civil law

civil law. The term has two meanings:
1. It is used as synonymous with Roman law, or with the Roman law tradition, which was accepted in most countries of Europe. The classical Roman law was the universal law and legal system of the Roman empire. With the fall of the Roman empire, the Roman or civil law which survived was heavily influenced by custom. Thus Roman law came to have two aspects—the pure classical Roman law and the bastardized Roman customary law which applied in the many barbarian and post-barbarian societies of western Europe. The codes of Roman law which most influenced western Europe were the code of Theodosius, and Justinian's Corpus juris civilis. These codes were much studied in the universities of Europe—especially in Italy where the first European law school was established in the 12th cent., at Bologna, the home of Irnerius, Azo, and Vacarius, who travelled from Bologna to Oxford and who influenced Bracton. In the 13th cent. Accursius and Bartolus and his followers, as a reaction to the sophistication of the glossators, emphasized the practicalities of custom and conflict of laws. A further revival of Roman law took place in the 16th cent. in the University of Bourges under Cujas (1522–90) as part of the Renaissance and the revival of pure classical learning.

English law was undoubtedly influenced by civil law, though it never ‘received’ or adopted Roman law. There was little evidence of survival of Roman law from the Roman occupation of Britain, but the Norman Conquest brought England close to continental traditions, especially through the influence of canon law. Further, Lanfranc, William's first archbishop of Canterbury, had taught in the law school at Pavia before founding the school at Bec and coming to England. Anselm and Theobald, two more archbishops, were also from Bec and strongly versed in civil law and canon law.

The author of Glanvill clearly had a sound grounding in Roman law, though the book makes it clear that English law is by no means the same. Bracton is commonly acknowledged to be heavily influenced by Roman law, though it has been disputed whether he was deeply imbued with Roman law ideas or merely using Roman principles to construct a synthesis of the emerging English common law. The great movement known as the Reception, under which many countries in Europe adopted the Roman civil law, passed England by, and although civilian ideas and procedures affected English law through the conciliar courts, including the courts of Chancery and Admiralty, and although later lawyers looked to Bracton and Britton for guidance and inspiration, civil law was never a serious threat to the common law in England. However, both through the canon law and through the interest of common law judges in civil law from time to time, Romanist ideas have been an undoubted if minor influence on the substantive law of England and Wales.

2. The other meaning of civil law is as distinct from criminal—i.e. the law relating to the adjustment of legal disputes between individuals, as distinct from those matters where the state takes responsibility for dealing with conduct which is against the interests of society and which is therefore pursued and punished by that society. The common law was mainly civil law since the work of the courts of common law was primarily the development of the writ system to enable individuals to litigate in the king's courts.

Maureen Mulholland