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

Positivism

jurists perceived the legal texts in force as the only source of law

common in 19thC France & Germany

Conceptualism

think of the law as a structured system of core concepts, principles, definitions
identify the relevant concepts in a case
the outcome of the case is the logical consequence of such concepts

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

Basis of common law

jurisprudence (precedents): previous cases

Equity history

the correction of rigid common law
14thC someone could appeal to the Court of Chancery if they felt their outcome was unjust
19thC courts to apply both common law and equity principles, merging the courts’ purposes