Civil Law Research Paper

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1. Structural Aspects

In the comparative study of law, legal systems are often seen as belonging to ‘legal families.’ These may be religious-based legal systems, they may be geographically deﬁned, or they may be distinct because of their structure and methodology. The principal, or characteristic diﬀerence between the families of the common law and of the civil law lies in the last of these. This is true despite the fact that both legal families have their roots in the Corpus Iuris Civilis of Justinian (AD 534) and that the common law has preserved some of these traditions to this day, while the civil law has moved closer to the common law in some areas.

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With respect to both families, it is dangerous to generalize; there can indeed be marked diﬀerences between legal systems belonging to the same ‘family.’ Thus, the use of codes (for example, the Uniform Commercial Code), the existence of a large body of statutory law, and the adoption of the inﬂuential Restatements may make the legal system of the United States appear closer to the civil law than to its English roots (see Farnsworth 1996, p. 227). Such a conclusion, however, would misconceive the role and function of statutory law and of the methodology in its application in the civil law, on the one hand, and in common law legal systems, on the other hand.

Codes and statutes consist of rules in all legal systems. These may be very speciﬁc or they may be stated with some degree of generality. In some areas, common law codes and other legal texts display extraordinary detail, attempting to anticipate every eventuality. The common law judge, as a consequence, will begin with the factual circumstances of the case and after examining, comparing, and weighing the factual elements of the case, will attempt to ﬁnd a rule that ﬁts it. This rule may be one of statutory law or derive from prior decisional law. The civilian judge sees the case as a problem to be solved within the legal structure of the legal system. First, the problem at hand must be ﬁtted into a legal category. Next, subcategories and sub-subcategories must be identiﬁed until ‘legal rule’ or ‘concept’ and the problem at hand match. Civilians proceed by deductive reasoning, while the common law approach employs an inductive methodology.

Categorization, as a structural characteristic of the civil law, also results in the drawing of sharp distinctions between diﬀerent areas of the law. Private law deals with legal problems that arise between natural persons or between natural and legal persons (such as corporations), while public law (for instance, constitutional law, administrative law, but also criminal law) addresses the relationship between citizen and state. In some civil law systems, this results in the establishment of special courts to deal with these diﬀerent areas of the law. In Germany, for instance, there are ‘ordinary’ courts with competence for private law and criminal law, and separate court systems with competence for questions of administrative law, labor law, and social law, each system has its own ‘Supreme Court.’ Since many cases will obviously involve ‘mixed questions’ (e.g., of labor and private contract or tort law), there may be contradictory rules of law, with no unifying ‘Supreme Court.’ In France, the Conseil d’Etat stands beside the Cour de Cassation, with exclusive competence in certain public ﬁelds of law. The exclusivity of the Conseil’s competence avoids some of the German problems. Germany and Italy have Constitutional Courts, other civil law countries do not. While the divisions are more pronounced in Germany than elsewhere, categorization of ﬁelds of law and the establishment of specialized courts unavoidably leads to a high degree of specialization within the legal profession, both among lawyers as well as judges. These lines are much more ﬂuid in common law.

The central role of the legal rule in civil law legal systems also explains why precedent (that is, the binding eﬀect of a prior court decision on a diﬀerent, but similar subsequent case) is quite diﬀerent from what it is in the common law. The civilian judge applies the law but is not bound (obviously with some exceptions) by earlier decisions of a higher court. In common law, in contrast, it is the decision of the highest court that ultimately is the law and therefore binds inferior courts. Subsequent discussion will return to these points.

2. History

Roman law had no comprehensive codiﬁcation before Justinian’s Corpus Iuris Civilis. Law, such as it was, was divided into ius civile and ius gentium. The former applied among Roman citizens, the latter applied to legal relationships among others (Romans and foreigners, foreigners among themselves, and slaves). Judicial functions were exercised by praetores. The praetor prereginus administered the ius gentium and conceived and developed legal concepts unknown to the strict Roman ius civilis. In a diﬀerent context, of course, the English chancellor—at the beginning of the equity-jurisprudence—performed equally creative functions. Similar ideas—for equity and judicial creativity—underlie the ‘general clauses’ of the civil law (see ide infra).

With population growth and increasing urbanization, a new profession—that of the jurisconsult— arose. They were legal advisors who prepared written opinions for cases. As the number of opinions grew, principles could be derived from them which could be taught to students and serve as a basis for advice to judges. The development of principles fosters more abstract ways of thinking. Categories are conceived and problems are classiﬁed for assignment to various categories. Under Emperor Justinian, opinions, decisions, and other materials were gathered and the Corpus Iuris Civilis was prepared.

The Corpus Iuris stands at the beginning of what Roman law means today. This Code evolved in subsequent times as a result of the work of the Glossators and Commentators. All taken together constituted the ‘Ius Commune,’ the common law of Europe before, in subsequent centuries, countries and areas began to grow in diﬀerent ways and today’s ‘diﬀerent families’ began to take shape. In Europe, England gave rise to the common law (although, especially in the early period, with many Roman law elements). The Scandinavian countries, France, and Germany had a leading role in developing civil law. Once again, ‘civil law’ is not homogeneous. There are diﬀerences among civil law countries, and these diﬀerences are also reﬂected in the legal systems of those countries that modeled their codes or statutes after earlier rules of others. Two codiﬁcations in particular replaced the earlier ‘ius commune’ and proved very inﬂuential: the French code civil of 1804 and the German Burgerliches Gesetzbuch of 1896 (see also the Austrian Allgemeine Burgerliche Gesetzbuch of 1811). The French Code inﬂuenced the development of legal systems not only in many European (especially the Latin and Eastern); countries, it also spread to the Near East, Central and South America, and even to parts of North America (e.g., Louisiana). The German Code aﬀected the law of Eastern and Southern Europe (e.g., Hungary, the Czech Republic, and Slovakia, Yugoslavia, the Baltic States, and Greece) as well as of Japan and China (see Zweigert and Kotz 1998, 159, 160). Roman Law still exists in Southern Africa as Roman-Dutch law, an admixture of Roman law and old Dutch customary law which has interacted with English common law (see Zweigert and Kotz 1998). Codiﬁcation extended, in these and in other countries, not only to private law and private-law relationships but encompassed criminal law, commercial law, and both civil (private) and criminal procedure.

3. Sources Of Law

3.1 Primary Sources

Civil law systems draw a sharp distinction between primary and secondary sources. Primary sources are enacted law, custom, and ‘general principles of law.’ Of these, the main source is the enacted (statutory) law; it predominates in civil law systems.

A code in a civil law system consists of general principles, arranged in order of importance. At the beginning there may be general rules regulating basic problems that need to be addressed before the particular problem can be analyzed. For example: if a plaintiﬀ seeks damages for breach of contract, preliminary analysis must determine whether the contract was validly concluded. Provisions dealing with invalidity and avoidance of contracts usually are found in the general part of a civil code. Such a general part may be followed by particular parts dealing with individual ﬁelds of law, such as torts, contracts, property, or the law of succession. The main or basic codes are supplemented in increasing number by special statutes or codes of limited coverage with which the legal system reacts to new societal problems, for instance, in areas such as consumer protection, telecommunication, and new media.

Custom is also a primary source of law, but tends to be less important in practice because it is often diﬃcult to prove its pervasive observance in society. Customs are nonwritten rules, developed and observed over years and now part of social and economic thinking.

‘General principles of the law’ are what the term expresses: basic principles of the legal system which are pervasive of it and derive from norms of positive law. Civil law judges resort to ‘general principles of the law’ as guidelines in the interpretation of statutory norms both for the purpose of deﬁning their interrelation and for the purpose of their application. This is of particular importance when dealing with statutory norms that are rather abstract in their formulation. It is tempting to consider this process to be not very diﬀerent from the case law methodology of the common law. There is an important diﬀerence, however. The common lawyer derives the appropriate interpretation by reliance on precedent. The civilian judge is not so restricted but derives the interpretation considered to be appropriate from the structure of the legal system and the general principles of law that pervade it; nor will the decision in the present case have a necessary eﬀect on later cases. This is not to say that later cases may not reach the same conclusion: at the point of what French lawyers call jurisprudence constante and German lawyers standige Rechtsprechung, such decisional law may itself be regarded as having risen to the position of ‘general principles of law.’

3.2 Secondary Sources

Secondary sources consist of case law and the legal literature. The legal literature consists of monographs and contributions to the legal periodical literature as well as commentaries. The last are particularly important in civil law countries that follow or are close to the Germanic legal tradition. Commentaries are detailed annotations of each provision of a particular code, consisting of an analysis that brings together all case law dealing with this provision, opinions of others as expressed in the periodical literature, and the commentator’s own evaluation and summary.

Case law by itself, as already mentioned in other contexts, does not have the same central importance in a civil law system as it does in a common law system. It is indeed a secondary source, for the judge is bound only by the enacted law, except in the few cases in which—as discussed—the decisional law has reached the level of jurisprudence constante or in systems (for instance, Germany) in which a ‘constitutional court’ has power to bind other courts. To repeat, however, such cases are rare.

Judges will read commentaries and the legal literature in general, just as lawyers do. The process of ‘law ﬁnding’ and its application, however, does not restrict the court to these sources.

4. Developing The Law

If ‘law’ is a norm in the form of a statutory codiﬁcation or a ‘general principle’ derived from such statutory norms, how can a judge decide a case for which no norm or general principles exist and, in the absence of legislative action, how can law develop further? (For comparative discussion see Capalli 1998, p. 87, Adriaansen 1998, p. 107, Baudenbacher 1999, p. 333).

Legislative action is of course the classic instrument for legal change. But the process, from drafting a bill until its ultimate passage and entry into force, can be long. A commission for the revision of the German law of obligations, for instance, has worked on this project for more than a decade. The ﬁnal report of the commission was published in 1992. Nevertheless, it was not until 2001 that a bill was introduced in Parliament. Thus, problems may need to be addressed that existing legal norms do not cover. The Swiss Civil Code is unique in its candid grant of discretion to the judge to ﬁll the gap. It provides in Art. 1, § 2: ‘if the Code does not furnish an applicable provision, the judge shall decide in accordance with customary law, and failing that, according to rule which he would establish as legislator.’ The assumption must be, of course, that even with such a grant of authority, the judge will try to fashion a result that conforms to the general structure and tradition of the legal system. The result will not contravene existing conceptions of what the law should be, but rather will ﬁll the gap, and thereby contribute to the evolution of the law. One way of doing this is to work by analogy, that is, to compare the present problem with other problems that similarly require a weighing of the interests of the parties in the dispute. The analogy then extends the balance struck with respect to other problems of the present case. An example is the treatment of leasing in German law. The German Civil Code contains provisions on leases and for sales, but not for leasing. Since leasing is regarded as possessing elements from both ﬁelds of law, case law and literature now derive rules from both ﬁelds and apply them to the phenomenon of leasing.

The Swiss provision just quoted confers discretion. Yet it was suggested that no court will exercise unfettered discretion but will seek to follow the structure and to implement the values of the particular legal system. This has very much been the experience in other civil law legal systems, for instance, the German. The German Civil Code, as do others, contains provisions of enormous breadth and, consequently, lack of speciﬁcity. These are ‘general clauses,’ of which § 242 of the German Civil Code is perhaps the best example. It requires parties to a contract to perform their obligations in ‘good faith.’ Section 242 has become the source of an extensive body of case law and of legal concepts not addressed speciﬁcally in the civil code. When the economic upheavals of the 1930s threatened parties to contracts with economic ruin, the German Supreme Court invoked Section 242 to develop a doctrine of ‘frustration of contract’ (Wegfall der Geschaftsgrundlage). This doctrine, interestingly never accepted to that extent in the United States (despite the greater freedom of common law courts to fashion law through decisions), permits courts in appropriate cases to adjust the obligations of the parties. The French Conseil d’Etat—but not the Cour de Cassation—developed a similar remedy, the doctrine of imprevision (see De Laubadere 1984, § 637). Good faith, so the German court states, requires the protection of both parties: cancellation of the contract (by analogizing the situation to one of impossibility) would be unfair to one party; enforcing it in full (against the background of totally diﬀerent and unexpected circumstances) would be similarly unfair to the other party.

The obligations of parties to a contract begin with its conclusion. However, expectations will have been created earlier and their disappointment may cause damage. In certain circumstances, such a situation could be dealt with under the law of Delikt (tort), but sometimes the preconditions for a remedy in tort will be lacking. Again, the extension of an existing provision may provide relief. Section 276 of the German Civil Code provides for liability for damage caused intentionally and negligently. For liability to arise, there must be some relationship, some duty owed to the other party. Such a relationship, so states the case law, is created by contract negotiations. Parties thus have a precontractual duty of care to each other and may have a remedy for its breach. This is the doctrine of culpa in contrahendo.

The civilian judge, despite the diﬀerent theoretical structure and focus of the legal system, thus can and does display the same creativity as do common law judges, with the principal—perhaps only—distinction that the decision in the individual case does not ‘make law.’ That new concepts can become part of the law, through repeated practice, is shown by the two examples just given. At that point, sources and methodology may diﬀer, the practical result no longer does.

The basic conceptual diﬀerence between common law and civil law ﬁnds reﬂection in still another area: the role of a judge and the conduct of a case. In common law jurisdictions, particularly the United States, litigation is ‘fact driven.’ The facts need to be established and the applicable precedent must then be found. With such an emphasis on the facts of a case, the role of the lawyers is a particularly active one. The judge functions as a neutral arbiter; judges of courts of appeal ultimately decide questions of law. In a civil law court, the judge starts with the rule of law, as outlined, and searches for the facts that he or she needs for the further categorization of the case. The judge’s role thus is much more active. Facts are elicited by the judge; lay judges may participate as members of the court (particularly in commercial matters), but there is never a lay jury in private law matters. The judge also ascertains the applicable law and, if the applicable rule of law happens to be foreign law because of the international aspect of the case, may even have to ascertain the content of the foreign rule of law ex oﬃcio. As a result, decisions of civil law appellate courts will read quite diﬀerently from those of appellate courts of common law countries. Attention to factual detail will be very slight (this is particularly true of high French courts) and the emphasis will be on legal norms, rather than the other way round.

5. Legal Education And The Legal Profession

In the United States of the eighteenth and nineteenth centuries, the young person could become a lawyer by ‘reading law in the chambers of a lawyer,’ in other words by serving as a clerk. In the civil law countries of Continental Europe, legal education has been the monopoly of the universities for centuries. With ‘doctrine’—not case law—the heart of the legal system, law faculties not only served as the only way of entry to the profession, but its faculty members equaled in stature the position of the high judges in common law systems (see Dawson 1978). (For the practice of ‘Akten ersendung’ in Germany in the earlier centuries, see Rheinstein 1938.) German appellate and supreme courts routinely sent case ﬁles to the prominent law faculties, virtually for ﬁnal decision on doctrinal grounds. The inﬂuence of law professors on the development of legal doctrine thus has a long tradition and continues to this day.) The course of study reﬂected, at least until recent times, both the strict categorization of the legal system into speciﬁc ﬁelds of law and the high level of abstraction that characterizes the deductive analytic method of the civil law. Practical training of the young lawyer was left to a period of time required to be spent in an oﬃcial training program (such as the Referendariat in Germany) or as a junior lawyer under the direction of a licensed lawyer, combined with additional training (such as in France). Full admission to the practice of law then occurs with the completion of these additional requirements. The mindset of the young lawyer had been formed, of course, by the time the university studies were completed, nor would it be changed by the acquisition of practical skills.

In more recent times, law curricula increasingly reﬂect the oﬀering or requirement of election of interdisciplinary subjects. There is also increasing instruction in the use of new technologies, for instance, how to access and use legal databases. However, to the extent that these oﬀerings represent ‘skills training,’ they may not be expected to change the structure of the legal system.

6. Outlook

Civil law systems diﬀer among themselves, as noted initially. This also holds true for the course of study and practical training required to become a lawyer. As a result, a lawyer—as in the case of other professionals—may face impediments in attempting to establish a practice in another country or even to render occasional services there. In the European Union, the 1988 so-called ‘Diploma Directive’ was one of the ﬁrst steps to implement the European Community’s freedom-of-establishment and free-supply-of-services provisions. The 1998 ‘Establishment Directive’ requires foreign lawyers who want to work permanently to pass an aptitude test or to have three years of practical experience in the state where they want to work. The Council of Bars and Law Societies of the European Community (CCBE) is an organization which includes the national associations of lawyers of the member states of the EC. It is the author of the ‘Code of Conduct for Lawyers of the European Community.’

In the European Union, civil law meets common law in a shared organizational structure. Eﬀorts to facilitate the trans-border practice of law have been accompanied by many legislative acts by the Com- munity that go beyond regulatory economic action but also aﬀect private law. Legal scholars are documenting the doctrinal commonalities in various ﬁelds of law—under such titles as ‘European-wide tort law’ (see Von Bar 1996), or ‘Property law in Europe’ (Von Bar is currently working on this project)—and there has been discussion concerning the feasibility of a European Civil Code (see Kotz 1996, Lando 1999). If there is, then, some movement toward a new vius commune in Europe—which, however, will ultimately extend to a signiﬁcant additional number of countries as a result of the enlargement of the European Union—many other civil law countries around the world will not participate directly in these developments. But the ‘new European law’ does not only seek to bridge diﬀerences among the civil law countries and between them and the common law; it will also eﬀect reforms and innovations within the civil law. These may well serve as models for other civil law countries, for instance, for those of South America that grow together through similar processes of economic co- operation and integration.

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