Civil Law

Civil Law has two distinct meanings. As used within the American legal system, “civil law” is noncriminal law such as the law of property, commercial law, administrative law, and the rules governing procedure in civil cases. But “civil law” also refers to a body of law distinct from common law, and that is the sense of the term that is treated here.

Civil law is the legal tradition that derives from Roman law. The civil‐law tradition developed on the continent of Europe and spread throughout the world as a byproduct of the European expansion that took place from the fifteenth through the twentieth centuries. Some of the countries whose legal systems are based on the civil‐law tradition are France, Germany, Italy, Spain, all of Latin America, and Japan. Most nations of eastern Europe, including the Soviet Union, were civil‐law jurisdictions prior to the communist era, and with the collapse of the communist bloc they may revert to that tradition. While legal systems within the civil‐law tradition differ among themselves, they are so closely related that legal scholars refer to them as members of a single civil‐law “family.”

Civil‐law systems differ from common‐law systems in the substantive content of the law, the operative procedures of the law, legal terminology, the manner in which authoritative sources of law are identified, the institutional framework within which the law is applied, and the education and structure of the legal profession.

Thus, for example, in common‐law systems, the law of contracts requires consideration for a promise, but consideration has no true analogue in civil law. In common‐law systems before the statutory reforms of the mid‐twentieth century, a seller's warranty had to be expressed in a contract of sale; it could not be implied. But in civil‐law systems, buyers have always had remedies based upon the seller's implied warranty that the goods sold possessed qualities that the buyer could presume. Other differences can be found in the law of property, the law of torts (delicts), family law, and other areas of substantive law.

Civil‐law systems depend heavily upon written codes of private law, such as the French Civil Code (Code Napoléon) of 1804 and the German Bürgerliches Gesetzbuch (the “B.G.B.”) of 1900, as primary sources for authoritative statements of the law. Judicial decisions are less important than they are in common‐law jurisdictions. While a line of judicial decisions establishing a particular legal proposition (Fr., jurisprudence constante) does carry substantial weight, the common‐law rule of binding precedent (Lat., stare decisis) is not recognized in traditional civil‐law systems.

Because post‐Roman civil law developed in the medieval universities of Italy and France rather than in courts of law as in England, the civil law gives greater authority to the writings of legal academicians and scholars than does the common law, which continues to emphasize the law in practice as it is developed case by case in written decisions of appellate courts.

Within the United States and its territories, only three jurisdictions are considered civil‐law systems—Louisiana, Puerto Rico, and Guam—but because of the strong influence of common law in these jurisdictions, they are really “mixed systems” of civil and common law. Under the Supreme Court's ruling in Erie v. Tompkins (1938), Louisiana courts are the final authority on matters involving issues of civil law under the Louisiana Code of 1870. Similarly, courts in Puerto Rico and Guam have responsibility for the development of the civil law in those island jurisdictions.

Civil law is usually of tangential concern to the U.S. Supreme Court. The justices of the Supreme Court are products of the American common‐law tradition, and, with few exceptions, they have not been familiar with civil‐law sources or methods. Nevertheless, with the growth of international private law, the expanding commercial importance of the European Union and Japan, and increasing contacts among legal practitioners and legal elites across national boundaries, the Supreme Court will have to come to terms with the civil law tradition, the most widespread and important legal tradition in the modern world.

Bibliography

John E. C. Brierly and and René David , Major Legal Systems in the World Today: An Introduction to the Competitive Study of Law, 3d ed. (1985).
John H. Merryman , The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America (1969).

George Dargo