The Development of Civil Law

Civil law is a legal system inspired by Roman Law, the main feature of this laws are written into a piece of collection, codified, and not (as in common law) determined by judges. This term ‘civil law’ is used to distinguish legal codes that deals with the civil relationships such as marriage, contracts, creditors, disputes between neighbors, etc. Its based on English Common Law which developed from decisions made by judges. Some aspects had been codified by statutes. It forms the basis of the legal systems in Canada, United States and Britain.

In the other sense ‘Civil Law’ is a system of a codified law based on ancient Roman Law as known as the Code of Justinian. Its a written code of law that the judges must follow. Civil Law codes are used in most countries in Europe and South America, and some parts of Africa and Asia. Those codes had been modified and modernized on various times.

The term of civil law is to provide all citizens with an accessible and written collection of the laws which must be applied to them and which the judges must follow. It is the most prevalent and oldest surviving legal system in the world. The main source of the law is the legal code, which is a [1] compendium of statutes, arranged by subject matter in some pre-specified order; a code may also be described as “a systematic collection of interrelated articles written in a terse, staccato style. Law codes are usually created by the legislature’s enactment of a new statute which embodies all the old statutes relating to the subject and including the changes necessitated by the court’s decisions.

International countries that applies civil law

In the United States, the term civil law has two meanings or two sense. One of the meaning is the civil law refers to a legal system prevalent in Europe which is based on written codes. Civil law in this sense is contrasted with the common law system that is used in England and most in the United States, which relies on the prior of the case law to resolve the 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 against the government that is, civil law as opposed to criminal law.

Civil law systems, which has traced their roots to ancient Rome, are governed by these doctrines that has developed and compiled by the legal scholars. Legislators and administrators in civil law countries use these type of doctrines to fashion a code by which all legal controversies are decided.

In France, the civil law is the set of the forth in the comprehensive French Civil Code of 1804, which is also known as the Code of Napoléon. France had exported this legal system to the New World when it settled in the Louisiana in 1712. When the French ceded Louisiana to Spain in 1762, the new Spanish governor replaced the French civil law with Spanish civil law. France regained the control of the territory in 1803 and the United States purchased it after a mere of twenty days later. During that brief period of the French rule, the French prefect abolished all Spanish courts but was not able to reintroduce the 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 played an attempt to impose common law but met fierce resistance from the Louisianans who had grown [2] accustomed to their mixture of French and Spanish laws and culture. Realizing that he would not be able to mandate the common law system, he directed the state’s legislature to draft a civil code based on the just existing law. Louisiana’s first civil code, enacted in 1808, drew heavily from the Code Napoléon and was also written in French. It was replaced in 1825 by the 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 an one 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 stated that “The sources of law are legislation and custom”. This means that the judges in Louisiana are obligated to look first to the written laws for confidance in reaching to their decisions. If there is no statute that directly governs the dispute, the judges may base their decisions on the over established customs. Article 3 defines the custom as a “practice repeated for a long time and generally accepted as having acquired to the force of law.” However, article 3 makes it clear that custom may not abrogate or conflict with the legislation. Hence, Louisiana judges do not make law with their decisions; rather,than the code charges them with interpreting, as closely as possible, what has been written and passed by the legislature or longer established by customs.

Louisiana judges, unlike their common law counterparts, are not bound by the judicial precedent. Common law judges enacted the doctrine of stare decisis which [3] 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 costante 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 [4] 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 [5] 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.

Local Influences on Civil Law

In Malaysia, the civil law is applied based on the civil act 1956.

Such examples like,

Section 3 (S.3) – unless there is a written law to the contrary, the common law and equity of England shall apply subject to modification to suit local circumstances, referring to appendix A(4).

S.3(1) (a)- common law and equity shall apply in all part of peninsular, till 7th april 1956 referring to appendix A(5).

S.3(1) (b)- common law and equity and certain english statutes applies till 1st december 1959 in Sarawak referring to appendix A(6).

S.3(1) (c)- common law and equity and certain english statutes applies till 12th december 1949 in Sabah referring to appendix A(7).

S.5 – for malacca and penang, commercial law of England as at the date of the case shall apply subject to modification to suit local circumstances referring to appendix A(8).