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There are two primary meanings for the term civil law. The first definition refers to that branch of law within the legal systems of common-law states such as the United States, Canada, Australia, and the United Kingdom, which centers on the noncriminal fields of law. Civil-law cases address disputes between individuals, rather than disputes involving the state. Examples of civil law in this context include torts, wills, property disputes, and contract disputes. The second meaning attributed to civil law, and the focus here, is as a legal tradition within the field of comparative law. Civil law in this instance describes the dominant legal family in the world—one historically tied to the Roman and Canon law, built on Enlightenment principles—that relies on written law and codification rather than judicial decision as its primary form of law.

There are more countries with civil-law systems around the world than any other system. France, Germany, Italy, Spain, and most of the countries of Western Europe maintain civil law systems. Brazil, Mexico, Argentina, and most of the countries of South America also maintain civil-law systems. There are also many states that have adopted civil-law systems and mixed them with other legal traditions. These include Turkey, Egypt, Morocco, Tunisia, the states of French West Africa, Russia, Cambodia, and Vietnam. The widespread adoption of civil law as the legal tradition is largely the result of the civil law’s unique characteristics, including its extensive, written form; minimal reliance on judge-made law; and ties to Roman and Canon law, which facilitated its early prevalence. Unlike the common law, which can be difficult to disseminate due to its reliance on judge-made law, empires and colonizers from Europe easily spread the civil-law tradition around the world. The written form of the civil-law tradition makes it much more portable and much more adaptable to different countries and different cultures. Today, it is estimated that approximately 154 states maintain, either in whole or in part, elements of the civil-law tradition (as opposed to 96 states with elements of the common-law tradition and 36 states with elements of the Islamic-law tradition).

Historical Foundations

The civil-law tradition dates to the time of the Roman Empire and the Corpus Juris Civilis, and has three main periods of influence: Roman law, Canon law, and the jus commune. Compiled by the Emperor Justinian in the sixth century CE, the Corpus Juris Civilis was a comprehensive compilation of Roman law into a single, codified written form. This is the foundation from which the core of the civil-law tradition—written law and codification—originated. After the disintegration of the Roman Empire, much of Europe entered into the Dark Ages—a period in which legal systems were largely absent and law was predominantly customary. The rise to power of the Catholic Church, however, kept the Roman writings on law alive and scholars such as Augustine and Aquinas even added to these laws, updating and refining the legal rules, while at the same time incorporating elements of morality and a communal purpose into the largely secular Roman laws. Seeking to impose more significant order to facilitate the rise in commercial transactions as the Middle Ages ended, the University of Bologna, in the eleventh century, began to revive the study of law. A group of scholars, known as the glossators, began to lecture on Justinian’s codes, and more significantly, they began to recodify the law in a manner which made it applicable to Renaissance Europe. The new law was called the jus commune because it was to be a law that was common to all of Europe. This was possible because scholars from all over Europe came to study law at Bologna, and when they left they took the jus commune with them, incorporating it into their own legal systems.

Modern civil-law systems maintain significant ties to this historical development, and many states’ legal systems are even further linked as a result of one of Napoleon’s primary accomplishments, which was to consolidate French laws into a number of comprehensive codes. Known as the Napoleonic codes, the foremost of these was the Napoleonic civil code, which addresses issues of personal status and property. Napoleon also directed the creation of a penal code, a code of civil procedure, a commercial code, and a code of criminal procedure. The goal of these codes, which codified all existing laws and legal customs, was to ensure the clarity of the law for all French citizens.

As the foundation of the civil-law tradition, codes are designed to be all-encompassing, providing not just a list of legal obligations, rights, punishments, and remedies, but also an overall guide for people on how to conduct their daily lives.

Civil Law And The Courtroom

This reliance on codes as the primary source of law precipitates what is perhaps the greatest difference between the states of the common law and the states of the civil law. Unlike common law, under the civil-law tradition, judges play a minimal role in the creation of law. Judicial review and judicial activism are generally minimized as the courts are not seen so much as an arena for creating new laws; they are instead simply a venue for resolving disputes based on preexisting code provisions. Judges within the civil-law tradition are often responsible for applying the law as written, and there is much less room for judicial creativity.

The judiciary role also influences the style of proceedings in the civil-law tradition. In the context of civil law, trials are conducted in an inquisitorial fashion, as opposed to the adversarial fashion of the common law. In an inquisitorial proceeding, the judge and two parties work more closely together to achieve a desirable outcome, with the judge often playing the role of lawyer, judge, and jury. These characteristics have led to the development of a legal tradition based on written law, in which the legislature is responsible for making legal rules, and the judiciary is responsible for enforcing them.

Bibliography:

Berman, Harold J. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, Mass.: Harvard University Press, 1983.
David, René, and John C. Brierley. Major Legal Systems in the World Today, 3rd ed. London: Stevens and Sons, 1985.
Glendon, Mary Ann, Michael Wallace Gordon, and Christopher Osakwe. Comparative Legal Traditions, 2nd ed. St. Paul, Minn.:West Publishing, 1994.
Koch, Charles H., Jr. “The Advantages of the Civil Law Judicial Design as the Model for Emerging Legal Systems.” Indiana Journal of Global Legal Studies 11 (Winter 2004): 139–160.
Merryman, John Henry. The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 2nd ed. Stanford: Stanford University Press, 1985.
University of Ottawa, Faculty of Law, Civil Law Section. “World Legal Systems.” University of Ottawa. http://droitcivil.uottawa.ca/worldlegal-systems/eng-monde.php.