Civil Law System

Civil Law System


Civil law may be defined as that legal tradition which has its origin in Roman law, as codified in the Corpus Juris Civilis of Justinian,[1] and as subsequently developed in Continental Europe and around the world. Civil law eventually divided into two streams: the codified Roman law (as seen in the French Civil Code of 1804 and its progeny and imitators РContinental Europe, Qu̩bec and Louisiana being examples); and uncodified Roman law (as seen in Scotland and South Africa). [2] Civil law is highly systematized and structured and relies on declarations of broad, general principles, often ignoring the details.[3]

Civil Law System Historical Definition

This term is generally used to designate the Roman jurisprudence, jus civile Romanorum. In its most extensive sense, the term Roman law comprises all those legal rules and principles which were in force among the Romans, without reference to the time when they were adopted. But in a ,more restricted sense we understand by it the law compiled under the auspices of the Emperor Justinian, and which are still in force in many of the states of modern Europe, and to which all refer as authority or written reason.

The ancient leges curiatae are said to have been collected in the time of Tarquin, the last of the kings, by a pontifex maximus of the name of Sextus or Publius Papirius. This collection is known under the title of Jus Civile Papirianum; its existing fragments are few, and those of an apocryphal character. Mackeld. Civ. Law, § 21. After a fierce and uninterrupted struggle between the patricians and plebeians, the latter extorted from the former the celebrated law of the Twelve Tables, in the year 300 of Rome. This law, framed by the “decemvirs,” and adopted in the comitia centuriata, acquired great authority, and constituted the foundation of all the public and private laws of the Romans, subsequently, until the time of Justinian. It is called Lex Decemvvralis.

From this period, the sources of the jus scriptum consisted in the leges, the plebiscita, the senatusconsulta, and the constitutions of the emperors, eonstitutiones principum; and the jus non scriptum was found partly in the mores majorum, the consuetudo, and the res judicata, or auctoritas rerum, perpetua 8im,iliter judicatorum. The edicts of the magistrates, or jus honorarium, also formed a part of the unwritten law; but by far the most prolific source of the jus non scriptum, consisted in the opinions and writings of the lawyers, responsa prudentium. The few fragments of the Twelve Tables that have come down to us are stamped with the harsh features of their aristocratic origin. But the jus honorarium established by the praetors and other magistrates, as well as that part of the customary law which was built up by the opinions and writings of the prudentes, are founded essentially on principles of natural justice.

Many collections of the imperial constitutions had been made before the advent of Justinian to the throne. He was the first after Theodosius who ordered a new compilation to be made. For this purpose he appointed a committee of ten lawyers, with very extensive powers. At their head was the exquaestor sacri palatU, Johannes, and among them the afterwards well-known Tribonian. His instructioiis were to select, in the most laconic form, all that was still of value in the existing collections, as well as in the later constitutions; to omit all obsolete matter; to introduce such alterations as were required by the times; and to divide the whole into appropriate titles. Within fourteen months, the committee had finished their labors.

Justinian confirmed this new code, which consisted of twelve books, by a special ordinance and prohibited the use of the older collections of rescripts and edicts. This Code of Justinian, which is now called Codex Vetus, has been entirely lost. After the completion of this code, Justinian ordered Tribonian, in 530, who was now invested with the dignity of quaestor sacri palatii, and sixteen other jurists, to select all the most valuable passages from the writings of the old jurists which were regarded as authoritative, and to arrange them, according to their subjects, under suitable heads. These commissioners also enjoyed very extensive powers. They had the privilege, at their discretion, to abbreviate, to add, and to make such other alterations as they might consider adapted to the times; and they were especially ordered to remove all the contradictions of the old jurists, to avoid all repetitions, and to omit all that had become entirely obsolete.

The natural consequence of this was that the extracts did not always truly represent the originals, but were often interpolated and amended in conformity with the existing law. Alterations, modifications, and additions of this kind are now usually called Emhlemata Triboniani. This great work is called the Pandects, or Digest, and was completed by the commissioners in three years. Within that short space of time, they had extracted from the writings of no less than thirty-nine jurists all that they considered valuable for the purpose of this compilation. It was divided into fifty books, and was entitled Digesta sive Pandectae Juris Enucleati ex Omni Vetere Jure Colleotl.

The Pandects were published on the 16th December, 533, but they did not go into operation until the 30th of that month. In confirming the Pandects, Justinian prohibited further reference to the old jurists; and, in order to prevent legal science from becoming so diffuse, indefinite, and uncertain as it had previously been, he forbade the writing of commentaries upon the new compilation, and permitted only tlie making of literal translations into Greek. In preparing the Pandects, the compilers met very frequently with controversies in the writings of the jurists. Such questions, to the number of thirty-four, had been already determined by Justinian before the commencement of the collection of the Pandects, and before its completion the decisions of this kind were increased to fifty, and were known as the fifty decisions of Justinian. These decisions were at first collected separately, and afterwards embodied in the new code.

For the purpose of facilitating the study of the law, Justinian ordered Tribonian, with the assistance of Theophilus and Dorotheus, to prepare a brief system of law under the title of Institutes, which should contain the elements of legal science. This work was founded on, and to a great extent copied from, the commentaries of Gains, which, after having been lost for many centuries, were discovered by the great historian Niebuhr, in 1816, in a palimpsest, or rewritten manuscript of some of the homilies of St. Jerome, in the Chapter Library of Verona. What had become obsolete in the commentaries was omitted in the Institutes, and references were made to the new constitutions of Justinian so far as they had been issued at the time. Justinian published his Institutes on the 21st November, 533, and they obtained the force of law at the same time with the Pandects, December 30, 533.

Theophilus, one of the editors, delivered lectures on the Institutes in the Greek language, and from these lectures originated’ the valuable commentaries known under the Latin title, Theophili Anteeessoris Paraphrasis Graeca Institutionum Caesarearum. The Institutes consist of four books, each of which contains several titles, After the publication of the Pandects and the Institutes, Justinian ordered a revision of the Code, which had been promulgated in the year 529. This became necessary on account of the great number of new constitutions which he had issued, and of the fifty decisions not included in the old Code, and by which the law had been altered, amended, or modified. He therefore directed Tribonian, with the assistance of Doro’ theus, Menna, Constantinus, and Johannes, to revise the old Code, and to incorporate the new constitutions into it. This revision was completed in the same year; and the new edition of the Code, Codex Repetitae Praelectionis, was confirmed on the 16th November, 534, and the old Code abolished.

The Code contains twelve books, subdivided into appropriate titles. During the interval between the publication of the Codex Repetitae Praelectianis, in 535, to the end of his reign, in 565, Justinian issued, at different times, a great number of new constitutions, by which the law on many subjects was entirely changed. The greater part of these constitutions were written in Greek, in obscure and pompous language, and published under the name of NoveUae CoTistttutiones, which are known to us as the Novels of Justinian. Soon after his death, a collection of one hundred and sixty-eight Novels was made, one hundred and fifty-four of which had been issued by Justinian, and the others by his successors.

Justinian’s collections were, in ancient times, always copied separately, and afterwards they were printed in the same way. When taken together, they were indeed called, at an early period, the Corpus Juris Civilis; but this was not introduced as the regular title comprehending the whole body. Each volume had its own title until Dionysius Gothofredus gave this general title in the second edition of his glossed Corpus Juris Civilis, in 1604. Since that time this title has been used in all the editions of Justinian’s collections.

It is generally believed that the laws of Justinian were entirely lost and forgotten in the Western Empire from the middle of the eighth century until the alleged discovery of a copy of the Pandects at the storming and pilage of Amalfi, in 1135. This is one of those popular errors which had been handed down from generation to generation without question or inquiry, but which has now been. completely exploded by the learned discussion, supported by conclusive evidence, of Savigny, in his History of the Roman Law during the Middle Ages. Indeed, several years before the sack of Amalfi, the celebrated Irnerius delivered lectures on the Pandects in the University of Bologna.

The pretended discovery of a copy of the Digest at Amalfi, and its being given by Lothaire II to his allies, the Pisans, as a reward for their services, is an absurd fable. No doubt, during the five or six centuries when the human intellect was in a complete state of torpor, the study of the Roman law, like that of every other branch of knowledge, was neglected; but on the first dawn of the revival of learning, the science of Roman jurisprudence was one of the first to attract the attention of mankind; and it was taught with such brilliant success as to immortalize the name of Irnerius, its great professor.

Even at the present time the Roman law exercises dominion in every state in Europe except England. The countrymen of Lycurgus and Solon are governed by it, and In the vast empire of Russia it furnished until the revolution, the rule of civil conduct. In America, it is the foundation of the law of Louisiana, Canada, Mexico, and all the republics of South America. Its influence in the formation of the common law of England cannot be denied by the impartial inquirer. It was publicly taught in England, by Roger Vacarius, as early as 1149; and all admit that the whole equity jurisprudence prevailing in England and the United States is mainly based on the civil law. For more detailed information about the Common Law System, see here and about the Common Law System in the United States, see here.

Practical Information

A term generally used to designate Roman jurisprudence. The law of the Romans under Emperor Justinian was condensed and digested into a code known as Corpus Juris Civilis. The laws of Justinian were lost in the Western Empire during the early Dark Ages, but a complete copy was found about 1137. The laws were then revised and became the basis of jurisprudence for most of continental Europe. The present law on the Continent is therefore referred to as the Roman or civil law. The term may also be used to designate that part of the law concerned with noncriminal matters, or it may refer to the body of laws prescribed by the supreme power of the state, as opposed to natural law. See common law (in U.S. law); criminal law (in U.S. law); civil court (in U.S. law); criminal court (in U.S. law). (Revised by Ann De Vries)


No greater confusion exists for both layman and lawyer than in the innocent sounding terms “common law” and “civil law”. Both terms are polysemic and must be qualified with adjectives otherwise confusion is certain.

The common law corresponds roughly to the french notion of “droit commun”. It is the customary i.e. traditional law of England as expressed in the decisions of judges. Just as “droit commun” may be derogated by statute so to can the common law, that is statutes may abrogate or supplement the common law and much of modern law is statutory.

Civil law must first be distinguished from civil procedure – they are very different concepts. The civil law refers to continental European law in its narrowest sense the private law of torts and contracts and accessory laws appurtenant thereto. This is the sense generally ascribed to the term in French. However in the English sense the term is broad and refers to the system of statutory law and interpretation via non-binding judicial precedent and strongly influenced by academia which characterises the law of the continent of Europe.

These confusions arise not only due to similar and polysemic terms but also due to the fact that both the common law and civil law are derived from Roman law with however many local customary deviations. Thus while these terms often confuse their ultimate meanings stem from the same source.

Common Law v. Civil Law in the United States

Apart from these features, there are a number of institutions associated with the common law system not usually found in civil law systems. Principal among these is the jury which, at the option of the litigants, functions in both civil and criminal cases. The jury is a group of citizens, traditionally 12 in number, summoned at random to determine the facts in a lawsuit. When a trial by jury is held, the judge will instruct the jury on the law, but it remains for the jury to decide the facts. This means that ordinary citizens will decide which party will prevail in a civil case, and whether, in a criminal case, the accused is guilty or innocent of the charge against him or her.

The institution of the jury has had an important shaping effect on the common law. Because jurors are brought in on a temporary basis to resolve factual issues, common law trials are usually concentrated events, sometimes only a matter of days (although occasionally possibly weeks or months in duration). Emphasis is on the oral testimony of witnesses, although documents also are presented as evidence. Lawyers have responsibility for preparing the case; the trial judge performs no investigation of the case prior to trial. Lawyers, acting as adversaries, take the lead in questioning the witnesses at trial, while the judge acts essentially as a referee. Testimony is recorded verbatim by a court reporter or electronically.

The trial court, which is the “court of first instance” (i.e., where the case is first heard) in the American system, is where the factual record of the case is made. Generally speaking, appeals courts confine their review of the lower court record to errors of law, not of fact. No new evidence is received on appeal.

All this stands in marked contrast to what is usually found in civil law systems, where jury trials are for the most part unknown. In a given case, instead of a single continuous trial, a series of court hearings may be held over an extended period. Documents play a more important role than witness testimony. The judge actively investigates the case and also conducts the questioning of the witnesses. Instead of a verbatim record of the proceedings, the judge’s notes and findings of fact comprise the record. Appeals may be taken both on the facts and the law, and the appeals court can and, sometimes does open the record to receive new evidence.

Despite their differences, both the common and civil law systems have as their goal the just, speedy and inexpensive determination of disputes.

U.S. courts have become particularly sensitive in recent years for the need to continuously reappraise their processes in order to improve the quality of justice. As a consequence of these efforts, there are many other aspects of court activity in the U.S. These range from alternate dispute resolution mechanisms (including arbitration and mediation) to such procedural devices as default and summary judgment, used by judges to decide cases at an early stage without having to proceed to a formal trial. [4]


See Also

  • Basic Principles Of Law



  1. The Corpus Juris Civilis is the name given to a four-part compilation of Roman law prepared between 528 and 534 AD by a commission appointed by Emperor Justinian and headed by the jurist Tribonian. The Corpus includes the Code (a compilation of Roman imperial decrees issued prior to Justinian’s time and still in force, arranged systematically according to subject-matter); the Digest (or Pandects) (fragments of classical texts of Roman law by well-known Roman authors such as Ulpian and Paul, composed from the 1st to the 4th centuries AD, arranged in 50 books subdivided into titles); the Institutes (a coherent, explanatory text serving as an introduction to the Digest, based on a similar and earlier work by the jurist Gaius); and the Novellae (Novels) (a compilation of new imperial decrees issued by Justinian himself). See A.N. YIANNOPOULOS, Louisiana Civil Law System Coursebook, Part I, Claitor’s Publishing Division, Baton Rouge, Louisiana (1977), 9-10.
  2. William Tetley, Q.C., Mixed jurisdictions : common law vs civil law (codified and uncodified).
  3. Quebec Research Centre of Private and Comparative Law, Private Law Dictionary and Bilingual Lexicons, 2 Ed. Revised and Enlarged, Les Editions Yvon Blais, Cowansville, Québec (1991) at 62 defines “civil law” as follows: “Law whose origin and inspiration are largely drawn from Roman law.” The definition proceeds to incorporate the following quotation from P.-A. CRÉPEAU, “Foreword” to the Report on the Quebec Civil Code, vol. 1, Draft Civil Code, Editeur officiel du Québec, Québec (1978), xxvii-xxviii: “The Civil Law is not simply a collection of rules drawn from Roman, ecclesiastical or customary law, and handed down to us in a solidified form. The Civil Law, as it was so aptly described by Professor R. DAVID […] consists essentially of a ‘style’: it is a particular mode of conception, expression and application of the law, and transcends legislative policies that change with the times in the various periods of the history of a people.” DAVID & BRIERLEY, Major Legal Systems in the World Today, 3 Ed., Stevens & Sons, London, 1985, para. 15 at 19.
  4. Definition of Common Law from the American Law Dictionary, 1991, California

See Also

  • Basic Principles of Law (in international or comparative law)
  • Code
  • Digest
  • Institute
  • Novels
  • French Code
  • Roman Law