A legal tradition … is a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization of a legal system, and about the way law is or should be made, applied, studied, perfected and taught.[1]

The civil law tradition

Named after the jus civile of the Roman Empire, upon which it is based, the civil law is one of the world’s great legal traditions.  The civil law is more widely distributed throughout the world and in many ways is far more influential.

Its hallmarks include:

  • the obvious influence of Roman law and canon law at its foundation;
  • a fundamental classification of law into private law and public law;
  • a clear separation of powers enabling legislators to make laws and preventing judges (who are career public servants) from doing so;
  • the compilation of and reliance upon, notionally, all-encompassing legal codes as the primary sources of law;
  • recourse to legal scholars instead of judges to interpret the legal codes;
  • the mandating of inquisitorial rather than adversarial court procedures; and
  • the entrenchment of a notariat vested with publica fides which exercises a central role in relation to real estate transactions, inheritance and succession and the formation and conduct of business entities.

Civil law is the principal legal system in most of Europe, all of Central and South America and significant parts of Asia and Africa.  In North America, pockets of the civil law continue to flourish in Louisiana, Puerto Rico and Quebec.[2]

Modern rules of both public and private international law are largely the product of lawyers and academics raised and trained in the civil law tradition.[3]

As it has evolved over the years, the civil law is far from monolithic.  In the same way as the laws of England, Australia and New Zealand differ significantly in many respects but are nonetheless part of a distinct and cohesive legal tradition, so it is with the civil law.  Each of the civil law jurisdictions is demonstrably ‘civil law’ in nature, but each has developed its own variations on a theme.

The early period

The civil law tradition began its development in Europe from about the 12th century based upon the Roman law as codified in the Corpus Juris Civilis (the Body of Civil Law) prepared in Constantinople between 529 and 565 by order of the Emperor Justinian.[4]

In the early 12th century, the first universities began to appear in Mediterranean Europe.  The outstanding centre for the teaching of law was established in the Italian city of Bologna in 1116.  By the mid 12th century, there were approximately 10,000 law students in Bologna drawn from the whole of Europe.[5]  Its jurists (legal experts) and those of other mediaeval European universities have become known as ‘glossators’ (writers of ‘glosses’).[6]

The glossators revived the Corpus Juris Civilis and adapted the Roman system of law as revealed by it to the interpersonal and commercial requirements of post-medieval Mediterranean Europe.  Their interpolations and legal advice were embodied in summae (short legal treatises) which ultimately developed into complete statements of law on discrete legal subjects.[7]

The Siete Partidas

In the late 13th century, Alfonso X, King of Castille, Leon and Galicia (1257 – 1284),[8] conceived and oversaw the preparation of a comprehensive code of law for Spain, known as Codigo de Las Siete Partidas (the Code of the Seven Parts of the Law).[9]

Inspired by a deeply religious view of the world, the Siete Partidas was based upon the Roman law as interpreted by the glossators and as brought to Spain by legal scholars trained by them or at Spanish universities which had introduced their methodology.

Considered to be Spain’s most important contribution to the development of the civil law, the Siete Partidas comprised 182 articles setting out a total of 2,802 laws.[10]   The third partida is the longest of all the partidas.  It deals with the laws relating to legal proceedings and their conduct and with the dispension of justice generally.  Although notaries are mentioned elsewhere in the Code, Article XIX of the third partida discusses the office at length.[11]

The Siete Partidas remained the basis of Spanish law until 1889 when it was replaced by the Codigo Civil (the Civil Code) which took its inspiration from the Code Napoleon and still is in force in Spain.  It also was the legal system imposed by the Spanish on their colonies in the Americas.  Consequently, the Siete Partidas is the foundation of the legal system of most of modern Central and South America.

The codification mindset

The ‘codification’ mindset continued in Europe throughout the renaissance and post-renaissance periods and during the years leading up to the emergence of the European nation-state.  European jurisprudence saw codification as a means of ensuring that the law was readily known and understood and readily accessible to all.  The Corpus Juris Civilis and through it, the system of Roman law, was the obvious starting point for the codification process.

In his essay, ‘Principal Features and Methods of Codification’,[12] Professor Jean Louis Bergel observed that:

[The] greatest codifications responded to important political, social or technical changes, usually occurring after revolutions or following a country’s accession to independence.  New political, philosophical and religious ideologies were then put forth and implemented by the new authorities.[13] 

The French and German civil codes and their influence

Unquestionably, the two most influential of the modern civil codes, are the French code and the German code.  The impetus for the former was the French Revolution of 1789 and for the latter, the founding of the modern German state.

Both the French and the German codes have been amended, modified and supplemented over the years, but their underlying philosophies and methodologies have remained remarkably consistent.

The Code Civil of France

The Code Civil des Francais, now called the Code Civil was Napoleon’s brainchild.  He believed it to be his greatest achievement.  Indeed, while in exile on St. Helena, Napoleon said:

My true glory is not that I have won forty battles.  Waterloo will blow away the memory of those victories.  What nothing can blow away, what will live eternally, is my Civil Code.[14]

Napoleon commissioned the drafting of his comprehensive code of French law in 1800.  The task took four years.  On completion, the code comprised 2,281 Articles in three Books, namely:

  • Book I,

Articles 1 – 6:              General Principles of Law and their Application.

Articles 7 – 515:          Civil rights, status of persons, marriage, divorce and paternity.

  • Book II,

Articles 516 – 570:      Real and personal property, ownership and rights relating to the property.

  • Book III,

Articles 711 – 2281     Rights of succession, contracts and obligations.

The code did not deal with criminal law, commercial law or civil procedure.  Those matters were the subject of later codes.

The Code Civil was compulsorily introduced into France’s colonies and into those countries such as Belgium and Luxembourg which at material times were under French rule.  It also inspired the Dutch civil code, the Italian civil codes, the Romanian code, the Portuguese code, the Spanish Codigo Civil, the Brazilian code, the Chilean code and the codes of Argentina, Uruguay and Venezuela.  In Quebec, the Code Civil was the principal model for the Quebec Civil Code of 1866.  The Louisiana Civil Codes of 1808, 1825 and 1870 were all primarily born of the French code.

The BGB

Germany’s code, the Burgerliches Gesetzbuch (‘the BGB’), is the work of a special commission of German legal scholars set up in 1873.  After a lengthy gestation, the code took effect on 1 January 1900.

The BGB comprises five books, namely:

  • Book I General principles, natural and juristic persons, things, classifications of legal acts and prescriptive periods.
  • Book II The law of obligations, contracts and the law of delict (torts).
  • Book III Real and personal property and securities.
  • Book IV Family law, including marriage.
  • Book V Succession, wills, settlements and inheritance.  

The Swiss Civil Code

The BGB went on to significantly influence the private law of Switzerland, Greece, Japan, the former USSR and Scandinavia.  In turn, the Swiss civil code, the Schweizeriche Zivilgesetzbuch (‘the ZGB’), which conceptually is closer to the common law than many civil law jurists will admit, has won significant plaudits internationally.  Modern legislators within the civil law jurisdictions often look to the ZGB for inspiration.  For example, in 1926, the then-new Turkish republic adopted the ZGB, almost holus-bolus, as the new Turkish Civil Code.

The future of the civil law tradition

What then of the future?  The world is of course just a global village.  As a result, the distinctions between the great legal traditions are blurring as they harmonise to develop cohesive responses to the myriad problems besetting the village.

An interaction between legal traditions and in particular between the civil law and common law traditions must necessarily have an impact one on the other.  Each of them is changing as a result.  Whether the changes wrought so far and those which unquestionably will occur in the future will ultimately threaten the separate identity and character of the civil law is an open question.

Looking for an answer, it is appropriate to turn again to Professors Merryman and Perez-Perdoma.

Do changes in the civil law tradition indicate its decline?  Certainly not … change is a sign of continued life … [It] would be inaccurate to assume that the civil law tradition is losing its vitality.  On the contrary, it may be more alive than ever.[15]

________________

[1]              John Henry Merryman and Rogelio Perez-Perdomo, The Civil Law Tradition (Stanford University Press 3rd ed 2007), 2.

[2]              The International Union of Notaries, which is a non-government organization founded in 1948 to coordinate and represent the interests of the civil law notariat, presently has 87 member notariats, drawn from the world’s civil law jurisdictions.  Membership is steadily expanding.

[3]              For example, the Hague Conference on Private International Law was convened in 1893 by the Netherlands government.  Since 1954 it has adopted 39 international conventions across a wide spectrum, including family law, trade and financial law, administrative and judicial co-operation and international litigation.

[4]              The Codex Justinianeus as it is sometimes called, comprises four parts or ‘books’ namely:

(1)           the Codex, the opinions of learned Roman jurists;

(2)           the Digesta, a compendium of Roman law from the time of Hadrian;

(3)           the Institutiones, an elementary text book for students; and

(4)           the Novellae Constitutiones, a collection of Justinian’s new ordinances published between 534 and 565.

[5]              Barry Nicholas, An Introduction to Roman Law (1962), 46.

[6]              Derived from the medieval latin ‘glossa’ meaning an explanation of a difficult word, a ‘gloss’ is a comment or explanation or interpretation or paraphrase.  A ‘glossator’ is a commentator, especially on texts of civil and canon law. (The New Shorter Oxford English Dictionary (1993)).

[7]              The leading glossator of the 13th century was the University of Bologna jurist, Accursius, whose glossa ordinaria (assembly of glosses) which totalled almost 100,000 individual commentaries on aspects of the Corpus Juris Civilis, was written over 40 years from about 1220 to about 1260.

[8]              Alfonso X is one of the 23 lawmakers depicted in marble relief portraits over the gallery doors of the House of Representatives chamber of the United States Capitol.  The 23 were chosen in recognition of their contributions to the basic philosophical and legal principles upon which American law is founded.

They are, in order from the right of the Speaker’s chair, George Mason, Robert Pothier, Jean Baptiste Colbert, Edward I, Alfonso X, Gregory IX, Saint Louis, Justinian I, Tribonian, Lycurgus, Hammurabi, Moses, Solon, Papinian, Gaius, Maimonides, Suleiman, Innocent III, Simon de Montfort, Hugo Grotius, Sir William Blackstone, Napoleon I and Thomas Jefferson.

[9]              The Code was originally called Livrio de las legies (Book of Laws).  It was given its present name in the 14th century.

[10]             The first letter of the title of each of the Partidas forms an acrostic of the King’s name.  The Siete Partidas are:

(1)           A servicio de Dios … (For the service of God …).

(2)           La fe catholica … (The Catholic Faith …).

(3)           Fizo Nuestro Sennor Dios … (Our Lord God did …).

(4)           Onras sennalados … (Special Rites …).

(5)           Nascen entre los ommes … (Among men there arise …).

(6)           Sesudamente dixeron … (The ancient wise men sagely said …).

(7)           Olvidanca et atreuimiento … (Forgetfulness and boldness …).

(‘Siete Partidas’ at http://en.wikipedia.org).

[11]             See, Robert I Burns (ed) Las Siete-Partidas (University of Pennsylvania Press, 2001) vol 3.

[12]             48 Louisiana Law Review (1987-1988) 1073.

[13]             Ibid, 1077.

[14]             Quoted by Bergel, above n 11, 1078 and 1079.

[15]             Merryman and Perez-Perdoma, above n 1, 159-160.