Comparative Law Notes 2
Professor Pedro A. Malavet
Class Notes Part Two
II. An Overview of the Civil Law System (Handout No. 1, 72-124)
As you noted, Professor David's work is, shall we say, overly self-confident. But that is precisely what I wanted you to see. David is French and he is one of the best-known comparativists in the world. I first read his book in a Spanish translation of the original French that was published in Mexico in 1969. This is very much how the civil law sees itself, with a great dose of French chauvinism thrown in for good measure.
The Civil Law Tradition:
The laws of the Romano-Germanic family are the continuators of Roman law whose evolution they have perfected; they are in no sense a copy of it; indeed, many of their elements come from sources other than Roman law.
law (le droit) and enacted legislation (la loi)
Spanish Empire, 1800
The Romano-Germanic system of law was formed in continental Europe and is principally centred there today even though, because of the phenomena of expansion and reception, many non-European countries have adhered to it or borrowed certain of its elements.
The Romano-Germanic system as such appeared in the thirteenth century.
Europe in Roman Times
Legal Sources during different periods of the Roman Empire
Bayeaux Tapestry:The Death of Harold II
Corpus Juris Civilis:
Romulus Augustulus, 476 a.d., fall of Rome.
Compilation of Justinian's Digesta, Codex and Institutiones, supplemented by the Novellae.
1) CODEX: there are two: 529, 534 a.d., compilation of laws from prior codes and constitutions, eliminating repetition and obsolete rules;
2) DIGEST: mostly opinions of jurists that had been issued as responsa;
3) INSTITUTES: a basic law book intended for educational purposes, succinct statement of the new law;
4) NOVELLAE: special statutes, decisions or instructions issued by the Emperor after the code. From the Imperial Constitutions.
The Fall of the Roman Empire
Transition: Customary Laws & the Survival of Roman Law
the Edict of Theodoric (500) in Italy, and the
Fuero Juzgo in Spain (compiled in 654 and revised in 694 at the Eighth and Seventeenth Councils of Toledo).
Failure of the New “Codes”
But these efforts failed in Italy as a result of the invasion of the Lombards (565) and in the Spanish Peninsula with the invasion of the Arabs (711).
Why then study and refine the rules of law, when success for one party or another depended on such means as a judgment from God, the oath of the parties, wager of law (compurgation) or trial by battle and ordeals (ordalies), or when it may further have turned merely upon the discretion of some local authority?
Europe, circa 900 a.d.
The Holy Roman Empire
Renaissance of the idea of law
Secular vs. Religious
The Romano-Germanic system was never founded on anything but a community of culture. It came into being and continued to exist independently of any political considerations—a point to be fully realised and emphasised.
(Yes, but not for lack of trying!)
Ius Commune and the Universities
The purpose of the study of the law was not to state which solution the courts would give to a trial in fact; and subjects such as procedure and evidence were left to practitioners and administrators. Law was to tell judges how they should decide in justice.
No European university, therefore, took as the basis of its teaching the local or regional positive customary law; this, in the eyes of the university, gave no expression to justice and was not law.
So what did they Study?
Roman Law and Canon Law
“National” laws in the late 1600’s and late 1700’s
Schools of Teaching (no. 33)
glossators, endeavoured to fix the original meaning of the Roman laws as given in Justinian’s compilations.
post-glossators in the fourteenth century a new tendency appeared and an altogether different work was accomplished: Roman law was expurgated and adapted and used for entirely new developments (such as commercial law and conflict of laws).
The Natural Law School (no. 35)
It abandoned the scholastic method [of the postglossators] and furthered the systematisation of the law by casting it in logical propositions, in imitation of the sciences.
The Natural Law School demanded that, in addition to the private law founded on Roman law, Europe formulate what it theretofore had lacked because of the universities’ very absorption in the Roman law: a public law giving effect to the natural rights of man and guaranteeing the liberties of the individual.
Lateran Council in 1215 forbad priests from participating in “barbaric” procedure (trial by combat or ordeal). (37)
New Canonical written procedure is spread by the universities
Renewed, but critical, study of Roman Law (38)
Modification of customary law (39)
Introduction of Roman Law into national systems (40)
Legal Compilations (41)
Siete Partidas was a work of law reform. Drafted in 1265, it was clearly ahead of its time, although only in 1348, it would seem, did it receive the force of law by virtue of the Ordinance of Alcala.
[Still likely to apply in Florida when dealing with old Spanish land grants]
Northern Italy during the Middle Ages
Europe, early 16th Century
Europe at the end of the 18th Century
Period of Legislative Law
This is the modern period, which coincides with the development of the modern European nation states.
The Growth of “Public Law”?
relations between those who govern and those who are governed, between the authority of the state and private individuals. (46).
Codification or Positivism?
Again for the first time, it was admitted that the sovereign is capable of defining law and of reforming it as a whole. True, this power is accorded him in order to expound the principles of natural law. But as Cambaceres…, principal legal adviser to Napoleon, once admitted, it would be easy to change this purpose, and legislators, apart from any consideration for “natural laws,” could use this power to transform the basis of society.
Codification as Process (47)
Codification was the technique which eventually enabled the ambition of the Natural Law School to be realised. It consolidated the evolution of Romanist scholarship over the centuries, and systematically expounded the law as suited to eighteenth century society—a law, therefore, to be adopted on the practical as well as the theoretical level, and one whose organisation was a far cry from the chaotic compilations of Justinian.
Codification as Process (47)
For codification to be successful two conditions had to be fulfilled. It had first of all to be the work of an enlightened sovereign, one unhampered by the past and willing—even at the expense of the privileges of an older order—to establish the new principles of justice, freedom and dignity of the individual which, politically, the Natural Law School maintained must be the basis of society.
The new compilations also had to be established in a country powerful enough to exercise an inescapable influence over others.
Problems with Codification?
Balkanization of Law? (48)
Unintended(?) Positivism? (49)
Contrary to the very ideas which had inspired them, the codes engendered an attitude of legal positivism which was further aggravated by nationalistic sentiment.
Nationalism was the dominant trend (50)
The essential role of doctrinal writing and judicial decisions in forming and evolving the law is more openly acknowledged. Positivism has taken on a new meaning; no jurist in France or Germany would now think that legislative texts alone suffice for a knowledge of the law. (51)
55. The secession of the socialist laws
Now they are back, but which tradition do you think they are more likely to adopt: the European tradition or ours?
Expansion Beyond Europe:The Americas
The Spanish, Portuguese, French and Dutch colonies in America, established in practically uninhabited areas or those where the indigenous civilisation was eventually to disappear, accepted the characteristic legal ideas of the Romano-Germanic family quite naturally. (56)
Expansion Beyond Europe: Africa
Portuguese, French and British Colonies in central Africa
North-Africa via Italian, French and Spanish influence (Morocco).
Considerable Muslim influence as well.
Expansion Beyond Europe:
Asia & Indonesia
Also part of the Romano-Germanic Civil Law Tradition
Also considerable Muslim influence in certain countries