Civil Law research

What is Civil Law?

 Generally refers to those countries whose
legal systems developed out of Roman Law
• First the Justinian Code, later the Napoleonic
Code
• Characteristics of the Napoleonic Code:
– All encompassing
– Rationally codified
– Clear to laymen
– Conservative yet easily changed
– System shaper
Civil Law Jurisdictions
 Sources of Law Differ
• Code is important
• Doctrine is important
• No Stare Decisis
 Style of Civil Lawyers
 Public/Private Law Distinction
 Legal Research Differences
Hierarchy of Civil Law
 Primary Sources – give rise to binding
legal norms

 Secondary Sources “Authorities” – may

have weight when primary sources are
absent, unclear or incomplete but are
never the basis of law. In practice they
are relied upon.
Primary Sources
 Constitution
 Code
 Laws
 Customs
 General Principles
Secondary Sources or “Authorities”
 Case law
 Doctrinal materials
• Treatises and commentaries of legal writers,
generally expressed in the form of systematic
expositions and discussions on broad legal
principles
• “Molds the minds of students, gives direction to
the work of practitioners and to the deliberations
of judges, and guides the legislators towards
consistency and systemization”
Religious/Mixed/Customary systems
Religious and Canon Law:
Basic Concepts
 Religious Law:
• Generally apply to specific topical areas, such
as banking/finance, family law, succession,
etc., and application can vary by country or by
region within a particular country
• Examples include Islamic (Shari’ah), Jewish
(Hallakah), Hindu, and Buddhist laws
• Very few countries have a purely religious
legal system; religious law is most often found
within mixed jurisdictions
• Submission to religious law may be
compulsory or by choice, depending upon the
religion, country, and situation
• Can affect the development of common law or
civil law in a country where it is applied
Where To Find Islamic Law
Sources
 Print:
• Quran
• Hadith
• Written records of Islamic jurisprudence
• Secondary and topical sources
 Online resources:
• Various versions of the Quran online: check date of
translation, translator’s reputation, reliability, etc.
• Hadith Collection Online:
• http://www.hadithcollection.com/
http
• Islamic Family Law at Emory University:
• http://www.law.emory.edu/ifl/
• Centre of Islamic and Middle Eastern Law, University of
London
• http://www.soas.ac.uk/cimel/
• Yearbook of Islamic and Middle Eastern law (available
through HeinOnline)
Where To Find Jewish Law
Sources
 Online
• Jewish Law Research Guide at University of
Miami School of Law
– http://www.law.miami.edu/library/judaicguide.php
• Jewish Law: Examining Halacha, Jewish
Issues and Secular Law
– http://www.jlaw.com/
• Jewish Encyclopedia
– http://www.jewishencyclopedia.com/articles/14216-
talmudic-law
• Soncino Edition of the Talmud Online
– http://halakhah.com/indexrst.html
Where To Find Canon Law
Sources
 Online:
• The Vatican website:
– http://www.vatican.va/phome_en.htm
– The Resource Library on the Vatican Website includes full
texts of Roman Catholic documents, including the Code of
Canon Law and the Roman Catholic Bible, in a number of
languages.
• CLSA Advisory Opinions (Canon Law Society
of America)
– http://www.clsa.org/?page=advisoryopinions
– Designed to provide interpretations of the meaning of the
canons established by the revised 1983 Code of Canon
Law of the Catholic Church.
– Interpretations are unofficial and must be weighed against
the official Latin text of the canons themselves.
• The Catholic Encyclopedia:
• http://www.newadvent.org/cathen/
What is customary law?
 There are two types of customary law about
which you need to be aware:
• Customary International Law
– A source of public international law.
– Determined by looking at evidence that all or most
countries follow the custom (for example, diplomatic
papers or legislative acts of international organizations.)
• Domestic Customary Law
– Consists of practices or beliefs such as tribal law, folk
law, or indigenous law, within a single jurisdiction.
– Exists for the most part only in mixed jurisdictions;
almost no country operates under a purely customary
system.
– Embodied in the form of custom or belief, and usually not
written down.
What is customary law?
–In the domestic context, “customary
law” is law that is based on deeply
rooted concepts and customs that have
taken on the force of law over time.
• The critical element is not that people keep
observing the same custom, but that they
do so because the custom has taken on the
force of law and because they understand
the custom to represent a legal obligation.
Researching Customary Law
–Customary law is one of the most difficult
types of law to research, because the law is
often simply understood and accepted by
the population, without ever being written
down or codified.
–Customary laws are also very subjective
and open to manipulation, and it can be
difficult to pin down exactly what the laws
are.
Researching Customary Law
– The best strategy is usually to research secondary sources that
discuss the customary law in a particular jurisdiction.
• Treatises and law review articles
• IGO/NGO reports
• Topical/comparative sources, such as the International
Encyclopaedia of Laws
Foreign legal databases
Foreign legal databases
 Think of these as foreign equivalents of
Lexis/Westlaw
 We do not subscribe to many of them,
but the ones we do subscribe to can be
found on our Electronic Resources page
under Foreign Law – By Jurisdiction:
• http://lawlib1.lawnet.fordham.edu/
eresources/erlinks/for_jur.html
LawInfoChina
 Coverage includes full-text Chinese case law
from the Supreme People's Court or the
Supreme People's Procuratorate in the areas of
administrative disputes, civil disputes, criminal
offences, economic disputes, intellectual
property law and maritime disputes; laws,
regulations, rules, judicial interpretations, local
regulations, and local rules in more than ninety
legal areas; and legal news in English.
 All documents provide the original Chinese text
alongside the English translation for
comparison if necessary.
Example #1
 Locate the law that governs arbitration
in China
• On what grounds can one challenge an
arbitrator in China?
Other sites
 Locate the relevant arbitration law/code
for one of the following jurisdictions:
• LawAfrica (Kenya and Tanzania)
• Juta (South Africa)
• Manupatra or SCC Online (India)
• BeckOnline (Germany)
• Legifrance.gouv.fr (France)
– Free resource, includes official English
translations of leading codes
Worldliis
 http://www.worldlii.org/
 The World Legal Information Institutes
are free, independent and non-profit
access to worldwide law for a variety of
jurisdictions, particularly good for UK
materials (BAILII),
• Australia (AustLII)
• South Africa (SAFLII)
• Asian-Pacific jurisdictions (AsianLII and
PacLII)
RECAP:
5 Steps Of Foreign Legal Research
1. What is the structure of the legal system
you are intending to research?
2. Identify exactly what you need—a case, a
statute or law, etc.—and how you need it
3. Identify the sources of law for the country
and locate those sources
4. Alternatively, start with a comparative
source rather than locate individual
jurisdictional sources, or consult a
secondary source [will discuss next
week!]
5. When all else fails, ask a librarian!!
Real-world questions
What I did yesterday
 I’m looking for a law from Saudi Arabia.
It’s called Decision of the Council of
Ministers No. 233 dated 16/09/1427H
(October 9, 2006G), and it’s about
establishing an insurance company. I
also will need some secondary sources
to help understand insurance law in
Saudi Arabia.
Example #1
>>> 1/8/2010 2:20 PM >>>

Alison:

In the oddball category of inquiries, are you aware of any

English language translations of the Hasn-ho, which is the
Japanese Bankruptcy Litigation Statute.

Thanks,
Alumnus, class of 1978
Example #2
>>> 3/4/2010 11:40 AM >>>
I am looking for a Russian telecommunications law (in
English) called "Resolution on the Order of Acquisition,
Use, and Provision of Geospatial Information." The only
thing I have for a citation is "No. 326 from 28.05.2007."

Thanks
Guy from University of Nebraska-Lincoln
Example #3
>>> 6/19/2009 5:29 PM >>>

Good Morning,

I am trying to locate a current version of the German

Code of Civil Procedure (ZPO - Zivilprozessordnung),
translated into English.

Thank-you.

Regards,
Australian Librarian