Geographic Distribution of the Civil Law

As previously noted, the historical origins and development of a legal system is a factor that sets that system apart as a member of the civil law family.^{^[835]} Upon closer examination, history is also a factor that explains the internal differentiation within the civil law.

It is thus unsurprising that contemporary comparative law scholars identify sub-categories of legal systems within the civil law family, with the Romanistic-Latin or French and the Germanic systems forming two secondary groupings or sub-families.^{^[836]} The distinctive French and German legal codifications and juristic styles each exerted a far-reaching influence worldwide, and to some extent their influences overlapped. Indeed, one might argue that the ‘typical’ civil law systems today are not those of France and Germany, but rather those systems that have undergone a combined influence of both. Nevertheless, in the postcodification period, French law and German legal science have constituted the two main tributaries to the civil law tradition.

The Romanistic-Latin or French group of countries and territorial units share a private law that follows the Napoleonic Civil Code of 1804. In the course of the Napoleonic conquests and the subsequent political and administrative reshaping of many European countries the French Civil Code was introduced into the western regions of Germany, the low countries, Italy, Spain and other parts of Europe. Then, during the colonial age, France extended her legal influence far beyond Continental Europe to parts of the Middle East, Northern and sub-Saharan Africa, Indochina, Oceania, French Guiana and the French Caribbean islands. But the influence of French law both outlived and went beyond the Napoleonic conquests and French colonialism.

To this day, the French Civil Code remains in effect, with revisions, in Belgium and Luxemburg. Moreover, the Code Civil had a major influence on the Netherlands Civil Code of 1838 (whose spirit has naturally influenced the new civil code of the Netherlands enacted in 1992); the law codes of the Italian federal states prior to 1860 and the first Codice Civile of 1865^{^[837]}; the Portuguese Civil Code of 1867 (replaced in 1967); the Spanish Civil Code of 1889; the Romanian Civil Code of 1864; and some of the Swiss cantonal codes.^{^[838]} Furthermore, when the Spanish and Portuguese empires in Latin America disintegrated in the nineteenth century, it was mainly to the French Civil Code that the legislatures of the newly independent nations of Central and South America looked for inspiration. This is unsurprising, as the language and concepts of the French code were already familiar because of their affinities with the legal institutions and practices that had been introduced by the Spanish and the Portuguese. Moreover, French culture and the French revolutionary heritage were greatly admired in Latin American countries and Napoleon’s personality served as an example to many of the early statesmen of these countries.^{^[839]} The French legal tradition continues to exist in territories that were first colonized by France but later on taken over by Great Britain or another power with a common law legal system, such as the province of Quebec in Canada and the state of Louisiana in the United States of America.^{^[840]} With respect to countries that once belonged to the French colonial empire,^{^[841]} the current influence of French law varies, depending on the hold of French culture in these countries and the impact of local customs and legal traditions, especially Islamic law.^{^[842]}

The Germanic legal family consists of countries that have adopted or are influenced by the German Civil Code and the German Pandectist scholarship (Pandektenwissenschaft) that preceded it.

Although the German Civil Code appeared on the scene relatively late in the codification era and its highly technical language and complicated structure rendered its direct transplantation difficult, it did play a significant part in the codification of civil law in a number of countries, such as Italy,^{^[843]} Greece,^{^[844]} Portugal^{^[845]} and Japan.^{^[846]} Either via Japan or directly, the German civil law influence also spread to Korea,^{^[847]} Thailand and partly also China.^{^[848]} Furthermore, the legal science that preceded and accompanied the German Code has had considerable influence on legal theory and doctrine in several countries in Central and Eastern Europe, particularly in Austria, Hungary, Switzerland, and the former Yugoslavia. The Austrian General Civil Code of 1811 (Allgemeines Bürgerliches Gesetzbuch, or ABGB), also influenced by Roman law, was the product of the Age of Enlightenment and bore the stamp of the School of Natural Law. The German legal influence, especially that of the Historical School, on the Code has been apparent in connection with different legal reforms during the early part of the twentieth century.^{^[849]} German legal science had a strong impact in other territories of the Habsburg Empire, especially Hungary, where it led to three civil code drafts (1900, 1911-1915 and 1928). Although none of these drafts attained the status of law, they nevertheless played an important part in judicial practice.^{^[850]} The Swiss Civil Code (Zivilgesetzbuch) of 1907, drafted by the jurist Eugen Huber, drew upon German and, to a lesser extent, French sources, but was adapted to Swiss circumstances and incorporated significant contemporary reforms.^{^[851]}

Civil law survives in so-called ‘mixed’ or ‘hybrid’ legal systems, i.e.

systems that historically represent a mixture of legal traditions from two or more families of law, such as the civil and common law systems of Quebec, Louisiana, South Africa (Dutch and English influence), Scotland,^{^[852]} Puerto Rico and the Philippines.^{^[853]} Civil law is also one of the diverse elements in the complex legal systems prevailing in many countries in Asia, such as China, Sri Lanka, Indonesia, Taiwan, Laos, Vietnam and Cambodia.

As the civil law has evolved and entered into combination with other legal elements, its impact has been attenuated. In the aftermath of codification and national law movements, an extraordinary growth of legislative activity was stimulated by the need to modernize the state and address novel problems generated by socio-economic, political and technological developments. Contemporary law-making and law reform are distinguished by a sort of eclecticism. In searching for legal solutions to new problems common to diverse societies, legislatures have been less concerned with provenance than with the promise of new approaches and ideas.^{^[854]} The exchange of ideas and models among different legal systems (especially among civil law and common law systems) is gaining momentum and, within the European continent in particular, there is a move towards legal convergence in many areas. At the same time, lawmakers tend to pay more attention to the diversity in society and are more pragmatic in their approach, in contrast with the drafters of the early law codes, who usually upheld one model of behaviour for all people. Thus, private law reform in Europe today is usually preceded by extensive research on contemporary socio-economic conditions and public attitudes. Outside the continent of Europe, the cradle of the civil law, the received European legal norms and institutions never entirely penetrated social life, nor did they ever fully displaced customary and religious norm systems. In light of the above, it is unsurprising that there is probably as much diversity among the responses of civil law systems to legal problems as there is between civil law and common law countries. It is thus appropriate to ask: what, if anything, besides historical origins, links the civil law systems together and, at the same time, sets the civil law tradition apart from other legal traditions today?

8.2.2

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

Geographic Distribution of the Civil Law

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