THE CIVIL LAW FAMILY
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THE TWO TRADITIONS IN A NUTSHELL
(1)
• “the distinction between civil and common law system
[tradition] is major building block for mapping the
world’s legal systems” [Siems 89]
• each of these two families follows a distinctive “judicial
style”, i.e. a distinctive approach to the structure of law
and the methods of its creation and implementation
• these distinctions may be organized into four principal
dimensions
•
•
•
•
history and development
sources of law
legal institutions and methods
role of courts and legal scholarship
2
THE TWO TRADITIONS IN A NUTSHELL
(2)
– THE CIVIL LAW TRADITION means that:
• a particular legal system emerged from the process of “double
reception” of the classic Roman law tradition – the scholarly
reception (beginning in 11 and 12th C) and its legislative
elaboration in 19 and 20th C
• the sources of law are primarily based on legislation; and – the
particular role and authority is reserved for the “codes” – whereas
the judge-made law plays a less exposed role
• the methods of legal thinking are organized into logically organized
and abstract categories, in particular:
– the legal system is based upon the division between private and public
law; and – further – upon more specific divisions (civil law and
commercial law; substantive and procedural law)
– the process of legal thinking is based on the concept of “general
principles” which determine the meaning and application of more
specific rules (legal reasoning is seen as “reasoning from above”)
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THE TWO TRADITIONS IN A NUTSHELL
(3)
• the role of courts is focused on implementation of law and
not on law-making
– their structure follows the distinctions within the legal system:
the principal distinction: ordinary (civil and penal) and
administrative courts
– there is no single strong “supreme court”
» constitutional courts as newly arrived actors
– there is a separation of bar and bench – and – the pattern of
several parallel legal professions
• legal scholarship is concentrated within universities – its role
extends to the creation of doctrinal framework for both
legislation and judicial implementation –
– it is assumed that “law” is a science – and requires organization
and rationalization into scholarly-elaborated categories
– legal experts (law professors) are playing a considerable role in the
process of drafting of laws
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THE TWO TRADITIONS IN A NUTSHELL
(4)
• Geography of the Civil Law tradition
– The civil law family takes its origins from the Roman law tradition – but – in
reality – it emerged in Italy and later in the rest of continental Europe in 11-14
Centuries
– Later – together with the process of expansion and colonization – it was
adopted in many other countries and continents – the idea of codification
(codes) was particularly attractive – as instrument of self-modernization or
imposed colonization
– Today: there are two principal “parent systems”: the French and the German
– These systems “radiated” into many directions:
• Almost all continental countries of Europe (except – to some extent – the Nordic
countries and Russia – later the problem with “the socialist legal family
• South (Latin) America – via reception of the Spanish law
• North America – Mexico, Québec, Louisiana
• French (Italian, Portugal) colonies in Middle East, Far East and Africa
• Some “receptionist” countries – Turkey, Japan
• The EU law – its origins v. its present nature
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THE TWO TRADITIONS IN A NUTSHELL
(5)
– THE COMMON LAW TRADITION was, initially, limited
to the one legal system – the English one – only later it
has expanded along the lines of the British Empire
• Historically: England was not affected by the first phase of
the continental reception of Roman law – and had to create
a distinct system whose goal was to establish common rules
for the whole territory
• Its sources of law were traditionally based of judicial
precedents – although legislation has always play a visible
role (and is a quite predominant source of law today) – it has
never been understood as a primary source of law (a tool of
codification) = rather as specific intervention into areas
which require intervention = nevertheless – a lot of lawmaking remains reserved for the courts and judges
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THE TWO TRADITIONS IN A NUTSHELL
(6)
• Its methods of legal thinking are more pragmatically
oriented –
– understood rather as the process of “reasoning from below”:
from solutions of individual situations to more general rules and
concepts – this reflects the historical predominance of judicial
precedent as the source of law
– There is no sharp distinction between public and private law
– There is more room for flexibility/creativity in the judicial
implementation
• The role of courts:
– extends to law-making – as well as to the elaboration of
conceptual framework for the whole legal system
– courts are institutionally stronger – no separate systems of courts
– a single “supreme court”
• the role of legal scholarship – less exposed, not as creative
as in the Civil Law tradition
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THE TWO TRADITIONS IN A NUTSHELL
(7)
• Geography of the Common Law tradition
– England (and Wales), but not – Scotland
– the Commonwealth
• Australia, Canada, New Zealand
• Several post-colonial systems in Africa (South Africa as a
special case) and some – in Asia (India, Singapore, Hong
Kong)
– the U.S. as the other “parent system”
• Americanization of the reception process – international law,
HR law, globalization
• Americanization of the constitutional law (judicial review)
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THE CIVIL LAW TRADITION
TERMINOLOGY
– The notion of “civil law”
• In the broad sense – it refers to one of the two leading “law families” = it does
not refer to the content, but to the nature of legal systems
• In more narrow sense – it refers to these branches of law which regulate socalled “horizontal” relations between individuals - in this sense, it has historic
roots in jus civile of the ancient Rome – nowadays: it is often synonymous to
the notion of “private law”
• In the narrowest sense – it deals with private status and relations between
individual persons, whereas regulation of business/trade activity belongs to
the “commercial law” as a separate branch of law
– Legal systems belonging to CiL family distinguish:
• Between civil law and criminal law
• Between civil (private) law and public law
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–
–
–
Different historical roots – private law is the only one descending from Roman law
Horizontal or vertical relation – dominium or imperium
Different courts and different remedies
Public law: administrative and constitutional law [the emancipation of const. law]
• Between civil (private) law and commercial law
– Different historical roots and different system of remedies
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THE CIVIL LAW TRADITION
TERMINOLOGY (2)
– Codes and codifications
• The ideology of CiL tradition is built upon the concept of codification –
and the concept of code as its legal incarnation
• Codification: a comprehensive and logically organized collection of
rules, principles and concepts determining a particularly branch of law
– not mere consolidation, but creation of a system
• Code: a statute enhancing all rules, principles and values relevant for a
particular branch of law
– Authoritative, comprehensive and systematic collection of a long-lasting
validity
– Composed of general principles and their development into subsystems and
specific norms
– In principle – self-sufficient to deliver solution to all problems arising within a
particular branch of law
– No supra-legislative authority but respected by the legislature and protected
by courts
• Five major codes: Civil, Civil Procedure, Commercial, Criminal, Criminal
Procedure
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THE CIVIL LAW TRADITION
EARLY HISTORY
THE ROMAN ORIGINS
– Initially: a system based mostly on customs and precedents, focused on
private law, and developed through procedure
– the formation of the Empire resulted in development of “legislation” =
need for systematization
– the first systematizations emerged in Gaius’s Institutions (130-180 AD) –
Gaius along with Papinian, Ulpian, Modestinus and Paulus belong to the
group of jurists whose opinions were to be followed by judicial officers
THE JUSTINIAN’S CODIFICATION
- the Eastern Empire [Byzantium] – Emperor Justinian and Corpus Iuris
Civilis (529-534 AD)
- Corpus Iuris Civilis = The Institutions (treatise); The Digest (Pandects) still regarded as the most illuminating” ; the Codex; the Novels
THE DECLINE AND FALL OF THE WESTERN EMPIRE [453 AD]:
- in what is today Western Europe – there existed a fusion of Germanic
customs and primitive application of Roman concepts
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THE MIDDLE AGES
• It was only in 11-12 C where Roman studies experienced rebirth and
revival
• “Rediscovery” of the Roman law - mostly by scholars
–
–
[University of Bologna] – lectures on Roman law (since 1085) and publication of an
annotated version of CIC
The Glossators (Irenerius - 12th C) and the Post-Glossators (13th C)
• By the 16th C:
–
the Corpus Iuris became the basis for legal science throughout Europe. Judges
could apply Roman law and not local laws…there was a common body of law, and
legal commentaries, a common legal language and a common approach to
teaching and scholarship. This is often called the “common law of Europe” or the
jus commune’ [Cruz59]
• Civil Law and other branches:
–
–
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Commercial Law (ius mercatoria – the Hanseatic system)
Canon Law (the role of the Roman Catholic Church) – family law and penal law
Public Law – no particular roots in the Roman tradition
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THE ENLIGHTENMENT AND BEYOND
THE DEVELOPMENT OF NATIONAL STATES
- Sovereignty and development of public law
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–
–
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Administrative law and modern international law (Grotius)
Secularization of law (the decline of the Canon law)
Unification of national laws
Renewed interest in codification (Prussia 1794)
– New ideas (Locke, French philosophers):
– natural rights, social contract, limited government, separation
of powers, rule of law, right to rebellion/revolution
– Private law
– New approaches to the “received Roman law”
– Bifurcation of the CiL tradition – France and Prussia
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THE 19th CENTURY
• The emergence of constitutional and industrial states
• Distinction between external and internal concept of sovereignty
• Separation of private and public law
• Private law: modernization and codification
– Civil Codes: France 1804, Austria 1811, Germany 1896
– Germany: Historical School (Savigny) and Pandectist School
– Reception around the world
• Public law
– The development of administrative law and adm courts
– The concept of “political constitution” – “loi-ecran”
– Parliamentarisation of governmental system = new meaning of
“democracy”
– Sources of law: statutes and regulations
• New (“mixed”) branches of law
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THE PRESENT
• Continuation and modernization
• Separation of private and public law v. expansion of the “mixed”
(hybrid) branches
• Codification and primary role of the legislature v. expansion of the
judicial interpretation and review
• Consolidation of national legal systems v. expansion supranational
and global regulations
• “New kids on the block”
• Constitutional law as judicially enforceable system; judicial review,
constitutionalization of other branches of law
• Supranational law – particularly in Europe (the EU) – but also
globally [WTO, GATT]
• The redefinition of the role of the judicial branch
• Convergence and globalization of laws
15
THE CIVIL LAW SYSTEM?
Is there still any validity in the classic distinction between CiL
and CoL traditions (families)?
– The distinction seems still to be present:
•
•
•
•
in the substance of national legal regulations
in the understanding of the sources of law
in the structure of courts and legal profession
in the role of the universities and legal education
– It also shows
• in the “ideology” (“mysticism”) of national legal systems
– However:
• although the distinction may still be visible in the area of private law, in the area of public
law (in particular, constitutional law) the principal distinctions (like: parliamentary and
presidential government or concentrated or diffused system of judicial review) do not
follow the traditional pattern
• the distinction does not show in global and supranational branches of law
• the heavy presence of the distinction in legal writings may be the consequence of the
traditional domination of private law scholars in comparative law research
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