The Civil Law Systems.

Characteristics and
Institutions
Maria Cecilia Garca Novillo
Clara Latorre Molina
Marta Martnez Albaladejo
Matas Valiente Egea

Introduction

Civil Law: basic features

Roman Empire and Medieval Time
Codification Process
Public Law
Court Structure
Legal Process
Legal Actors
Comparison

Civil Law: Basic Features

What? Dominant legal tradition today
Where? Most of Europe, Central & South Africa,

parts of Asia and Africa, Louisiana, Quebec and

Puerto Rico

 Features
-

Inquisitorial (vs. accusatorial)

Code-based (vs. case law)
History: Roman Law
Branches: public / private criminal / civil
Career judges
Written proceedings (vs. oral proceedings)

The Roman Law

History origins
Jurists legal experts and advicers / imperial

advicers
Public service
Gaius: Institutes 161 B.C
Corpus Juris Civilis non exemplis sed legibus
judicandum est (6th Century)
Refinement of Gaius Institutes + the Digest +
the Code + the Novels

Medieval Developments
Changes in commerce
The Glossators of Bologna features
Evolution: jurists as teachers
The gloss technique: changes made in the

Corpus Juris Civilis

Accursious: the Great Gloss (1230)
Law at universities: Bologna
Salamanca < --- > Palencia
Influence in the Spanish Law Code of the 7
parts of law

ROMAN TIME (JURISTS)

MEDIEVAL TIME (GLOSATORS)

UNIVERSITIES + DISSEMINATION

 Canon Law

- Influence of the church

- Organization
- Scholarly writings
Law Merchant

- Commercial relations fairs and

markets
- Maritime activities
* Consolato Del Mare: Barcelona (14th
Century)

Influences leading to a
Codification
Process
Practice of written laws spreads during the
fourteenth

and fifteenth centuries.

Humanism

- origins in France.
- ferment of ideas.
- birth of the concept of the nation state and
strong
central governments.

Natural law

- Hugo de Groot
* writings about universal concept of law that
would transcend national boundaries and be
independent from
other systems of law.

- Samuel Pufendorf and Christopher Wolf

* writings influenced by scientific methods of
Galileo and Descartes.
Logical deduction experience and
observation.

Enlightenment

- French Revolution.
- Importance of reason as a liberating force in
intellectual life.
- Influence of legal philosophy.
- Egalitarian ideals.

The Codification Process in

France
and
Germany
the French Code
- Napoleon named four practitioners who had
studied their predecessor.
- Code Civil des Franais.
* 6 articles which announce general
principles of law.
* Book I: civil rights, status of
persons, marriage, divorce
and
paternity.

- Book II: covers real and personal

property.
- Book III: contain provisions on rights of
succession, contracts, and
obligations.
- influences
* basic structure Justinian's Corpus
Juris
Civilis.
* overall design Declaration of the
Rigths of
Man.

The German Code

- product of codification process in 3 states:

Bavaria, Prussia and Austria.
- presence of commissions made up of legal
scholars.
- Brgerliches Gesetzbuch created in 1896
and put
into efect in 1900.
* Book I - General parts:
. natural and juristic persons.
. definition of things.
. classification of legal acts.
. prescriptive periods.

* Book II - The law of obligations

. creation and discharge of
obligations.
. contracts.
. law of delict.
* Book III - The law of real and personal
property.
. ownership.
. possession of property.
. servitudes on property.
. securities.

* Book IV - Family law

. marriage.
.other relationships within the family.

The Codes of Chile and Brazil

Constitutional theory and practise and structure of

government: Northern American influence.

- American Revolution: Southern constitutions
and
public law.
Private law: European legacy.

Chile

- Andres Bello: jurist specialist in both Roman

and
Spanish law.
* member of a commission whose goal
was
to design a new civil code
which went
into force in 1857.
- This code is still being seen as one of the
most
advanced through most of
the Spanishspeaking countries in
South America.

Brazil

- Legalism and formalism.

- Obsession for legal codes (water, air, mining,
health, etc).
- Similar to the German BGB:
* general principles.
* the law of persons, things and rights.
* the law of family, property, obligations
and succession.
- The greatest monument to legal thought
and
codification in Latin
America.

The Civil Law System as it

exists and functions in the
Public Law Private Law Dichotomy.
Modern
Era
-Private law relationships between individuals
-Public law relationships between individuals
(citizens, companies) and the state
- Public law is not part of the civil codes. More fluid.
Private law-matter
ordinary courts
- Legal practice
Public law-mater
administrative courts

Court Structure
Differences Common Law Civil Law

- Civil-law countries several separate court

system
coexist. Courts immune from
jurisdiction of
other courts.

Common-law judicial
system
Civil-law judicial system

Ordinary Courts

- adjudicates the majority of civil and criminal cases.

- apply law found in the civil, commercial and penal
codes.
Administrative courts
- specialized courts or sections to deal with
administrative cases.
- independent jurisdiction from ordinary courts: rules
specifically designed for administrative cases
Problems when deciding the proper court for a case

Legal Process
Civil procedure
- Public proceedings, controlled by the parties
judge
conducted in writing
judge
- Civil process
lawyers article of proof
opposing
counsel
witness questioned at a later hearing
judge
supervises evidences
prepares a summary
delivers
no dramatic trials
- Diferences from Common Law trials
absence of civil
jury
Judges: fact-finding process

Criminal procedure
- Three phases: collect evidences
1. Investigative
warrant formal charges
2.Examining
complete and review
3. Trial
proceed to trial
Appellate procedure facts
- Intermediate appellate review
- Supreme court
only law
Court of Cassation

law

Affirm lower court decision

Remand the case for consideration

Legal Actors
Legal Scholars basic thinking
The Legislature supplement and update codes
Judges operators with a simple and narrow role
Legal Education and Lawyers

- Undergraduate education in law.

- Choice among several branches.
* Private practice (advocate, notary).
* Government lawyers (public prosecutor,
lawyer for government).
* Judges.

Comparison of Civil-Law
and Common-Law
Corpus Juris (I)
Systems
Civilis influence
- Civil-Law significant
- Common-Law modest

Codification Process
- Civil-Law comprehensive codes from single
drafting
event.
- Common-Law codes reflecting rules of
enunciated
judicial decisions.

Comparison of Civil-Law
and Common-Law
Equity law (no comparable law)
Systems
(II)
- Civil-Law originated in Rome to be applied
to

non-Roman peoples
- Common-Law originated in England to
soften the
rigor of Common-Law

Creation of law: role of judicial decisions

- Civil-Law negligible
- Common-Law supreme prominence

Comparison of Civil-Law and

Common-Law Systems (III)
Manner of legal reasoning

- Civil-Law Deductive
- Common-Law Inductive
Structure of Courts
- Civil-Law Integrated Court system
- Common-Law Specialty Court system
Trial process
- Civil-Law Extended process
- Common-Law Single-event trial

Comparison of Civil-Law
and
Common-Law
Judges
- Role in trials. (IV)
Systems

* Civil-Law elevated role

* Common-Law referee
- Judicial attitudes.
*Civil-Law mere appliers of the law
* Common-Law search creatively for an answer
- Selection and training.
* Civil-Law a part of the civil service
* Common-Law selected from a political process

Comparison of Civil-Law and

Common-Law Systems (V)
Legal training

- Civil-Law undergraduate
- Common-Law post-graduate
Civil process

Questions
1. Why were glossators called that way?
2.In what language was first published Consolato Del

Mare?
3. Which are the two schools of thoughts which

influenced the process of codification during in the

Modern era?
4. Did the South American legal system have another

influence apart from the European one? If so, which one?

Questions
5. In the civil procedure, is the judge involved in

the fact-finding process?

6. How many phases are there in a criminal

procedure?
7. Write two diferences between the Common-law

and the civil-law systems.

8. What is the function of the Legislature?