civil Code,
    • 1992 Netherlands Civil Code,
    • 1984 Peruvian Civil Code,
    • 1982 Venezuelan Civil Code, and
    • 1987 Paraguayan Civil Code.
  • Recodification differs substantially from ‘classical’ codification, being marked more by eclecticism.
    • This takes the form of using comparative law to investigate approaches and solutions to common problems.
      • The drafting of the Netherlands Civil Code in 1990 and Quebec Civil Code in 1994 drew from:
        • continental European models,
        • common law, and
        • international conventions.
      • The exchange of ideas among common law, civil law and Nordic systems is reinforced through the European Union and other supranational organisations.
    • The diversity of society is considered a decisive element to take into account during recodification.
      • Modern lawmakers are more pragmatic than the drafters of Enlightenment codes or the ‘highly abstract’ German Civil Code.
      • Private law reform is often preceded by significant fact and opinion research in comparative law and sociology.
    • Contemporary civil law shows an awareness of the limits of law, avoiding excessive casuistry and introducing general clauses of good faith and equity.
      • The flexible rules increase the participation of the judicial role.

The re-codification process in Latin America

  • Partial or global reform to avoid obsolescence of codification in Latin America has been a success across civil, commercial, administrative and criminal codes.
  • The growth of commissions to reform civil codes has given a strong impulse to recodification in Latin America, including:
    • Argentina,
    • Brazil,
    • Bolivia,
    • Peru, and
    • Puerto Rico.
  • New civil codes have been drafted in:
    • Guatemala (1963),
    • Bolivia (1975),
    • Venezuela (1982),
    • Peru (1984), and
    • Paraguay (1987).
  • Revision and partial reforms have been introduced in the civil codes of Ecuador, Colombia, Argentina and others.
  • The 1871 Argentinian Civil Code (drafted by eminent jurist Dalmacio Velez Sarsfield) was highly influential on 19th century in Latin America.
    • Argentinian commentators pointed out that partial reform was necessary for several reasons, including:
      • obsolescence in major areas,
      • socio-economic changes,
      • growth of special legislation outside the civil code, and
      • decodification.
    • After several unsuccessful reform projects, the Law of Reforms No 17.711 (enacted 1968) introduced structural and ideological changes in the civil code.
      • This covered major areas like family law, contracts, property and individual rights.
    • The Sarsfield Code took a rational, liberal and individualistic approach.
    • The reforms shifted the Argentinian Civil Code toward social values and introduced provisions about the theory of abuse of law, the rebus sic sanctibus clause and the principle of good faith and equity.
    • Judge-made law in Argentina had a decisive influence in developing the law of torts and consumer protection.
    • In 1995 the Argentinian executive decided that the drafting of a new civil code would integrate into the legal system relevant provisions such as:
      • the 1994 constitutional reforms,
      • international treaties that affect commercial and civil areas, and
      • the unification of the private law.
    • The Comisión Honoraria (consisting of distinguished jurists) drafted the project of the new Argentinian Civil Code (that was pending official approval by Congress at time of writing).
  • When considering the Peruvian Codification, commentators noted that the principle goal of the 1852 Civil Code was consolidation of the independence process.
    • The principle legal source was the French Civil Code.
    • In 1922 the Peruvian Congress decided to achieve a global reform of the Civil Code.
    • A new civil code was enacted in 1936 to introduce modern legal institutions under the influence of the German, Argentinian and Brazilian civil codes.
    • Commentators have pointed out that several factors gradually influenced the revision and global reform of the civil code of 1936, such as:
      • accelerated socio-economic changes,
      • progressive obsolescence in different areas,
      • scientific and technological developments
      • decodification, and
      • constitutional transformations introduced by the 1979 Constitution.
    • As a result the current Peruvian Civil Code was enacted in 1984.
      • It was influenced significantly by the Italian Civil Code of 1942 in major areas such as contract law and introducing new institutions.
    • There has been later partial reform that focused on specific areas (eg, unification of civil and commercial law) and adjustment to the 1993 Constitution.
  • Determining whether global or partial reform is needed depends on the particular circumstances and necessities of each society and its legal system.
    • Partial reforms are more likely to be successful where a legal system has an efficient judicial role to prevent conflicts and fill gaps through judge-made law and application of general clauses.
      • Spain, Germany and France have ancient civil codes that have been adapted through partial reforms and flexible judge-made law.
    • In the absence of such a change, a global reform that substitutes the entire legal system would be appropriate.
      • Second and third generation civil codes have been enacted in Europe (eg, Italy in 1942 and the Netherlands in 1992), Latin America (eg, Peru in 1984) and North America (eg, Quebec in 1994).
  • Contemporary commentators have emphasised the importance of adaptation of civil codes to constitutional reforms.
    • Partial and global reforms in the 20th century have been pursued to introduce constitutional transformations in the civil codes to guarantee the rights of human beings in economic, social, cultural and spiritual projections.
      • This tendency reinforced the significant role of the civil code in development of rights from a personal and social dimension.

Conclusions

  • Adapting civil codes has been the principal concern of civil law jurisdictions.
  • The application of different legal techniques to fill gaps has created large bodies of legal provisions to complete and clarify matters governed by the civil code.
  • Decodification emerged when special legislation removed large areas from the coverage of civil codes; this created new areas of law that differed ideologically and methodologically from the original structure of the civil code.
  • New forms of decodification proliferated by means of judge-made law, constitutionalism and supranational legislation.
  • The recodification process brought a new vitality to the civil law tradition through partial and global reforms to civil codes.
  • Global reforms promoted the drafting of new, modernised civil codes.
  • Recodification takes into account new criteria and uses comparative law to investigate approach and solutions to common social problems.
  • It is clear that the recodification process has had substantial momentum.