Defining Characteristics of Civil Law Systems

One should point out at the outset that it is very difficult to list the defining characteristics of the civil law family of legal systems without resorting to generalizations that would require lengthy qualifications in order for them to be meaningful.

In part, the problem is caused by the relatively high level of abstraction that the concept of legal family involves, as well as by the fact that its use as a classification device does not pay sufficient attention to the changes that accompany the individual systems’ evolution. According to Zweigert and Kotz,^{^[855]} the ultimate distinguishing feature of legal families is their ‘style’ (Rechtsstil), a multi-faceted notion shaped by the interaction of five factors: (a) history; (b) mode of legal thinking; (c) legal institutions; (d) sources of law; and (e) ideology. All these factors are relevant, albeit to varying degrees, to identifying what sets the civil law apart from other legal families, and in particular the common law family.

As the narrative in this book makes clear, history is a factor that unmistakably sets the civil law tradition apart from other legal traditions. When we refer to the civil law systems as belonging to a single legal family, we are calling attention to the fact that, despite the considerable national differences among themselves, they are characterized by a fundamental unity. The most obvious element of unity is naturally provided by the fact that they are all derived from the same sources, and that they have classified their legal institutions in accordance with a commonly accepted scheme that existed prior to their own development and that, at some stage in their evolution, they took over and made their own. But, as already noted, history is also a factor for the internal differentiation within the civil law, accounting for the fact that the various members of the civil law family may be less homogenous than their common law counterparts.

A characteristic feature of civil law pertains to the mode of legal thinking that it displays.

In civil law systems a tendency exists to use abstract terms and, more generally, to employ a conceptual approach to legal problems. Legal norms determine certain patterns of behaviour without regarding the concrete circumstances of particular cases. They are characterized by a kind of optimal generality: they are not too general (as too general norms would complicate the application of law), but general enough for application in certain situations. As a consequence, legal reasoning in civil law countries is basically deductive. Deductive reasoning proceeds from a broad norm or principle expressed in general terms; this is followed by a consideration of the facts of the particular case and the application of the principle to these facts with a view to arriving at a conclusion. Legal reasoning in civil law has a top-down structure, moving from the general to the more specific. By employing this kind of reasoning, the civil law lawyer may present a legal argument as if there is only one right answer to any legal problem. In this respect, any disagreement over the application of the law to the facts is blamed on the presence of faulty logic. This explains why civil law judges do not usually offer dissenting opinions. Every judgment, even in cases decided on appeal, is the judgment of the court as a whole. Under the deductive approach of the civil law, the value of case law is limited as court decisions are viewed as particular illustrations of, or specific exceptions to, the law as embodied in a general norm or principle. In this respect, the material of law may be construed to form an independent, closed system where, at least in theory, all sorts of questions could or should be answered by interpreting existing legal norms.^{^[856]} The law in civil law is regarded as ‘found’ rather than ‘made’ in each individual case through the application of deductive reasoning or, if necessary, reasoning per analogiam or a contrario.^{^[857]}

Related to the above is the intellectualism and conceptualism that generally characterize civil law thinking—especially German law and the systems it influenced.

In civil law systems the study of law is still regarded as a predominantly intellectual pursuit, whilst the practical application of law effectively occupies a secondary place. Notwithstanding the increasing emphasis on the practical implications of the law in recent years, the law in these systems is generally approached as a science, a form of logic, a coherent assembly where everything can be reduced to principles, concepts and categories. In the area of legislation, this approach to law has entailed the use of a technical and abstract language and the formulation of norms with a scope broad enough to cover a wide range of cases. It also led to a high level of precision in selecting the relevant terms and phrases whose meaning remains fixed throughout the text of the law. With respect to the study of law, this approach means that one cannot rely on case study alone if one wishes to grasp the essence of the civil law. The study of cases in civil law systems is intended to only illustrate how the law operates in practice, but its essence will necessarily remain abstract. Unlike the common law lawyer, who distinguishes cases on their facts, the civil law lawyer searches for the general principles of law that underpin court decisions.^{^[858]} The contrast between the civil law and the common law is traditionally presented as that between case or judge-made law and the essentially doctrinal law of the legal scholars. A great deal of the differences between the two systems are, in one way or another, connected with this contrast between the procedural and the theoretical origin of legal norms. It is therefore unsurprising that legal scholars and academics in civil law countries generally enjoy more prestige than judges, for the duty of the civil law judge is to apply the written law whose meaning is discovered largely through the work of academic scholars. One might say that in civil law the legal scholar is the senior while the judge is the junior partner in the legal process.^{^[859]} In modern civil law systems, where court decisions play an increasingly important role in shaping the law, an ever-vigilant academic community observes, reviews and critiques the courts to ensure that any shaping or re-shaping of the law remains a controlled activity.

Furthermore, academic scholars continue the tradition of writing textbooks and treatises in their area of expertise. Their works provide the basic source of legal knowledge that is imparted, in an authoritative way, from the scholars to their students and to those entering the legal profession. As the civil law emphasizes the transmission of legal knowledge and as there is so much knowledge to be transmitted, legal instruction in universities takes the form of general overviews of or introductions to the various fields of the law. In civil law systems the principal source of legal knowledge has always been the textbook, rather than the casebook.

In civil law the tendency prevails to draw a clear distinction between substantive law and legal procedure. This distinction has its historical origins in the work of the humanist jurists of the sixteenth century, who tended to view the law not so much as a body of objective rules but, rather, as a system of subjective rights. In this respect, legal procedure is viewed as a mechanism for enforcing these rights. Whenever substantive law recognizes a right, the law of procedure, as an accessory to substantive law, must provide an appropriate remedy. This shift from law as rules to law as rights was partly due to the fact that in Latin and in all European languages the word for ‘substantive law’ and the word for right is the same: ius, droit, diritto, Recht.^{^[860]} In the domain of legal procedure civil law systems generally follow a more dogmatic and formalistic approach to law in contrast to the more empirical approach of the common law. Furthermore, there is a relatively greater scope for an inquisitorial approach to litigation, as opposed to the adversarial approach of the common law.^{^[861]} The civil law places greater responsibility on the judge for the investigation of the facts, whilst the common law leaves the parties to gather and produce the factual material on which adjudication depends.

One might say that the civil law model of legal procedure is construed to display a preference for ‘centripetal’ decision-making, determinative rules and a rigid ordering of authority. It also attaches greater importance to written testimony in the form of official documents and reports.^{^[862]} However, the usual contrast between the civil law inquisitorial and the common law adversarial mode of trial should not be overstated. As J. Langbein, commenting on German and American procedures, has remarked, “apart from fact-gathering... the lawyers for the parties play major and broadly comparable roles in both the German and American systems. Both are adversary systems of civil procedure. There as here, the lawyers advance partisan positions from first pleadings to final arguments. German litigators suggest legal theories and lines of factual inquiry, they superintend and supplement judicial examination of witnesses, they urge inferences from fact, they discuss and distinguish precedent, they interpret statutes, and they formulate views of the law that further the interests of their clients”. According to this commentator, the chief difference between German and American litigators is that the former are mostly ‘law adversaries’, while the latter are ‘law-and-fact adversaries’.^{^[863]}

The civil law has its own distinctive legal institutions. Reference may be made, for example, to the institutions of cause, oblique action, abuse of right, the actio de in rem verso and negotiorum gestio of the Romanistic sub-family. With respect to the Germanic sub-family one could mention institutions such as the abstract real contract, the clausulae generales, the concept of the legal act, the notion of unjust enrichment, the doctrine of the collapse of the foundations of a transaction and liability based on culpa in contrahendo. One should point out in this connection that the presence of identical legal terms in different legal families does not necessarily imply that such terms are construed in the same manner.

For instance, a term that is used in both civil law and common law systems which has different meanings is ‘equity.’ Although civil law codes contain several references to it,^{^[864]} equity is not clearly defined but civil law judges use the concept whenever they do not wish to follow a formal or rigid interpretation of a legal principle. In English law, on the other hand, the term ‘equity’ is understood to refer to the body of law that evolved separately from the body of law created by the common law courts.^{^[865]} Other examples of identical legal terms that operate in different ways in different systems are those of possession and mistake, which are given different juridical meanings in French and English law.

For largely historical reasons, private law (the law governing relations between private citizens) has had a dominant role in the development of legal institutions, concepts and principles in civil law systems. This is manifested by the fact that the classification of civil law systems focuses on the law canvassed by the civil codes, namely private law.^{^[866]} Other branches of law, such as public law (the body of rules concerned with the relationship between public bodies and the resolution of disputes in which the state is a party), developed later, largely on the basis of concepts and principles replicated from private law. A characteristic feature of modern civil law is the sharp distinction drawn between private law and public law. Although this distinction is also recognized in common law countries,^{^[867]} in civil law systems it has far greater practical implications since, derived from it, there are two different hierarchies of courts dealing with each of these categories of law.^{^[868]}

The sources of law furnish another criterion for distinguishing between legal families. In civil law systems statutory law (legal codes, statutes, decrees and ordinances) have precedence over custom and judicial decisions. An obvious feature of modern civil law is that it is based on the codification of the law. Codification denotes an authoritative statement of the whole law in a coherent and systematic way. As we saw earlier, the tradition of codification is a product of the rationalist tendencies that prevailed in European political philosophy during the eighteenth and nineteenth centuries. Its roots, however, can be traced to the great codification of Roman law by Emperor Justinian in the sixth century ad. One can trace to Justinian the idea that the code overrides all other legal sources, offering a fresh beginning to the law. In contemporary civil law systems, law codes are integrated documents consisting of comprehensive and systematically stated provisions complemented by subsequent legislation. They govern all major branches of law, including civil law, civil procedure, criminal law, criminal procedure and general commercial law. Even though in civil law systems judicial decisions are studied in order to uncover trends, especially in areas in which there is sparse legislation,^{^[869]} court decisions have in principle no binding effect on lower courts. However, despite the absence of any formal doctrine of stare decisis, there is a strong tendency on the part of civil law judges to follow precedents, in particular those of the higher courts. In light of this one might say that in practice the difference between stare decisis (binding precedent) and what is referred to in France as jurisprudence constante (the persuasiveness of judicial trend) is constantly being narrowed down.

Ideology is the least useful criterion when distinguishing between civil law and common law, the other major legal family within the Western legal tradition. The essence of the philosophical, political, economic and cultural foundations of law in both legal families is too similar for it to be otherwise.^{^[870]}

8.2.3

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

Defining Characteristics of Civil Law Systems

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