Civil Law Characteristics
Characteristics of Civil Law
The most obvious feature of a civil law system is the presence of a written code of law. The code is a systematic and comprehensive compilation of legal rules and principles. Although the contents of codes may vary widely from country to country, all codes are intended as a blueprint of social regulation that attempts to guide individuals through society from birth to death.
The civil law tradition makes a sharp distinction between private and public law. Private law includes the rules governing civil and commercial relationships such as marriage, divorce, and contractual agreements. Public law consists of matters that concern the government: constitutional law, criminal law, and administrative law. In many countries with civil law systems, two sets of courts exist-those that hear public law cases and those that address matters of private law.
The role of judges in civil law jurisdictions differs considerably from that of judges in common law systems. When different facts or new considerations arise, common law judges are free to depart from precedent and establish new law. The civil law tradition views judges as government officials who perform essential but uncreative functions. Civil law judges administer the codes that are written by legal scholars and enacted by legislators. They may also consult legal treatises on the issue in question. The civil law system assumes that there is only one correct solution to a specific legal problem. Therefore, judges are not expected to use judicial discretion or to apply their own interpretation to a case.
Civil law systems do not have any process like the common law practice of discovery-the pretrial search for information conducted by the parties involved in the case. The trial of a case under civil law also differs substantially from a common law trial, in which both parties present arguments and witnesses in open court. In civil law systems the judge supervises the collection of evidence and usually examines witnesses in private. Cross-examination of witnesses by the opposing party’s attorney is rare. Instead, a civil law action consists of a series of meetings, hearings, and letters through which testimony is taken, evidence is gathered, and judgment is rendered. This eliminates the need for a trial and, therefore, for a jury.
Systems of common law and civil law also differ in how law is created and how it can be changed. Common law is derived from custom and precedents (binding judgments made by prior judicial decisions). In the common law system, the precedent itself is law. Therefore, the judges who decide which party will prevail in any given trial are also the creators of common law. Civil law, on the other hand, is made by legislators who strive to supplement and modernize the codes, usually with the advice of legal scholars. Civil law judges administer the law, but they do not create it. (1)
In this Section: Civil Law, Civil Law Characteristics, Civil Law History and Civil Law Expansion.
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