M.A. Glendon, M.W. Gordon & C. Osakwe, Comparative Legal Traditions in a Nutshell (St. Paul, Minn.: West Publishing, 1982) at 13-51

M.A. Glendon, M.W. Gordon & C. Osakwe, Comparative Legal Traditions in a Nutshell (St. Paul, Minn.: West Publishing, 1982) at 13-51.

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  The civil law, as the common law, is a sub-tradition of Western legal tradition, which is rooted in the law of Romans.
  
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  Roman law, whose preoccupation with order, administration, law and procedure was unique in the ancient world and has cast a long shadow into the modern one.
  
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  With the Western legal tradition, the subtradition of the civil law is characterized by a particular interaction in its early formative period among Roman law, Germanic and local customs, canon law, the international law merchant, and, later, by a distinctive response to the break with feudalism and the rise of nation states, as well as by the peculiar role it has accorded to legal science.
  
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  Roman law
  
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    The term Roman law describes the period from the Twelve Tables (c. 450 B.C.) to the Justinian compilations (c. 534 A.D.).  similar to the description of ‘Common law’ from 1066 A.D. to present. The various periods according to Roman law’s subject is following :
    
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      3^rd century B.C. => Jurisconcult, a class of men who made law their specialty, appeared.
      
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      1^st century B.C. => the Jurisconsults become the first professional lawyers.
      
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      What we know as Roman law evolved through the accretion of the opinions they rendered case-by-case.
      
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      (Jukier: the reason why the Jurisconsults were important is that they created the concept of ‘reasoning leaning’).
      
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    The Classical period (117 A.D. => 235 A.D.) represents the fullest development of ancient Roman law.
    
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    The ‘written reason’, called by the medieval scholars who « rediscovered it as the Western world began to emerge from what the French legal scholar calls the ‘customary thicket’ of the Middle Ages. » 
    
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    From Justinian’s times to the present, Roman law, except to specialists, generally has meant the sixth century Corpus Juris Civilis of Justinian, which included four parts :
    
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      The Digest, a treatise, was by far the most important in terms of its influence on the civil law tradition, particularly in the areas of personal status, torts, unjust enrichment, contracts and remedies.
      
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      The Institutes : a short introductory text for students.
      
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      The Code : a systematic collection of Roman legislation.
      
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      The Novels : the imperial legislation enacted after the Code and the Digest were completed.
      
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      Together, the Digest and the Code were meant to be a complete and authoritative restatement of Roman law.
      
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  The « Customary Thicket » and Roman Law Survival
  
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    In the 11^th century, the process became known as the ‘revival’ of Roman law.
    
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    Thought Roman legal science and Classical Roman law disappeared in the welter, diversity and localism of Carbonnier’s ‘customary thicket’, a Romanist element survived and served both as a strand of continuity and a latent, potential universalizing factor in what we think of as the civil law tradition.
    
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  Canon Law
  
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    Cannon law itself was hybrid of sorts, which had been produced by Christian notions interacting reciprocally with Roman law after the Christianization of the Empire, a process during which the reign of Constantine.
    
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  Revival of Roman Law
  
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    The University of Bologna became the principal legal center to which students flocked from all over Europe to hear learned teachers lecture on the Corpus Juris Civilis.
    
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    The Roman civil law, together with the immense literature generated by the Glossators and Commentators, came to be the jus commune, the common law, of Europe.
    
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  Commercial Law
  
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    In addition to Roman law and canon law, commercial law furnished another universalizing tendency as Europe emerged from the relative economic stagnation of the Middle Ages.
    
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    The Roman law was proved unsuitable for the need to govern business transaction, guilds and merchants’ associations established their own rules and their own tribunals.
    
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    Informal rules + expeditious procedures = merchants’ courts
    
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  Reception of Roman Law
  
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    The jus commune became the basic law of a great part of continental Europe. It proved capable of dealing with many of the new problems posed by a more complex economy; yet as part of a not entirely forgotten past, it had a certain familiarity.
    
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    The jus commune infiltrated the law of the various regions of the Holy Roman Empire of the Germanic nation to the point that it came to be regarded as the common law of the empire.
    
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  Nation States and National Law
  
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  Codification
  
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    An inevitable consequence of the unification of national law in these early codes was the jus commune was displaced as the basic source of law.
    
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    The French Civil Code of 1804 and the German Civil Code of 1896 have served as models for most of the other modern civil codes.
    
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    The three ideological pillars of the French civil code were privation property, freedom of contract and the patriarchal family. In these three spheres, the primary role of the State was to be to protect private property, to enforce legally formed contracts, and to secure the autonomy of the patriarchal family.
    
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    The Code civil des français was meant to be read and understood by the citizen.
    
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  German Legal Science
  
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    Unlike France, where political unification had been achieved long before legal unity, Germany had remained a loose confederation of kingdoms, duchies, principalities and independent city states until it was unified under Bismarck in 1871.
    
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    Historical School: they viewed Germanic, and classical and received Roman law as data, and regarded themselves as scientists formulating and systematizing concepts and principle from this data.
    
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    The Pandectist School came to adopt a rather ahistorical stance toward law. The methods and concepts developed by the Pandectists came to dominate legal scholarship in Germany just at the time the preparation of the German Civil Code began in 1874.
    
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    The German Civil Code was not a handbook for the citizen, but a system for highly trained experts.
    
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  Distribution of the Civil Law
  
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    The ‘typical’ civil law systems today are not those of France or the Federal Republic of Germany, but rather those civil law systems which in modern times have undergone the combined influence of both.
    
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    As the civil law has spread and entered into combination with other legal elements, its influence has become attenuated.
    
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    It is difficult today to find a single “civil law rule” on any given legal problem. Indeed, there is probably as much diversity in the responses of civil law systems to various legal issues as there is between the civil and the common law tradition.
    
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    The definition of the term “civil law”
    
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      Historically, the term jus civile referred to the law applicable to Roman citizens, the law which was eventually compiled by Justinian’s jurists into the Corpus Juris Civilis.
      
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      The shift away from 19^th century liberalism and the market economy has meant a shift in emphasis from private or civil law to public law.
      
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  Contemporary Civil Law
  
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    The transition of 19^th century civil law systems into the 20^th century is closely tied to the transformation of liberal laisse-faire governments into modern social welfare states with planned or regulated economies.