Civil law , civil law , or Roman law is a legal system derived from Europe, intellectualized in the Roman legal framework, a key feature of that is that its core principles are codified into a referenced system that serves as the primary source of law. This can be contrasted with the general legal system, the intellectual framework deriving from the judgment law made by the judge, and granting the authority preceded by the previous judgment, on the principle that it is unfair to treat the same fact differently on different occasions (doctrine judicial precedent, or staring at decisis ).
Historically, civil law was a group of ideas and legal systems that originally came from Corpus Juris Civilis , but heavily overlaid by Napoleonic, Germanic, canonical, feudal and local practices, as well as doctrinal strains such as natural law , codification, and legal positivism.
Conceptually, civil law comes from abstraction, formulates general principles, and distinguishes the substantive rules of procedural rules. It holds secondary law cases and subordinates to the law of the law. Civil law is often paired with an inquisitorial system, but the term is not the same.
When discussing civil law, one should keep in mind the conceptual distinction between law and the article of the capital. The most prominent feature of the civil system is their legal code, with short legal texts that usually avoid specific factual scenarios. The short articles in the civil code code deal in general and stand very different from the legislation system, which is often very long and very detailed.
Video Civil law (legal system)
Overview
The purpose of codification is to provide all citizens with good manners and a written collection of laws that apply to them and which judge should follow. It is the most widespread legal system in the world, applicable in various forms in about 150 countries. It is very interesting from Roman law, arguably the most complicated legal system that originated before the modern era.
Where the code exists, the main source of the law is the code of law, the systematic collection of interrelated articles, governed by the subject in some predetermined order, explaining the principles of law, rights and rights, and how the basic legal mechanisms work. The legal code is merely a law passed by the legislature, even if it is generally longer than any other law. Other major legal systems in the world include general law, Islamic law, Halakha, and canon law.
Civil law countries can be divided into:
- where Roman law in some form is still living law but there has been no attempt to create civil code: Andorra and San Marino
- people with an uncodified mixed system in which civil law is the academic source of authority but general law also affects: Scotland and the Roman-Dutch law states (South Africa, Zimbabwe, Sri Lanka and Guyana)
- people with mixed codified systems in which civil law is a legal background but whose public law is heavily influenced by common law: Puerto Rico, the Philippines, Quebec and Louisiana
- people with comprehensive codes that exceed a single civil code, such as France, Germany, Greece, Italy, Japan, Mexico, Russia, Spain: this is the last category that is usually considered a typical civil law system, and is discussed in the rest This article.
The Scandinavian system has a hybrid character because their background law is a mixture of Scandinavian civil and customary law and has been partially codified. Likewise, the laws of the Channel Islands (Jersey, Guernsey, Alderney, Sark) combine Norman's customary law and French civil law.
A striking example of civil law is the Napoleonic Code (1804), named from the French Emperor Napoleon. This code consists of three components:
- legal person,
- property law,
- commercial law.
Rather than a summary of the law or case law catalog, the Code establishes general principles as the rule of law.
Unlike the general legal system, the jurisdiction of civil law handles case law apart from precedent values. Civil tribunals generally decide cases by using a case-by-case basis of kodal rule, without reference to other (or even higher) judicial decisions. In actual practice, an increasing level of precedence creeps into the jurisprudence of civil law, and is generally seen in many of the country's supreme courts. While the Supreme Court decision speaking in French is short, concise and without explanation or justification, in the Germanic Europe, the supreme court can and does tend to write more weighty opinions, supported by legal considerations. A similar case decision line, while not a precedent per se , is constante jurisprudence . While civil law jurisdictions place little reliance on court decisions, they tend to produce a number of phenomenally reported legal opinions. However, this tends to be uncontrollable, as there is no legal requirement that every case be reported or published in legal reports, except for state councils and constitutional courts. Except for the highest court, all publications of legal opinion are not official or commercial.
Civil law is sometimes referred to as neo-Roman law, Romano-Germanic law or Continental law. The expression of civil law is a translation of the Latin civile jus, or "citizen law," which is the final imperial term for its legal system, as opposed to the laws governing conquered people ( gentium juice ); therefore, the title code Justinian Corpus Juris Civilis . Civilian law practitioners, however, have traditionally referred to their system in the broad sense as a commune juice, literally "common law," meaning general principles of law that are contrary to specific laws for regional areas, specific areas. (The common law usage for the Anglo-Saxon system may or may not be affected by this use.)
Maps Civil law (legal system)
History
Civil law took as the main inspiration of classical Roman law (1-250 AD), and especially of Justinian law (6th century CE), and subsequently expanded and developed in the late Middle Ages under the influence of the law canon. The Justinian Code documentation provides a sophisticated model for contracts, rules of procedure, family law, will, and a strong monarchical constitutional system. Roman law is accepted differently in different countries. In some cases it applies wholesale to legislative acts, that is, being a positive law, while in others it is spreading to society by increasingly influential jurists and scholars.
Roman law continued uninterrupted in the Byzantine Empire until its last fall in the fifteenth century. However, given some rush and work by Western European powers in the late medieval period, the law became widely applicable in the West. It was first received in the Holy Roman Empire partly because it was regarded as an imperial law, and spread in Europe mainly because its students were the only trained lawyers. It became the basis of Scottish law, although it was partially rivaled by the accepted Norodian law. In England, it is taught academically in Oxford and Cambridge, but it only underpins the law of wills and marriages as long as it is inherited from canon law, and maritime law, adapted from lex mercatoria through the Bordeaux trade.
Consequently, none of the two waves of Roman influence were fully dominant in Europe. Roman law is a secondary source that is applied only when local customs and laws are found to be lacking on a particular subject. However, over time, even local laws were interpreted and evaluated primarily under Roman law, as it is a common European legal tradition, and thus in turn affects the main source of law. In the end, the work of civil interpreters and interpreters leads to the development of common legal entities and the writing of laws, common law languages, and common teaching and scholarship methods, all referred to as juice communes, or common law for Europe, which consolidating canon law and Roman law, and to some extent, feudal law.
Codification
An important general characteristic of civil law, regardless of its origins in Roman law, is a comprehensive codification of accepted Roman law, that is, incorporated in civil regulations. The earliest known codification is the Code of Hammurabi, written in ancient Babylon during the 18th century BC. However, this, and much of the code is followed, especially the list of civil and criminal errors and their punishment. Codification of a typical type of modern civil system did not emerge first until the Justinian Code.
German codes emerged during the sixth and seventh centuries to clearly illustrate the laws applicable to the special classes of Germany versus their Roman subjects and to govern them according to the rights of the people. Under the feudal law, a number of private custumals were compiled, first under the Norman empire ( TrÃÆ's¨ cien coutumier, 1200-1245), then elsewhere, to take down the manuscripts - and then area-habits, decisions courts, and the legal principles underlying them. Custumal is commissioned by a nobleman who leads a lay judge over a man-center court to inform themselves of the court proceedings. The use of custumals from influential cities soon became common in large areas. In line with this, certain kings consolidate their kingdom by trying to compile custumals that would serve as land laws for their territory, as when Charles VII of France in 1414 commissioned the official custumal of the Crown Law. Two prominent examples include Coutume de Paris (written 1510; revision 1580), which serves as the basis for the Napoleonic Code, and Sachsenspiegel ( c . 1220) of the diocese of Magdeburg and Halberstadt used in northern Germany, Poland and the Low Countries.
The concept of codification was further developed during the 17th and 18th centuries, as an expression of both natural law and the ideas of the Enlightenment. The political ideals of that era are expressed by the concept of democracy, property protection and the rule of law. These ideals require legal certainty, recording, uniform law. Thus, a mixture of Roman law and customary and local law gave way to codification of the law.
Also, the idea of ​​a nation-state implies a law that will apply to that country.
Of course, there are also reactions to legal codification. Codification proponents see it as conducive to the certainty, unity and systematic recording of the law; while his opponents claim that codification will result in legal hardening.
In the end, despite the resistance to codification, the codification of European private law moved forward. Codification was completed by Denmark (1687), Sweden (1734), Prussia (1794), France (1804), and Austria (1811). The French Code was imported into the territory conquered by Emperor Napoleon and later adopted with modifications in Poland (Duchy of Warsaw/Polish Congress; Codex cywilny 1806/1825), Louisiana (1807), Canton of Vaud (Switzerland, 1819), Holland (1838) , Serbia (1844), Italy and Romania (1865), Portugal (1867) and Spain (1888). Germany (1900), and Switzerland (1912) adopted their own codification. This codification is in turn imported into the colony at one time or another by most of these countries. The Swiss version was adopted in Brazil (1916) and Turkey (1926).
In the United States, the US states begin codification with New York's "Field Code" (1850), followed by California Code (1872), and Static Revised Federal (1874) and United States Code (1926).
In Japan, at the beginning of the Meiji Era, the European legal system - particularly German and French civil law - is the main model for the judicial and legal system. In China, the German Civil Code was introduced in later years from the Qing Dynasty, mimicking Japan. In addition, he forms the legal basis of the Republic of China, which remains in force in Taiwan. Furthermore, Korea, Taiwan, and Manchuria, former Japanese colonies, have been heavily influenced by the Japanese legal system.
Some authors regard civil law as the basis of socialist law used in communist countries, which in this view would essentially be a civil law in addition to Marxist-Leninist ideas. Even if so, civil law is generally a legal system that existed before the rise of socialist law, and some Eastern European countries returned to pre-Socialist civil law after the fall of socialism, while others continued to use the socialist legal system.
Some civil-law mechanisms seem to have been borrowed from Shariah and medieval Islamic fiqh. For example, the Islamic hawala (hundi) underlies Italian law and avalanche of French and Spanish law.
Differentiation from other large legal systems
The table below contains important gaps (and in some cases similarities) between the four major legal systems of the world.
Civil law in particular contrasts with the common law, which is the first developed legal system in Britain, and then among the English-speaking people of the world. Regardless of their differences, these two systems are very similar from a historical point of view. Both evolve in the same way, albeit at different distances. The Roman law underlying civil law evolved primarily from customary law which was perfected by law and case law. Canon's law further enhances court procedures. Similarly, English law developed from Anglo-Saxon customary law, Danelaw and Norman laws, is further refined by law and case legislation. The different is
- Roman law has crystallized many of its principles and mechanisms in the form of the Justinian Code, drawn from case law, scientific commentary, and senatorial law; and
- Civil law cases have a persuasive authority, not a binding authority as governed by general law.
However, codification does not mean the distinctive features of civil law systems. For example, the laws governing the civil law system of Sweden and other Nordic countries and the Roman-Dutch countries are not grouped into larger and larger codes such as those in French and German law.
Subgroup
The term civil law is derived from a British legal scholarship and is used in English-speaking countries to unify all legal systems of the tradition of jus commune. However, comparisons of law and economists who promote the theory of legal origin prefer to divide the jurisdiction of civil law into four distinct groups:
However, some of these legal systems are often and more accurately said to be hybrid properties:
Napoleonic to Germanistic influences: The Italian civil code of 1942 replaced the original in 1865, introducing the Germanistic elements of the current geopolitical alliance. This approach has been imitated by other countries, including Portugal (1966), Netherlands (1992), Brazil (2002) and Argentina (2014). Most of them have innovations introduced by Italian law, including the unification of civil and commercial codes.
The Germanistic Influence on Napoleonics: The Swiss civil code is thought to be heavily influenced by the German civil code and partly influenced by the French civil code. The Turkish Civil Code of Turkey is a slightly modified version of the Swiss code, adopted in 1926 during the presidency of Mustafa Kemal AtatÃÆ'¼rk as part of the progressive reform and secularization of the government.
But some civil legal systems do not fit this typology. Polish law developed as a mixture of French and German civil law in the 19th century. After the reunification of Poland in 1918, five legal systems (French Napoleonic Code of the Warsaw Duchy, German BGB of Western Poland, Austrian ABGB of Southern Poland, Russian law of Eastern Poland, and Hungarian law of Spisz and Orawa) were merged into one. Similarly, Dutch law, originally codified in the Napoleonic tradition, has been largely altered under the influence of Dutch native traditions of Roman-Dutch law (still prevalent in its former colonies). The Scottish civil law tradition is heavily borrowed from Roman-Dutch law. Swiss law is categorized as Germanistic, but has been strongly influenced by the Napoleonic tradition, with some original elements added as well.
Louisiana's personal law is primarily the Napoleonic system. Louisiana is the only US state partly based on French and Spanish codes and ultimately Roman law, which is contrary to British common law. In Louisiana, private law was codified into the Louisiana Civil Code. Louisiana's law is now united with American law, especially in its public law, the judicial system, and the adoption of the Uniform Commercial Code (except for Article 2) and certain legal instruments of American common law. In fact, every innovation, whether private or public, is clearly a common law principle. The Law of Quebec, whose common law also comes from French civilians, has flourished along the same lines, adapting in the same way as Louisiana to public law and the general legal justice system of Canada. In contrast, Quebec's private law has been innovating primarily from civilian sources. To a lesser extent, other countries that were previously part of the Spanish Empire, such as Texas and California, also retained the legal aspects of Spanish civil law into their legal systems, for example community property. The Puerto Rican law system shows similarities with Louisiana: a civil code whose interpretations depend on the civil and public legal system. Since the Civil Code of Puerto Rico was based on the Spanish Civil Code of 1889, existing jurisprudence tended to rely on general legal innovations due to the age of the code and in many cases, the outdated trait.
Some Islamic countries have civil law systems that contain elements of Islamic law. For example, the Egyptian Civil Code of 1810 developed in the early nineteenth century - still prevalent in Egypt is the basis for civil law in many countries of the Arab world where civil law is used - is based on the Napoleonic Code, but its principal author Abd El -Razzak El-Sanhuri seeks to integrate the principles and features of Islamic law to respect the unique circumstances of Egyptian society.
The Civil Code of Japan is considered a mixture of about 60 percent of the German civil code and about 30 percent of the French civil code and 8 percent of Japanese customary law and 2 percent of English law. This code includes the doctrine of ultra vires and Hadley v Baxendale's precedent from the British legal system.
See also
- Notary civil law
- Higher rule by law
- Tort
- List of national legal systems
References
Bibliography
-
Family Romance Law . Mainz: European History Institute. - MacQueen, Hector L. "The Law of Scots and the Path to New Iusus." Electronic Journal of Comparative Law 4, no.Ã, 4 (December 2000).
- Moustaira Elina N., Comparative Law: University Program (in Greek) , Ant. Publisher N. Sakkoulas, Athens, 2004, ISBN 9 960-15-1267-5
- Reynolds, Thomas H. (1998). "Introduction to Foreign and Comparative Laws". In Rehberg, Jeanne; Popa, Radu D. Tourist Accident at New Frontier: An Introductory Guide to Global Legal Research . pp.Ã, 47-86. ISBN: 978-0-837-71075-4.
External links
- A collection of Roman Law resources administered by professor Ernest Metzger.
- Roman Legal Library by Professors Yves Lassard and Alexandr Koptev
- Primary on the Civil Legal System of the Federal Judicial Center?
- Brazilian Legal Articles in English -? -
- Civil Law for General Law Dictionary by N. Stephan Kinsella, Louisiana Law Review (1994) - -
- The Law of Brehon (King Ollamh Fodhla)
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