02. civil law

The question

The common law was shown to be a tradition built upon the decided case. The civil law tradition, examined in this sub-unit, proceeds upon the opposite organising principle, placing the comprehensive enacted code at the centre of the legal order and assigning to the judge the task of applying it. The civil law is the most widespread of the world's traditions, prevailing across continental Europe, throughout Latin America, and across much of Asia and Africa, and the international lawyer encounters it constantly. The question this sub-unit answers is what distinguishes the civil law as a method, and how its treatment of the sources differs from that of the common law. The answer begins with the tradition's descent from the law of Rome.

Descent from Roman law

The defining inheritance of the civil law is the law of ancient Rome, and the tradition is properly understood as the modern development of that inheritance. The Roman jurists produced a body of legal learning of great sophistication, which the Emperor Justinian caused to be compiled in the sixth century in the collection later known as the Corpus Juris Civilis. This compilation was studied and elaborated in the medieval universities of continental Europe, and it furnished the concepts, categories, and method from which the modern civil law descends.

This descent connects the tradition to the doctrine of sources in a manner opposite to the common law. Where the common law grew from the accumulated decisions of judges, the civil law grew from the scholarly study of an authoritative text, and the tradition has accordingly always given the central place to the systematic statement of law in writing rather than to the decision of the particular case. The jurist who orders and expounds the law occupies, in the civil law, a position of an importance the common law reserves for the judge.

Consider the concepts that structure the law of obligations in a civil law system, such as the distinctions among contract, unjust enrichment, and delict as sources of obligation. These categories derive from the Roman analysis transmitted through the Corpus Juris Civilis and refined by centuries of scholarship, and they organise the modern codes that govern commercial life across the civil law world. The example shows the tradition drawing its very structure from its Roman descent.

The civil law is therefore, at its foundation, the modern inheritor of Roman law, a tradition oriented from its origin toward the systematic and scholarly statement of law in an authoritative text.

Codification and the code

The systematic statement of law reaches its characteristic modern form in codification, the enactment of a comprehensive and ordered body of law in a single authoritative text, the code, intended to state the whole of a field of law in a coherent and accessible form. The great codifications of the modern era, beginning with the French Civil Code of 1804 and the German Civil Code of 1900, gave the civil law its distinctive instrument, and the code remains the primary source of law in the tradition.

The code is more than a collection of statutes. It is conceived as a complete and systematic statement, organised by general principle, from which the rule governing any particular case may be derived by reasoning from the relevant provisions. This connects directly to the hierarchy of sources examined earlier in the course: in a civil law system, the code stands as the primary source, legislation supplements it, and the role of the other sources is correspondingly reduced. The method of the civil lawyer is deductive, reasoning from the general provisions of the code down to the particular case, in contrast to the inductive method by which the common lawyer reasons up from the decided cases.

Suppose a dispute arises over whether a seller must compensate a buyer for goods that fail to conform to the contract. The civil lawyer turns to the provisions of the code governing sale and obligations, identifies the general rule the code lays down for non-conforming performance, and applies that rule to the facts. The answer is derived from the text of the code, and the lawyer's task is to read the code correctly and to reason from its provisions to the result.

Codification is thus the central feature of the civil law tradition, supplying it with a comprehensive primary source from which rules are derived by deductive reasoning, a feature that sharply distinguishes it from the case-based method of the common law.

The role of the judge

The primacy of the code determines the constitutional role of the judge, which differs fundamentally from the role the common law assigns. In the civil law tradition, the judge's task is to apply the code to the case, and a prior judicial decision does not bind a later court in the formal manner of stare decisis. The judge declares the law the code contains rather than making law through the decision, and the doctrine of binding precedent has no formal place in the tradition.

This does not mean that prior decisions are without influence, and the qualification is important. A settled and consistent line of decisions, known in French as jurisprudence constante, carries substantial persuasive authority, and the decisions of the highest courts are studied and ordinarily followed. The difference from the common law lies in the source of their authority: a civil law decision is persuasive because of the soundness of its reasoning and the weight of consistent practice, while a common law precedent binds because the doctrine of precedent makes it binding, irrespective of whether a later judge finds its reasoning persuasive.

Return to the dispute over non-conforming goods. A civil law court deciding the question reasons from the code, and although it will consider how the highest court has previously interpreted the relevant provisions, it is formally bound by the code rather than by the prior decision. A common law court, by contrast, would be bound by the ratio of a higher court's decision on the same point. The same commercial question is thus resolved by reasoning from a text in the one tradition and by reasoning from authority in the other.

The role of the judge in the civil law is accordingly that of the learned applier of the code, influential but not law-making in the formal sense, and this restrained role is the direct consequence of the primacy the tradition gives to the enacted code.

Inquisitorial procedure

The civil law tradition is associated, finally, with a characteristic mode of procedure, the inquisitorial system, in which the court takes an active role in investigating the facts and directing the inquiry, rather than leaving the gathering and presentation of evidence to the parties. The judge in such a system may call and question witnesses, order the production of evidence, and shape the course of the proceedings, and the trial is conceived as an inquiry conducted by the court into the truth of the matter.

This procedure reflects the broader character of the tradition. Just as the substantive law is contained in an authoritative text that the judge expounds, so the resolution of the dispute is conducted by the court rather than driven by the contest of the parties, and the judge's active role in the trial mirrors the central place the tradition gives to the official statement and application of law. The inquisitorial system contrasts with the adversarial procedure of the common law, in which the parties control the case and the judge presides as a neutral arbiter.

In a commercial dispute over a defective delivery, a civil law court may itself appoint an expert to examine the goods and report to the court, directing the inquiry into the facts, whereas a common law court would leave each party to call its own experts and would decide between the competing accounts. The contrast in procedure expresses, at the level of the individual trial, the deeper contrast between a tradition centred on the official application of an authoritative text and a tradition centred on the contest of decided cases.

Inquisitorial procedure is therefore the procedural counterpart of the civil law method, completing the portrait of a tradition in which the comprehensive code, applied by a learned judge through an official inquiry, occupies the place that the decided case occupies in the common law.