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CIVIL LAW
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Assignment by Dr Ramsha Rashid pt

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Submitted to Mr Arif Hassan
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 CIVIL LAW
Civil law systems, also called continental or Romano-Germanic legal systems, are found on all
continents and cover about 60% of the world. They are based on concepts, categories, and rules
derived from Roman law, with some influence of canon law, sometimes largely supplemented or
modified by local custom or culture. The civil law tradition, though secularized over the
centuries and placing more focus on individual freedom, promotes cooperation between human
beings.

In their technical, narrow sense, the words civil law describe the law that pertains to persons,
things, and relationships that develop among them, excluding not only criminal law but also
commercial law, labor law, etc. Codification took place in most civil law countries, with the
French Code civil and the German BGB being the most influential civil codes.

What the civil law is:

 A comprehensive system of rules and principles usually arranged in codes and easily
accessible to citizens and jurists.
 A well-organized system that favors cooperation, order, and predictability, based on a
logical and dynamic taxonomy developed from Roman law and reflected in the structure
of the codes.
 An adaptable system, with civil codes avoiding excessive detail and containing general
clauses that permit adaptation to change.
 A primarily legislative system, yet leaving room for the judiciary to adjust rules to
social change and new needs, by way of interpretation and creative jurisprudence.

Some salient features of the civil law:

 Clear expression of rights and duties, so that remedies are self-evident.

 Simplicity and accessibility to the citizen, at least in those jurisdictions where it is
codified.
 Advance disclosure of rules, silence in the code to be filled based on equity, general
principles, and the spirit of the law.
  Richly developed and to some extent transnational academic doctrine inspiring the
legislature and the judiciary.

The concept of codification

From a practical point of view, the Civil Code achieved the unification of French civil law. This
was not, however, the only concern of its drafters. They shared with most of their contemporaries
and with most modern French lawyers the belief that the law should be written in clear language
so that it would be accessible to every citizen. This view implied that the new code had to be
complete in its field, setting forth general rules and arranging them logically. Finally, it was not
to unnecessarily break with tradition.

The Civil Code was organized as a series of short articles because it was assumed, first, that
legislators could not foresee all circumstances that might arise in life and, second, that only
conciseness could make the code flexible enough to adapt old principles to new circumstances.
The general rules contained in the code have since been applied to concrete circumstances
without much difficulty. When an interpretation has been required, the courts have had the
responsibility to give it, taking into consideration the “spirit” of the code in an effort to apply to
each case the solution that would have been desired by the legislator.

The drafters of the code strove toward inner consistency in their work so that reliance on logic
might ensure satisfactory application of it. They saw no contradiction between logic and
experience. Since the 17th-century beginnings of the Age of Reason, abstract reasoning had
characterized the French approach to law and to life in general. For this reason, articles of the
code were not regarded as narrow rulings. If no one article was found to apply exactly to a given
situation, it was proper to consider several articles and to draw from them a more general rule
that could either be applied to the case itself or be combined with others to reach a solution.

Although the code was a work of logic, it relied mainly on experience. Its drafters were
exceptionally well qualified in this respect: they had lived the first half of their lives under the
laws of ancient France and had also known the Revolution. Their purpose was not so much to
create new laws as to restate existing laws, subject to choice when revolutionary enactments
varied from previous ones and when previous laws differed from one another. They were ready
to adopt any rules that seemed best suited to the French people on the basis of experience; they
recognized that laws could not be inflexible “but must be adapted to the character, the habits, and
the situation of the people for whom they are drafted.”
 CIVIL LAW IN PAKISTAN.
Civil law and Common Law are terms used interchangeably in Pakistan, however, both legal
concepts are diverse and relate to different methods of legal interpretation. Civil Law is referred
to as a system of interpretation where judicial precedents are given lesser weight as opposed to a
judge’s interpretation of the statute in light of scholarly literature which is afforded greater
preference. Common law is a system of laws where judges in light of earlier precedents or cases
decide the matter at hand. They apply to analogy or principle derived from earlier decided cases
with similar legal or factual scenarios. This affords much greater certainty to legal decisions. For
instance, a litigant can to some extent predict outcome of his case particularly when a court
higher in the hierarchy has decided a similar case. The lower courts are often bound by decisions
of the higher courts. This is referred to as the concept of binding precedents.

There is a fine distinction between Civil Law and Common Law; however the same are used
interchangeably in Pakistan and most countries of the World. Pakistan was a colony of the
British Empire pre partition therefore, Common law systems were inherited by Pakistan which
places greater weight on court decisions, as opposed to civil law where judicial precedent is
given less weight (which means that a judge deciding a given case has more freedom to interpret
the text of a statute independently, and less predictably), and scholarly literature is given more. 
As a general rule of thumb, common law systems trace their history to England, while civil law
systems trace their history to Roman law and the Napoleonic Code.

Common law is law developed by judges through decisions of courts and similar tribunals (also
called case law), rather than through legislative statutes or executive branch action. A “common
law system” is a legal system that gives great precedential weight to common law, on the
principle that it is unfair to treat similar facts differently on different occasions. The body of
precedent is called “common law” and it binds future decisions.

Due to this fine distinction, it is far more important to assign your case to a lawyer well
conversant with the case laws and statutes, since these precedents form the main basis of
decision in Pakistani Courts. Most of the case law is and was developed through interpretation of
statutes it is also a imperative for a lawyer to have keen eye on Statutes and change proposed in
them for resolving of civil dispute.

ADJUDICATING COMMON LAW CASES (CIVIL LAW DISPUTES)?

In a common law jurisdiction several stages of research and analysis are required to determine
what “the law is” in a given situation. First, one must ascertain the facts. Then, one must locate
any relevant statutes and cases. Then one must extract the principles, analogies and statements by
various courts of what they consider important to determine how the next court is likely to rule
on the facts of the present case. Later decisions, and decisions of higher courts or legislatures
carry more weight than earlier cases and those of lower courts. Finally, one integrates all the
lines drawn and reasons given, and determines what “the law is”. Then, one applies that law to
the facts.

COMMON LAW CASES (CIVIL DISPUTES) BROUGHT INTO

PAKISTANI COURTS?
Common Law seeks to resolve non-criminal disputes such as disagreements over the meaning of
contracts, property ownership, divorce, child custody, and damages for personal and property
damage. A civil court is a place where people can solve their problems with people peacefully.
The function of civil law is to provide a legal remedy to solve problems. Sometimes civil
law/common law is based on a state or federal statute; at other times civil law is based on a
ruling by the court.

Civil law covers a wide spectrum of topics. Some of these topics are:

 CONSUMER LAW
 INTERNATIONAL LAW                      
 AGRICULTURAL LAW
 EMPLOYMENT LAW
 ANIMAL LAW
 ENTERTAINMENT LAW
 BUSINESS LAW
 FAMILY LAW
 SPORTS LAW
 TAX LAW
 INTENTIONAL TORTS SUCH AS LIBEL, SLANDER, DEFAMATION OF
CHARACTER, BATTERY AND ASSAULT.
 NEGLIGENCE

1 Primary Sources
Civil law systems draw a sharp distinction between primary and secondary sources. Primary
sources are enacted law, custom, and ‘general principles of law.’ Of these, the main source is the
enacted (statutory) law; it predominates in civil law systems.
A code in a civil law system consists of general principles, arranged in order of importance. At
the beginning there may be general rules regulating basic problems that need to be addressed
before the particular problem can be analyzed. For example: if a plaintiff seeks damages for
breach of contract, preliminary analysis must determine whether the contract was validly
concluded. Provisions dealing with invalidity and avoidance of contracts usually are found in the
general part of a civil code. Such a general part may be followed by particular parts dealing with
individual fields of law, such as torts, contracts, property, or the law of succession. The main or
basic codes are supplemented in increasing number by special statutes or codes of limited
coverage with which the legal system reacts to new societal problems, for instance, in areas such
as consumer protection, telecommunication, and new media.
Custom is also a primary source of law, but tends to be less important in practice because it is
often difficult to prove its pervasive observance in society. Customs are nonwritten rules,
developed and observed over years and now part of social and economic thinking.
‘General principles of the law’ are what the term expresses: basic principles of the legal system
which are pervasive of it and derive from norms of positive law. Civil law judges resort to
‘general principles of the law’ as guidelines in the interpretation of statutory norms both for the
purpose of defining their interrelation and for the purpose of their application. This is of
particular importance when dealing with statutory norms that are rather abstract in their
formulation. It is tempting to consider this process to be not very different from the case law
methodology of the common law. There is an important difference, however. The common
lawyer derives the appropriate interpretation by reliance on precedent. The civilian judge is not
so restricted but derives the interpretation considered to be appropriate from the structure of the
legal system and the general principles of law that pervade it; nor will the decision in the present
case have a necessary effect on later cases. This is not to say that later cases may not reach the
same conclusion: at the point of what French lawyers call jurisprudence constante and German
lawyer’s ständige Rechtsprechung, such decisional law may itself be regarded as having risen to
the position of ‘general principles of law.’