Civil Law: Understanding the

Basics“You are not in Kansas anymore.”

Introduction

Rationale

Historical Basis

Key Issues

Modern Convergence

Rationale

Provide basic knowledge to be effective in Civil Law jurisdictions

Understand basis of most legal systems

Avoid being the “Ugly American”, or even worse, the “Ugly American Lawyer”

Create opportunities for dialogue

Historical BasisContinental in Origin

Codified First in 19th Century

Developed Fully in the 20th Century

Historic Laws of the Continent

Corpus Juris Civilis

Customary Law

Canon Law

Lex Mercatoria

19th Century Codifications

French Revolution:Code Napoléon

Bismarckian Republic:German Civil Code

20th Century Innovations

Austrian Constitutional Court

“Decodification”

Council of Europe

European Union

Constitutionalism

Key Issues

Codes and Case-Law

Structure of the Legal Education System

Structure of the Legal Profession

Trials and Rules of Procedure

Codes, Commentary & Case-Law

Public v. Private Law

Basic Codes

Commentary

Case Decisions

Public v. Private Law

Fundamental Concept

Frames Legal Structures

Self-Evident to Civil Law Lawyers

Modern Scope Evolving

Basic Codes

Civil Code

Civil Procedure Code

Commercial Code

Criminal Code

Criminal Procedure Code

Commentary

Not a Formal Source of Law

Scholarly Doctrine Drives the System

Legislatures Defer to Doctrine

Judges Typically Refer to Doctrine

“Civil law is a law of the professor.” John Merryman

Case Decisions

No stare decisis Effect, but Cases are

Always Consulted

Commonly Followed

Most Influential in New Areas of Law

Structured Differently

Structure of theLegal Education System

Law Faculty

Bar Exam

Practical Training

Magistrate Schools

Law FacultyStudents

No Entrance ExamsHigh Failure RateEarly SpecializationGraduates Often Don’t Practice

ProfessorsUsually in Private PracticeArduous Tenure TrackFull Professors Serviced By Team of AssistantsLess Interactive StyleEmphasize TheoryOral Exams Common

Bar ExamsOne of Several Criteria to Practice

Failure Rates may be High

Contains Oral and Written Components

May be Administered Over More than One Session

May Include Special Certifications

Practical Training

Prerequisite to Practice

Unique to Each Jurisdiction

May Involve Multiple Stages or Internships

May Allow Trainee to Earn Income

Magistrate Schools

Judicial Training as a Special Legal Education Track

Magistrates May Include Prosecutorial Functions

Emphasizes the Judge as a Civil Servant

Structure of the Legal Profession

Lawyer/Advocate

Notary

Non-Lawyers Who Provide Legal Advice

Lawyer/Advocate

Right to Appear in Court

Geographic Limitations

Law Offices Typically Smaller

Different Role of Legal Ethics

Notary

Draft Contracts, Wills, etc.

Certify Documents as “Public Acts” for Court

Safeguard Records

Quasi-Monopolies

Non-Lawyer Advisers

Accountants

Tax Advisers

Insurance Advisers

Trials and Rules of Procedure

Court System

Evidence and the Court Record

Court Proceedings

Court System

Three Levels

Clear Substantive Specializations

Juries Only in Serious Criminal Trials

De Novo Appeals

Federal Republic of Germany

County CourtAmtsgericht

(1 Prof. Judge in Civil and Family Divsions)(2 Prof. & 2 Lay Judges in Criminal Division)

District CourtLandgerichte

(3 Prof. Judges in Civil and 1 Prof. & 2 Lay in Commercial Divisions)(6 Prof. & 5 Lay Judges in Criminal Division)

Court of AppealsOberlandesgericht

(3 Professional Judges)

Federal Supreme CourtBundesgerichtshof

(5 Professional Judges)

Labor Court(1 Professional & 2 Lay Judges)

Court of Labor Appeals(1 Professional & 2 Lay Judges)

Federal Supreme Court of Labor(3 Professional & 2 Lay Judges)

Administrative Court(3 Professional & 2 Lay Judges)

Court of Administrative Appeals(3 Professional & 2 Lay Judges)

Federal Supreme Court of Administration(5 Professional Judges)

Tax Court(3 Professional & 2 Lay Judges)

Federal Tax Court(5 Professional Judges)

Court of Social Matters(1 Professional & 2 Lay Judges)

Court of Appeals for Social Matters(3 Professional & 2 Lay Judges)

Federal Supreme Court of Social Matters(3 Professional & 2 Lay Judges)

Specialized Courts

Constitutional CourtBundesverfassungsgericht

(8 Professional Judges)

Evidence and the Court Record

Discovery is Limited

Judges Question Witnesses

Verbatim Transcripts/ Recording Rare

Preliminary Record May Not Be Prepared by Trial Judge

Court Proceedings

Rules of ProcedureCivil Procedure

Criminal Procedure

Administrative Procedure

Influence of Civil Procedure

No “Trials” in the U.S. Sense

Civil ProcedureThree Stages

PreliminaryEvidence-TakingDecisionmaking

No Single Trial EventNo Cross ExaminationNo Contingent FeesNo Contempt PowersUse of Experts

Criminal Procedure

Three StagesInvestigative Phase

Examining Phase

Trial

No Plea Bargaining

Posture of the Prosecutor’s Office

“Judges in criminal cases have no right to interpret

penal laws, because they are not legislators.”

Cesare Beccaria

Modern Convergence

Decline of Parliamentary SupremacyRise of ConstitutionalismAcceptance of Judicial ReviewHarmonization of Commercial Practice

Legislature v. Judiciary

Role of Legislature

Fundamental Rights

Spectrum of Judicial Review

France

Increased Delegation to the Executive

Introduction of Limited Constitutional Review

1971 Conseil Constitutionnel Decision

Role of Administrative Courts

England

No Written Constitution

Parliamentary Supremacy Declining

EC Act of 1972

ECHR Incorporation

Limited Judicial Review

Germany

Impact of National Socialism

The Basic Law

“Centralized” Judicial Review

Constitutional Court as Supreme Arbiter

United States

Judicial Branch as Co-Equal

“Diffuse” Constitutional Review

Due Process Jurisprudence

Supreme Court as Ultimate Arbiter

Questions and Comments

“My true glory is not that I have won forty battles. Waterloo will blow away the memory of these

victories. What nothing can blow away and will live eternally is my

Civil Code.”

Napolean Bonaparte in Exile on the Island of St. Helena