Civil law





Civil law is used to refer to three different bodies of law:

  1. a legal system derived from Roman law and commonly used in Europe; here
     the contrast is common law;
  2. the set of rules governing relations between persons (either humans or
     legal personalities such as corporations); here the contrast is
     criminal law;
  3. Secular Law, as opposed to canon law.

(1) Civil law (as opposed to "common law") is a legal tradition which is the
basis of the law in many countries of the world, especially in continental
Europe, but also Quebec, Louisiana, Japan, Latin America, and elsewhere.
Some authors wrongly think that the Scottish legal system is also based on
civil law, which is historically correct, but it has been developing since
1707 into a mixed system combining elements of civil law and of common law
as the House of Lords in England being the court of last resort for Scotland
has interpreted Scots Law through the lens of English jurisprudence. In the
western and southwestern parts of the U.S., laws in such diverse areas as
divorce and water rights show the influence of their Iberian civil-law
heritage, being based on distinctly different principles from the laws of
the northeastern states colonized by settlers with English common-law roots.

The civil law is based on Roman law, especially the Corpus Juris Civilis of
Emperor Justinian, as latter developed through the Middle Ages by mediaeval
legal scholars. The most authoritative modern source is Karl Eduard Zachariae.

Originally civil law was one common legal system in much of Europe, but with
the development of nationalism in the 17th century Nordic countries and
around the time of the French Revolution, it became fractured into separate
national systems. This change was brought about by the development of
national codes, most importantly the Napoleonic Code, but the German and
Swiss codes are also of historical importance. Around this time civil law
incorporated many ideas associated with the Enlightenment.

Some authors consider that civil law latter served as the foundation for
socialist law used in Communist countries, which in this view would
basically be civil law with the addition of Marxist-Leninist ideas.

Civil law, in this sense, is primarily contrasted to common law, which is
the legal system developed among Anglo-Saxon peoples, especially in England.
The primary difference is that, historically, common law was law developed
by custom, beginning before there were any written laws and continuing to be
applied by courts after there were written laws, too, whereas civil law
develops out of the Roman law of Justinian's Corpus Juris Civilis proceeding
from broad legal principles and the interpretation of doctrinal writings
rather than the application of facts to legal fictions. In later times civil
law became codified as droit coutumier or customary law that were local
compliations of legal principles recognized as normative. This lead after
the French Revolution to the development of Civil Codes in such
jurisdictions such as France (with its Napoleonic Code), Quebec, Spain, and
Germany (with its own German Civil Code), but remains uncodified in such
countries as Scotland, Belgium, Namibia and South Africa to name a few
countries that remain uncodified civilian or mixed jurisdictions.

(2) Civil law regulates relationships amongst persons and organizations.
Civil law, in this sense, is usually referring to redress to civil law
courts (as opposed to criminal courts) and is often used as a means to
resolve disputes involving accidents (torts such as negligence), libel and
other intentional torts, contract disputes, the probate of wills, and
[trusts], and any other private matters that can be resolved between private
parties. Violations of civil law are considered to be torts or breaches of
contract, rather than crimes. Depending upon the regional government, this
field of law contain commercial law and some kinds of administrative law
remedies, though sometimes administrative law judges adjudicate penal law
violations such as parking tickets and other minor offenses.

Contractual law enforces contracts by allowing a party, whose rights have
been violated or breached, to collect damages and penalties from a
defendant. Where monetary damages are deemed insufficient, civil courts may
offer other remedies; such as forbidding someone to do an act (eg; an
injunction) or formally changing someone's legal status (eg; divorce or
change of name). Civil lawsuits sometimes occur as a result of criminal
action, and such a lawsuit can be successful even when the defendant was
found not guilty under criminal law. Some civil lawsuits such as the U.S.
federal RICO Racketeering, Influence, and Corrupt Organizations statutes
allow for a private right of action for damages when someone has suffered
due to the violation of certain predicate crimes under federal law (such as
wire and mail fraud and other specifically enumerated federal offenses).

(3) Civil law (as opposed to "canon law") is the secular legal system of the
national government when there is also a system of ecclesiastical courts
governed by a church's laws in the same country. This was the situation in
England that repeatedly caused problems between the two legal systems, most
famously perhaps the one that led to the murder of Thomas a Becket during
the reign of Henry II of England.

Bibliography

   * Major legal systems in the world today: An introduction to the
     comparative study of law by RenŽ David and John E.C. Brierley, 3rd ed.
     (London: Stevens, 1985) (ISBN 0420473408)

   * H.L. MacQueen, Scots Law and the Road to the New Ius Commune,
     Electronic Journal of Comparative Law, vol 4.4, (December 2000}