Civil Law System – History
1.
Roman law formed as a starting point for many
legal systems. It's rich discussion on various legal issues laid foundation for
the development of legal system in Europe and its impact are profound to this
day.
2.
Early Roman law was primarily based on custom (ius)
3.
The law was applicable only in case of Roman
civilian (ius civile) aliens- ius gentium =
4.
The society was divided into two classes of
people. The ruling class and their subject. The ruling class was referred to as
pontiffs (religious leaders).
5.
Once dissatisfaction arose in the early Roman
society regarding the ruler and their unfettered authority. Rules were
codified. Example, Twelve Tables of Rome (449 BC).
6.
Twelve Tables of Rome codified the existing law.
It dealt with issues such as property and other civil matters.
7.
By 27 B.C. Jurists had achieved prominence.
8.
They advised parties to litigation, lay judges,
legal magistrates.
9.
Lay judges (Judex)
and Magistrates (Praetor) were two
types of civil judges at that time. They did not have any legal training and
relied on jurists for legal advice.
10. Since Praetor was appointed on individual case
basis and played limited role in the resolution of cases – decisions and
rulings were not accorded any particular weight or significance. Similar was
the case with Judex decision.
11. Magistrates
(Praetor) defined issues relating to
the controversy at the beginning of the trial. They also laid down edict which
would be considered primary source of law. Jus civile (legislation) would only
be considered as secondary source of law.
12. Judex were
traditional judges. They were appointed by litigants. Additionally Judex also
needed Praetor’s authority before deciding the case. Judex were not permanent
judges, they would be appointed on case by case basis.
13. Jurists
advised both Judex and Praetor. But
unlike Judex and Praetor they were not public officials. They did not receive
pay for their work. Jurists were people who knew about the law and were
motivated by the influence and popularity that came with being a jurist.
14. In addition
to advising Judex and Praetor on cases.
Jurists also assisted Praetors in
defining their annual edict. Which also later developed into jus gentium.
15. Jurists in
their advise tried to clarify the state of the law and interpreted textual
materials.
16. They also
offered response to specific question of law in a document which was called responsa.
17. Annual
edict by Praetor continued to add to the corpus of the Roman law. But it was
unorganized and most often reiterated last year’s edict as opposed to adding
new rules and principles.
18. From around
117-138 AD period the practice of annual edict seem to have ended.
19. Instead of
edicts, Treatise were written to clarify
the law. Treatise would be written by jurists and often they expound rules of
roman law in detail.
20. During the
reign of Caesar Augustus the practice of
patenting jurists began. Patenting of jurists was a process of signaling out
Jurists for recognition so that their views would attain more prominence.
21. Patented
jurists eventually acquired the power of rule making and their opinions were
binding even on the emperor because they had the force of the law.
22. As a result
patented jurists also became imperial advisers.
23. Jurist
Gaius 2nd Century AD, Gaius’s Institutes.
Institutes was a treatise that was the major treatise of the time and was
highly influential in the development of other treatise and ultimately in the
development of Justinian Code.
6 Century AD: Emperor
Justinian ordered the drafting of a manuscript covering all aspects of Roman
Law (Corpus Juris Civilis) – Justinian Code
24. Corpus Juris Civilis:
It was a combination of the refinement of Gaius’s Institutes, Digest
(writings of classical jurists), the Code (early imperial legislation) and the
Novels (Justinian legislation).
It became the basis for the legal development in Europe.
11 to 15 Century
25. In Northern
Italy, just like in early Roman period the rise of jurist class began.
26. This time
the society had new legal challenges. Due to the changes in commercial and
social needs of the people new areas of law had become necessary.
27. These
jurists tried to fill up the void that existed in the law and therefore were
known as “glossators of Bologna”.
28. Glossators
were not supposed to develop new principles, rules and procedures. They simply
interpreted Corpus Juris Civilis and disseminated those interpretations to
other scholars of Europe , law students and lay judges.
29. This led to
establishment of law schools and Universities and subsequently civil law spread
in Europe. Particularly in Spain, France, Germany and later in their colonies
and in South America.
30. Glossators
“glossed” the texts with interpretation or addition of the texts by using their
intellect, substance and technique of medieval theology and customs[1].
31. A part of
the appeal of glossators was that unlike jurists of early Roman period,
Glossators were not necessarily members of aristocratic family. They were not
necessarily upper class people but were simple teachers who represented common
public.
Medieval Period
32. By this
time comprehensive cannon or ecclesiastical law by the Roman Catholic Church
was developed. “Concordia Discordantium Canonum” (1130-1150 AD) had become the
basis for cannon law. This body of law also tried to reform criminal law and
justice system by replacing trial by ordeal with reason and logic.
33. While canon
law developed, mercantile law also evolved. Due to association of traders and
merchants new commerce laws were developed such as the Shipping Rules as early
as in 1205. Even temporary courts were also created to settle disputes in fairs
and markets. Many commercial statutes and courts were formed at this time.
34. After the
medieval period modern European Civil Law developed. It included a combination
of Corpus Civilis, Custom, Canon Law and Mechantile Law.
35. Codification:
Codification of civil law was influenced by three major changes that happened in
Europe in 18 and 19 th Century: Humanism Movement, Naturalism and
Enlightenment.
36. Humanism:
aided by the development of the concept of nation state and emphasis on strong
central government.
37. Westphalia
treaty of 1648 and other socio-political movement encouraged scholarly
examination of law, nature and function of law, which also gave rise to Natural
school of legal thought.
38. Naturalism:
Focus on reason and purpose of law. Influence of Grotius and other philosophers
that brought attention to the nature of law.
39. Enlightenment:
Culminated into the French revolution. Argued for fundamental importance of
reason as a liberating force in intellectual life. It also promoted the concept
that the citizens should be aware of the law – so law must be simple –
advocated for simplification of Code.
40. This meant
that the codification of the 18th century was not a simple restatement of the
law which was the case in the codification efforts during 15th and 16th
Century. Now the codification involved a rationally organized statements of the
whole field of law.
French Code:
·
Napolean
·
4 senior Practioners of law were tasked with the
responsibility of drafting
·
102 sessions that discussed the code
·
Issued in 1804
·
3 Books
·
2,281 articles.
·
Include general principles of law; civil rights
and status of persons, marriage, divorce and paternity issues; issues relating
to real and personal property and issues relating to succession, contracts and
obligation.
German Code: approved in 1896, came into
effect 1 January 1900.
1.
Present Day Civil Law:
·
Dichotomy between public and private law.
·
Dispute still about the dichotomy. For example,
civil procedures treated as public in some countries and private in others.
·
Public Law normally not part of comprehensive
civil codes. Rather consists of various statutes, supplemented by judge-made
law, more fluid and disputes heard by administrative or other special courts
not by ordinary courts.
·
Court System: Unlike unified court systems,
practice of many specialized courts and Tribunals. As a result no fixed
hierarchy or pyramid. Generally several independent courts with their each
supreme Court. France and Germany. In Germany the final review by the Federal
Constitutional Court. In France Special Tribunal of Conflicts decides which is
proper court for a disputed case.
According to Franz Wieacker, "the lasting effect Roman law had on
world history may be explained by: (1) the incorporation of the Mediterranean
acumen into one empire, which survived spiritually in modern Europe; (2) the
Roman concept of political power as a legal order; (3) the strict isolation of
this legal order from its social and economic background; and (4) the control
of legal decision-making by means of a consistent system of cognitive
principles."
One of the greatest contribution of the Roman legal system is the
administration of justice. While the Greeks developed well in the area of
substantive law and legal theory, Roman Legal System often used progressive
system of administration of justice by employing greatest jurists who, in turn,
were disciplined to take care of the welfare of the people.
[1] There is no record of
early jurists using customs in their analysis and explanation of civil law.