Civil Codes

Civil law (or 'continental law') and common law (or 'Anglo-American law')

Worldwide there are, at least in the Western world, two mainstreams of private law systems: civil law, also known as continental law, and common law, also referred to as Anglo-American law.

Generally one could say that an Anglo-American law system exists in England, Ireland, the United States, Canada, Australia and New Zealand. But it also appears in the former British colonies in Asia and Africa, like India, Pakistan and Malaysia. All other countries outside the Arabic world, for instance those in continental Europe (France, Spain, Italy, Germany, Belgium and the Netherlands) and its former colonies in Asia, Africa and South America, have a continental law system. Continental law (or Romano-Germanic law) is the predominant system of law in the world, although Anglo-American law plays a major part too, since Britain was, and the United States of America is, the leading economic power of the world.

Continental law as a legal system is often compared with Anglo-American law. The main difference between both systems is usually described as follows.

Within a continental law system there is a body of written law, issued by Parliament, such as codes and statute law, that must be applied by judges to each individual case. The assumption is that statute law regulates all cases that could occur in practice, and when certain cases are not regulated by statute law, the courts should, in order to fill up the gap, apply the general principles on which a comparable statutory provision of the Civil Code is founded. In an Anglo-American law system such a body of written codes and statute law, issued by Parliament, is absent, but instead there is a less coherent foundation of certain judgments which apply because they have been developed over hundreds of years as the legal precedent. In an Anglo-American law system abstract legal rules, which have meaning for all similar situations in future, are drawn from specific cases by means of judge-made law. The ruling in a specific case sets the legal standard. As of that moment this rule has to be followed by all other (lower or equal) courts, until a higher court gives a dissentient judgment. But then this new judgment again sets the abstract legal rule which, as of then, has to be observed by all courts. The courts are very reluctant to rule differently. They will nearly always follow an earlier given judgment, even when it is issued decades ago. This method is indicated with the Latin term ‘stare decisis’. A continental law system, on the other hand, starts with abstract legal rules, established by Parliament, which immediately have to be observed by all courts, high and low, when making a judgment in a specific case. In theory the judges aren’t bound by earlier judgments of higher or lower courts, but only by the law issued by Parliament. This means that Parliament can always set aside a not wanted judgment of a court by enacting new legislation.

In reality the differences between both systems aren’t so apparent. In Anglo-American law the government enacts a lot of statutes too, even on the field of civil law. The rules of these statutes have to be followed by court, also when they’re in contradiction with earlier judgments. In such cases statute law precedes and forms the precedent. In continental law systems it’s clear that not every detailed situation can be literally incorporated in a statute or code. So the courts often have to decide themselves on the grounds of granted discretion how the situation must be solved within the system of law. And in every continental law country the lower judges, as a rule, follow the earlier judgments of higher courts, especially of the Supreme Court. So also in continental law systems, as far as the statutes don’t provide a legal rule, the law is made by judgments of various courts, at least until Parliament passes a different act.

But an important distinction remains. Continental law is much more systemised than Anglo-American law and its rules are intended to regulate many potential situations. So it’s possible to write all these rules down in a Civil Code. In continental countries, like France (Code Civil), Switzerland (Code Civil), Germany (Bürgerliches Gesetzbuch), Italy (Codice Civile), Spain (Código Civil), Belgium (Burgerlijk Wetboek) and also the Netherlands (Burgerlijk Wetboek), civil law is dominated by one general statute book – the Civil Code -, which is the foundation of all other acts and regulations of civil law. Anglo-American law countries don’t have such a basic Civil Code. The foundation of their civil law is formed by the construction of all judgements which are generally recognised by scholars, judges and government as the precedent decisions. As a result, law students in Anglo-American law countries, who want to understand the roots and principles of their legal system, study - instead of the main rules of a Civil Code - the most important precedent judgments that in course of time have been rendered in relation to various legal subjects.

But the difference between continental law and Anglo-American law lies not just in the mere fact of codification. One should be aware that also in a few continental law systems, like that of Scotland and South Africa, and in fact even that of the Scandinavian countries, a basic Civil Code is missing. Thus, such a basic codification is by no means a defining characteristic of a continental law system. The main difference can be found in the way how the law is approached. In continental law systems this approach is methodological and systematic, not only in creating new law, but also in solving individual cases. The rules of law have a general impact and are issued to regulate all kinds of potential (possible) situations. Because of this, continental law countries are able to catch the significant rules in a central code, whereas the judge-made law of Anglo-American systems is so divers and crumbled that it’s impossible to write it all down in a logical and systematic book. In continental law countries, legislation is seen as the primary source of law. That’s why judges tend to look for solutions that will fit in the system of the law, taking into account the intention of the legislator for passing this rule, as expressed in the Parliamentary history of this specific law. This means that judges, when a certain subject isn’t regulated directly by statute law, will search for the general principle behind the law and, if possible, fill up the legal gap in analogy with that principle. So the influence of the act or statute is widened. By contrast, in a common law system, cases and the legal principles behind them are the primary source of law, and statutes are seen as a specific correction of it. Consequently, the statute has to be interpreted narrowly.

For a more extensive explanation on the differences between civil law and common law, see the report 'A Primer on the Civil-Law System' by James G. Apple and Robert P. Deyling.

Codification of civil law in a Civil Code

With the exception of Great-Britain, Ireland and the Scandinavian countries, most European States have arranged their civil law around a Civil Code, which forms the basis of all private law. The Civil Code is an organized collection of laws designed to systematically deal with the core areas of private law. European States that have a Civil Code usually also have a Code of Civil Procedure. The Civil Code holds substantive law. The Code of Civil Procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits. In some countries with a civil code, a number of the core areas of private law that would otherwise typically be codified in a Civil Code may instead be codified in a Commercial Code.

Many European States have placed their Civil Code, if present, on the Internet, yet only in their own language. Some of them have provided a translation in English.

Also a few countries outside the European Union have made an English translation of their Civil Code available through the Internet.

On the website of Lexadin you may find more legislation of various countries.