civil law

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Civil Law

A body of rules that delineate private rights and remedies, and govern disputes between individuals in such areas as contracts, property, and Family Law; distinct from criminal or public law. Civil law systems, which trace their roots to ancient Rome, are governed by doctrines developed and compiled by legal scholars. Legislators and administrators in civil law countries use these doctrines to fashion a code by which all legal controversies are decided.

The civil law system is derived from the Roman Corpus Juris Civilus of Emperor Justinian I; it differs from a common-law system, which relies on prior decisions to determine the outcome of a lawsuit. Most European and South American countries have a civil law system. England and most of the countries it dominated or colonized, including Canada and the United States, have a common-law system. However, within these countries, Louisiana, Quebec, and Puerto Rico exhibit the influence of French and Spanish settlers in their use of civil law systems.

In the United States, the term civil law has two meanings. One meaning of civil law refers to a legal system prevalent in Europe that is based on written codes. Civil law in this sense is contrasted with the common-law system used in England and most of the United States, which relies on prior case law to resolve disputes rather than written codes. The second meaning of civil law refers to the body of laws governing disputes between individuals, as opposed to those governing offenses that are public and relate to the government—that is, civil law as opposed to Criminal Law.

In France, the civil law is set forth in the comprehensive French Civil Code of 1804, also known as the Code Napoléon. France exported this legal system to the New World when it settled Louisiana in 1712. When the French ceded Louisiana to Spain in 1762, the new Spanish governor replaced French civil law with Spanish civil law. France regained control of the territory in 1803 and the United States purchased it a mere 20 days later. During that brief period of French rule, the French prefect abolished all Spanish courts but did not reintroduce French law. Hence, the new U.S. governor of Louisiana, William Claiborne, took control of a territory that lacked a legal system.

Determined to Americanize Louisiana, Claiborne attempted to impose Common Law but met fierce resistance from Louisianans who had grown accustomed to their mixture of French and Spanish laws and culture. Realizing that he would not be able to mandate a common law system, he directed the state's legislature to draft a civil code based on existing law. Louisiana's first civil code, enacted in 1808, drew heavily from the Code Napoléon and was even written in French. It was replaced in 1825 by a more comprehensive and detailed code. Finally, the Louisiana Civil Code, enacted in 1870 and still largely in force, clarifies and simplifies the earlier laws. The 1870 code is written in English, signaling a shift toward a partial Americanization of Louisiana's legal culture. To this day, Louisiana enjoys the distinction of being the only state in the United States to have a civil law system rather than a common-law system.

The first article of the Louisiana Civil Code reads: "The sources of law are legislation and custom" (LA C.C. Art. 1). This means that judges in Louisiana are obligated to look first to written laws for guidance in reaching their decisions. If no statute directly governs the dispute, judges may base their decisions on established custom. Article 3 defines custom as a "practice repeated for a long time and generally accepted as having acquired the force of law." However, Article 3 makes it clear that custom may not abrogate or conflict with legislation. Hence, Louisiana judges do not make law with their decisions; rather, the code charges them with interpreting, as closely as possible, what has been written and passed by the legislature or long established by custom.

Louisiana judges, unlike their common-law counterparts, are not bound by judicial precedent. Common-law judges adhere to the doctrine of Stare Decisis, which mandates that the outcome of a lawsuit be governed by previous decisions in similar cases. Louisiana's civil code does not recognize the binding force of precedent. However, under the civil law doctrine of jurisprudence constante, or settled Jurisprudence, judges are expected to follow a series of decisions that agree on the interpretation of a code provision.

Although Louisiana is generally called a civil law state, its code is imbued with some common-law features, making it a hybrid of the two traditions. The state's constitution, administrative and criminal law, civil and Criminal Procedure, and rules of evidence all contain elements derived from common-law principles. As a result, Louisiana judges operate under administrative rules that differ from those found in other civil law jurisdictions. For example, whereas European judges actively elicit the facts in a controversy and seldom use a jury, Louisiana judges operate more like their common-law colleagues, assuming the role of neutral and passive fact finder or arbiter, and leaving the final decision to a jury. Oral argument is generally absent in a pure civil law proceeding, whereas Louisiana's procedural and evidentiary rules allow oral presentations, resulting in trials that are closer to those found in a common-law court. Finally, European courts allow almost unlimited discovery by the accused in a lawsuit, whereas Louisiana's procedural and evidentiary rules place certain restrictions on such discovery.

Civil law systems differ from common-law systems in another important way: in a common-law jurisdiction, appellate courts, in most instances, may review only findings of law. However, civil law appellate courts may review findings of fact as well as findings of law. This allows a Louisiana appellate court to declare a jury's decision erroneous, impose its own findings of fact, and possibly even reduce a damage award. This is a significant consideration for a plaintiff who has a choice of whether to file suit in Louisiana or in another state (to bring suit in a particular state, a plaintiff must demonstrate some relationship between that state and the lawsuit). Since a jury award could be overturned on appeal, the plaintiff with a strong case may wish to file in a common-law state. On the other hand, if the plaintiff is uncertain of success at the trial level, the possibility of broader review on appeal may make Louisiana the better choice. As a practical matter, such dilemmas arise infrequently, and most often involve complex multistate litigation concerning corporations.

Further readings

Rogowski, Ralf. 1996. Civil Law. New York: New York Univ. Press.

Cross-references

Napoleonic Code; Roman Law.

civil law

n. 1) a body of laws and legal concepts which come down from old Roman laws established by Emperor Justinian, and which differ from English Common Law which is the framework of most state legal systems. In the United States only Louisiana (relying on the French Napoleonic Code) has a legal structure based on Civil Law. 2) generic term for non-criminal law.

See: constitution

civil law

1 the domestic law of any particular nation.
2 the law of ancient Rome. See ROMAN LAW.
3 law or legal systems based on Roman law.
4 law that is not criminal law. See CRIME.
5 law that is not MILITARY LAW.

CIVIL LAW. The municipal code of the Romans is so called. It is a rule of action, adopted by mankind in a state of society. It denotes also the municipal law of the land. 1 Bouv. Inst. n. 11. See Law, civil.

References in periodicals archive ?
Rabels Zeitschrift fur auslandisches and internationales Privatrecht 28:47-77.
See Hans Michael Riemer, Berner Kommentar zum Schweizerischen Privatrecht, ad Art.
Dezember 1987 fiber das Internationale Privatrecht [IPRG] [Swiss Private International Law Act], Dec.
It is curious that my thesis, although no doubt disputable and perfectible, was found to meet the exacting standards of the Zeitschrift fur Europaisches Privatrecht, the British Journal of Canadian Studies, and the Revue interdisciplinaire d'etudes juridiques, but to fall abysmally short of the editorial thresholds set by the three Quebec academics having acted as evaluators for ABC, DEF, and Cite libre.
Bohm, "Die Behandlung des Rechtsmissbrauchs ira Osterreichischen Privatrecht," in Rotondi, ed.
The decision is analyzed by Bernhard Grossfeld, Zur Geschichte der Anerkennungsproblematik bei Aktiengesellschaften [The History of the Theories Governing the Recognition of Foreign Stock Corporations], 38 RABELS ZEITSCHRIFT FUR AUSLANDISCHES UND INTERNATIONALS PRIVATRECHT [RABELSZ] 344, 345-46 (1974) [hereinafter Grossfeld, Anerkennungsproblematik].