CIVIL LAW SYSTEM

Submitted by
Anna Tom
10522
One year LLM
NUALS
INTRODUCTION
The civil legal system is a legal framework rooted in ancient history and characterized by a
codified set of laws, detailed statutes, and an inquisitorial approach to adjudication. Its
foundations lie in the legal traditions of ancient Rome, where the development of a
comprehensive legal system laid the groundwork for what would become a pervasive and
influential legal tradition across the globe. 1

The civil legal system contrasts with the common law system, which relies heavily on judicial
precedent and a more adversarial approach to legal proceedings.

At the heart of the civil legal system is the concept of codification, where laws are
systematically organized into written codes, providing clear rules and regulations for various
aspects of civil life. This system strongly emphasizes legal certainty and predictability, aiming to
provide individuals and businesses with a clear understanding of their rights and obligations.

The inquisitorial nature of the civil legal system distinguishes it from the adversarial system
found in common law jurisdictions. In civil law, judges actively investigate cases, question
witnesses, and determine the facts of the case. This stands in contrast to common law systems,
where parties to a case play a more central role in presenting evidence and arguments.

The historical development of the civil legal system includes the ancient Roman legal tradition,
the preservation and adaptation of Roman law in medieval Europe, the influence of canon law,
and the impact of the Renaissance and Humanism. The codification movement during the
Enlightenment further solidified the civil legal system, leading to legal codes that serve as the
foundation for legal systems in numerous countries.

In the contemporary context, the civil legal system is applied in various jurisdictions across
Europe, Latin America, Asia, and parts of Africa. Prominent examples include the legal systems
of Germany, France, and Japan, each governed by its civil code. The civil legal system continues
to evolve through legal reforms, adapting to modern challenges while maintaining its
fundamental principles.

1
Dainow, Joseph. "The civil law and the common law: some points of comparison." Am. J. Comp. L. 15 (1966): 419.
BRIEF OVERVIEW OF HISTORY
The term "civil law" is derived from the Latin words "jus civile," by which the Romans
designated the laws that only the Roman citizens or "cives" were originally privileged to enjoy.
For the other people there was the "jus gentium." It is sometimes said that the countries of the
civil law are those which received their legal system from the Roman law. While this in effect is
true, it is only part of the story. Furthermore, this reference to Roman law can be appreciated
better in the light of an examination of the nature of its development along with its historical
and social evolution during a period of at least one thousand years, from the beginning of the
formal written law in the Twelve Tables up to the completion of Justinian's codifications and
compilations.2

● Roman Law (c. 509 BCE – 476 CE): The foundation of the civil law system can be traced
back to ancient Rome. The Romans developed a comprehensive legal system that
influenced many aspects of Western legal thought. The Roman Republic and later the
Roman Empire produced extensive legal codes, with the most notable being the "Corpus
Juris Civilis," compiled under the Byzantine Emperor Justinian I in the 6th century.

● Post-Roman Period (5th – 15th centuries): After the fall of the Roman Empire, various
Germanic tribes established their own legal systems, but Roman law continued to have
a lasting impact. During the Middle Ages, Roman legal principles were preserved and
adapted in the legal traditions of continental Europe.

● Canon Law and Medieval Universities (11th – 15th centuries): In addition to Roman
law, medieval Europe saw the development of canon law by the Catholic Church. Legal
education became an important part of the curriculum at universities, and scholars
studied both Roman and canon law.

● Renaissance and Humanism (14th – 17th centuries): The Renaissance period witnessed
a revival of interest in classical knowledge, including Roman law. Legal scholars sought
to reconcile Roman law with local customs and practices, leading to the emergence of a
more unified and systematic civil law.

2
Dainow, Joseph. “The Civil Law and the Common Law: Some Points of Comparison.” The American Journal of
Comparative Law, vol. 15, no. 3, 1966, pp. 419–35. JSTOR, https://doi.org/10.2307/838275. Accessed 19 Dec.
2023.
 ● National Legal Codes (17th – 19th centuries): During the Enlightenment, European
nations began to codify their legal systems. Prominent examples include the Napoleonic
Code in France (1804) and the German Civil Code (Bürgerliches Gesetzbuch) in 1900.
These codes aimed to provide clear and comprehensive legal frameworks based on
rational principles.

● Spread of Civil Law Principles (19th – 20th centuries): The civil law system spread to
various parts of the world through colonialism and the influence of European legal
scholars. Many Latin American, African, and Asian countries adopted civil law systems as
part of their legal reforms.

● Modern Civil Law Systems (20th century – present): Today, civil law systems are
widespread and serve as the foundation for the legal systems of numerous countries.
The civil law tradition continues to evolve as legal scholars and policymakers adapt it to
contemporary challenges.3

CHARACTERISTICS
1.Codification: Civil law systems are characterized by comprehensive legal codes that
outline the principles and rules governing various legal relationships. These codes cover
a wide range of legal subjects, such as contracts, property, family law, and torts.

2.Inquisitorial System: The civil law system often employs an inquisitorial approach to
legal proceedings. In this system, the judge takes a more active role in investigating the
facts of a case and determining the applicable law. This is in contrast to the adversarial
system used in common law countries, where the parties involved present evidence and
arguments, and the judge or jury decides based on those presentations.

3.Legal Scholars and Experts: Legal scholars and experts play a significant role in the
development and interpretation of the law in civil law systems. Courts may rely on legal
commentary and academic writings to understand and apply the law.

4. Precedent: Unlike the common law system, where precedent (past judicial decisions)
is a primary source of law, civil law systems place less emphasis on precedent. Judicial
decisions in civil law systems are typically not binding on future cases. Instead, the focus
is on the statutory law and legal codes.

5. Specialization of Judges: In civil law systems, judges often start their careers as legal
scholars or practitioners and may follow a distinct career path to become judges. This
specialization is intended to ensure that judges have a deep understanding of the law.

3
Apple, James G., and Robert P. Deyling. A primer on the civil-law system. Federal Judicial Center, 1995.
 6. Comprehensive Codes: Civil law systems typically have comprehensive and
systematic legal codes that cover various areas of law. These codes are periodically
updated or revised to reflect changes in society and address legal issues.4

LEGISLATION AS THE BASIS OF THE CIVIL LAW

Generally, in civil law jurisdictions, the main source or basis of law is legislation, and
large areas are codified systematically. These codes constitute a very distinctive feature
of a Romanist system or the so-called civil law. Although in the form of statutes duly
enacted by the proper legislative procedure, these codes are quite different from
ordinary statutes.

A civil code is a book that contains the laws that regulate the relationships between
individuals. Generally, it contains the following topics: persons and the family, things
and ownership, successions and donations, matrimonial property regimes, obligations
and contracts, civil responsibility, sale, lease, and special contracts, as well as liberative
prescription (statute of limitations) and acquisitive prescription (adverse possession). A
code is not a list of special rules for particular situations; it is, rather, a body of general
principles carefully arranged and closely integrated. A code achieves the highest level of
generalization based on a scientific structure of classification. A Code purports to be
comprehensive and to encompass the entire subject matter, not in the details but in the
principles, and to provide answers for questions that may arise.5

The nature of such a code naturally calls for a liberal interpretation so that it may serve
as the basis of decisions for new situations. The same method of liberal interpretation
likewise prevails for the ordinary statutes in a civil law jurisdiction. There is a great
respect and high regard for legislation as the basic source of the law.

A significant feature of legislation in modern civil law is the importance attached to the
preparatory works and the draftsmen’s comments, as well as the parliamentary
discussions in connection with its initial formulation. This is especially true of the codes,
particularly during the earlier periods of their interpretation. Thus, in France, the history

4
Sanders, AJGM. “The Characteristic Features of the Civil Law.” The Comparative and International Law Journal of
Southern Africa, vol. 14, no. 2, 1981, pp. 196–207. JSTOR, http://www.jstor.org/stable/23245238. Accessed 19
Dec. 2023.
5
Dainow, Joseph. “The Civil Law and the Common Law: Some Points of Comparison.” The American Journal of
Comparative Law, vol. 15, no. 3, 1966, pp. 419–35. JSTOR, https://doi.org/10.2307/838275. Accessed 19 Dec.
2023.
of the drafts, the observations of the courts, the debates, and the changes, were
indispensable to the interpretation of the Code of Napoleon.

CRITICISMS AND CHALLENGES

1. Rigidity and Formalism:

One of the primary criticisms is the perceived rigidity of codified legal systems. The
detailed and comprehensive nature of legal codes can limit flexibility in responding to
unique or novel situations. Critics argue that civil law systems may overly emphasize
formal rules, potentially leading to an inflexible application of the law. The emphasis on
written law may hinder the consideration of broader principles of justice in specific
cases.

2. Limited Role of Precedent:

Civil law systems generally do not rely on precedent to the same extent as common law
systems. Some critics argue that this can lead to inconsistency in legal decisions and less
predictability in the law. The absence of a strong precedent system may hinder the
development of nuanced legal doctrines over time.

4. Complexity and Accessibility:

The comprehensive nature of legal codes can make them complex and challenging to
navigate. This complexity may pose difficulties for individuals without legal training.
Some argue that civil law systems may not be as accessible to the general public due to
the technical nature of legal codes.

5. Adaptability to Social Change:

Critics contend that the legislative process in civil law systems may be slower in
responding to social changes compared to common law systems. The need for
legislative action to amend codes can be a lengthy process. The rigid structure of legal
codes may present challenges in addressing rapidly evolving societal issues and
technological advancements.

6. Limited Role for Judicial Precedent:

While some civil law jurisdictions consider prior decisions for guidance, the lack of
binding authority may lead to inconsistent interpretations of the law. Critics argue that
without a strong system of binding precedent, similar cases may be treated differently,
leading to unequal justice.
CONCLUSION
In conclusion, the civil law system stands as a cornerstone of legal frameworks in
numerous jurisdictions worldwide, characterized by its codified statutes, emphasis on
written laws, and the inquisitorial nature of its judicial proceedings. This system, rooted
in Roman law traditions, provides a structured and comprehensive approach to
resolving legal disputes. Its reliance on precedent is limited, as decisions are primarily
based on the interpretation of statutes and codes, fostering legal certainty and
predictability.

The civil law system's efficiency is evident in its ability to adapt to evolving societal
needs, enabling swift legislative responses to emerging issues. However, critics argue
that its rigidity may hinder judicial creativity and the development of nuanced legal
doctrines. Despite this, the civil law system continues to thrive, fostering legal systems
in countries across Europe, Latin America, Asia, and beyond.

Moreover, the civil law system's influence extends beyond its core principles, as global
legal harmonization efforts often draw inspiration from its codified structure. This
system's resilience and adaptability underscore its enduring relevance in an ever-
changing legal landscape. As nations grapple with contemporary challenges, the civil law
system remains a foundational framework, providing a balance between stability and
adaptability, ensuring the continued pursuit of justice and the rule of law.