Most nations today follow one of two major legal
traditions: common law or civil law. The common law tradition emerged in
England during the Middle Ages and was applied within British colonies across
continents. The civil law tradition developed in continental Europe at the same
time and was applied in the colonies of European imperial powers such as Spain
and Portugal. Civil law was also adopted in the nineteenth and twentieth
centuries by countries formerly possessing distinctive legal traditions, such
as Russia and Japan, that sought to reform their legal systems in order to gain
economic and political power comparable to that of Western European
nation-states.
To an American familiar with the terminology and
process of our legal system, which is based on English common law, civil law
systems can be unfamiliar and confusing. Even though England had many profound
cultural ties to the rest of Europe in the Middle Ages, its legal tradition
developed differently from that of the continent for a number of historical
reasons, and one of the most fundamental ways in which they diverged was in the
establishment of judicial decisions as the basis of common law and legislative
decisions as the basis of civil law. Before looking at the history, let’s
examine briefly what this means.
Common law is generally uncodified. This means
that there is no comprehensive compilation of legal rules and statutes. While
common law does rely on some scattered statutes, which are legislative
decisions, it is largely based on precedent, meaning the
judicial decisions that have already been made in similar cases. These
precedents are maintained over time through the records of the courts as well
as historically documented in collections of case law known as yearbooks and
reports. The precedents to be applied in the decision of each new case are
determined by the presiding judge. As a result, judges have an enormous role in
shaping American and British law. Common law functions as an adversarial
system, a contest between two opposing parties before a judge who moderates. A
jury of ordinary people without legal training decides on the facts of the
case. The judge then determines the appropriate sentence based on the jury’s
verdict.
Civil Law, in contrast, is codified. Countries with
civil law systems have comprehensive, continuously updated legal codes that
specify all matters capable of being brought before a court, the applicable
procedure, and the appropriate punishment for each offense. Such codes
distinguish between different categories of law: substantive law establishes
which acts are subject to criminal or civil prosecution, procedural law
establishes how to determine whether a particular action constitutes a criminal
act, and penal law establishes the appropriate penalty. In a civil law system,
the judge’s role is to establish the facts of the case and to apply the
provisions of the applicable code. Though the judge often brings the formal charges,
investigates the matter, and decides on the case, he or she works within a
framework established by a comprehensive, codified set of laws.
The judge’s
decision is consequently less crucial in shaping civil law than the decisions
of legislators and legal scholars who draft and interpret the codes.
The following sections explore the historical roots of
these differences.
Historical Development of Civil Law
The term civil law derives from the Latin ius
civile, the law applicable to all Roman cives or citizens. Its origins and model are
to be found in the monumental compilation of Roman law commissioned by the
Emperor Justinian in the sixth century CE. While this compilation was lost to
the West within decades of its creation, it was rediscovered and made the basis
for legal instruction in eleventh-century Italy and in the sixteenth century
came to be known as Corpus iuris civilis.
Succeeding generations of legal scholars throughout Europe adapted the
principles of ancient Roman law in the Corpus iuris civilis to contemporary needs. Medieval
scholars of Catholic church law, or canon law, were also
influenced by Roman law scholarship as they compiled existing religious legal
sources into their own comprehensive system of law and governance for the
Church, an institution central to medieval culture, politics, and higher
learning. By the late Middle Ages, these two laws, civil and canon, were taught
at most universities and formed the basis of a shared body of legal thought
common to most of Europe. The birth and evolution of the medieval civil law
tradition based on Roman law was thus integral to European legal development.
It offered a store of legal principles and rules invested with the authority of
ancient Rome and centuries of distinguished jurists, and it held out the
possibility of a comprehensive legal code providing substantive and procedural
law for all situations.
As civil law came into practice throughout Europe, the
role of local custom as a source of law became increasingly
important—particularly as growing European states sought to unify and organize
their individual legal systems. Throughout the early modern period, this desire
generated scholarly attempts to systematize scattered, disparate legal
provisions and local customary laws and bring them into harmony with rational
principles of civil law and natural law. Emblematic of these attempts is the
Dutch jurist Hugo Grotius’ 1631 work, Introduction to Dutch Jurisprudence,
which synthesized Roman law and Dutch customary law into a cohesive whole. In
the eighteenth century, the reforming aspirations of Enlightenment rulers
aligned with jurists’ desire to rationalize the law to produce comprehensive,
systematic legal codes including Austria’s 1786 Code
of Joseph II and Complete
Civil Code of 1811, Prussia’s Complete Territorial Code of 1794,
and France’s Civil Code (known as theNapoleonic Code) of 1804.
Such codes, shaped by the Roman law tradition, are the models of today’s civil
law systems.
Historical development of English Common Law
English common law emerged from the changing and
centralizing powers of the king during the Middle Ages. After the Norman
Conquest in 1066, medieval kings began to consolidate power and establish new
institutions of royal authority and justice. New forms of legal action
established by the crown functioned through a system of writs,
or royal orders, each of which provided a specific remedy for a specific wrong.
The system of writs became so highly formalized that the laws the courts could
apply based on this system often were too rigid to adequately achieve justice.
In these cases, a further appeal to justice would have to be made directly to
the king. This difficulty gave birth to a new kind of court, the court of equity,
also known as the court of Chancery because it was the court of the king’s
chancellor. Courts of equity were authorized to apply principles of equity
based on many sources (such as Roman law and natural law) rather than to apply
only the common law, to achieve a just outcome.
Courts of law and courts of equity thus functioned
separately until the writs system was abolished in the mid-nineteenth century.
Even today, however, some U.S. states maintain separate courts of equity.
Likewise, certain kinds of writs, such as warrants and subpoenas, still exist
in the modern practice of common law. An example is the writ of habeas
corpus, which protects the individual from unlawful detention.
Originally an order from the king obtained by a prisoner or on his behalf, a
writ of habeas corpus summoned the prisoner to court to
determine whether he was being detained under lawful authority. Habeas
corpus developed
during the same period that produced the 1215 Magna Carta, or Great
Charter, which declared certain individual liberties, one of the most famous
being that a freeman could not be imprisoned or punished without the judgment
of his peers under the law of the land—thus establishing the right to a jury
trial.
In the Middle Ages, common law in England coexisted,
as civil law did in other countries, with other systems of law. Church courts
applied canon law, urban and rural courts applied local customary law, Chancery
and maritime courts applied Roman law. Only in the seventeenth century did
common law triumph over the other laws, when Parliament established a permanent
check on the power of the English king and claimed the right to define the
common law and declare other laws subsidiary to it. This evolution of a
national legal culture in England was contemporaneous with the development of
national legal systems in civil law countries during the early modern period.
But where legal humanists and Enlightenment scholars on the continent looked to
shared civil law tradition as well as national legislation and custom, English
jurists of this era took great pride in the uniqueness of English legal customs
and institutions.
That pride, perhaps mixed with envy inspired by the
contemporary European movement toward codification, resulted in the first
systematic, analytic treatise on English common law: William Blackstone’s
(1723-1780) Commentaries on the Laws of England.
In American law, Blackstone’s work now functions as the definitive source for
common law precedents prior to the existence of the United States.
Civil law influences in American law
The American legal system remains firmly within the
common law tradition brought to the North American colonies from England. Yet
traces of the civil law tradition and its importance in the hemisphere maybe
found within state legal traditions across the United States. Most prominent is
the example of Louisiana, where state law is based on civil law as a result of
Louisiana’s history as a French and Spanish territory prior to its purchase
from France in 1803. Many of the southwestern states reflect traces of civil
law influence in their state constitutions and codes from their early legal
heritage as territories of colonial Spain and Mexico. California, for instance,
has a state civil code organized into sections that echo traditional Roman
civil law categories pertaining to persons, things, and actions; yet the law
contained within California’s code is mostly common law.
And while Blackstone prevails as the principal source
for pre-American precedent in the law, it is interesting to note that there is
still room for the influence of Roman civil law in American legal tradition.
The founding fathers and their contemporaries educated in the law knew not only
the work of English jurists such as Blackstone, but also the work of the great
civil law jurists and theorists. Thomas Jefferson, for example, owned several
editions of Justinian’s Institutes, and praised
the first American translated edition from 1812, with its notes and annotations
on the parallels with English law, for its usefulness to American lawyers.
Indeed, a famous example of its use is the 1805 case of Pierson
v. Post, in which a New York judge, deciding on a case that
involved a property dispute between two hunters over a fox, cited a Roman law
principle on the nature and possession of wild animals from theInstitutes as the precedent for his decision.
Today Pierson v. Post is often one of the first property law
cases taught to American law students. United States v. Robbins,
a 1925 California case that went to the Supreme Court and paved the way for the
state’s modern community property laws, was based upon a concept of community
property that California inherited not from English common law but from legal
customs of Visigothic Spain that dated to the fifth century CE. Cases such as
these illuminate the rich history that unites and divides the civil and common
law traditions and are a fascinating reminder of the ancient origins of modern
law.
No comments:
Post a Comment