Civil law

From Citizendium, the Citizens' Compendium
Jump to: navigation, search
This article is developing and not approved.
Main Article
Talk
Related Articles  [?]
Bibliography  [?]
External Links  [?]
Citable Version  [?]
 
This editable Main Article is under development and not meant to be cited; by editing it you can help to improve it towards a future approved, citable version. These unapproved articles are subject to a disclaimer.

Civil law or continental law is the predominant used system of law in the world. Civil law as a legal system is often compared with common law. The main difference is usually drawn between two systems, common law draws abstract rules from specific cases, whereas civil law starts with abstract rules, which judges must then apply to the various cases before them.

Civil law has its roots in Roman law, Canon law and the Enlightenment. The legal systems in many civil law countries are based around one or several codes of law, which set out the main principles that guide the law. The most famous example is perhaps the French Civil Code (Le code civil des Français / Code Napoléon), although the German Bürgerliches Gesetzbuch (BGB) and the Swiss Civil Code are also landmark events in legal history. The civil law systems of Scotland and South Africa are uncodified, and the civil law systems of Scandinavian countries remain largely uncodified.

History

Civil law is based on Roman law, especially the Corpus Iuris Civilis of Emperor Justinianus, as later developed through the Middle Ages by the glossators.

The general acceptance of Roman law is based on different grounds in different countries. In some, Roman law was accepted through the use of legislative acts, whereas in others it became accepted by the research legal scholars did on it.

Consequently, Roman law never completely dominated in Europe. Roman law was always a secondary source, which was applied in those cases where local customs and laws lacked a pertinent provision on a particular matter. However, local customs and laws were primarily interpreted according to Roman law, which resulted in its influence in the main sources of law.

A second characteristic, beyond Roman law foundations, is the extended codification of the adopted Roman law into civil codes amongst others.

The concept of codification developed specifically during the 17th and 18th century, as an expression of both Natural Law and the ideas brought forth by the Enlightenment. The political ideal of that era was expressed by the concepts of democracy, protection of property and the rule of law.[1] That ideal required the creation of certainty of law, through the recording of law and through its uniformity. So, the aforementioned mix of Roman law and customary and local law ceased to exist, and the road opened for law codification, which could contribute to the aims of the above mentioned political ideal.

Another reason that contributed to codification was that the notion of the nation state, which was born during the 19th century, required the recording of the law that would be applicable to that state.

There were certainly reactions to the aim of codifying the law. The proponents of codification regarded it as conducive to certainty, unity and a systematic recording of the law; whereas its opponents claimed that codification would result in the slow deterioration of the law.

In the end, regardless of the resistance to codification, the codification of European private laws moved forward. The French code civil of 1804, the German Bürgerliches Gesetzbuch of 1900 and the Swiss ZGB were the most influential national civil codes.

Because Germany was a rising power in the late 19th century and the well organized system it presented, when many Asian nations were introducing civil law, the German Civil Code became the basis for the legal systems of both Japan and South Korea. In China, the German Civil Code was introduced in the later years of the Qing Dynasty and formed the basis of the law of the Republic of China, which remains in force in Taiwan.

Notes

  1. This is NOT the case in all European countries! Germany, The Netherlands, Belgium, Austria, Switzerland, and multiple Scandinavian countries use the concept of Rechtstaat