Legal System Legitimate Series Civil Law Tradition

Chapter -3 Civil law tradition and Legal System

Contents
Introduction ................................................................................................................ 2
Origin and Historical development ........................................................................... 2
Characteristics of Civil Law Tradition ...................................................................... 4
Sources of civil law .................................................................................................... 5
Corpus Juris Civilis .................................................................................................... 6
Elements of Justinian Law ......................................................................................... 6
The Evolution of Codification ................................................................................... 8
Development Of Codification Process In French And Germany .............................. 8
The Code of Hammurabi (1760 BC) ......................................................................... 9
History of Hammurabi code....................................................................................... 9
Features of Hammurabi’s Code ................................................................................. 9

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1. Introduction

Civil law is also called civilian law, continental or Romano-Germanic legal systems. It
is a legal system originated in Europe and intellectualized with the framework of late Roman
law. It is based on concepts, categories, and rules derived from Roman law, with some
influence of Canon law, and by local customs or culture. This system is found on all continents
and covers about 60% of the world.

2. Meaning of the term Civil Law Traditions

The term civil law tradition applies to those legal traditions, which was originated in
the ancient Rome.

3. Definition

A comprehensive system of rules and principles, usually arranged in codes and easily
accessible to citizens and jurists.

4. Origin

The civil law tradition is developed in the Continental Europe and in other different
areas of the world, but it got its origin from the codified law of Justinian 1 (the Corpus juris
Civilis)

5. Historical development

The civil law system expanded in the beginning of the 15th century in European
countries including South America, North America, part of Africa, Asia, and other areas of the
world. Moreover, the historical development of Civil Law can be divided into two eras. i.e.,
Early and Medieval Period.

→ Earlier Development

I. Roman Empire and Republican period

To understand the history of civil law we should related to the late Roman Empire and
Republic. The Jurists of early Roman Empire made great contribution to the development of
civil law. Civil law takes its major inspirations from classical Roman law.

II. The 12 Tables of Law

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The 12 tables were a set of law inscribed on 12 frozen tablets, created in ancient Rome.
Civil law traditions had its origin in those tables. First time in 450 and 451 BC civil Court study
session had its origin in Roman republic where rules were prescribed in 12 bronze tables.

III. Justinian Era

Three books were published during 529 to 534 which collectively named as Corpus
Juris Civilians and Justinian Code, it consisted of the pronouncement and interpretation of legal
matters. Roman legal system rescued by Justinian code were issued to restore various conflicts
and matter by eliminating the errors.

→ Medieval Development

The Middle Ages was the period in European history from the collapse of Roman
civilization in the 5th century CE to the period of the Renaissance (variously interpreted as
beginning in the 13th, 14th, or 15th century, depending on the region of Europe and other
factors).

I. Glossators

The legal schools of the 11th and 12th centuries of Italy, France, and Germany are
identified as Glossators. They revived the code of Corpus Juris Civilis to fulfil standards of
Private law in building system of logical form. Eventually the work of Glossators led to the
development of common body of law.

II. During 13th century

Teachings of Roman law systematically developed in Spain, Italy, Switzerland, France,

Germany, and other countries in Europe in the mid of 13th century which led to the creation of
Civil legal system.

III. In 18th century:

Nationalism in 18th century revised the civil law system in Germany Switzerland and
in European countries such as French Napoleon code.

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Characteristics of Civil Law Tradition

1. Written Code

The most obvious characteristic of civil law system is the presence of a written code of
law. Civil laws are a codified set of legal rules. Codification of civil law is in the social
regulation of the blueprint which guides the individual from their birth to death.

2. Systematic

Compilation of civil law’s legal rules are systematic. Systematic means acting
according to a fixed plan or system.

3. Legislative Enactment

In civil law, only legislative enactments are considered binding for law. There is a very
little scope for judge made laws. Although, in practice judges follow previous judicial decisions
or legislative legal rules.

4. Accessibility

Civil law is easily accessible to the citizens because of its written code.

5. Less freedom of contract

Many provisions are implied into a contract by law and parties cannot contract out of
certain provisions.

6. Clear expression of rights and duties

There is a clear expression of rights and duties in civil law.

7. Difference between public and private law

In the civil law tradition, there is a great difference between public and private law.

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Sources of civil law

1. Judicial decisions case law

Case laws are signified past judicial decisions. They are made by the courts and decided
by judges. Decision made in past can be used as an example in future cases. However civil law
system place much less emphasis on precedents than they do on the codification of the law.
The courts are not bound to follow previous judicial decisions each decision must be grounded
on the authority of legislature.

2. Legislation

Legislation is the lying down of rules by the legislature, which is an important organ of
the state. Legislation signifies written, enacted, or statute law. Legislation is considered as the
most fundamental part of civil law legal system.

3. Legal writings

Juristic writings played significant role in the development of the civil law legal system.
Legal writing sometime enjoyed the status or force of law in the history of civil law. The jurists
contributed allowed for the growth of legal culture in Europe and in the field of law. For
example, napoleon code.

4. Customs

Customs are the habits and practices of the people which got noticed by the courts and
they became source of law. It is one of the primary and oldest sources of law. Customs always
played an important role in the development of civil law. Its authority is based on nothing but
its long-continued usage and recognition by the people.

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Corpus Juris Civilis

1. Introduction

Corpus Juris Civilis, known as a body of rules, is a collection of laws and legal
interpretation In many European countries, Corpus Juris Civilis is called the vital pillar of civil
law. Corpus Juris Civilis was influenced by the Canon and Common law system. It was a
major reform of Byzantine law, aiming to clarify and to update the old Roman Law.

2. Enacted or compiled by

The collection of laws and legal interpretation was done by the commission of 17
jurists, headed by Tribonian (notable Byzantine jurist and advisor), under the region of
Byzantine Emperor, Justinian, also known as Justinian the Great, was the Byzantine emperor
from 527 to 565.

3. Issuance

Issued from 529 to 534

4. Historical Background

Justinian, in his region, brought together all the laws of that time and classified
everything by subject under different titles and formed Justinian Code. Then he commissioned
Tribonian and 16 other jurists for more perfection.

Elements of Justinian Law

Corpus Juris Civils were consisted of four parts/elements

I. The Code (Codex)

II. Digest (Digesta)
III. The Institutes (Institutiones)
IV. Novels (Novellae)

I. The Code (Codex)

The codex, issued in 529, was a collection of 12 books containing 4562 imperial edicts
from the time of Hardian (Roman emperor from 117 to 138) to Justinian 1 himself.

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II. Digest (Digesta)

The Digest was a collection of Juristic writings, mostly dating back to 2nd and 3rd
centuries. Different parts of Digest were taken out of various legal treaties and opinions.

III. The Institutes (Institutiones)

It was a sort of handbook of the Codex and Digesta for law students for better
understanding. The Institutiones were largely based on the quotes of Gaius (Roman jurist).

IV. Novels (Novellae)

The Novellae consisted of new laws that were passed after 534. Novellae is now
considered as one of the four major units of Roman law initiated by Roman emperor Justinian
I. The Code, Digest, and Institutes were designed by Justinian as coherent works, the Novels
are diverse laws enacted after 534 (when he promulgated the second edition of the Code) that
never were officially compiled during his reign.

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The Evolution of Codification

An important distinctive of civil law, is the comprehensive codification of received
Roman law. The earliest codification known is the Code of Hammurabi, written in ancient
Babylon during the 18th century BC. The basic purpose of codification was to draft-and
constitutions and the civil codes. During the 19th Century, the French Civil Code, German and
Italian civil legislations are the models of Civil Law Tradition.

Development Of Codification Process In French And Germany

Codification in French

At the time of the French ‘Revolution (1789) there prevailed in France two great bodies
of law: the customary |ay, in the North and the written law of the South based on Roman law.

The Napoleonic Code (Code civil des François) referred as the French civil Code
established under Napoleon-I in 1804. It was drafted by a commission of four renowned jurists
and came into force on 21 March, 1804. The preliminary object of the Code established certain
important provisions regarding the rule of law. Laws could be applied only if they had been
duly promulgated, and then only if they had been published officially.

Codification in Germany

In Germany, the French Civil Code attracted a great attention and parts of the country
accepted this law as Napoleon extended his rule over Europe. However, the rise of German
nationalism, during the wars of independence compelled many scholars to express the need for
the introduction of one uniform code for Germany.

The German Civil Code of 1896 came almost 100 years later than the civil code of
France; the code is divided into five Parts. The first is general, relating to personal rights and
legal personality. The themes of the other four parts are: obligations, including concepts of sale
and - contract, things, including immovable and movable property, domestic relations, and
succession.

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The Code of Hammurabi (1760 BC)

The Code of Hammurabi is considered as an important figure in the history of law and
regarded as a true legal code. It was one of the earliest and most completed written code.
Hammurabi code is based on “if and then rules". It is written on a black stone slab; it contains
300/282 sections with rules and punishments.

History of Hammurabi code

Code of Hammurabi was written and enacted by 6th King, Hammurabi, of Babylonia
(Babylonia was an ancient Akkadian-speaking state and cultural area based in central-southern
Mesopotamia (present-day Iraq and Syria).

It was looted by some invader, later is was discovered in Susan, city of Iran, in 1901 by
a French archeologist.

Features of Hammurabi’s Code

1. Code of Hammurabi is oldest writing

The Code of Hammurabi is one of the oldest deciphered writings of length 4, the world
(written c. 1754 BCE), and features a code of law from ancient Babylon in Mesopotamia.

2. Different for the Different Social Classes and Genders

The Code of Hammurabi was in many Ways a reactionary measure which was initiated
by the states to keep it check on modern disputes and challenges.

3. The Code Included Harsh Forms of Punishment

The punishments were often very harsh though. For instance, a son who hit his father
could expect to have his hands cut off. The chopping off of hands was a common punishment
as were beatings

4. Hammurabi Considers Himself “The King of Righteousness”

He is the wise and righteous king; he is the overall protector. He is the controller, and
he can settle disputes, brings prosperity to the land. The God entrust him with this honor/
ability.

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5. Other Laws in Hammurabi Code

Major laws covered in the Code include slander, trade, slavery, the duties of workers,
theft, liability, and divorce. Nearly half of the code focused on contracts, and a third on
household relationships.

6. Number of Laws in Hammurabi Code

The Code consisted of 282 laws, with punishments that varied based on social status
(slaves, free men, and property owners).

7. Presumption of Innocence

If anyone brings an accusation of any crime before the elders, and does not prove it, if
it be a capital offence charged, be put to death.

8. Social Classes

There were three social classes: the amelu (the elite), the mushkenu (free men) and ardu
(slave).

9. Rights of Women

Women had limited rights and were mostly based around marriage contracts and
divorce rights.

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