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Civil and Criminal Divide


The structure of the American legal system presupposes a clear distinction between civil and criminal wrongs in that the system provides distinctive legal processes and distinctive legal responses to the two kinds of wrongs. The clearest, strongest version of the civil/criminal distinction goes something like this: A civil action is brought by a private, injured party to seek compensation for an unintentional harm unlawfully caused by another party, whereas a criminal action is brought by the state to punish a defendant for a deliberate offense against the community. Civil actions are pursued in civil courts and are governed by rules of civil procedure and by a few special constitutional provisions relating to civil cases, whereas criminal actions are pursued in criminal courts and are governed by rules of criminal procedure and by a larger number of special constitutional provisions relating to criminal cases. Civil actions give rise to distinctive civil remedies like money damages or injunctions, whereas criminal actions give rise to distinctive criminal punishments like imprisonment or the death penalty.

As is the case with most generalities, in law and everywhere else, there is some truth to the clear, strong version of the civil/criminal divide, but the reality is much less clear and much more complex. Moreover, throughout the twentieth century, the movement was consistently away from clarity and toward complexity, even confusion, of the civil/criminal distinction. This destabilization of the distinction has taken place on both a conceptual and an institutional level; that is, the theoretical rationales for the distinction have been called into question, and the institutional structures that promoted the distinction have been altered. This entry will explore the many ways in which the clear, strong version of the civil/criminal distinction needs to be qualified and offer some explanations for the acceleration of these qualifications in the recent past.

Before "destabilization" of the civil/criminal distinction

To speak of the "destabilization" of anything is to imply that there was a time of stability. In the case of the civil/criminal distinction, this would be a somewhat misleading implication. The distinction between criminal and civil wrongs, and the nature of the processes used to address them, have never been static, but rather have continuously changed over time, often dramatically. For example, in Roman law, often cited by contemporary legal scholars as evidence of the ancient pedigree of the civil/criminal divide, robbery and theft were classified as (private) torts rather than as the (public) crimes we now consider them. And in early English common law, the civil/criminal distinction was neither a distinction between two intrinsically different wrongs, nor a bifurcation of procedural regimes, but rather was reflected in a choice among writs, of which there were at least four, that could be pursued by a victim of a wrong or by officers of the Crown. It was not until the mid-eighteenth century that any systematic defense of a civil/criminal distinction in English law was offeredby William Blackstone in his enormously influential Commentaries on the Laws of England, initially published as a series of lectures between 1765 and 1769, and now known simply as Blackstone's Commentaries. Blackstone divided English law generally into "private wrongs" and "public wrongs" and in turn divided legal sanctions into compensation (for private wrongs) and punishment (for public wrongs). Blackstone was the first to bifurcate the law into two such clearly distinct systems.

Despite this checkered history, the civil/criminal distinction was established enough by the time of the founding of the American republic to be written into the federal constitutionnot once, but many times. The framers of theU.S. Constitution clearly did not find the distinction particularly ambiguous, because they made reference to it in numerous places throughout the Bill of Rights without feeling any need to explain what constituted, for example, "criminal cases" for purposes of the Sixth Amendment, "self-incrimination" for purposes of the Fifth Amendment, or "punishments" for the purposes of the Eighth Amendment. Early American judicial cases, too, assumed a sharp and knowable divide between the realms of civil and criminal law. For example, many American common law courts rejected early claims for "punitive" damages in civil tort cases, relying upon a clear distinction between the intrinsically punitive function of the criminal law and the intrinsically compensatory purpose of civil law. Asked one such court, "How could the idea of punishment be deliberately and designedly installed as a doctrine of civil remedies? Is not punishment out of place, irregular, anomalous, exceptional, unjust, unscientific, not to say absurd and ridiculous, when classed among civil remedies?" (Fay v. Parker, 53 N.S. 342, 382 (1873)). While punitive damages eventually were accepted as part of the American tort system, courts throughout the nineteenth and early twentieth century continued to speak with assurance about the clear distinction between "criminal prosecutions" and "the enforcement of remedial sanctions," as the U.S. Supreme Court did as late as 1938. (Helvering v. Mitchell, 303 U.S. 391, 402 (1938)).

Current blurring or "destabilization" of the civil/criminal distinction

Despite such confident pronouncements of the clarity of the civil/criminal distinction, and despite the ease with which lawyers can delineate (or at least recognize) the clear, strong version of the distinction, even casual observers of the current U.S. legal regime would note at least the following five obvious qualifications.

First, the notion of civil actions as "private" and criminal actions as "public" is most clearly challenged by the many instances in which the government is cast in the role of plaintiff in civil suits. Starting with the New Deal policies of the 1930s, accelerating in the second half of the twentieth century, and continuing to the present, the federal government has been cast in the role of enforcer of a growing body of regulatory law, and this enforcement often takes the form of "civil enforcement actions" by government agencies against individuals or entities. For example, federal agencies such as the Environmental Protection Agency (EPA) and the Security and Exchange Commission (SEC) often bring civil suits, either alone or in conjunction with criminal charges, in order to address violations of extensive federal regulatory regimes in their areas. Such lawsuits challenge the paradigm of the civil suit initiated by a private party to redress individual injury. In addition, the government is also styled as a civil plaintiff when it seeks a delinquency determination against a wayward youth or when it seeks a civil commitment order against someone thought to be mentally ill and dangerous. Such cases demonstrate conclusively that civil lawsuits are not only an avenue of private redress, but also an important mode of governmental regulation.

The flip side of this qualification is the growing role of private parties in criminal actions. The victim's rights movement has called for a greater voice for individual victims in prosecutorial decision-making in criminal cases. The movement seeks rights for victims to be notified about the progress of criminal cases, to be present at all judicial proceedings, to have a say in plea bargaining, and to be heard at sentencing. This call for growing participation by victims in the criminal process necessarily qualifies the concept of a criminal action as a wholly public one brought by the state on behalf of the collective; rather, it seeks to render the criminal process also as a mode of private redress or retribution on behalf of individual victims.

Second, and relatedly, the strong version of the civil/criminal distinction is likewise challenged by civil remedies that look "punitive" and by criminal punishments that look "remedial." As some early nineteenth-century courts recognized, "punitive" damagescivil awards beyond the amount necessary to make a plaintiff wholeare meant to deter future offenses rather than to compensate plaintiffs for injuries. The acceptance of punitive damages in the American tort system thus sits uneasily with the distinction between compensatory and retributive justice upon which the strong version of the civil/criminal distinction relies. Similarly, the growing use of civil fines and forfeitures by regulatory enforcement agencies as well as the growing use of civil forfeiture by ordinary criminal enforcement agencies, especially in drug cases, have begun to create what some scholars have called a "middle ground" between civil and criminal sanctions. In this middle ground, governmental agencies use putatively "civil" sanctions in ways that parallel, often intentionally, criminal punishments, with the goal of deterrence paramount, and the goal of compensation secondary or nonexistent. Similarly, the use of noncriminal incarceration for juveniles and the dangerous mentally ill likewise imports nonremedial goals into the civil justice systemthis time incapacitation or rehabilitationin settings that are strongly reminiscent of prisons. On the flip side, it is not unusual for criminal courts to order, as a part of a criminal defendant's punishment, that the defendant make restitution to the victim. The victims's rights movement urges greater resort to such awards, just as they urge an enhanced procedural role for victims in criminal cases. This use of the criminal justice system to promote compensation, like the use of civil sanctions to deter or incarcerate, must qualify the purported bright line between civil remediation and criminal punishment.

Third, the strong version of the civil/criminal distinction sees civil wrongs as unintentional, primarily negligent, while criminal wrongs are intentional, the product of a mens rea or "guilty mind." Once again, while this generalization contains some truth, there is more overlap in culpable mental states in civil and criminal cases than the strong version suggests. The general tort standard is one of negligencethat is, failing to act as a reasonable person would act under the circumstances, whether or not the harm caused was inflicted intentionally or unintentionally. Moreover, American tort law permits a fair amount of "strict liability"that is, liability without regard to any fault at all, such as manufacturer's responsibility for faulty products even when they acted reasonably in producing and distributing them. But in addition to these standards of negligence and strict liability, American tort law also contains a substantial category of "intentional" torts, which require a more culpable mental state and thus move closer to the criminal category of mens rea. As for criminal cases, in general it is true that ordinary tort negligence is commonly deemed insufficient for criminal liability. Most criminal statutes that use negligence as a culpable mental state rely on the common law concept of criminal negligence, which denotes a greater deviation from reasonableness than mere tort negligence. Criminal negligence is often described as "gross" or "wanton" negligence; the Model Penal Code describes it as a "gross deviation" from the standard of care that a reasonable person would observe (MPC § 2.02 (2) (d)). However, while disfavored, ordinary tort negligence is occasionally incorporated into criminal statutes. Moreover, even strict liability is no stranger to American criminal law. The doctrine of felony murder, which treats even unintentional killings during the course of a felony as murders, is the oldest and most famous form of strict criminal liability. But the twentieth century also saw the proliferation of so-called public welfare offenses, in which strict liability criminal sanctions are imposed for various kinds of unintentional regulatory offenses like the mislabeling of drugs or the adulteration of food offered for sale. Thus, there is no clear or absolute demarcation between the mental states sufficient for civil as opposed to criminal liability.

Fourth, the strong version of the civil/criminal distinction posits two distinct procedural systems, one for civil cases and one for criminal. Once again, there is a general truth here that needs to be qualified. It is true that there are separate rules of procedure for civil and criminal cases and that the federal constitution and most state constitutions contain a fairly long list of special procedural rights reserved for criminal cases, such as the protection against double jeopardy, the prohibition of ex post facto laws, the burden of proof beyond a reasonable doubt, the provision of free legal counsel, the exclusion of unconstitutionally seized evidence, the privilege against self-incrimination, and the proscription of cruel and unusual punishments and excessive fines. But some putatively civil suits have been held to require some or all of the special procedural regime reserved for criminal cases. Two paradigmatic examples: The Supreme Court held that a putatively civil statute imposing the sanction of forfeiture of citizenship in fact constituted punishment that required the application of the entire special criminal procedural regime in the federal constitution (Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)). In addition, the Court held that juvenile delinquency proceedings must receive almost all of the special constitutional criminal procedural protections with the exception of trial by jury (In re Gault, 387 U.S. 1 (1967)). Beginning in the late 1980s, there has been an explosion of litigation about whether civil fines and forfeitures or new forms of incapacitative incarceration are subject to any or all of the special criminal procedural protections. (See, e.g., Kansas v. Hendricks, 521 U.S. 346 (1997), holding that the double jeopardy prohibition does not apply to the indefinite civil commitment of "sexually violent predators" after the conclusion of their prison terms; United States v. Ursery, 518 U.S. 267 (1996), holding that the double jeopardy prohibition does not apply to civil forfeitures imposed in addition to criminal punishment; Austin v. United States, 509 U.S. 602 (1993), holding that the Eighth Amendment's prohibition of excessive fines applies to civil forfeitures that are "punitive"; United States v. Halper, 490 U.S. 435 (1988), holding that the double jeopardy prohibition does apply to noncompensatory civil fines imposed in addition to criminal punishment.) This litigation explosion has led a number of scholars to urge a procedural "middle ground" to accompany the "middle ground" of sanctioning that lies between "pure" civil and criminal sanctions.

Fifth and finally, the strong version of the civil/criminal distinction suggests that the two sorts of wrongs give rise to distinctive legal responses, with money damages being the paradigmatic civil remedy and imprisonment being the paradigmatic criminal punishment. At an earlier time in American history, before the widespread use of incarceration, criminal penalties were distinctive in that they were usually capital or corporal. However, the nineteenth century saw the waning of the gallows, the whipping post, and the stockade, and the concomitant growth of prisons and monetary fines as the predominant forms of criminal punishment. These forms of punishment are not as distinct from civil remedies because incarceration is widely used as a civil restraint (for juvenile delinquents, pretrial detainees, pre-deportation detainees, and the civilly committed), and monetary payouts are ubiquitous in the civil system as either damages or fines. Thus, there is more overlap between criminal and civil sanctions than the strong version of the distinction would recognize.

In sum, the clear, strong version of the civil/criminal distinction is only generally or approximately true; it must be qualified by important overlapsoverlaps that are largely, though not exclusively, the product of the twentieth century.

Explanations for the current blurring or "destabilization" of the civil/criminal distinction

Of course, one would be hard pressed to find many bright-line distinctions, in law or elsewhere, that can be maintained with absolute clarity. The complexity of the world in general, and the legal world in particular, demands a certain degree of flexibility, particularly in sharp, binary divisions. However, the fuzziness at the edges of the civil/criminal distinction has definitely been increasing, and at an accelerating rate, throughout the last century and particularly throughout the last few decades. The causes of this accelerating increase are themselves complex and inter-dependent. They can usefully be divided into conceptual and institutional challenges to the civil/criminal distinction, each of which, in turn, has promoted and reinforced the other.

The two most significant conceptual or intellectual challenges to the civil/criminal distinction have their roots in the nineteenth century, but have become much more influential in the last two to three decades. The first big conceptual challenge has been the growing dominance of consequentialism or utilitarianism in legal thoughtwhat has come to be known in recent times as "law and economics." Economic analysis of law has fundamentally recast the nature of civil and criminal sanctions in a way that portrays them as related parts of a unitary scheme of state control of private behavior. The clear, strong version of the civil/criminal distinction would make a sharp distinction between (private) compensatory justice and (public) retributive justice. However, the advent of utilitarianism and its application to jurisprudence in the eighteenth and nineteenth centuriesbeginning with the famous work of Jeremy Bentham and Cesare Beccarialed to a reconception of the civil sanction as forward-looking in addition to backward-looking, able to shape future choices through deterrence in addition to restoring some preexisting status quo. At the same time, economic analysis of criminal law also emphasized its deterrent function, in addition to its nonconsequential justification in placing blame and giving offenders their "just deserts." Indeed, the strong economic view of criminal law would reject the moral dimension of the criminal law altogether and conceptualize it as entirely derivative of civil law, offering a sanction when civil remedies are unavailing, primarily in the case of insolvent defendants. Economic analysis of law thus portrays civil and criminal law not as separate or independent, but rather as complementary means of promoting a unitary system of "optimal sanctioning." This convergence on deterrence as the unifying rationale of civil and criminal law presents a compelling intellectual challenge to the traditional civil/criminal distinction.

The second big intellectual challenge to the civil/criminal distinction has come not from economics, but rather from the cognitive and behavioral sciences. Just as economic analysis of law has blurred the distinction between civil penalties and criminal punishments with its focus on deterrence in both the civil and criminal contexts, so too the developing science of human behavior has made less salient the distinction between treatment and punishment with its increasing emphasis on incapacitation (rather than rehabilitation) in both the civil and criminal contexts. In the nineteenth centurythe century of the invention of the prison, the asylum for the mentally ill, and the home or school for the juvenile delinquentthere was widespread belief in rehabilitation as a plausible goal of all types of incarceration, though in quite different ways. Prisons were thought to have the potential to rehabilitate offenders through silence, work, discipline, and penitence (hence the name "penitentiary"). Prisoners were to wear degrading uniforms (the prisoner's "stripes"), walk in lockstep, and work, eat, and pray in silence. On the other hand, asylums for the mentally ill were thought to rehabilitate through a model of medical "treatment" and "cure," and homes or reform schools for juvenile delinquents were thought to rehabilitate by providing a family surrogate (hence the name "home"). The twentieth century saw a waning of this confident faith in the malleability of human character and behavior, especially by governmental intervention with such "total institutions" as the mental hospital, the juvenile home or reform school, and the prison. This waning of faith led to the widespread deinstitutionalization of the mentally ill in the 1960s and 1970s and to a de-emphasis on rehabilitation for those among the mentally ill who remained incarcerated. At the same time, the goal of rehabilitation was also de-emphasized for juvenile delinquents and for incarcerated prisoners of the criminal justice system. Instead, all of these institutionsthe putatively "civil" institutions of mental hospital and juvenile home or reform school, and the "criminal" institution of prisonall emphasized a common goal: protecting society by incapacitating the "dangerous." In the twentieth century, it thus became less compelling to distinguish the "mad" in need of treatment from the "bad" in need of punishment; rather, it was more important to identify the "dangerous" in need of segregation. This convergence on dangerousness as the key determinant of incarceration parallels the convergence on deterrence as the key rationale for sanctions; both convergences threaten the idea of separate and distinct civil and criminal realms.

These two conceptual or intellectual shifts have been paralleled by two major shifts in the structure and uses of legal institutions. First, the twentieth century saw unprecedented growth in what has come to be known as "the administrative state"the regulation of vast spheres of life by administrative agencies, which often have broad sanctioning authority that is both civil and criminal. This organizational structure challenges the civil/criminal distinction in two ways: it casts the government in the role of civil plaintiff as a regulatory strategy, and it merges civil and criminal authority in a single administrative unit. This structure thus reinforces the deterrence theory that is one of the primary conceptual challenges to the civil/criminal distinction and is, in turn, reinforced by that theory. Second, existing forms of "civil" incarceration have come to resemble much more the dominant form of "criminal" incarcerationthe prison. In the 1970s, the juvenile justice system saw a shift away from indeterminate, rehabilitative commitment of delinquents, toward determinate, graduated commitments graded according to the seriousness of the juvenile's offense. In addition, during the last few decades, legislatures have made it progressively easier to commit juveniles to long periods of incarceration and to try juveniles as adults in criminal court. On the mental health side, legislatures have progressively narrowed the scope of the insanity defense, and some jurisdictions have even formally authorized verdicts of "guilty, but mentally ill" in order to ensure the long-term incarceration of those among the mentally ill who demonstrate their dangerousness through the commission of serious crimes. In addition, numerous jurisdictions have created new forms of "civil" incarceration to incapacitate dangerous offenders who might otherwise escape long-term criminal custody. The most common example of this development is the recent resurgence of interest in the civil commitment of sex offenders, especially of those who are about to be released from criminal confine, as reflected in "sexually violent predator" statutes like the one upheld by the U.S. Supreme Court in Kansas v. Hendricks. These doctrinal and institutional trends subordinate the distinction between "mad" and "bad" to the need for protection from the "dangerous." These trends thus reinforceand are reinforced bythe conceptual change in perceptions about the possibility of rehabilitation.

The future of civil/criminal distinction

The conceptual and institutional challenges to the civil/criminal distinction show few signs of abating, and thus the question is raised of whether the distinction can or should survive. Economists openly urge a more global approach to sanctioning that would substantially reduce if not entirely eliminate the distinctiveness of civil and criminal sanctions and systems. Some other scholars openly advocate for the recognition of some "middle ground" of sanctioning in which there are mixed rationales for sanctions and a mixed procedural regime that is more protective than the civil one, but less restrictive than the criminal one. Yet other scholars urge that the civil/criminal distinction be more strongly maintained and policed, both to limit strategic avoidance by the government of the strict limitations on criminal sanctioning and in order to protect the distinctive moral voice of the criminal law. It is too early to say which, if any, of these approaches will prevail in legislatures and courts; but the choice will be an important one in the twenty-first century.

Carol S. Steiker

See also Bail; Burden of Proof; Mens Rea; Punishment; Scientific Evidence; Sexual Predators.


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Chapman, John W., ed. Compensatory Justice: Nomos XXXIII. New York and London: New York University Press, 1991.

Chapman, John W., and Pennock, J. Roland, eds. Criminal Justice: Nomos XXVII. New York and London: New York University Press, 1985.

Cheh, Mary M. "Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction." Hastings Law Journal 42 ( July 1991): 13251413.

Coffee, John C. "Paradigms Lost: The Blurring of the Criminal and Civil Law ModelsAnd What Can Be Done about It." Yale Law Journal 101 ( June 1992): 18751893.

Kadish, Sanford H. "Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations." University of Chicago Law Review 30 (1963): 423449.

King, Nancy J. "Portioning Punishment: Constitutional Limits on Successive and Excessive Penalties." University of Pennsylvania Law Review 144 (November 1995): 101196.

Mann, Kenneth. "Punitive Civil Sanctions: The Middleground between Criminal and Civil Law." Yale Law Journal 101 ( June 1992): 17951873.

Robinson, Paul H. "Foreword: The Criminal-Civil Distinction and Dangerous Blameless Offenders." Journal of Criminal Law and Criminology 83 (Winter 1993): 693717.

Symposium. "The Civil-Criminal Distinction." Journal of Contemporary Legal Issues 7 (spring 1996): i 269.

Symposium. "The Intersection of Tort and Criminal Law." Boston University Law Review 76 (February/April 1996): 1373.

Steiker, Carol S. "Foreword: Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide." Georgetown Law Journal 85 (April 1997): 775819.

Zimring, Franklin E. "The Multiple Middle-grounds between Civil and Criminal Law." Yale Law Journal 101 (1992): 19011908.


Austin v. United States, 509 U.S. 602 (1993).

Fay v. Parker, 53 N.S. 342 (1873).

Helvering v. Mitchell, 303 U.S. 391 (1938).

In re Gault, 387 U.S. 1 (1967).

Kansas v. Hendricks, 521 U.S. 346 (1997).

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).

United States v. Helper, 490 U.S. 435 (1988).

United States v. Ursery, 518 U.S. 267 (1996).

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Trials, Civil (U.S. Law)

Trials, Civil (U.S. Law)

Civil law is also referred to as procedural law; it is the system of legal jurisprudence providing the means and methods by which individuals may legally engage with one another in order to formally address disagreements, and enforce the right of the individual to ask for redress of wrongs (materially or by other means). Civil law provides an efficient, formal, systematic, and impartial means of dispute resolution in a public courtroom setting. The goal of a civil trial is to discern the truth of an event by employing and examining the best possible evidence . Civil procedures set forth the requirements for conducting a civil trial, and include laws of evidence to set guidelines for the presentation of witnesses, means of appropriate documentation, and presentation of items of evidence.

The highest Court in America, the United States Supreme Court, has judicial oversight in all matters pertaining to court proceedings, and it stipulates that all procedural rules in the legal system must be consistent with the tenets set forth in the U. S. Constitution, particularly as regards the due processes clauses specified in the Fifth and Fourteenth Amendments. Due process means that everyone in a civil action is entitled to have his/her story heard in an impartial manner.

The American judicial system is said to be an adversarial one, that is, a system in which the lawsuit occurs between the individuals engaged in the disagreement (or, more accurately, their attorneys). The attorneys are responsible for the case and evidentiary presentations, and the judge acts to guarantee the objectivity and fair outcome of the trial. In American civil trials, the judge is an active participant in the trial, examining the evidence and inquiring as to the factual presentations in the case.

Before the start of a jury trial, civil proceedings involve a number of pre-trial pleadings before a professional judge, who makes decisions as to the factual and evidentiary presentations in the case. This pretrial hearing period is then followed by the commencement of the jury trial. In the American civil trial system, juries are composed of lay people, not specially trained to act as officers of the court. As such, they need to have the facts of the case presented in a manner, and at a level of comprehension, that they can understand. They are available only for limited periods of time, as jury summonses pull individuals away from their normal daily business. As a result, trials are conducted in an intensive, focused fashion over the shortest possible period of time in which the evidence can be fairly presented and witnesses can offer their testimony (expert and otherwise). All evidence to be presented must be made available before the start of the trial; it is assembled and offered during the discovery phase of the proceedings. If new evidence is uncovered after the start of a trial, it may necessitate another hearing.

In civil law proceedings, the jury hears the evidence, convenes to make a decision based on presentation of fact, and offers a recommendation based on their conclusions to the judge. The judge makes all decisions regarding matters of law.

In order to be a party to a lawsuit (either plaintiff or defendant), the individual must have the capacity and legal standing to sue another person (or another group of individuals). Minor children and those judged to be mentally incompetent to participate in a lawsuit must be represented by a law guardian who can act on their behalf, and in their best interests.

Those who are directly affected by the outcome of a case are called the parties to an action, and they are generally the only ones bound by its outcome. However, there are situations in which a large group of individuals may be impacted by a specific controversy. In those cases, a class-action lawsuit may be the result. This is a situation in which a smaller number of individuals sue a corporation or a system in order to justify the right to legal relief of a much larger group. All parties to the class action are bound by the outcome. Recent examples of such class actions include an action in which a small group of individuals affected by the leakage of silicone breast implants represented the entire population of individuals who had experienced complications subsequent to silicone breast implants made by a specific manufacturer. All received financial damages as a result of the finding on behalf of the plaintiffs in the suit. In a much smaller example, a group of inmates in a maximum security penitentiary in the state of New Mexico filed a class action suit on behalf of all inmates in maximum and super maximum security facilities in the state regarding the conditions of their confinement, and their experienced limited access to mental health services. As a result of a negotiated agreement, all inmates received greater access to mental health services and improved living conditions, among other benefits.

Lawsuits often take several years for successful resolution. Because of this, the civil legal system provides for the imposition of provisional remedies in order to ensure that the outcome does not become superfluous by the time the case is decided in the courts. Provisional remedies constitute a sort of guarantee to the plaintiff that any obtained future judgment against the defendant will be meaningful. Provisional remedies are generally given if it is the opinion of the court that the plaintiff has a strong factual case, and is likely to garner a positive outcome. Some remedies ensure that the funds required to satisfy an eventual judgment, or to pay court costs, will remain available until the conclusion of the trial. In this case, the funds or real property involved may be "attached" by the court: an officer of the court will seize the funds or property in question and hold them until the conclusion of the case.

A lawsuit is generally divided into two phases, the pleading stage and the trial stage. At the pleading stage, the parties give notice of their claims, defenses, and proposed evidence. At the trial stage, their legal counsel presents their cases of fact before the jury. This is typically accomplished by the production and promulgation of material evidence, and the spoken (sometimes written or videotaped) testimony of witnesses and subject matter experts.

The pleading portion of the case involves the presentation of the formal written documents by which the parties make their claims. Pleadings specify the nature of the argument, they state each part's understanding of the facts of the case, they clarify the issues to be decided, and they provide a permanent record of the outcome and decisions in the case.

A civil jury trial is only mandated when there are disputes as to matters of fact. When cases can be adjudicated based strictly on matters of law, the party concerned can request permission to make a motion to the court to either dismiss the case or to request a summary judgment that can be issued immediately by a sitting judge.

Quite often, a pretrial conference or pretrial hearing is held in which the judge will either try to settle the case out of court, or try to narrow the focus of the issues to be presented at trial. As the civil trial process is so protracted in the United States, there is a great effort made to settle cases without having to go to trial. Generally, one party will make a motion, in an effort to resolve the dispute. When this occurs, both parties appear before a judge who receives all paperwork from each party specific to the motion. No witnesses are heard at motions, and the attorneys each present their specific arguments. In the matter of a request for a summary judgment, the judge is asked to decide whether there exists a matter of material dispute, or whether the preponderance of evidence is on one side of the case. If there is a material issue of dispute, the motion will be denied and the case will proceed eventually to trial. If the finding is the former, the judge can issue a final, legally binding, judgment.

During a civil trial, the attorneys for each party (plaintiff and defendant) make opening statements to the jury in which they specify what they believe to be the central issues of the case, and outline what they plan to prove in matters of fact during the course of the trial. The plaintiff's case is presented first: witnesses are called, questioned and cross-examined by the attorney for the defendant. When the plaintiff's case presentation has been concluded, the defense attorney will call and question his/her witnesses, who can then be cross-examined by the attorney for the plaintiff.

After all witnesses have given their testimony and been examined, and all evidence has been offered and explained, the attorneys for each side make closing arguments to the jury, in which they again present their interpretation of the case facts and the meaning of the evidence as it most positively impacts their client. The judge then instructs the jury on the applicable law. The jury retires to convene for private deliberation on the outcome of the factual case. When it reaches a verdict, the jury returns to the courtroom and the verdict is read in open court.

see also Evidence; Frye standard; Trials, criminal (U.S. law); Trials, international.

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Civil Law

Civil Law


Legal Heritage. When Europeans began coming to America in the late fifteenth and sixteenth centuries, they brought with them two major legal traditions. Continental European nations had developed the civil law system while the English had formulated their own form of justice called the common law. The foundations of civil law can be found in the Corpus Juris Civilis, the code of Justinian. In the sixth century Justinian, the emperor of the eastern half of the Roman Empire, ordered his officials to reform and codify the law. These lawyers accumulated all of the existing laws, purged the obsolete ones, and revised the remainder into a comprehensive legal code. In the eleventh century Catholic legal scholars revived the Corpus Juris Civilis and made it the fundamental basis of law in continental Europe. The code provided clearly enunciated laws and procedures that judges used to resolve legal conflicts. Theoretically the responsibility of the judge in a civil system was to determine the facts of the case, identify the relevant principle of the civil code, and apply it to the case at hand. Practically speaking, then, the judges of continental Europe historically had less discretion to construe the law than did their counterparts in England.

Charlemagne. The Holy Roman Emperor Charlemagne also contributed some important concepts to the Continental legal tradition. Charlemagne divided his empire into a number of jurisdictional units called counties. He appointed counts, administrators of the noble class, to govern the counties. In particular the counts were responsible for providing justice for the people within their jurisdiction. Thus the emperors county courts provided justice from the royal throne at the local level. Charlemagnes court, the curia regis, served as the highest court of appeal over these county courts. In addition Charlemagne sent out administrative officers to ensure that the local courts were functioning properly. He also authorized these officials to decide cases in areas that did not have permanent judges. These agents of the Holy Roman Emperor were the antecedents for three important European civil-law traditions: the assizes or assemblies of knights that served as an investigative judicial body; the circuit courts, in which judges rode from town to town dispensing justice; and the theory of royal judicial supremacy, in which the king sat as the ultimate arbiter of the law of the land.

Natural Law

Natural law is a legal philosophy that emerged in classical times. The theory became the most important element of legal thought during the Enlightenment. The advocates of natural law contend that there exists in nature a system of rules and principles that guide human conduct. These rules and principles exist independently of laws created by governments. Proponents of natural law believe that the elements of natural law can be identified by rational thought. Ideally, according to natural-law theorists, governments should attempt to identify the principles of natural law and codify them into their political systems and legal codes. While some jurists only admitted that these laws existed in nature, several Christian legal philosophers of the medieval period argued that God created natural law at the beginning of time.

Source: Francis Stephen Ruddy, International Law in the Enlightenment: The Background of Emmerich de Vattels Le Droit des Gens (Dobbs Ferry, N.Y.: Oceana, 1975).

Parlement. After the breakup of Charlemagnes empire, the nations of Europe gradually adopted a similar scheme of hierarchical and centralized legal authority. For example, the Parlement, the chief judicial body of France, developed out of Louis IXs curia regis in the thirteenth century. The Parlement, a permanent court located in Paris, heard legal cases and reviewed the decisions of the bailiffs and seneschals, the royal representatives at the local level. In the fourteenth century the French king established parlements throughout all of the provinces of France. Effectively then the crown asserted its control over the judicial administration of the country. From time to time the monarchs of Europe reformed specific aspects of the Continental system. Louis IX, for instance, ended the ancient practice of trial by combat. Under this system of justice the parties to a dispute battled to death or submission. Trial by combat was grounded on the presumption that God would intervene in the battle and ensure that the right party emerged victorious. Louis ended trial by combat because he believed it a barbaric way of resolving disputes. However, the idea that God was an active agent in the judicial process remained an integral element of European justice for centuries to come. Continental courts also used the inquisitorial method of criminal justice. Under that system a criminal defendant did not have the right to a trial by jury. Whereas the English judge developed into an impartial umpire in a trial, the Continental trial judge took an active role in finding evidence and questioning witnesses. The inquisitorial method allowed the court to use torture to coerce confessions from criminal defendants. Torture, of course, prompted thousands of innocent defendants to admit to crimes that they did not commit.

Ecclesiastical Law. By the late medieval period the people of western Europe were subject to a potpourri of laws, courts, and customs derived from the Germanic tribal traditions, the decrees of the kings and the Holy Roman Emperor, the feudal contract, and the commercial laws of the free cities. In addition the ecclesiastical courts of the Catholic Church claimed jurisdiction over areas of the law that are now considered strictly secular. The bishops of the Church presided over the ecclesiastical courts and applied the canon law, the principles of the Christian church as pronounced by the Pope. These courts claimed jurisdiction over priests, monks, theological students, and widows, orphans, and other wards of the Church. The courts also held jurisdiction over moral or religious questions. This claim of jurisdiction was broad and included not just cases of Church dogma but disputes involving marriage, commercial transactions sanctioned by oath, and criminal cases. The decisions in these cases could ultimately be appealed to the Pope. The sanctions applied in criminal cases in the Church courts tended to be less severe than those in the kings secular courts. In particular the Church preferred not to issue sentences that required corporal punishment. Therefore, in some cases the legal systems of the Catholic Church and the monarchy worked together to torture and punish suspected violators of the law. In 1233 Pope Gregory IX sanctioned the creation of special inquisitorial courts for the purpose of locating and punishing heretics. The Church endowed these special courts with broad powers, including the authority to use torture to obtain confessions. Those found guilty of heresy were subject to penalties that ranged from penance to imprisonment. In extreme cases the inquisitorial courts turned convicted heretics over to the state to be burned at the stake. In all but the most serious of offenses, however, the ecclesiastical courts imposed monetary fines. These fines were a substantial source of revenue for the Church. Over time the kings of Europe recognized the potential income and coercive authority that attached to the institution holding the judicial power, gradually seized control over criminal jurisdiction from the Church, and transferred it to their royal courts. Despite this assertion of royal criminal jurisdiction, the Catholic Church continued to retain considerable judicial power well into the colonial period.


John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Regime (Chicago, 111.: University of Chicago Press, 1977);

Susan Reynolds, Kingdoms and Communities in Western Europe, 9001300 (Oxford, U.K.: Clarendon Press, 1997).

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Civil Law


A body of rules that delineate private rights and remedies, and govern disputes between individuals in such areas as contracts, property, andfamily law; distinct from criminal or public law. Civil law systems, which trace their roots to ancient Rome, are governed by doctrines developed and compiled by legal scholars. Legislators and administrators in civil law countries use these doctrines to fashion a code by which all legal controversies are decided.

The civil law system is derived from the Roman Corpus Juris Civilus of Emperor justinian i; it differs from a common-law system, which relies on prior decisions to determine the outcome of a lawsuit. Most European and South American countries have a civil law system. England and most of the countries it dominated or colonized, including Canada and the United States, have a common-law system. However, within these countries, Louisiana, Quebec, and Puerto Rico exhibit the influence of French and Spanish settlers in their use of civil law systems.

In the United States, the term civil law has two meanings. One meaning of civil law refers to a legal system prevalent in Europe that is based on written codes. Civil law in this sense is contrasted with the common-law system used in England and most of the United States, which relies on prior case law to resolve disputes rather than written codes. The second meaning of civil law refers to the body of laws governing disputes between individuals, as opposed to those governing offenses that are public and relate to the government—that is, civil law as opposed to criminal law.

In France, the civil law is set forth in the comprehensive French Civil Code of 1804, also known as the Code Napoléon. France exported this legal system to the New World when it settled Louisiana in 1712. When the French ceded Louisiana to Spain in 1762, the new Spanish governor replaced French civil law with Spanish civil law. France regained control of the territory in 1803 and the United States purchased it a mere 20 days later. During that brief period of French rule, the French prefect abolished all Spanish courts but did not reintroduce French law. Hence, the new U.S. governor of Louisiana, William Claiborne, took control of a territory that lacked a legal system.

Determined to Americanize Louisiana, Claiborne attempted to impose common law but met fierce resistance from Louisianans who had grown accustomed to their mixture of French and Spanish laws and culture. Realizing that he would not be able to mandate a common law system, he directed the state's legislature to draft a civil code based on existing law. Louisiana's first civil code, enacted in 1808, drew heavily from the Code Napoléon and was even written in French. It was replaced in 1825 by a more comprehensive and detailed code. Finally, the Louisiana Civil Code, enacted in 1870 and still largely in force, clarifies and simplifies the earlier laws. The 1870 code is written in English, signaling a shift toward a partial Americanization of Louisiana's legal culture. To this day, Louisiana enjoys the distinction of being the only state in the United States to have a civil law system rather than a common-law system.

The first article of the Louisiana Civil Code reads: "The sources of law are legislation and custom" (LA C.C. Art. 1). This means that judges in Louisiana are obligated to look first to written laws for guidance in reaching their decisions. If no statute directly governs the dispute, judges may base their decisions on established custom. Article 3 defines custom as a "practice repeated for a long time and generally accepted as having acquired the force of law." However, Article 3 makes it clear that custom may not abrogate or conflict with legislation. Hence, Louisiana judges do not make law with their decisions; rather, the code charges them with interpreting, as closely as possible, what has been written and passed by the legislature or long established by custom.

Louisiana judges, unlike their common-law counterparts, are not bound by judicial precedent. Common-law judges adhere to the doctrine of stare decisis, which mandates that the outcome of a lawsuit be governed by previous decisions in similar cases. Louisiana's civil code does not recognize the binding force of precedent. However, under the civil law doctrine of jurisprudence constante, or settled jurisprudence, judges are expected to follow a series of decisions that agree on the interpretation of a code provision.

Although Louisiana is generally called a civil law state, its code is imbued with some common-law features, making it a hybrid of the two traditions. The state's constitution, administrative and criminal law, civil and criminal procedure, and rules of evidence all contain elements derived from common-law principles. As a result, Louisiana judges operate under administrative rules that differ from those found in other civil law jurisdictions. For example, whereas European judges actively elicit the facts in a controversy and seldom use a jury, Louisiana judges operate more like their common-law colleagues, assuming the role of neutral and passive fact finder or arbiter, and leaving the final decision to a jury. Oral argument is generally absent in a pure civil law proceeding, whereas Louisiana's procedural and evidentiary rules allow oral presentations, resulting in trials that are closer to those found in a common-law court. Finally, European courts allow almost unlimited discovery by the accused in a lawsuit, whereas Louisiana's procedural and evidentiary rules place certain restrictions on such discovery.

Civil law systems differ from common-law systems in another important way: in a common-law jurisdiction, appellate courts, in most instances, may review only findings of law. However, civil law appellate courts may review findings of fact as well as findings of law. This allows a Louisiana appellate court to declare a jury's decision erroneous, impose its own findings of fact, and possibly even reduce a damage award. This is a significant consideration for a plaintiff who has a choice of whether to file suit in Louisiana or in another state (to bring suit in a particular state, a plaintiff must demonstrate some relationship between that state and the lawsuit). Since a jury award could be overturned on appeal, the plaintiff with a strong case may wish to file in a common-law state. On the other hand, if the plaintiff is uncertain of success at the trial level, the possibility of broader review on appeal may make Louisiana the better choice. As a practical matter, such dilemmas arise infrequently, and most often involve complex multistate litigation concerning corporations.

further readings

Rogowski, Ralf. 1996. Civil Law. New York: New York Univ. Press.


Napoleonic Code; Roman Law.

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civil law

civil law, as used in this article, a modern legal system based upon Roman law, as distinguished from common law. Civil law is based on written legal codes, a hallmark of the Roman legal system, in which disputes were settled by reference to a written legal code arrived at through legislation, edicts, and the like; common law is based on the precedents created by judicial decisions over time. The tendency in civil law is to create a unified legal system by working out with maximum precision the conclusions to be drawn from basic principles. The civil law judge is bound by the provisions of the written law. The traditional civil law decision states the applicable provision from the code or from a relevant statute, and the judgment is based upon that provision.

With a few exceptions, the countries on the continent of Europe, the countries that were former colonies of such continental powers (e.g., the Latin American countries), and other countries that have recently adopted Western legal systems (e.g., Japan) follow civil law. It is also the foundation for the law of Quebec prov. and of Louisiana. Modern countries that do not adhere to the civil law (this includes Great Britain and all the United States except Louisiana) for the most part were colonized by England and apply the system of common law prevailing there.

In general usage, civil law also means the rules that govern private legal affairs; in this sense it contrasts with criminal law and, to a lesser degree, public law.


The law that had been in force throughout the Roman Empire when it controlled most of Europe and the Middle East was to some extent supplanted by Germanic laws when Germanic tribes carried out their great conquests. The principle of personal (as opposed to territorial) law was observed by the invaders, however, and thus the former Roman subjects and their descendants were permitted to follow the Roman law (leges romanorum) in their affairs with one another. The great Corpus Juris Civilis of Justinian, compiled in the 6th cent. AD and in use in the Byzantine Empire, served also to keep the old law alive. The medieval church, too, was an important guardian of Roman law, for much of the law used by the church was based upon Roman principles and concepts. Germanic law, although at first adequate, did not have legal concepts that suited the commercial requirements of the late Middle Ages, and there was then heavy borrowing of Roman ideas.

As part of a concurrent revival of interest in classical culture, the late 11th and the 12th cent. saw the resumption of systematic study of Roman law, chiefly in N Italy (notably at Bologna, where Irnerius gave the first lectures in Roman law), in S France, and in Spain. Extensive glosses and commentaries on the Corpus Juris Civilis and on other classical texts were produced. Through the agency of scholars and of judges trained in Roman law principles, these principles (though strongly modified) came to be observed in national courts in all classes of legal disputes, although for a long time courts of local jurisdiction continued to enforce customary law. Scholars of Roman law enjoyed increasing prestige; by 1500 the Corpus Juris Civilis had become the basis of legal science throughout Western Europe. The next step, emulating the systematizing of Justinian, was to state these principles in exact, ordered form, i.e., as a code. The Code Napoléon (1804), the most famous of such works, had many successors.

In England there was some interest in Roman law during the Renaissance; there, however, the early centralization of the legal system and the existence of an independent class of lawyers with an interest in the law as administered in the courts ensured the triumph of the common law. Nevertheless, civil law influenced the common law in the fields of admiralty law, testamentary law, and domestic relations, and civil law became part of the basis for the system of equity.


See A. T. Von Mehren, The Civil Law System (1957); A. N. Yiannopoulos, ed., Civil Law in the Modern World (1965); A. Watson, The Making of the Civil Law (1981).

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Civil Code of 1926


civil laws of the republic of turkey, a secular body of laws that covers all citizensmuslims and non-muslims.

Turkey's civil law was enacted in 1926; unlike the gradual evolution of European civil codes, the transition from the Ottoman Empire to the Republic of Turkey brought a new code that has undergone relatively few changes.

Prior to the foundation of the Turkish republic, from 1869 to 1926, Ottoman legislators promulgated private (civil) lawrules derived from the shariʿa (Islamic law), comprising 1,851 articles and called Mecelle-i Ahkam-i Adliye (Compilation of legal rules). It had no laws concerning family and inheritance matters. Near the end of World War I, in 1917, a decree on family law, Hukuku Aile Kararnamesi, was promulgated by the sultan. In 1919, the pressure of organized religious forces abrogated this decree.

The Ottomans had been allied with the losing Central Powers in World War I. With the dissolution of the Ottoman Empire, the founders of the Turkish republic committed themselves to Western institutions; and they decided to undertake, in the shortest possible time, radical changes in Turkey's legal system. For Mustafa Kemal (Atatürk) and his colleagues, the major tools of social change were education and legal reform. An additional factor forced them to act swiftly: According to the peace of Lausanne (of 24 July 1923), the Kemalist government was pledged to adoptunder the supervision of the League of Nationsa legal statute protecting their non-Muslim minorities. Turkey obliged by introducing a general code and juridical system that would be acceptable to all citizensMuslim and non-Muslim. The secularization of the legal system became one of Mustafa Kemal's major goals.

Kemalism used a number of Swiss and other European codes with relatively few amendments as models. In 1926, the Kemalists produced the new civil code, the code of obligation, and the trade code; in 1927, the code of civil procedure; in 1929, the sea trade code. With these steps they realized very quickly two of Mustafa Kemal's goals while depriving the conservative Islamic clergy and others of time to organize resistance: (1) the domestic scene was free of all remnants of the Ottoman-Islamic legal system, and (2) their international relations had been freed from the obligations of the treaty of Lausanne.

The Swiss civil code was used as a model because it is based on twenty-five-year community studies of existing norms and mores in Swiss cantons where French, German, Italian, and Romansh were spoken. The Swiss code seemed best to accommodate the needs of a country with diverse cultural and linguistic groups. Turkey's Minister of Justice Mahmut Esat Bozkurt had studied law in Switzerland, and Swiss law professor G. Sausser-Hall was engaged to act as legal counsel to the government of Turkey. On 17 February 1926 the modified version was adopted in a single session of the Turkish Grand National Assembly; it entered into force on 4 October 1926. Some attempts to modify the code began in 1951concerning human rights, family law, adoption, and divorce. Although the acceptance of the code has not been universal, and Islamic law is used in some remote rural regions, the civil code has served Turkey well.

see also atatÜrk, mustafa kemal; kemalism; lausanne, treaty of (1923); ottoman empire; shariʿa; turkish grand national assembly.


Ansay, Turgul, and Wallace, Don, Jr. Introduction to Turkish Law. The Hague and Boston: Kluwer Law International, 1996.

Nermin Abadan-Unat

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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

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civil law

civil law Legal system derived from Roman law. It is different from common law, the system generally adhered to in England and other English-speaking countries. Civil law is based on a system of codes, the most famous of which is the Code Napoléon (1804), and decisions are precisely worked out from general basic principles a priori. Thus the civil law judge follows the evidence and is bound by the conditions of the written law and not by previous judicial interpretation. Civil law influences common law in jurisprudence and in admiralty, testamentary and domestic relations; it is also the basis for the system of equity. It is prevalent in continental Europe.

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civil law

civ·il law • n. the system of law concerned with private relations between members of a community rather than criminal, military, or religious affairs.Contrasted with criminal law. ∎  the system of law predominant on the European continent and of which a form is in force in Louisiana, historically influenced by the codes of ancient Rome. Compare with common law.

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