Civil law (legal system)
Civil law is a legal system originating in Italy and France that has been adopted in large parts of the world. Modern civil law stems mainly from the Napoleonic Code of the early 19th century, and it is a continuation of ancient Roman law. Its core principles are codified into a referable system, which serves as the primary source of law.
This article is about the legal system originating in France and Italy. For non-criminal law under the common law legal system originating in England, see Civil law (common law). For other uses, see Civil law (disambiguation).
The civil law system is often contrasted with the common law system, which originated in medieval England. Whereas the civil law takes the form of legal codes, the common law comes from uncodified case law that arises as a result of judicial decisions, recognising prior court decisions as legally binding precedent.[2]
Historically, a civil law is the group of legal ideas and systems ultimately derived from the Corpus Juris Civilis, but heavily overlain by Napoleonic, Germanic, canonical, feudal, and local practices,[3] as well as doctrinal strains such as natural law, codification, and legal positivism. The Napoleonic Code is the most widespread system of law in the world, in force in various forms in about 120 countries.[4]
Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules.[5] It holds case law secondary and subordinate to statutory law. Civil law is often paired with the inquisitorial system, but the terms are not synonymous. There are key differences between a statute and a code.[6] The most pronounced features of civil systems are their legal codes, with concise and broadly applicable texts that typically avoid factually specific scenarios.[7][6] The short articles in a civil law code deal in generalities and stand in contrast with ordinary statutes, which are often very long and very detailed.[6]
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Comparison with other legal systems[edit]
Civil law is primarily contrasted with the English common law that influenced the legal traditions of the English-speaking countries.
The primary contrast between the two systems is the role of written decisions and precedent as a source of law (one of the defining features of common law legal systems).[20] While Common law systems place great weight on precedent,[21] civil law judges tend to give less weight to judicial precedent.[22] For example, the Napoleonic Code expressly forbade French judges to pronounce general principles of law.[23] There is no doctrine of stare decisis in the French civil law tradition. There are regular, good quality law reports in France, but it is not a consistent practice in many of the existing civil law jurisdictions. In French-speaking colonial Africa there were no law reports and what little we know of those historical cases comes from publication in journals.[24] Civil law codes must be changed constantly because the precedent of courts is not binding and because courts lack authority to act if there is no statute.[25]
In some civil law jurisdictions the judiciary does not have the authority to invalidate legislative provisions.[26] For example, after the fall of the Soviet Union the Armenian Parliament, with substantial support from USAID, adopted new legal codes. Some of the codes introduced problems which the judiciary was not empowered to adjudicate under the established principles of the common law of contracts - they could only apply the code as written.[27][28]
Codification, however, is by no means a defining characteristic of a civil law system. For example, the statutes that govern the civil law systems of Sweden and other Nordic countries and the Roman-Dutch countries are not grouped into larger, expansive codes like those in French and German law.[29]
In actual practice, an increasing degree of precedent is creeping into civil law jurisprudence, and is generally seen in many nations' highest courts.[11]
Some authors consider civil law the foundation for socialist law used in communist countries, which in this view would basically be civil law with the addition of Marxist-Leninist ideals. Even if this is so, civil law was generally the legal system in place before the rise of socialist law, and some Eastern European countries reverted to the pre-socialist civil law following the fall of socialism, while others continued using a socialist legal systems.
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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 distinct groups:
However, some of these legal systems are often and more correctly said to be of hybrid nature:
Napoleonic to Germanistic influence: The Italian civil code of 1942 replaced the original one of 1865, introducing German elements as a result of its World War II Axis alliance.[33] This approach has been imitated by other countries, including Portugal (1966), the Netherlands (1992), Brazil (2002) and Argentina (2014). Most of them have innovations introduced by the Italian legislation, including the unification of the civil and commercial codes.[34]
Germanistic to Napoleonic influence: The Swiss civil code is considered mainly influenced by the German civil code and partly influenced by the French civil code. The civil code of the Republic of Turkey is a slightly modified version of the Swiss code, adopted in 1926 during Mustafa Kemal Atatürk's presidency as part of the government's progressive reforms and secularization.
Some systems of civil law do not fit neatly into this typology, however. Polish law developed as a mixture of French and German civil law in the 19th century. After the reunification of Poland in 1918, five legal systems (French Napoleonic Code from the Duchy of Warsaw, German BGB from Western Poland, Austrian ABGB from Southern Poland, Russian law from Eastern Poland, and Hungarian law from Spisz and Orawa) were merged into one. Similarly, Dutch law, while originally codified in the Napoleonic tradition, has been heavily altered under influence from the Dutch native tradition of Roman-Dutch law (still in effect in its former colonies). Scotland's civil law tradition borrowed heavily from Roman-Dutch law. Swiss law is categorized as Germanistic, but it has been heavily influenced by the Napoleonic tradition, with some indigenous elements added in as well.
Quebec law, whose private law is also of French civil origin, has developed along the same lines, adapting in the same way as Louisiana to the public law and judicial system of Canadian common law. By contrast, Quebec private law has innovated mainly from civil sources. To a lesser extent, other states formerly part of the Spanish Empire, such as Texas and California, have also retained aspects of Spanish civil law into their legal system, for example community property. The legal system of Puerto Rico exhibits similarities to that of Louisiana: a civil code whose interpretations rely on both the civil and common law systems. Because Puerto Rico's Civil Code is based on the Spanish Civil Code of 1889, available jurisprudence has tended to rely on common law innovations due to the code's age and in many cases, obsolete nature.
Several Islamic countries have civil law systems that contain elements of Islamic law.[35] As an example, the Egyptian Civil Code of 1810 that developed in the early 19th century—which remains in force in Egypt is the basis for the civil law in many countries of the Arab world where the civil law is used— is based on the Napoleonic Code, but its primary author Abd El-Razzak El-Sanhuri attempted to integrate principles and features of Islamic law in deference to the unique circumstances of Egyptian society.
Japanese Civil Code is considered a mixture drawing roughly 60% from the German civil code, roughly 30% from the French civil code, 8% from Japanese customary law, and 2% from English law.[36] Regarding the latter, the code borrows the doctrine of ultra vires and the precedent of Hadley v Baxendale from English common law system.
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