By Mary Ann Glendon, Michael W. Gordon & Christopher Osakwe. West Publishing Co., !"#.

COMPARATIVE LEGAL TRADITIONS

PART I: THE CIVIL LAW TRADITION.

CHAPTER I: History, Culture & Distri utio!. $%o&anist', $%o&ano(Ger&anic' or $Ci)il *aw' +yste&s, these syste&s are grounded in a co&&on legal tradition -a sub(tradition o. a &ode o. legal thought known as $western'/. %oot, the L"# o$ t%e Ro&"!s -%i0uel&es1/ whose preoccupation with order, ad&inistration, law and procedure was uni0ue in the ancient world. Ci'il L"# -C.*./, characteri2ed by a particular interaction a&ong, %o&an *aw. Ger&anic and local custo&s. Canon *aw 3nternational *aw Merchant. A particular role it has accorded to legal science.

Ro&"! L"# -%.*./, entire ro&an legal output .ro& the ()t% T" les -456 B.C./ to the *usti!i"! Co&+il"tio!s -74 A.8./. 9he %.*. is di)ided in )arious periods. Most i&portant, .ro& 7 rd Century B.C., %epublic, *uris,o!sults -&en who &ade law their specialty/. By the end o. st Century B.C. they ac0uired the &onopoly o. technical in.or&ation and legal e:perience. At .irst rather .or&al, rigid and concrete, %o&an law e)entually &o)ed away .ro& .i:ed rules to .le:ible standards and .ro& concrete to abstract &odes o. thought. 3t beca&e characteri2ed by attention to practical details, and by ter&s o. art which caught on and endured. 9he law o. the Classical period -which began around ; A.8. and ca&e to an end with the period o. anarchy, in)asions, plague and ci)il war that co&&enced in #75 A.8./, represents the .ullest de)elop&ent o. ancient %o&an *aw. O. the great <urisconsults o. this period, -l+i"!, P"+i!i"! and G"ius are chie.ly re&e&bered. At its height classical %o&an law constituted a body o. practical wisdo& o. a kind the world had not seen be.ore. 3t was there.ore o. the highest interest to the <ustinian co&pilers a.ter the .all o. the Western e&pire, and, through the&, o. great signi.icance to the de)elop&ent o. the ci)il law syste&s.

Centuries later, %o&an law would be called $written reason' by the &edie)al scholars who $redisco)ered' it as the Western world began to e&erge .ro& what the =rench legal scholar <ean Carbonnier calls the $custo&ary thicket' o. the Middle Ages. =ro& <ustinian1s ti&es to the present, %o&an law, e:cept to specialists, generally has &eant the >th Century $Cor+us *uris Ci'ilis', included .our parts, . $Di.est', was a treatise representing the distillation o. what, in the ?udg&ent o. <ustinian1s ?urists, was &ost )aluable .ro& the best %o&an legal writings .ro& all pre)ious periods. 3t is )ery i&portant in ter&s o. its in.luence on the ci)il law tradition, particularly in the areas o. personal status, torts, un?ust enrich&ent, contracts and re&edies. #. $I!stitutes', si&ply a short introductory te:t .or students. 7. $Co/e', a syste&atic collection o. %o&an legislation. 4. $No'els', the i&perial legislation enacted a.ter the Code and the 8igest were co&pleted. 9he Corpus <uris was the product o. a care.ul process o. selection and re?ection. 9ogether, the 8igest and the Code were &eant to be a co&plete and authoritati)e restate&ent o. %o&an law. E0uity, which in the Classical period was regarded as a principle o. ?ustice ani&ating the whole o. the law, degenerated into &ere i&patience with legal subtleties. By2antine legislation was $hu&anitarian', in the sense o. protecting $those who& it considers weak against those who& it considers strong' -<olowic2/. A.ter the Lo& "r/, Sl"' "!/ Ar" i!'"sio!s that .ollowed the reign o. <ustinian, the Corpus <uris Ci)ilis .ell into disuse .or centuries. Mi//le A.es, 9he 1Custo&"ry T%i,2et3 "!/ Ro&"! L"# Sur'i'"l. 9he sophistication and technical per.ection o. ancient %o&an law were lost during the legal and political disorder that .ollowed the disintegration o. the %o&an @&pire. =or .i)e centuries a.ter the $"ll o$ Ro&e a series o. raiders and settlers o)erran the areas that had once been %o&an. 9here were no strong, centrali2ed states. Aingdo&s rose and .ell. 9he condition o. the people sank into local sel.(su..iciency. ((t% Ce!tury, 1re'i'"l3 o$ Ro&"! l"#, reawakening o. interest in %o&an law. Many o. the Ger&anic settlers, legionnaires and &igrating peoples had been $%o&ani2ed'. As con0uerors and con0uered changed places, Ger&"!i, rulers used %o&an law to go)ern their %o&an sub?ects, while applying their own law to their own peoples. O)er ti&e it gradually beca&e i&possible to tell which group a particular person was in and the distinctions between groups disappeared.

By the end o. the (4t% ,e!tury, the rules were the sa&e .or all persons within a gi)en territory. 9he laws during this period are known as 1Ro&"!i5e/ ,usto&"ry l"#s3 or 1 "r "ri5e/ Ro&"! l"#s3. 9hus, though %o&an legal science and Classical %o&an law disappeared in the welter, di)ersity and localis& o. Carbonnier1s $custo&ary thicket'. 9he Ger&anic custo&ary laws began to be written down as early as the 5th century A.8. and had particularly in.luence on &arital property and inheritance law. Many o. the &ost ingenious and use.ul legal de)ices o. the &odern ci)il law o. property and co&&ercial law deri)e not .ro& %o&an, but .ro& &edie)al origins, and thus re&ind us that the legal con.usion o. the Middle Ages had its .ruit.ul and creati)e, as well as its .rag&ented and disorgani2ed, side. 9ribal laws beca&e territorial laws. Ger&ans began a new legal culture that was 0uite di..erent .ro& the %o&an, essentially lay character, and because the crudeness o. its procedures -e.g., trial by ordeal/ li&ited its potential .or adaptation to the social and econo&ic changes that were beginning to trans.or& .eudal society. C"!o! L"#, With the break(up o. the .ar(.lung syste& o. %o&an ad&inistration, the Church took o)er so&e o. the .unctions o. go)ern&ent. Bntil the re)i)al th o. %o&an law in the century, the single &ost i&portant u!i'ers"li5i!. $",tor in the di)erse and locali2ed legal syste&s o. the ci)il law tradition was canon law. But canon law itsel. was a hybrid o. sorts, been produced by Christian notions interacting reciprocally with %o&an law, a.ter the Christiani2ation o. the @&pire -Constantine, d. 77; A.8./. 9he <ustinian Corpus, in particular, was pro.oundly a..ected by Christian ideas. 9here was a certain penetration by canon law into de codes pro&ulgated by Ger&an rulers and, later, into the legislation o. the Carolingian -c. "66 A.8./ and Coly %o&an @&pires -c. !># A.8./. 8uring the Middle Ages, the Church sought and won ?urisdiction .or its own tribunals o)er &atri&onial causes, and o)er certain aspects o. cri&inal law and succession to personal property. Re'i'"l o$ Ro&"! L"#, =ro& about (464 A.D., period o. political, econo&ic and cultural trans.or&ation in @urope. 9he gradual return o. political established conditions that .acilitated speculati)e learning and the re'i'"l o$ *usti!i"! le.",y. 9his redisco)ery took place in northern 3taly. 9he -!i'ersity o$ 7olo.!" beca&e the principal legal center. Ir!erius, who is said to ha)e gi)en the .irst lectures on the *usti!i"! Di.est, proclai&ed its intellectual superiority o)er the legal inheritance o. the Middle Ages. But the Corpus dealt with so &any institutions and

proble&s that were no longer known, that it was di..icult to understand. +o, the students tried to accurately reconstruct and e:plain its te:t. 9hey beca&e known as the Gloss"tors because o. their annotations -glosses/ on the 8igest. But their approach to interpretation in ti&e ga)e way to the new &ethods o. the Co&&e!t"tors -or Post8 Gloss"tors/ o. the (9t% ,e!tury, who saw their work as adapting the law o. ro&an society to the proble&s o. their own day. 9he &ethods o. the Co&&entators were &uch in.luenced by the new spirit o. rational in0uiry and speculati)e dialectic that would be brought to its highest .or& in the work o. T%o&"s A0ui!"s -d. #;4/. 7"rtolus -d. 75;/ is re&e&bered as the greatest o. the Co&&entators. 9he thousands o. @uropean students who had co&e to the 3talian uni)ersities carried back to their own nations and uni)ersities, not only the law o. the Corpus but also the &ethods and ideas o. their Bolognese teachers. 9hey and their own students beca&e the new pro.ession o. lawyers who .ound places not only in uni)ersities, but in the $ad&inistrations' o. princes, cities and the Church. 3n Paris and O:.ord, Prague and Ceidelburg, Cracow and Copenhagen, a .usion took place between the &edie)al %o&ano(Ger&anic law and the learning based on the re)i)ed %o&an law. 9his new learning .urnished the co&&on &ethodology .or the .urther de)elop&ent o. national laws. 9he %o&an ci)il law, together with the i&&ense literature generated by the Glossators and Co&&entators, ca&e to be the jus commune, the co&&on law, o. @urope. $9here was a co&&on body o. law and o. writing about law, a co&&on legal language, and a co&&on &ethod o. teaching and scholarship' -Merry&an/. C"!o! l"# continued to play a )ery i&portant role in this shared tradition, but in a new, &ore re.ined and $%o&ani2ed' .or&, as Bolognese scholars syste&atically co&piled and digested so&e ;66 years o. ecclesiastical enact&ents and decrees. Gr"ti"!, in the #th century, trans.or&ed canon law into an independent $syste&'. Co&&er,i"l L"#, With the rise o. towns, the birth o. &arkets, .airs and banks, the rapid e:pansion o. &ariti&e and o)erland trade, and the e)entual de)elop&ent o. large .lourishing co&&ercial centers, there appeared the need .or a body o. law to go)ern business transactions, because %o&an law pro)ed unsuitable .or this purpose. +o guilds and &erchants1 associations established their own rules and their own tribunals, characteri2ed by in.or&al rules and e:peditious procedures that were practical, .air, and grounded in the usages o. business&en. @)entually, this brand(new 1l"# &er,%"!t3 beca&e international, a body o.

generally accepted co&&ercial rules that transcended political boundaries. Re,e+tio! o$ Ro&"! l"#, 9he Mi//le A.es were an era characteri2ed by the absence o. strong central states and the notion o. law as co&&and o. the so)ereign had no &eaning. @cclesiastical courts were apt to apply canon lawD the courts o. a guild would apply the law &erchantD while other ?udges in cities and towns would tend to search .or an appropriate rule, .irst, in local custo& or statute, then, with the help o. uni)ersity scholars, .illing the gaps with the jus commune, that beca&e the basic law o. a great part o. continental @urope. 9he .or&ality and the e:tent o. reception in a gi)en country and the type o. interaction that occurred between the jus commune and the &edie)al %o&ano(Ger&anic base )aried considerably. 3n S+"i!, the jus commune was always in tension with )arious )igorous local custo&ary traditions. 3n the regions o. :r"!,e south o. the *oire -known as the pays de droit crit/ where %o&an law in.luence had been strong, the local custo&ary law was already hea)ily ro&ani2ed. 9hus, there was a &ore e:tensi)e reception there than in the northern regions o. =rance -known as the pays de droit coutumier/ where the )arious local custo&s had always been o. greater i&portance than %o&an law. 9he jus commune ca&e to be regarded as the co&&on law or the Holy Ro&"! E&+ire. 3n 4!5, when a central i&perial court was established, its ?udges were obliged to decide cases according to this co&&on law, unless a con.licting local custo& or statute could be pro)ed. 9he di..iculty o. pro)ing a controlling Ger&an rule &eant in practice that the recei)ed %o&an law beca&e the basic law o. all the regions o. Ger&any. %o&an law &et no resistance .ro& a strong national legal pro.ession, court syste& or .ro& the e:istence o. a co&&on body o. $Ger&an' laws. Most i&portantly, %o&an law &et the increasingly urgent need to deal with the incon)enience that the )ariety o. local custo&s posed .or intercourse a&ong the &any s&all independent territories that .or&ed the Ger&an con.ederation. 9he %o&an law reception in Ger&"!y was a crucial e)ent .or the later de)elop&ent o. Ger&an legal science, producing a &uch &ore e:tensi)e syste&ati2ation o. law than occurred elsewhere. =ro& the beginning ?udges relied hea)ily on legal scholars .or in.or&ation and guidance. By (;44, it was a co&&on practice .or ?udges to send out the record o. a di..icult case to a uni)ersity law .aculty and to adopt the .aculty1s collecti)e opinion on 0uestions o. law. 9his practice o. Aktenversendung continued until the !th century, accu&ulating an e:tensi)e body o. co&&on doctrine.

3n @urope generally, the jus commune, like the *atin language and the uni)ersal Church, was an aspect o. the u!ity o$ t%e West at a ti&e when there were no strong centrali2ed political ad&inistrations and no uni.ied legal syste&s. =ro& the (6t% ,e!tury on, howe)er, the relationship between the recei)ed jus commune and the di)erse local and regional custo&ary laws began to be a..ected by the rise o. !"tio!"lis& and the increasing consolidation o. roy"l +o#er. N"tio! St"tes "!/ N"tio!"l L"#, (;t% "!/ (<t% ,e!turies, Gradual political uni.ication in @urope. 9he center o. legal scholarship shi.ted to :r"!,e and Holl"!/, and the &ethods o. Bolognese Co&&entators were replaced by those o. the :re!,% Le."l Hu&"!ists and the Dut,% N"tur"l L"# S,%ool . 9he Cu&anists used the techni0ues o. %istory and +%ilolo.y to study %o&an law. 9hey saw %o&an law as a historical pheno&enon and the Corpus as &erely an ancient te:t -rather than as $li)ing law' or $written reason'/. 9his indirect challenge to the authority o. %o&an law was continued by the ;th century 8utch Eatural *aw +chool, whose &e&bers de)eloped a syste&"ti, t%eory o$ l"# grounded in what they concei)ed to be the u!i'ers"l l"# o$ !"ture -prelude to &odern codi.ication/. 9he awakening o. interest in national law was only one o. se)eral parallel de)elop&ents that &arked the end o. unity o. the West, the break(up o. the uni)ersal Church and the rise o. &odern nation states. Co/i$i,"tio!, 3n &any parts o. @urope, le."l !"tio!"lis& early took the .or& o. codi.ication. 9he .irst o. these national codes appeared in the S,"!/i!"'i"! ,ou!tries in the ;th and "th centuries. 9hen, a se,o!/ .e!er"tio! o$ ,o/es not only aspired to bring about legal u!ity within one kingdo&, but also atte&pted a synthesis o. the political and philosophical thought o. the "th century, the creed o. the E!li.%te!&e!t that a rational, clear and co&prehensi)e legal syste& could be de)ised by intelligent hu&an beings. 1E!li.%te!e/3&o!"r,%s, =rederick 33 o. Prussia and <oseph 33 o. Austria. 9he Prussi"! Ge!er"l L"!/ L"# o$ (<=> is chie.ly re&e&bered today as a &onu&ent o. legal hubris. 3n its a&bition to .oresee all possible contingencies and to regulate the range o. hu&an conduct down to the &ost inti&ate details o. .a&ily li.e, it was ha&pered in operation both by its e:cessi)e detail and its .ailure to aknowledge the li&its o. law. 9he jus commune was displaced as the basic source o. law. 9he &ost i&portant and in.luential national codes were the :re!,% Ci'il Co/e o$ (?4> and the Ger&"! Ci'il Co/e o$ (?=;. =rench re)olutionary ideas

and Ger&an legal science not only ga)e a special sta&p and .la)or to their respecti)e national codes but a..ected legal thought throughout and beyond the ci)il law world. :r"!,e, the consolidation o. royal power .ro& the end o. the 5 th century to the %e)olution o. ;"!, &ade =rance the .irst &odern nation, a politically uni.ied society under strong central rule. 9he ancien rgime was not able, howe)er, to achie)e legal uni.ication. $A tra)eler in =rance changed laws as o.ten as he changed horses' -Foltaire/. 3t re&ained .or Eapoleon to pro)ide =rance with a uni.ied national body o. law. Bnder his rule, .i)e basic codes were pro&ulgated, the Ci)il Code, the Penal Code, the Co&&ercial Code and the Codes o. Ci)il and Cri&inal Procedure. 9he :re!,% Ci'il Co/e o$ (?4>, dra.ted in a re&arkably short period o. ti&e by a co&&ission o. .our e&inent ?urists, has a ?ust clai& to being the .irst &odern code. 3t was not, as <ustinian1s Code basically was, a restate&ent o. the law. 9he 1Co/e N"+oleo!3 -its original na&e was the Code civil des franais, but it was rena&ed $Eapoleon' because o. the great personal interest that Eapoleon took in the Code Gin e:ile on +t. Celena, Eapo re.erred to the Code as a greater achie)e&ent than all his )ictories, $One Waterloo wipes out their &e&ory, but &y ci)il code will li)e .ore)er.'(/ represented a new way o. thinking about &an, law and go)ern&ent. 9he dra.ts&en o. the @nlighten&ent period putted all this prior law through a $sie)e o. reason', retaining o. re?ecting it according to rational principles. 9he Code was based on three ideological pillars, +ri'"te +ro+erty, $ree/o& o$ ,o!tr",t and the +"tri"r,%"l $"&ily. 3n the .irst o. these areas, the Code &ade an abrupt break with the .eudal past. 9he Code1s architects consciously sought to break up the estates o. the power.ul landed aristocracy. By the )ery .act o. clai&ing the areas o. property, contract and .a&ily .or pri)ate, ci)il law, the Code was per.or&ing what &ay be called a constitutional .unction. 3n these three spheres, the pri&ary role o. the +tate was to be to protect pri)ates property, to en.orce legally .or&ed contracts, and to secure the autono&y o. the patriarchal .a&ily. :re!,% re'olutio!"ry i/e"s were contributing in i&portant ways to the newly de)eloping .ield o. public law. 9he =rench re)olution and subse0uent Eapoleonic rule had .urthered the processes o. strengthening the central state and eli&inating inter&ediate sources o. power and allegiance. 9o )arying degrees, in di..erent parts o. the world, =rench ideas about e0uality, de&ocracy, representati)e go)ern&ent, the separation o. powers, and natural rights to li.e, liberty and property were in.luential in .or&ing syste&s o. public law. 9he Code Civil des Franais was &eant to be read and understood by the citi2en. With its clear, .ertile and intentionally concise pro)isions, its style rese&bles that o. the Bnited +tates Constitution, recogni2ed that a

legislation cannot .oresee all possible applications o. basic principles. 9he dra.ts&en opted .or the .le:ibility o. general rules, rather than .or detailed pro)isions. $We ha)e e0ually a)oided the dangerous a&bition to regulate and .oresee e)erything.. 9he .unction o. law is to .i: in broad outline the general &a:i&s o. ?ustice, to establish principles rich in i&plications, and not to descend into the details o. the 0uestions that can arise in each sub?ects.' -Port"lis/. Ger&"! Le."l S,ie!,e, 9he Ger&"! Ci'il Co/e -Brgerliches Gesetz uch/ appeared at the end, and the =rench Ci)il Code at the beginning o. the turbulent century o. the I!/ustri"l Re'olutio!. 9he Ger&an Code ca&e out o. an intellectual and political background that di..ered in &any ways .ro& the =rench @nlighten&ent and re)olutionary thought that endowed the Code Civil. Bnlike =rance, where political uni.ication had been achie)ed long be.ore legal unity, Ger&any had re&ained a loose con.ederation o. kingdo&s, duchies, principalities and independent city states until it was uni.ied under 7is&"r,2 in (?<(. 3ndeed, as we ha)e send, the lack o. e..ecti)e central go)ern&ent and the need .or a co&&on law to .acilitate trade had set the stage .or the large scale reception o. the %o&anist jus commune in 5th century Ger&any. Cowe)er, as Ger&an scholars worked with the jus commune, a certain $renationali2ation' o. Ger&an law had taken place, especially in the ; th and "th centuries. *ike the Bolognese Co&&entators, these Ger&an scholars were occupied with adapting the %o&anist law to their own conte&porary conditions. 3n the course o. their work, which ca&e to be known as the usus modernus pandectarum -Pandects was a na&e gi)en to the <ustinian 8igest/, they increasingly introduced legal content into what re&ained a basically %o&anist structure. 3n the ! th century, as the =rench Ci)il Code began to be widely ad&ired and i&itated, the idea o. codi.ication aroused interest in Ger&any. By this ti&e, Ger&any was already a leading center o. legal scholarship on the continent, and the issue o. codi.ication beca&e e&broiled in a .a&ous scholarly dispute -T%i "ut8S"'i.!y Dis,ussio!/. T%i "ut, ad)ocated pro&pt adoption o. a code as a &eans o. .urthering the process o. political uni.ication o. Ger&any. Ce clai&ed that the Prussian, =rench and Austrian codes could ser)e as help.ul &odels. 9he Prussian and =rench codes were in .act already in .orce in parts o. Ger&any. 9hibaut1s )iew was disputed by &e&bers o. the so(called Histori,"l S,%ool, whose leading spokes&an was :rie/ri,% C"rl 'o! S"'i.!y. Ce &aintained that law, like language, was part o. the genius and culture o. a people. 3t could not be deri)ed by the &ethod o. reasoning .ro& abstracts principles o. natural law. %ather, he clai&ed, a nation1s law would be re)ealed by the &ethods o. historical research. 3t .ollowed that a Ger&an code should

not be adopted without e:tensi)e preli&inary study o. the de)elop&ent o. Ger&an legal institutions. 9he point o. )iew o. +a)igny and the Cistorical +chool pre)ailed. Bnder the in.luence o. their ideas, ! th century Ger&an legal scholars by and large abandoned the ahistorical natural law approach o. pre)ious codes in .a)or o. what they thought o. as a science o. law. 9hey )iewed Ger&anic, and classical and recei)ed %o&an law as data, and regarded the&sel)es as scientists .or&ulating and syste&ati2ing concepts and principles .ro& this data. 9hey in)estigated classical %o&an law with the ai& o. disco)ering its $latent syste&', which they &ight adapt to the needs o. their own society. 3n the process, they brought the study o. the 8igest to its highest and &ost syste&atic le)el, and thus beca&e known as the P"!/e,tists. 9hough the Pandectists +chool grew out o. the Cistorical +chool, in the end it ca&e to adopt a rather ahistorical stance toward law. Belie)ing in the superiority and lasting )alidity o. the institutions o. the %o&ans, the Pandectists tended to e:clude social, ethical, econo&ic and practical considerations .ro& their legal work. 9he work on the Ger&an Ci)il Code began in (?<>, turned out to be a &assi)e pro?ect. 3t went through two dra.ts and took o)er #6 years to co&plete. 3t was .inally pro&ulgated in (?=;, to go into e..ect .our years later Gin the .irst day o. the new century. $3n the end, the Code was neither %o&anist nor Ger&anic, it was Pandectist !Pandektenrecht(.' -8awson/ 3t was constructed and worked out with a technical precision that had ne)er been seen be.ore in any legislation. A special language was de)eloped and e&ployed consistently and legal concepts were de.ined and then used in the sa&e way throughout. +entence construction indicated where the burden o. poor lies. 9hrough elaborate cross(re.erences, all parts o. the Code interlocked to .or& a logically closed syste&. 9he dra.ts&en a)oided both the proli:ity o. the Prussian Code and the $epigra&&atic bre)ity' o. the =rench. At the beginning o. the code is the $General Part', in which de.initions, concepts and principles o. great breadth are set .orth. Other per)asi)e general principles are established within and .or particular areas o. law. 9he result was not a handbook .or citi2en, but a syste& .or highly trained e:perts. Within the ci)il law world, Ger&"! le."l s,ie!,e and the Ger&an style o. codi.ication de)eloped their own sphere o. in.luence. Ger&"! Co/e & :re!,% Co/e, 9hough the Ger&an and =rench ci)il codes di..er in .or&, style and &ood, one &ust not lose sight o. their si&ilarities, 9hey both drew hea)ily on the jus commune -specially on law o. obligations and on the general structure o. the syste&/ as well as on their respecti)e national law.

9here is an ideological correspondence between the two codes. Both were grounded in !th century liberalis&. 9hey were in.used with then current notions o. indi)idual autono&y and laisse2(.aire econo&ics. But Ger&an code begin to recogni2e a social obligation inhering in certain pri)ate rights, as well as the idea that rights can be &isused. A reaction against the e:tre&e .or&alis& o. the Pandektenrecht had already begun to set in in the late ! th century when I%eri!., a product o. the Pandectist +chool hi&sel., began to 0uestion its &ethods and assu&ptions. 3n a de)astating satire o. the &o)e&ent, he placed its leading practitioners in a $hea)en o. legal concepts' to which no one could be ad&itted unless he ga)e up all &e&ory o. the real world. But it was not until the years .ollowing Worl/ W"r I that Ger&an legal science generally began to turn .ro& what had beco&e an increasingly sterile e:ercise. With its new direction, born o. the ability to relate power.ul abstract reasoning to irreducible and stubborn .acts, Ger&an scholars began to de)elop the &ethods that ca&e to be associated with ?urisprudence o. interests, legal realis& and the sociological schools o. legal thought. 9hrough the A&erican legal scholar and codi.ier, @"rl Lle#elly!, and through the &any e&inent Ger&an ?urists who ca&e to the -!ite/ St"tes during the Eational +ocialist period, these new ways o. thinking about law entered into the &ainstrea& o. A&erican legal theory. Distri utio! o$ t%e Ci'il L"#, =rance and Ger&any probably ha)e been less in.luenced by each other1s law, legal institutions and scholarship than ha)e other countries within the ci)il law world. 9he distincti)e =rench and Ger&an codi.ications and styles o. thought each had .ar(reaching in.luence. 9hus, it &ay be correct to say, as Merry&an does, that the $typical' ci)il law syste&s today are not those o. =rance or Ger&any, but rather those ci)il law syste&s which in &odern ti&es ha)e undergone the co&bined in.luence o. both. 9he =rench Ci)il Code was brought by Eapoleon and his ar&ies to Belgiu&, the Eetherlands, parts o. Poland, 3taly and the western regions o. Ger&any. 9hen, in the colonial era, =rance e:tended her legal in.luence .ar beyond continental @urope to parts o. the Eear @ast, Eorthern and sub(+aharan A.rica, 3ndochina, Oceania, =rench Guiana and the =rench Caribbean islands. 9he Code was widely ad&ired .or its consolidation o. the results o. a re)olution which had abolished the old, une0ual statuses and relations o. .eudalis&. 9he Ci)il Code re&ains in e..ect to this day, with re)isions, in Belgiu& and *u:e&bourgD and was a &a?or in.luence on the Eetherlands Ci)il Code o. "7" -now e:tensi)ely re)ised/, the Portuguese Ci)il Code o. ">; -replaced in

!>;/, the +panish Ci)il Code o. """, so&e o. the +wiss cantonal codes, and on the legal institutions o. ! th century 3taly, as well as on those o. so&e o. the @astern @uropean countries. When the S+"!is% "!/ Portu.uese e&+ires in &ainly to the =rench Ci)il Code that the law&akers o. the new nations o. Ce!tr"l "!/ Sout% A&eri," looked .or inspiration. =rench culture and the =rench re)olutionary heritage were widely ad&ired in the *atin A&erican countries. 3t thus was natural .or the& to turn to =rench law as a &odel. 9he language and concepts o. the =rench codes were clear, with the legal ideas and institutions that had been introduced in *atin A&erican by the +panish and the Portuguese. By the end o. the ! th century, the &ore de)eloped countries had already adopted codes. 9he Nor/i, ,ou!tries, where the earliest national ci)il codes had appeared, historically had been and re&ained relati)ely .ar re&o)ed .ro& the co&posite o. in.luences .ro& which the ci)il law tradition was .orged. 9he Ger&"! Ci'il Co/e o$ (?=; put be.ore the world an entirely di..erent &odel .ro& the =rench and earlier codes, but one which appeared too late to be as widely i&itated as the =rench. Although the Ger&an Code as a whole was not built to tra)el, the legal science that preceded and acco&panied it has had an i&portant in.luence on legal theory and doctrine in other countries -Austria, C2echoslo)akia, Greece, Cungary, 3taly, +wit2erland and Hugosla)ia/. 9he *"+"!ese Ci'il Co/e drew hea)ily upon the .irst dra.t o. the Ger&an Ci)il Code and, as a result, Ger&an ci)il law scholarship has re&ained i&portant in <apan -so&e would classi.y <apanese law as being %o&ano(Ger&anic, rather than Oriental, syste&/. 9hrough <apan, the Ger&an ci)il law in.luence also spread to @ore". +ince the end o. World War 33, howe)er, A&erican law, too, has had a substantial i&pact on the law o. <apan and +outh Aorea. S#it5erl"!/, e:cept .or certain cantons, had re&ained aloo. .ro& the reception o. the =rench or the Ger&an &odel. A single scholarly dra.t&an, Eu.e! Hu er, .ashioned .or the con.ederation a ci)il code that was inspired by +wiss traditions and adapted to +wiss circu&stances. 3n !#>, the +wiss Ci)il Code was adopted, al&ost word .or word, as the Ci)il Code o. the newly .or&ed %epublic o. Tur2ey. A.ter World War 33, the ci)il law in.luence on the @uropean continent began to di&inish when the E"ster! Euro+e"! ,ou!tries adopted new ci)il codes. Central and +outh A&erican countries in this century ha)e looked increasingly to Eorth A&erican &odels, particularly in the areas o. public, constitutional and business law.

Ci)il law also sur)i)es in certain $&i:ed' legal syste&s such as the ci)il and co&&on law hybrid syste&s o. *ouisiana, Iuebec, the Philippines and Puerto %ico. =rench(inspired ci)il law and legal theory re&ain in.luential in West A$ri,", and, in co&bination with 3sla&ic law, in &ost Nort% A$ri,"! st"tes as well as in &any Ne"r "!/ Mi//le E"ster! ,ou!tries. Ci)il law is also one o. &any ele&ents in the co&ple:, pluralistic, legal syste&s o. 3srael and *ebanon. 3n Asia, ci)il law in.luence e:tended to, and co&bined with, other legal in.luences in Aa&puchea -Ca&bodia/, 3ndonesia, *aos, +outh Fietna&, 9aiwan and 9hailand. A .ew places in the ci)il law world were untouched by codi.ication. 9hus, .or e:a&ple, in S,otl"!/ and Sout% A$ri,", the %o&an jus commune sur)i)es in uncodi.ied .or&, co&bined in the case o. +cotland with co&&on law, and in the Bnion o. +outh A.rica with co&&on law and 8utch law. As the ci)il law has spread and entered into ,o& i!"tio! with other legal ele&ents, its in.luence has beco&e attenuated. 9hus, it is di..icult today to .ind a single $ci)il law rule' on any gi)en legal proble&. 3n the late #6th century, law re.or& has beco&e inno)ati)e and eclectic. +earching .or legal approaches to new social proble&s co&&on to &any di..erent countries, legislatures ha)e been less concerned with the pro)enance than with the pro&ise o. new techni0ues and ideas. W%"t, t%e!, i$ "!yt%i!., esi/es %istory, li!2s t%e ,i'il l"# syste&s to.et%erA 9he beginnings o. an answer &ay lie in a closer e:a&ination o. the )arious &eanings o. the ter& $ci)il law'. Cistorically, the ter& jus civile re.erred to the law applicable to %o&an citi2ens, the law which was e)entually co&piled by <ustinian1s ?urists into the Corpus <uris Ci)ilis. But the ter& $ci)il law' has ac0uired a narrower &eaning and so&e such ter& as $%o&anist' or $%o&ano(Ger&anic' is used to designate their historical connection. 9he &eaning o. $ci)il law' - droit civil, "ivilrecht/ to continental @uropean lawyers is )ery li&ited, the ci)il law is the law relating to those sub?ect &atter areas co)ered but the ci)il codes and their au:iliary statutes. 9hus, it not only does not include the entire legal syste&, it does not e)en take in all o. pri)ate law i., as is usually the case, part o. the pri)ate law is contained in a co&&ercial code and other codes and statutes. All the &a?or ci)il codes deal with a body o. substanti)e law within the sa&e .ra&e work staked out by, and still si&ilar in i&portant respects to, <ustinian1s 3nstitutes, law go)erning persona status, including .a&ily lawD propertyD and obligations, which &ay either arise .ro& contract o. result .ro& one1s conduct. One o. the great links a&ong the $ci)il law syste&s' is that the $ci)il law' was .or centuries, in .act, the &ost i&portant and .unda&ental part o. legal syste&, and is still regarded so in theory. @)en today, as the law o. the ci)il codes beco&es relati)ely less central in .act, the ci)il law

re&ains .or &ost continental lawyers the )ery heart o. the legal syste&. 3n so&e countries it can e)en be said to ha)e a 0uasi(constitutional character. 9hus, in legal education, in practice and in the work o. legal scholars, there is not only a co&&on .und o. inherited concepts, a shared passion .or theory and syste&ati2ation, but &ore i&portantly, there are distincti)e &odes o. thinking and co&&unication. Co!te&+or"ry Ci'il L"#, 9he transition o. !th century ci)il law syste&s into the #6 th century is closely tied to the trans.or&ation o. liberal laisse2(.aire go)ern&ents into &odern social wel.are states with planned or regulated econo&ies. 9he !th century codes established a large role .or indi)idual autono&y and .oresaw a &ini&al role .or go)ern&ental inter)ention. 9he dyna&ics o. the legal change ha)e worked pri&arily through a double &o)e&ent away .ro& the ci)il codes -)ia special legislation and ?udicial construction/, and to a lesser e:tent, through code re)ision, constitutional law and har&oni2ation o. law within the @uropean @cono&ic Co&&unity. O)er the #6th century, legislation, in response to social and econo&ic change, has re&o)ed large areas .ro& the co)erage o. the ci)il codes and has created entirely new areas o. law outside the codes.