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.

Civil Law

Sources

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 emperor’s county courts provided justice from the royal throne at the local level. Charlemagne’s 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 Vattel’s “Le Droit des Gens” (Dobbs Ferry, N.Y.: Oceana, 1975).

Parlement. After the breakup of Charlemagne’s 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 IX’s 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 king’s 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.

Sources

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, 900–1300 (Oxford, U.K.: Clarendon Press, 1997).

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.

cross-references

Napoleonic Code; Roman 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

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.

History

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 .

Bibliography

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).

CIVIL CODE OF 1926

civil laws of the republic of turkey, a secular body of laws that covers all citizens—muslims 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) law—rules 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 adopt—under the supervision of the League of Nations—a legal statute protecting their non-Muslim minorities. Turkey obliged by introducing a general code and juridical system that would be acceptable to all citizens—Muslim 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 1951—concerning 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.

Bibliography

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

Nermin Abadan-Unat

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

civil law The term has two meanings: 1. It is used as synonymous with Roman law, which was accepted in most of the countries of Europe. 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.

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. 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. But civil law was never a serious threat to the common law in England. 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. 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.

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.

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.