The Civil Law Systems. Characteristics and Institutions

Maria Cecilia García NovilloClara Latorre Molina

Marta Martínez AlbaladejoMatías Valiente Egea

Introduction• Civil Law: basic features• Roman Empire and Medieval Time• Codification Process• Public Law• Court Structure• Legal Process• Legal Actors• Comparison

Civil Law: Basic Features• What? Dominant legal tradition today• Where? Most of Europe, Central & South Africa,

parts of Asia and Africa, Louisiana, Quebec and Puerto Rico

• Features

- Inquisitorial (vs. accusatorial)- Code-based (vs. case law)- History: Roman Law- Branches: public / private – criminal / civil- Career judges- Written proceedings (vs. oral proceedings)

The Roman Law• History origins• Jurists legal experts and advicers / “imperial

advicers”– Public service– Gaius: Institutes 161 B.C

• Corpus Juris Civilis “non exemplis sed legibus judicandum est” (6th Century)– Refinement of Gaiu’s Institutes + the Digest +

the Code + the Novels

Medieval Developments• Changes in commerce• The Glossators of Bologna features• Evolution: jurists as teachers• The “gloss” technique: changes made in the

Corpus Juris Civilis• Accursious: the “Great Gloss” (1230)• Law at universities: Bologna• Salamanca < --- > Palencia• Influence in the Spanish Law Code of the 7

parts of law

ROMAN TIME (JURISTS) MEDIEVAL TIME (GLOSATORS)

UNIVERSITIES + DISSEMINATION

• Canon Law- Influence of the church- Organization- Scholarly writings

• Law Merchant- Commercial relations fairs and

markets…- Maritime activities

* Consolato Del Mare: Barcelona (14th Century)

Influences leading to a Codification ProcessPractice of written laws spreads during the

fourteenth and fifteenth centuries.

Humanism- origins in France.- ferment of ideas.- birth of the concept of the nation state and

strong central governments.

Natural law- Hugo de Groot

* writings about universal concept of law that would transcend national boundaries and be independent from

other systems of law.

- Samuel Pufendorf and Christopher Wolff* writings influenced by scientific

methods of Galileo and Descartes.Logical deduction experience

and observation.

Enlightenment- French Revolution.- Importance of reason as a liberating force

in intellectual life.- Influence of legal philosophy.- Egalitarian ideals.

The Codification Process in France and Germanythe French Code

- Napoleon named four practitioners who had studied their predecessor.

- Code Civil des Français.* 6 articles which announce general

principles of law.* Book I: civil rights, status of

persons, marriage, divorce and paternity.

- Book II: covers real and personal property.

- Book III: contain provisions on rights of succession, contracts, and

obligations.

- influences* basic structure Justinian's Corpus

Juris Civilis.* overall design Declaration of the

Rigths of Man.

The German Code- product of codification process in 3 states:

Bavaria, Prussia and Austria.- presence of commissions made up of legal

scholars.

- Bürgerliches Gesetzbuch created in 1896 and put into effect in 1900.

* Book I - General parts:. natural and juristic persons.. definition of things.. classification of legal acts.. prescriptive periods.

* Book II - The law of obligations. creation and discharge of

obligations.. contracts.. law of delict.

* Book III - The law of real and personal property.

. ownership.

. possession of property.

. servitudes on property.

. securities.

* Book IV - Family law. marriage..other relationships within the family.

The Codes of Chile and BrazilConstitutional theory and practise and structure

of government: Northern American influence.- American Revolution: Southern

constitutions and public law.

Private law: European legacy.

Chile- Andres Bello: jurist specialist in both

Roman and Spanish law.* member of a commission whose

goal was to design a new civil code which went into force in 1857.

- This code is still being seen as one of the most advanced through most of the Spanish- speaking countries in South America.

Brazil- Legalism and formalism.- Obsession for legal codes (water, air,

mining, health, etc).- Similar to the German BGB:

* general principles.* the law of persons, things and

rights.* the law of family, property,

obligations and succession.- “The greatest monument to legal thought

and codification in Latin America”.

The Civil Law System as it exists and functions in the Modern EraPublic Law – Private Law Dichotomy.

-Private law relationships between individuals-Public law relationships between individuals

(citizens, companies) and the state

- Public law is not part of the civil codes. More fluid. Private law-matter ordinary

courts- Legal practice

Public law-mater administrative courts

Court StructureDifferences Common Law – Civil Law

- Civil-law countries several separate court system coexist. Courts immune from jurisdiction of other courts.

Common-law judicial system

Civil-law judicial system

Ordinary Courts- adjudicates the majority of civil and criminal

cases.- apply law found in the civil, commercial and

penal codes.Administrative courts

- specialized courts or sections to deal with administrative cases.

- independent jurisdiction from ‘ordinary courts’: rules specifically designed for administrative cases

Problems when deciding the proper court for a case

Legal ProcessCivil procedure - Public proceedings, controlled by the parties judge

conducted in writing judge- Civil process lawyers ‘article of proof‘ opposing counsel

witness questioned at a later hearing judge supervises evidences

prepares a summary delivers

no ‘dramatic trials’- Differences from Common Law trials absence of civil

jury Judges: fact-finding

process

Criminal procedure- Three phases: collect evidences1. Investigative warrant formal charges2.Examining complete and review3. Trial proceed to trial

Appellate procedure facts

- Intermediate appellate review law - Supreme court only lawCourt of Cassation Affirm lower court decision

Remand the case for consideration

Legal ActorsLegal Scholars → “basic thinking”The Legislature → supplement and update codesJudges → “operators” with a simple and narrow roleLegal Education and Lawyers

- Undergraduate education in law.- Choice among several branches.

* Private practice (advocate, notary).* Government lawyers (public prosecutor, lawyer for government).* Judges.

Comparison of Civil-Law and Common-Law Systems (I)

Corpus Juris Civilis influence- Civil-Law → significant- Common-Law → modest

Codification Process- Civil-Law → comprehensive codes from single drafting event.- Common-Law → codes reflecting rules of enunciated judicial decisions.

Comparison of Civil-Law and Common-Law Systems (II)Equity law (no comparable law)

- Civil-Law → originated in Rome to be applied to non-Roman peoples

- Common-Law → originated in England to soften the rigor of Common-Law

Creation of law: role of judicial decisions- Civil-Law → negligible

- Common-Law → supreme prominence

Comparison of Civil-Law and Common-Law Systems (III)

Manner of legal reasoning- Civil-Law → Deductive

- Common-Law → InductiveStructure of Courts

- Civil-Law → Integrated Court system- Common-Law → Specialty Court system

Trial process- Civil-Law → Extended process

- Common-Law → Single-event trial

Comparison of Civil-Law and Common-Law Systems (IV)Judges

- Role in trials.* Civil-Law → elevated role* Common-Law → «referee»

- Judicial attitudes.*Civil-Law → mere appliers of the law

* Common-Law → search creatively for an answer- Selection and training.

* Civil-Law → a part of the civil service* Common-Law → selected from a political process

Comparison of Civil-Law and Common-Law Systems (V)Legal training

- Civil-Law → undergraduate- Common-Law → post-graduateCivil process Civil process

Questions1. Why were glossators called that way?

2.In what language was first published Consolato Del Mare?

3. Which are the two schools of thoughts which influenced the process of codification during in the Modern era?

4. Did the South American legal system have another influence apart from the European one? If so, which one?

Questions5. In the civil procedure, is the judge involved in

the fact-finding process?

6. How many phases are there in a criminal procedure?

7. Write two differences between the Common-law and the civil-law systems.

8. What is the function of the Legislature?