Civil law system

Concept, development and

sources of Civil law
 Concept of Civil law system
• The Civil Law System is considered as first family of laws in the world. Civil law is written or posited or
codified. The codification, the process of compiling and systematizing laws into a code is a major
characteristic of Civil Law. The Civil law is derived from the concept of Citizen’s law.
• The term Civil Law (Jus Civile) is commonly and popularly used in several distinct senses. Thus we distinguish
it on the one hand from the Jus Gentium and on the other hand from the Jus Naturale. Again our municipal
law is called the civil law, and further we distinguish between civil and criminal law on the one hand and civil
and canon law on the other. But it is here used as referring to the whole body of Roman law (the Corpus Juris
Civilis), having its proper origin contemporaneously with the genesis of the Roman state and coming down in
ordinary generation, from century to century, through the regal period, the republic and the empire to the
codification of Justinian and Napoleon. – (Encyclopedia Americana, http://gluedideas.com/)
• The term Civil Law is used by those who study comparative law to demarcate a group or family of laws in the
global legal landscape. – (Herbert M. Kritzer, Legal System of the World, PENTAGON PRES, 2005)
• Civil Law also called Romano-Germanic legal system is the system of law that emerged in continental Europe
beginning in the Middle Age. The civil law system has its roots in ancient Roman law, updated in the 6th
century A.D. by the Emperor Justinian and adapted in later times by French and German jurists. - (Peter J. Messitte,
COMMON LAW V. CIVIL LAW SYSTEMS)

• Similar Terms: Romano-Germanic, Continental, European, Private, Western.

 The Special features of Civil Law
1. Written and Codified Law: Written and codified law is the highest status in this family. The court should
confine within the realm of enacted laws.
2. Law making process: The aim of the state is to maintain social justice and law must be made by
parliament. For e.g. Roman Law was made on the basis of general will of people, with due consideration
of natural law. It was made on the basis of Latin maxim. “Solus populi supreme lex.” i.e. law made by
people is supreme.
3. Structure of law: There are two types of law in Civil Law system, which are known as private law and
public law. Private law is applicable to the official person where as the public law is applicable to the
common people. Thus, the reason is that the public and private interest cannot be weighted in the same
measure. Law is different for ruler and ruled. The concept of law of obligation is fundamental character of
this legal system.
4. Structure of Court: Court structure generally has three tiers a)First instance (like Lower Court), b) Court of
Appeal and c) Supreme Court. French administrative tribunals system with three tier. Germany has a
series of Supreme federal courts for labour law, social security matters and tax law. In Switzerland there
are autonomous federal courts in social insurance law, Military law and customs and excise.
Continue…
5. Court Procedure: Civil Law System is based on inquisitorial system.
Burden of proof normally goes to the accused. In some countries,
extensive pre-trial investigation is conducted by judges with active role.
Courts take expert’s opinion. Amicus briefs are an ancient legal
instrument, originating in Roman law and appearing early in the common
law tradition.
6. Close legal system: In Civil Law system, laws are clear, courts and judges
cannot go to the ambit of law. It is closed system as compare to common
law. Unity or clarity of the law is the feature of civil law.
7. No binding force of precedent: In Civil Law system precedent has not
obligatory character.
 Geographical Expansion of the Civil Law
• The major parts of the Civil Law systems are French law and German
law. French law expanded out of France with the French Colonial
expansion even prior to the revolution of 1789. So as the German law.
German Civil Code became the basis for the legal systems of Japan
and China. The Civil Law has been expanded over North Africa, West
Africa, Central Africa and Indo-China, French Guyana, Madagascar,
Belgium, Luxemburg, Netherlands, Italy, Spain, Portugal, China, Japan,
Korea, Taiwan and so on. It has been followed by Scotland, Quebec
and Lousiana.
continue…
 Historical Development of Civil Law
[HERBERT M. KRITZER, LEGAL SYSTEM OF THE WORLD: A POLITICAL, SOCIAL AND CULTURAL ECYCLOPEDIA, Pentagon Press, New Delhi,2005]

1. The Stage of Roman Civilization:

The Civil Law was developed along with the Roman civilization from the ancient Rome city in 533 BC to the
fall of Empire in 5th century. Roman law developed on the basis of codification is linked with Roman law.
Following two codes were the significant to this stage:
a. Twelve Table Code: Twelve Tables was codified in bronze tablets in 449 BC. It is the landmark
codification of Roman law and civil law too. The code had 12 chapters like Court Procedure, Execution
of Judges, Rights of Familial Heads, Legal Guardianship, Acquisition and Possession, Public Law, Sacred
Law etc. It “enabled the plebeians both to be acquainted with the law and to protect themselves
against patricians’ abuses of power.” – Rewati Raj Tripathi, A textbook on Nepalese Legal System, 2019, Pairavi
b. Justinian Code (Codex Justinianus / Corpus Juris Civilis) : Roman Emperor Justinian had concluded a
project to compile the laws to reduce the great number of imperial constitutions and court procedings.
The compilation was original called "Corpus Juris Civilis“ (body of civil law). It had four parts (1) Codex-
Codified constitutions, (2) Digesta-Juristic writings, (3) Institutiones-Textbook for legal institutions, and
(4) Novellae- New ordinances. All parts were published from 529 and completed in 534 AD. Justinian
code was the first code which recognized the concept of property right. It was developed by Roman
magistrates, administrators and Roman Lawyers. By this time the jurist were able to distinguish jus
naturale, jus gentium and jus civile.
2. The Stage of Customary Laws:
Much of the western part of the Roman Empire was reconquered by various
invaders in the last half of the 6th century. In the resulting chaos, the influence
of the Corpus Juris Civilis in those areas diminished. The new rulers did not
completely adopt Roman law or impose their own system [customs]. Instead,
over the next several hundred years a partial fusion of local law and the law of
the invaders occurred. – www.lawin.org
The period of customary laws is linked with renaissance during 12-13th
century. Legal Education was reformed from 12th century. English Law is the
result of the activities of English royal courts where as the Romano
Germanic Law is of the culture of European Communities. On this basis,
Jurists and Law Teachers started to teach laws and Jus Commune.
3. The stage of codification:
European universities have great contribution to develop the Civil Law
system by teaching laws to codify the customary laws. This effort resulted
the practice of codification after 16th century. The process of codification led
on attitude of legislative positivism. The significant codes are as below:
a) Napoleon code, 1804 : Official name is French Civil Code enforced by
Napoleon Bonaparte and still in force with frequent amendments.
b) German civil code, 1896 : It was a cornerstone of the “rule of law” over
aristocratic privilege. It was championed by liberals as a milestone in
establishing the rights of the common citizen. German Civil Code was
published in Berlin in 1896.
c) Switzerland civil code, 1907 : It was adopted in 1907 and went into effect
in 1912, and it remains in force, with modifications, in present-
day Switzerland.
4. The Stage of Expansion beyond Europe:
The colonization by the European countries, including France,
Germany, Belgium, Netherlands, and Portugal etc., played the vital role
in the expansion of the Romano-Germanic law beyond the Europe.
They exported Civil Law to their colonies of Latin America, South
America, Africa, South East Asia and so on. However, the countries
beside their colonies, has also adopted the codification and the Civil
Law system. The scholars from many other countries who had studied
in Europe also took the Civil Law system in their countries.
Sources of the Civil Law
1. Primary Sources:
A. Legislation:
Constitution – Treaties – Code Law – Parliamentary Act(Statute) -
Delegated Legislation – Ordinance – Administrative Directives
B. Judicial decisions :
Stare Decisis is not compulsory, role of administrative courts is
important
2. Secondary Source :
Customs – Juristic writings – Super eminent principles of
law(Reason, Justice, Good Conscience, Equity, Equality, Good
morals, Fairness),
Thank You