Cecily Zamora
Civil law, also known as continental or Romano-Germanic law, is a legal system inspired by classical Roman law and Justinian law. It is the most common legal system globally, practiced in about 150 countries. Civil law is characterized by its reliance on legal codes as the primary source of law, rather than judicial precedent. It covers various areas, including family law, contracts, torts, and trusts, and deals with private disputes between individuals, organizations, or a combination of both. Civil law aims to provide a clear expression of rights and duties, promoting cooperation, order, and predictability. It is adaptable, allowing for adjustments to social change and new needs through interpretation and creative jurisprudence.
| Characteristics | Values |
|---|---|
| Origin | Roman Law, specifically classical Roman law (c. AD 1–250) and Justinian law (6th century AD) |
| Legal System | Based on codification of laws, with legal codes as the primary source of law |
| Nature of Codes | Concise and broadly applicable, avoiding factually specific scenarios |
| Case Law | Considered secondary and subordinate to statutory law |
| Common Areas | Family law, contracts, torts, trusts, property law, etc. |
| Jurisdiction | Practiced in about 150 countries, including France, Germany, Italy, the US, and more |
| Nature of Cases | Deals with private disputes between individuals, organizations, or a mix of both |
| Litigation Process | Initiated by a private party (plaintiff) filing a complaint against another party (defendant) |
| Punishment | Usually in the form of monetary compensation awarded to the plaintiff |
| Burden of Proof | Lies initially with the plaintiff, then shifts to the defendant to refute evidence |
| Standard of Proof | Generally lower than criminal law, with a balance of probabilities or more than 50% evidence favoring the plaintiff |
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What You'll Learn
Civil law vs common law
Civil law, also known as continental or Romano-Germanic law, is rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch being the most influential civil codes. Civil law is primarily characterised by its reliance on legal codes that function as the primary source of law, rather than on judicial precedent. It is a well-organised system that favours cooperation, order, and predictability, based on a logical and dynamic taxonomy. Civil law is adaptable, with codes that are concise and broadly applicable, allowing for interpretation and creative jurisprudence.
Common law, on the other hand, originated in medieval England and is characterised by its reliance on judicial precedent and uncodified case law. Common law systems place great weight on precedent, recognising prior court decisions as legally binding. Common law is less prescriptive than civil law, with more emphasis on setting out all the terms governing the relationship between parties in a contract. Countries following a common law system are typically former British colonies or protectorates, including the United States.
In terms of geographical reach, civil law is the world's most common legal system, practiced in about 150 countries on all continents. It is found in Continental Europe, North America (Louisiana and Quebec), Central and South America, Asia, Africa, and some Pacific islands. Common law, influenced by English legal traditions, is also widespread, especially in English-speaking countries.
While civil law is often associated with civil codes, it is important to note that in some jurisdictions, such as Scandinavian countries, civil codes exist but are not considered civil law jurisdictions. Similarly, Scotland has retained an uncodified form of civil law within Great Britain.
In mixed jurisdictions, civil law can coexist with other legal traditions, including common law, customary law, or Islamic law. Louisiana, for example, has a private civil law heavily based on French and Spanish codes but has also converged considerably with American common law.
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Civil law in mixed jurisdictions
Civil law, rooted in the Roman Empire, is a legal system that is practised in about 150 countries today, making it the most common legal system in the world. Civil law is characterized by its reliance on legal codes that function as the primary source of law, in contrast to common law systems, which rely heavily on judicial precedent. Civil law systems are found on all continents and cover about 60% of the world. They are based on concepts, categories, and rules derived from Roman law, with some influence from canon law and local customs or culture.
In mixed jurisdictions, civil law coexists with other legal traditions such as common law, customary law, or religious law. Mixed jurisdictions are found mainly in America, Africa, and Asia, but also in Europe. For example, in the European Union, the Court of Justice takes a mixed approach, combining civil law (based on treaties) with an emphasis on case law. Some countries in Africa that were formerly colonized by European nations have kept many aspects of civil law traditions, while also incorporating other legal traditions.
In North America, civil codes are found in Louisiana and Quebec, which are considered mixed jurisdictions. Louisiana's legal system combines civil law, which serves as the background law, with common law, which heavily influences its public law. Similarly, Quebec's legal system is influenced by both French civil law and common law traditions.
In Asia, several countries have received civil law and have civil codes, including Japan, Kyrgyzstan, Lebanon, and Indonesia. Some countries in Asia, such as the Philippines, have codified mixed systems, where civil law serves as the foundation but is influenced by other legal traditions.
Overall, mixed jurisdictions that incorporate civil law demonstrate the adaptability and coexistence of different legal traditions, shaping the legal systems of various countries and regions.
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Civil law in common law countries
Civil law, also known as jus civile or "citizens' law", is a legal system inspired by classical Roman law, particularly Justinian law. It is the most common legal system in the world, practiced in about 150 countries. Civil law is characterized by its reliance on legal codes that function as the primary source of law, rather than judicial precedent. In civil law systems, judges interpret rather than develop or make the law. Legislative enactments are considered legally binding, unlike in common law systems where legal precedent is binding.
Civil law is found on all continents, covering about 60% of the world. It is prevalent in Continental Europe, where most jurisdictions have civil codes. In North America, civil codes are found in Louisiana and Quebec. In Central and South America, almost all countries have civil codes, and in Asia, many countries have civil codes as well. In Africa, countries that were once colonized by European nations have retained aspects of the civil law tradition.
Civil law is sometimes referred to as neo-Roman law, Romano-Germanic law, or Continental law. It is based on concepts, categories, and rules derived from Roman law, with some influence from canon law and local customs or culture. Civil law codes are concise and broadly applicable, typically avoiding factually specific scenarios. They explain the principles of law, rights, and entitlements, and how basic legal mechanisms work, providing a clear expression of rights and duties.
Civil law systems are well-organized and favor cooperation, order, and predictability. They are adaptable, with general clauses that allow for interpretation and adjustment to social change. While civil law is primarily a legislative system, it allows for judicial interpretation and creative jurisprudence. Civil law is contrasted with common law, which originated in medieval England and is characterized by uncodified case law that arises from judicial decisions. Common law recognizes prior court decisions as legally binding precedent.
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Civil law and criminal law
Civil law refers to a legal system based on concepts, categories, and rules derived from Roman law, with some influence from canon law. Civil law is also referred to as neo-Roman law, Romano-Germanic law, or Continental law. It is characterised by its reliance on legal codes that function as the primary source of law, rather than judicial precedent. Civil law systems are found on all continents and cover about 60% of the world, practiced in about 150 countries.
Civil law deals with the rights and duties of persons (natural and legal persons) and equal legal relations between private individuals, excluding criminal law, commercial law, and labour law. Common areas of civil law include family law, contracts, torts, and trusts. Civil litigation refers to legal proceedings undertaken to resolve a dispute and seek redress or damages for a civil wrong. Civil cases are initiated by a private party (the plaintiff) and are usually decided by a judge, with punishment almost always consisting of a monetary award.
Criminal law, on the other hand, deals with behaviour that is construed as an offence against the public, society, or the state, even if the immediate victim is an individual. It involves punishing and rehabilitating offenders and protecting society. Criminal cases are filed by the government, usually referred to as the State and represented by a prosecutor, and are almost always decided by a jury. Punishment for serious charges often consists of imprisonment and/or a fine.
It is important to note that a single wrongful act may constitute both a public offence and a private injury, leading to both criminal and civil charges. For example, in 1995, O.J. Simpson was acquitted of murdering his wife and her friend in a criminal case, but in 1997, he was found liable for their killings in a civil suit for wrongful death.
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Civil law's historical development
Civil law, also known as Romano-Germanic law or Continental law, is rooted in the Roman Empire. It draws heavily from Roman law, which was the most intricate legal system before the modern era. In the 5th and 6th centuries CE, Western and Central Europe were dominated by Germanic peoples, and Germanic customs came to prevail in most regions. In the Middle Ages, these customs underwent significant growth to meet the complex needs stemming from the development of feudalism, chivalry, the growth of cities, Eastern colonisation, increasing trade, and a more refined culture.
Roman law continued without interruption in the Eastern Roman Empire until the 15th century. However, the empire's influence in Late Antiquity, followed by incursions and occupations by Western European powers in the late medieval period, led to its laws being widely implemented in the West. In the Holy Roman Empire, the reception of Roman law was facilitated by the idea that the emperors were direct successors of the Roman Caesars. The superiority of the specialised training of Roman-law jurists and the rational rules of evidence of the Roman-canonical type of procedure over the local forms of procedure involving proof by ordeal, battle, and other irrational methods also played a role in the adoption of Roman law.
In the Middle Ages, the work of civilian glossators and commentators led to the development of a common body of law and writing about law, a common legal language, and a common method of teaching and scholarship, termed the jus commune, or law common to Europe. This consolidated canon law, Roman law, and, to some extent, feudal law. Roman law strongly influenced the law of contracts and torts; canon law achieved supremacy in the field of marriage; and combinations of Germanic, feudal, and Roman traditions developed in matters of property and succession, or inheritance.
In the 19th century, civil law was comprehensively codified and disseminated, most notably with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). The Egyptian Civil Code of 1810, which remains in force in Egypt, is also based on the Napoleonic Code. The Japanese Civil Code is considered a mixture drawing 60% from the German civil code, 30% from the French civil code, 8% from Japanese customary law, and 2% from English law. In the 19th century, Polish law developed as a mixture of French and German civil law.
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Frequently asked questions
Civil law is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900) being the most influential civil codes. Civil law is the most common legal system in the world, practiced in about 150 countries.
Criminal law deals with behaviour that is construed as an offence against the public, society or the state. Civil law deals with behaviour that constitutes an injury to an individual or private party, such as a corporation. Criminal law is initiated by the federal or state government, while civil law is initiated by a private party. Criminal cases are almost always decided by a jury, while civil cases are usually decided by a judge.
Common areas of civil law include family law, contracts, torts, and trusts. Civil law cases can include defamation, breach of contract, negligence resulting in injury or death, and property damage.
