....Civil law.....

by **Admin** Mon Dec 07, 2009 1:42 pm

Civil law is a legal system derived from Roman law and commonly used in Europe. It is mainly contrasted against common law.
See also civil law for the branch of law dealing with citizens.

1. Overview
Civil or civilian law is a legal tradition which is the basis of the law in the majority of countries of the world, especially in continental Europe, but also in Quebec (Canada), Louisiana (USA), Japan, Latin America, and most former colonies of continental European countires. The Scottish legal system is usually considered to be a mixed system, because of its origin in civil law. Since 1707 it has developed to combine 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 United States, civil law is formally the basis of the law of Louisiana (as circumscribed by federal law and the U.S. Constitution), although in 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.

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

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 RevolutionThe period of the French Revolution in the history of France covers the years between 1789 and 1799, in which democrats and republicans overthrew the absolute monarchy and the Roman Catholic Church perforce underwent radical restructuring. While France wo, it became fractured into separate national systems. This change was brought about by the development of separate national codes. The French Napoleonic Code and the German and Swiss code s were the most influential ones. Around this time civil law incorporated many ideas associated with the Enlightenment.

Because Germany was a rising power in the late 19th century when many Asian nations were introducing civil law, the German Civil Code has been the basis for the legal systems of Japan, South KoreaThe Republic of Korea (ROK; Korean: Daehan Minguk ( Hangul: ; Hanja: )), commonly known as South Korea is a country in East Asia, covering the southern half of the Korean peninsula. To the north, the Republic of Korea borders North Korea, with which it fo, and the Republic of China (a.k.a. TaiwanFor the political entity commonly known as "Taiwan," see Republic of China. The island of Taiwan ( Traditional: , Simplified: , Pinyin: Taiwn, Wade-Giles: T'ai-wan, Taiwanese: Tai-oan) is located off the coast of China in the Pacific Ocean. It is also kno).

Some authors consider that civil law later served as the foundation for socialist lawSocialist law is the official name of the legal system used in Communist states. It is based on the civil law system, with modifications and additions from Marxist- Leninist ideology. The most important of these modifications is providing for most propert used in CommunistThis article is about communism as a form of society, as an ideology advocating that form of society, and as a popular movement. For issues regarding the organization of the communist movement, see the Communist party article. For issues regarding one-par countries, which in this view would basically be civil law with the addition of Marxist-Leninist ideas.

3 Civil vs. common law
Civil law is primarily contrasted against common law, which is the legal system developed among Anglo-Saxon peoples, especially in England.

The original 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 compilations of legal principles recognized as normative. Sparked by the age of enlightenment, attempts to codify private law began during the second half of the 18th century (see civil code), but civil codes with a lasting influence were only promulgated after the French Revolution, in jurisdictions such as France (with its Napoleonic Code), Austria (see ABGB), Quebec (see Civil Code of Quebec), Spain, the Netherlands and Germany (see BGB). However, codification is by no means a definitionial characteristic of a civil law system, as e.g. the civil law systems of Scandinavian countries remain largely uncodified, whereas common law jurisdictions have frequently codified parts of their laws, e.g. in the US Uniform Commercial Code. There are also mixed systems, such as the laws of Scotland, Namibia and South Africa.

Thus, the difference between civil law and common law lies less in the mere fact of codification, but in the methodological approach to codes and statutes. In civil law countries, legislation is seen as the primary source of law. By default, courts thus base their judgments on the provisions of codes and statutes, from which solutions in particular cases are to be derived. Courts thus have to reason extensively on the basis of general principles of the code, or by drawing analogies from statutory provisions to fill lacunae. By contrast, in the common law system, cases are the primary source, while statutes are only seen as incursions into the common law and thus interpreted narrowly.

The underlying principle of separation of powers is seen somewhat differently in civil law and common law countries. Common law countries, especially the United States, see judges as balancing the power of the other branches of government. By contrast, the original idea of separation of powers in France was to assign different roles to legislation and to judges, with the latter only applying the law (the judge as la bouche de la loi). Today, it is widely recognized that this is unworkable in practice. Case law (or, more properly, jurisprudence), plays a considerable role in virtually all civil law countries, even though the development of "judge-made law" through the rule of stare decisis is not formally recognized. As a practical matter, the dichotomy should thus not be overemphasized.

It should not be overlooked that there are considerable differences between the legal methodologies of various civil law countries. For example, it is often said that common law opinions are much longer and contain elaborate reasoning, whereas legal opinions in civil law countries are usually very short and formal in nature. This is in principle true in France, where judges cite only legislation, but not prior case law. (However, this does not mean that judges do not consider it when drafting opinions.) By contrast, court opinions in German-speaking countries can be as long as American ones, and normally discuss prior cases and academic writing extensively.

There are, however, certain sociological differences. Civil law judges are usually trained and promoted separately from attorneys, whereas common law judges are usually selected from accomplished and reputable attorneys. Also, the influence of academic writing by law professor s on case law tends to be much greater in civil law countries. A difference that is emphasized by economists is that civil law countries emphasize social stability, while common law countries focus on the rights of an individual. According to the legal origins theory promoted by some economists, this has a considerable impact of different countries' financial development.
Source: http://www.economicexpert.com/