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3.1 Civil law Low

3.1.1 Historical Development of Civil Law Continue 

The Civil law mechanism derives from the Roman legal principle that laws
should be contained in codified, written collections of rules and Category
regulations, accessible and comprehensible to the populace and enforced 1.3 Civil Law, Common
and followed by judges: the Roman term Jus Civile (citizens’ law) Law and Sharia Legal
described the Imperial legal system, distinguishing it from the laws and Systems
processes of its conquered peoples and of other lands.

After the fall of the Roman Empire the Roman codes of principles remained
in operation across the former Empire, augmenting the local rules and
customary mechanisms which operated in different places.

The 17th and 18th century Enlightenment and the growth of the nation state
in the 19th century brought the ideal of clear, uniform recording of rules back
to prominence. The mix of Roman and customary law was replaced by new,
tailor made codes such as the French Civil Code – the Code Napoléon
(1804), and the German Bürgerliches Gesetzbuch (1900) created as statute
by the legislatures of the newly (re)formed states.

From such sources, the model was taken up across mainland Europe and
carried overseas to colonial lands and trading partners. Codification forms
the model for the legal systems of most new states, and newly independent
states, worldwide.

3.1.2 Nature of Civil Law

 Definition

Civil code – a codification of private law relating to contracts, property,

family and obligations.

Civil codes consist of comprehensive abstractly written principles as

rules of law, designed to answer any situation. For example, the Code
Napoléon covers a wide range of matters, including the rights of the
individual, family law, the law of ownership of assets, and the law of
obligation and contracts.

The historic codes have been modified over time by the legislatures of
different states and new laws have been developed alongside. New states
and post-revolutionary states have developed their own new constitutions
and codes. Modern civil law countries recognise the law as being contained
in:

Treaties (e.g. the Treaty of Versailles (1919));

Conventions (e.g. the Geneva Conventions, the Vienna Convention on
the Law of Treaties and the European Convention on Human Rights);
Their national and regional constitutions;
EU law (amongst member states);
Their domestic statute and statutory codes and administrative
regulations created by, or under delegated powers from, the legislature.

 Definition

Treaty – an international agreement concluded between States in written

form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its
particular designation.

A bilateral treaty is an agreement between two parties; a multilateral treaty is

concluded between two or more States.

Legally, there is not difference between a treaty and a convention; both are
international legal instruments which, in international law, legally bind those
States that choose to accept the obligations contained in them by becoming
a party to them.

 Definition

Statutory code – a subject-based arrangement of the laws of a general

and permanent nature passed by the jurisdiction's legislature.

In the UK, for example, a statutory code means that it has been approved by
the Secretary of State and laid before Parliament.

 Definition

Model code – a nationally recognised document developed by a private

entity for use by State or local jurisdictions in developing codes.

The rules of a model code do not have the effect of law; however, versions of
these rules may be adopted and made into law.

 Key Point

A model code is intended for incorporation by reference or adoption in

whole or in part, with or without amendment, by State or local jurisdictions.

3.1.3 Role of the Judiciary in Civil Law Systems

Civil law judges are legally qualified professionals. They apply and
enforce the law, and decide criminal and non-criminal cases. The use of a
jury is unusual in civil systems.

The role of the judiciary in Civil law states is to apply the principles to the
cases they meet. The judge is the “la bouche de la loi” (the mouthpiece for
the law) rather than its originator.

Civil judges generally do not interpret or re-interpret the law. Their function is
to apply the law in line with what it says and with the social purpose for
which it was created. If a “new” situation arises (for example with the
development of new assets, such as ownership of electronic data), they
consider the historic intention behind the relevant law and apply the law so
as to cover the new situation in line with the historic principle.

In most modern countries, the judiciary is empowered:

to exercise judicial review over the actions of public individuals and

bodies; and
to invalidate improper actions and decisions.

In some Civil states (e.g. in France and Germany) the judiciary is also
empowered to adjudicate the constitutional validity of new laws created by
the legislature. In others (e.g. the Netherlands) they have no constitutional
right to do so.

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