Civil v. Common Law

Civil law history: Ancient Rome

451 BCE: Twelve Tables codified Roman customary law

300 CE: decline of Roman Law in Western Roman Empire

476 CE: fall of Western Roman Empire

533 CE: Corpus juris civilis “Body of Civil Law” ordered by Emperor Justinian I in the Eastern Roman Empire. Consists of three parts:

• Codex: “Code of Justinian”, centuries of imperial legislation

• Digest: centuries of writings by expert jurists

• Insitutes: a textbook for law students

Roman judicial system

• praetor hears complaint

• praetor comes up with a formula for a legal solution (in the “if __, then __” format)

• iudex (a layperson) determines facts based on the evidence, determines if the “if” conditions are satisfied

Civil law history: Early Middle Ages

Western Europe 400-1100

• Roman law in south of France (limited)

• Customary law in northern France, Belgium, Germany

• Canon law based on the Bible emerged

Civil law history: High Middle Ages

Western Europe 1000 - 1300

• 11thC rediscovery of Roman law with Corpus Iuris Civilis

• universities established, law taught in them

• developments of the Ius Commune based on Roman & Canon law

Civil law history: Late Middle Ages

Western Europe 1300 - 1500

• 13thC rise of “non-academic” / local regional laws (often conflicted with Ius Commune)

  • non-written commercial law developed within guilds and merchant corporations, commercial courts composed of merchants

  • Coutumes de Beauvaisis codified the customary law of the land in France

  • Saxon Mirror codified the customary “law of the land” in France and the Holy Roman Empire

• 14thC humanists

Civil law history: Early Modern times

Western Europe 1500 - 1800

• 16thC Corpus Iuris Canonici - the official compilation of Roman Catholic law (the result of conflicting regional laws?)

• 16-17thC Natural Law Schools - approach of law as the result of rational thought, would be the same even if God did not exist (though they still believed in God)

Civil law history: Modern times / Englightenment period

Western Europe 1800 - ____

• 19thC Codifications - documents systematically detailing an entire field of law with exclusive validity (leading to derogation of older legislation), written in vernacular

  • General State Laws for the Prussian States 1794

  • Code Civil, France, 1804 (influenced Code Civils in Switzerland, Italy, Spain, colonies, America, etc…)

  • Code de Commerce, France, 1807

  • Civil Code, Austria 1811

  • Civil Code, Germany, 1900

French Civil Code

1804 codification of private law concerning relationships between private persons. (“general” private law = civil law)
structure:

• First book: on persons (family, marriage)

• Second book: on goods & property

• Third book: on how to acquire ownership (inheritance, donation, contract, tort, lease, deposit, matrimony)

philosophical underpinnings:

• modern: based on liberty, equality, secularisation of marriage, abolition of feudal servitudes

• conservative: in family law, paternal power, marital power

• compromise between doit écrit and doit coutumier

written with general, imprecise language, leaving room for judges’ freedom, language not stiff

French Commercial Code

1807 codification of private law concerning relationships between merchants (“specific” private law = commercial law)
did not include farmers, mining companies, artists, liberal professions, etc…)
many specific rules to cover gaps for activities that had no history in Roman law, as well as deviations from the general private law solution received from Roman law

German Bürgerliches Gesetzbuch

1874 first draft: principles of German private law, heavily influenced by Roman law, very complex & academic
1895 second draft: still influenced by Roman law, more pragmatic

in all, a code for professionals, not citizens, little clarity

later evolution: introduction of general causes to cover bases, changes after WWI & WWII, changes to family law

Source of civil law

legislation, as part of codes (structured bodies of general principles)
the legislation leaves room for judges to interpret the law, but there is no binding force of precedent

Common law history: High Middle Ages

England 1000 - 1300
1066 Battle of Hastings, Normans conquered England, replaced the ealdormanries with feudalism (Before: eals led land semi-independent from King, allegiance depended on personal loyalty. Then: all land belonged to the King, allegiance enforced through oaths & more formal structure)

led to creating central courts of justice, which would deliver legal outcomes based on previous cases

Common law history: Late Middle Ages

England 1300 - 1500
centralisation of justice:

• the writ system, no more new writs created by the end of the 14thC

• the king sent out judges traveling along set routes (“circuits”)

• then permanent royal courts in London (decisions even more consistent)

equity

• 14thC Lord Chancellor would find remedies for cases with unfair outcomes (because writs too restrictive / no writ existing led to unfair outcomes), led to the Court of Chancery that applied equity law

The writ system

writ: an official written order in the King’s name that specified the type of legal claim and the procedure the court should follow

• summons writs: ordered the sheriff to summon the defendant to court to decide outcome → case is brought to court, supervised by a judge → pleadings → evidence → decision (usually by jury). The writ determines what facts matter, allowed arguments, possible remedies - very rigid

• executive/directive writs: ordered an immediate action - these were used to enforce earlier decisions, provide a quick legal remedy for disputes that could be contested later (this is just to say that the outcome of a case was not decided upon the application for the writ)

to start a case: one goes to the royal chancery in London, requests a writ that fits the case, pays a fee → the chancery issues the writ to a royal official / sheriff → everybody acts accordingly

a system of remedies, not a system of rights
treat like cases alike, precedents are a source of law
law created by judges - legislative law in a way an encroachment on the common law of the people

Common law history: Modern times

England 1800 - __
writ system abolished: to start a case, the plaintiff just files a statement outlining the facts and the legal relief requested, no need to fit the case into a rigid writ category

Court of Chancery became Courts of Justice, a single court applying common law & principles of equity

reception in settled colonies (Australia, North America) and conquered colonies (India, Sierra Leone, etc…)

Common law courts deciding if/when to apply precedents

• lower courts follow precedents established by higher courts (“stare decisis” - to stand by things decided)

• case of first impression - a court decides to make a new precedent

• distinguishing - a court decides a precedent does not apply because of distinguishing facts of the cases

Source of common law

jurisprudence (precedents): previous cases
legislation less important

19thC law philosophy

positivism: jurists perceived the legal texts in force as the only source of law
conceptualism: jurists think of the law as a structured system of core concepts, principles, definitions - the job is to identify the relevant concepts in a case, and then the outcome of the case is the logical consequence of such concepts

late 19thC - early 20thC law philosophy & developments

rejecting positivism, giving way to teleological interpretation (explaining the law in terms of the purposes it serves)

rejecting conceptualism, the law is not an exact science

comparative law

Comparative law

late 19thC
analysing different legal systems to further understand legal rules

• similar legal outcomes in different legal systems can suggest the rules are rational - functional approach

• different outcomes to common problems can be explained by…

  • dominant values in a given society - cultural approach

  • path dependency (history has constrained the present legal environment, and potentially future ones too) - historical approach

20thC law developments

socio-economic legislation

rise of the EU

four stages of regional market integration (EFTA, Customs Union, Common Market, European and Monetary Union)

21stC law developments

more communication about simplifying and unifying European law

2009 Draft Common Frame of Reference DCFR

2009 Draft Common Frame of Reference DCFR

proposing principles, definitions, and model rules for EU private law, based on EU acquis (“what has been acquired”), covered contracts, torts, property law

• no binding legislation, just a draft

• partly critically, partly well-received as an academic tool

• inspired the Common European Sales Law: uniform contract law to simplify cross-border trading, optional implementation