Gavin Howe
The legal system of each country is shaped by its unique history and so incorporates individual variations. Europe has a diverse legal history, with the two dominant forms of legal systems of private law being civil and common law. The European Union (EU) is not a country, and each of its members has its own legal system. While there is no single EU law, countries that are part of the EU are signatories to EU law, which they must follow. The Court of Justice of the European Union (CJEU) is the judicial branch of the EU and is seated in Luxembourg City, Luxembourg. The EU's court procedures are closer to the civil law system of most of its members.
| Characteristics | Values |
|---|---|
| Basis | The two dominant forms of legal systems, civil and common law, are based on the Roman Empire and the British Empire. |
| Legal System | Europe has a diverse legal history, with both civil and common law systems present. |
| Civil Law | Interpreted rather than developed or made by judges; legislative enactments are considered legally binding. |
| Common Law | Judicial decisions are binding and there is extensive freedom of contract. |
| Civil Law Countries | Former French, Dutch, German, Spanish, or Portuguese colonies, including Central and South America, Central and Eastern Europe, and East Asia. |
| Common Law Countries | Former British colonies or protectorates, including the United States. |
| EU Law | EU member states have their own legal systems but must follow EU law, which has elements of both civil and common law. |
| Supranational European Law | Influenced by the Council of Europe, the European Convention on Human Rights, and economic integration. |
| Differences | Civil law is a codified system originating from Roman law; common law is more flexible and has the concept of trusts. |
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What You'll Learn
The two dominant legal systems
Europe has given birth to two of the world's dominant legal systems: civil law and common law. These systems have their origins in the Roman Empire and the British Empire, respectively.
Civil law, also known as Roman law, is the most widespread legal system in the world by landmass and population. It is a codified system of law that takes its origins from Roman law, which underwent major codification in the Corpus Juris Civilis of Emperor Justinian and was further developed through the Middle Ages. Civil law is interpreted rather than made by judges, and only legislative enactments are considered legally binding, as opposed to legal precedents in common law. Countries that follow a civil law system include those that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, including much of Central and South America, as well as most of Central and Eastern European and East Asian countries. Civil law can be further subdivided into distinct groups, including French civil law, German civil law, and Scandinavian civil law.
Common law, on the other hand, is employed by the greatest number of people compared to any single civil law system. It is characterized by judicial decisions being binding and a high degree of freedom of contract, with few provisions implied into a contract. Countries that follow a common law system are typically those that were former British colonies or protectorates, including the United States.
While the European Union (EU) does not have a single legal system, as it is not a country, its member states generally follow either a civil law or common law system. The EU has its own judicial branch, the Court of Justice of the European Union (CJEU), which is comprised of the Court of Justice and the General Court. The CJEU hears cases related to European court procedures, which are closer to the civil law system of most of its members. However, there is also EU case law that serves as binding precedent for rulings by EU judicial bodies.
In summary, Europe is home to two of the world's dominant legal systems, civil law and common law, which have been influenced by the region's history and empires. While there is no single "EU law", the legal systems of member states vary, and the EU's judicial procedures reflect a blend of civil and common law traditions.
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The history of European law
The law of Europe has a diverse history, with the two dominant forms of legal systems of private law being civil and common law. Europe saw the birth of both the Roman Empire and the British Empire, which form the basis of these two dominant forms of legal systems. Roman law underwent major codification in the Corpus Juris Civilis of Emperor Justinian and was later developed through the Middle Ages by medieval legal scholars. During this time, in Medieval England, judges retained greater power than other judges in Europe and began to develop a body of precedent.
Originally, civil law was the common legal system in much of Europe. However, with the rise of nationalism in the 17th-century Nordic countries and around the time of the French Revolution, it became fractured into separate national systems. This change was brought about by the development of separate national codes, of which the French Napoleonic Code, the Austrian Code, German, and Swiss codes were the most influential. Around this time, civil law incorporated many ideas associated with the Enlightenment.
Today, civil law, in theory, is interpreted rather than made or developed by judges. Only legislative enactments are considered legally binding, unlike common law, where legal precedents are considered binding. Civil law can be subdivided into distinct groups: French civil law, German civil law, and Scandinavian civil law. French civil law is used in France, the Benelux countries, Italy, Romania, Spain, and their former colonies, mainly in Latin America, Africa, and the Middle East. German civil law is used in Germany, Austria, Russia, Switzerland, Estonia, Latvia, Bosnia and Herzegovina, Croatia, Kosovo, North Macedonia, Montenegro, Slovenia, Serbia, Greece, Portugal, and its former colonies, Turkey, and some East Asian countries. Scandinavian civil law is used in Northern European countries such as Denmark, Norway, Finland, Iceland, and Sweden.
The European Union's law is based on a codified set of laws laid down in the Treaties and is mixed with precedent in the case law of the European Court of Justice. The interpretation of European law relies less on policy considerations than in the United States.
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The influence of nationalism
Nationalism emphasised national identity and cultural self-expression through nationhood. The German philosopher G. W. F. Hegel was a key exponent of the modern idea of the nation-state. As a result of nationalism, rule by monarchies and foreign control of territory was replaced by self-determination and newly formed national governments. The development of separate national codes, such as the French Napoleonic Code, the Austrian Code, and the German and Swiss codes, fractured the European legal system into separate national systems.
In the 19th century, nationalism brought about significant changes in Europe's political landscape, resulting in the emergence of nation-states. Countries such as Germany and Italy were formed by uniting regional states under a common national identity. Others, like Greece, Serbia, Bulgaria, and Poland, gained independence through uprisings against the Ottoman or Russian Empires. The Revolutions of 1848, sparked by severe famine, economic crisis, and popular demand for political change, further fuelled nationalist sentiments across the continent.
Nationalism also influenced the legal systems of individual nations. For example, in England, the Puritan Revolution of the 17th century was driven by nationalist sentiment. The Act of Union (1707) between England and Scotland formed the 'United Kingdom of Great Britain', with England exerting influence over Scotland. Ireland was later forcibly incorporated into the United Kingdom in 1801, and symbols of British nationalism, such as the Union Jack and the national anthem, were actively promoted.
In summary, nationalism played a significant role in shaping the legal landscape of Europe. It led to the development of separate national legal codes, the emergence of nation-states, and the transformation of political systems. The ideas of national identity and self-determination influenced by the French Revolution and propagated by intellectuals like Hegel, contributed to the fracturing of the European legal system into distinct national systems of civil law and common law.
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The European Union's legal system
Europe has been the birthplace of two of the most influential legal systems in the world: civil law, stemming from the Roman Empire, and common law, which has its roots in the British Empire. Both systems have spread far beyond Europe, with civil law being the most widespread in terms of landmass and population, and common law being employed by the most significant number of people compared to any single civil law system.
The European Union (EU) is not a country, and as such, it does not have a single, unified legal system that applies to all members. Each member state has its own legal system, and these are predominantly civil law systems, with some common law influences. The EU's judicial branch is the Court of Justice of the European Union (CJEU), seated in Luxembourg and consisting of two separate courts: the Court of Justice, or European Court of Justice (ECJ), and the General Court. The ECJ hears cases brought by national courts, as well as applications for annulment and appeals. The General Court deals with applications for annulment from individuals, companies, and, less commonly, national governments, focusing on areas such as competition law, trade, and agriculture.
While there is no single "EU law", member states are signatories to EU regulations and treaties, which can take precedence over national laws and influence the legal landscape in member states. The EU's legal framework, particularly in its European court procedures, is generally considered closer to the civil law system of the majority of its members. However, there are also elements of case law and binding precedent, which are characteristics of common law systems.
The legal systems within the EU have evolved through a diverse history, influenced by empires, nationalism, and unique cultural and colonial contexts. The variety of legal traditions within Europe and the EU demonstrates the complexity and richness of the continent's legal heritage.
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The future of European law
Europe has a diverse legal history, with the two dominant forms of legal systems in private law being civil and common law. Civil law, also known as Roman law, is the most widespread legal system in the world by landmass and population. Common law, on the other hand, is employed by the greatest number of people compared to any single civil law system.
Additionally, the EU will need to establish robust post-accession compliance measures on the rule of law to safeguard the single market and ensure the Union's integrity as a community of law. This includes holding current and new members to high standards and creating effective methods to enforce those standards across the Union.
The Court of Justice of the European Union plays a crucial role in promoting a European Procedural Law, emphasizing the principles of effectiveness and equivalence. The EU has also initiated various directives to harmonize standards, such as those related to intellectual property rights, competition damages, trade secrets, and data protection.
Furthermore, the European lawmaker is overseeing a paradigm shift in how cross-border litigation is conducted within the EU. The future of European law will likely involve continued efforts to harmonize and streamline legal procedures across member states, ensuring effective judicial cooperation and access to justice for all citizens.
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Frequently asked questions
Europe does not have a single legal system. Each European country has its own legal system, which may be either common law or civil law.
Common law systems have greater flexibility in granting different types of security over assets. They also have the concept of trusts, which enable security interests to be held by a trustee for lenders without the need for a formal transfer or re-registration of security. Civil law does not have such a concept, so security interests must generally be re-registered in the name of the new lender, involving additional registration costs and notarial fees.
Countries following a common law system are typically those that were former British colonies or protectorates, including the United States.
Countries following a civil law system are typically former French, Dutch, German, Spanish or Portuguese colonies or protectorates, including much of Central and South America, Central and Eastern Europe, and East Asia.
The EU does not have a single legal system that sets forth a general framework of legal obligations for everyone in the EU. However, EU law is supreme over the national laws of EU member countries and has a direct effect upon national legal systems.
