civil law
- Also called:
- Romano-Germanic law
- Related Topics:
- Roman law
- Germanic law
civil law, the law of continental Europe, based on an admixture of Roman, Germanic, ecclesiastical, feudal, commercial, and customary law. European civil law has been adopted in much of Latin America as well as in parts of Asia and Africa and is to be distinguished from the common law of the Anglo-American countries.
The term civil law has other meanings not employed in this article. The term jus civile, meaning “civil law,” for example, was used in ancient Rome to distinguish the law found exclusively in the city of Rome from the jus gentium, the law of all nations, found throughout the empire. The phrase has also been used to distinguish private law, governing the relations between individuals, from public law and criminal law. Finally, in the philosophy of law, civil law sometimes refers to the positive law of the state, as distinct from natural law.
The historical rise of civil law
In the 5th and 6th centuries ce, western and central Europe were dominated by Germanic peoples, especially those who had overrun the Roman Empire. Among them were the Anglo-Saxons of England, the Franks of western Germany and northern France, the Burgundians, the Visigoths of southern France and Spain, and the Lombards of Italy. Although the traditions of Roman law endured for some time, Germanic customs came to prevail in most regions. In the Middle Ages these customs underwent vigorous growth in an effort to satisfy the complex needs stemming from the development of feudalism and chivalry, the growth of cities, Eastern colonization, increasing trade, and an increasingly refined culture. Among the many strands that went into the weaving of the complex pattern of medieval law, the customs of merchants and the canon law of the Roman Catholic Church were of special significance. It was principally through the canon law that the concepts and ideas of ancient Rome continued to make their presence felt even when, as a whole, Roman law itself had been forgotten. In the late 11th century, Roman law was rediscovered and made the subject matter of learned study and teaching by scholars in northern Italy, especially at Bologna. With the increasing demand for trained judges and administrators, first by the Italian city-republics and then by princes in other localities, students flocked to Bologna from all over Europe, until the study and teaching of law were gradually taken over by local universities. As a result of this process, Roman law penetrated into the administration of justice north of the Alps, especially in Germany and the Netherlands, where the Roman-law influence became particularly strong.
In the Holy Roman Empire of the German nation, the reception of Roman law was facilitated because its emperors cherished the idea of being the direct successors of the Roman Caesars; Roman law, collected in the Code of Justinian (Corpus Juris Civilis) by the emperor Justinian I between 527 and 565, could be regarded as still being in effect simply because it was the imperial law. Decisive for the reception, however, was the superiority of the specialized training of Roman-law jurists over the empiricist methods of lay judges and practitioners of the local laws. Equally decisive was the superiority of the Roman-canonical type of procedure, with its rational rules of evidence, over the local forms of procedure involving proof by ordeal, battle, and other irrational methods. Nowhere, however, did Roman law completely supplant the local laws, and, as far as the content of the law was concerned, various amalgams developed. 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. The conceptual formulations in which the norms and principles of the law were expressed, as well as the procedural forms in which justice was administered, were also strongly Roman. The system that thus emerged was called the jus commune. In actual practice it varied from place to place, but it was nevertheless a unit that was held together by a common tradition and a common stock of learning. Although the law of the Corpus Juris Civilis (especially its main part, the Digest—the writings of the jurists) was, as such, in effect nowhere, it constituted the basis of study, training, and discourse everywhere. In spite of all local variety, the civil-law world experienced a sense of unity that corresponded to the strongly felt unity of European civilization.
This unity was undermined by the religious divisions of the Reformation and Counter-Reformation and by the rise of nationalism that accompanied the unification and stabilization of the European nations and their struggle for hegemony. In the field of law the split found expression in the national codifications, through which the law was unified within each nation but was simultaneously set apart from that of all others. In Denmark codification occurred in 1683, in Norway in 1687, in Sweden-Finland in 1734, and in Prussia in 1794. Because of the personality of their promoter and the novel technique applied, great fame and influence were achieved by the Napoleonic codifications of the private and criminal law of France, especially their central piece, the civil code of 1804 that came to be known as the Napoleonic Code.
Codification continued after the Napoleonic era. In Belgium and Luxembourg, which had been incorporated into France under Napoleon, his codes were simply left in effect. The Netherlands, Italy, Spain, Portugal, and numerous countries of Latin America followed the French model not only by undertaking national codification but also by using the same techniques and arrangements. Naturally, their courts and legal scholars were, at least in the early 19th century, inclined to pay great attention to French legal learning.
In Germany national codification came considerably later than in France. Only a commercial code had been uniformly created by the independent German states shortly after the revolution of 1848. The unification of the criminal law took place almost simultaneously with the political unification of the country, which occurred in 1871. Codification of the organization of the courts and of civil and criminal procedure came in 1879. But the German Civil Code (Bürgerliches Gesetzbuch für das deutsche Reich) was not completed until 1896, and it did not take effect until Jan. 1, 1900.
Throughout the 19th century the vigorous German science of law exercised much influence in Austria (which as early as 1811 had codified its law in a technique different from that of France), in Switzerland, in the Nordic countries, and, later, in most of eastern Europe. When Swiss law was codified in 1907–12, it became the model for the Turkish codification of 1926 and strongly influenced the codification of China, which is still in effect in Taiwan.
Owing to the different dates of codification and the different style and attitude of legal learning, the civil-law family of laws is thus divided into the French, or Romanist, branch and the German, or Germanic, branch. Their main features are determined by those of their prototypes. The legal system of Japan essentially belongs to the German branch, but it presents important features of its own.