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Civil law

Civil law (or civilian law) is a legal system originating in Western Europe, intellectualized within the framework of late Roman law, and whose most prevalent feature is that its core principles are codified into a referable system which serves as the primary source of law. This can be contrasted with common law systems (also law systems) whose intellectual framework comes from judge-made decisional law which gives precedential authority to prior court decisions on the principle that it is unfair to treat similar facts differently on different occasions (doctrine of judicial precedent).

Concept

Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules. It holds case law (see Precedent) to be secondary and subordinate to statutory law, and the court system is usually inquisitorial, unbound by precedent, and composed of specially-trained, functionary judicial officers with limited authority to interpret law. Jury trials are not used, although in some cases, benches may be sat by a mixed panel of lay magistrates and career judges.

Purpose and history

The purpose of codification is to provide all citizens with manners and written collection of the laws which apply to them and which judges must follow. It is the most widespread system of law in the world, in force in various forms in about 150 countries, and draws heavily from Roman law, arguably the most intricate known legal system dating from before the modern era. Colonial expansion spread the civil law which has been received in much of Latin America and parts of Asia and Africa.

History

The civil law takes as its major inspiration classical Roman law (c. AD 1–250), and in particular Justinian law (6th century AD), and further expounding and developments in the late Middle Ages under the influence of canon law. The Justinian Code's doctrines provided a sophisticated model for contracts, rules of procedure, family law, wills, and a strong monarchical constitutional system. Roman law was received differently in different countries. In some it went into force wholesale by legislative act, i.e., it became positive law, whereas in others it was diffused into society by increasingly influential legal experts and scholars.

Roman law continued without interruption in the Byzantine Empire until its final fall in the 15th century. However, subject as it was to multiple incursions and occupations by Western European powers in the late medieval period, its laws became widely available in the West. It was first received into the Holy Roman Empire partly because it was considered imperial law, and it spread in Europe mainly because its students were the only trained lawyers. It became the basis of Scots law, though partly rivaled by received feudal Norman law. In England, it was taught academically at Oxford and Cambridge, but underlay only probate and matrimonial law insofar as both were inherited from canon law, and maritime law, adapted from the law merchant through the Bordeaux trade.

Division

The term civil law comes from English legal scholarship and is used in English-speaking countries to lump together all legal systems of the jus commune tradition. However, legal comparativists and economists promoting the legal origins theory prefer to subdivide civil law jurisdictions into four distinct groups:

* Napoleonic: France, Belgium, Luxembourg, Quebec (Canada), Louisiana (United States of America), Italy, Romania, the Netherlands, Spain, and their former colonies;

* Germanistic: Germany, Austria, Switzerland, Latvia, Estonia, Roman-Dutch, Czech Republic, Lithuania, Croatia, Hungary, Slovenia, Slovakia, Bosnia and Herzegovina, Greece, Brazil, Portugal, Turkey, Japan, South Korea, Taiwan (Republic of China) and Thailand;

* Scandinavian: Denmark, Finland, Iceland, Norway, and Sweden.

* Chinese (except Hong Kong) is a mixture of civil law and socialist law. Hong Kong, although part of China, uses common law. The Basic Law of Hong Kong ensures the use and status of common law in Hong Kong.

Portugal, Brazil, The Netherlands and Italy have shifted from Napoleonic to Germanistic influence, as their 19th century civil codes were close to the Napoleonic Code, whereas their 20th-century civil codes are much closer to the German Civil Code. More recently, Brazil's 2002 Civil Code drew heavily from the Italian Civil Code in its unification of private law; legal culture and academic law now more closely follow the Germanistic tradition. The other law in these countries is often said to be of a hybrid nature.

This page was last modified on 06 May 2014 at 12:39.

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