Comparative Law and Civil Law System

Chapter 1: Comparative Law and Civil Law System

• Comparative Law started in Paris, France in 1900, founded by French scholars Edouard Lambert and Raymond Saleilles who established the International Congress of Comparative Law
• Comparative law has continuously developed since then
• Methods of Comparison: Comparative lawyers assess legal systems across nations using two primary methods

Macro-Comparison

• Macro-comparison compares the spirit and style of different legal systems, examining their methods of thought and procedures
• Research is done into methods of handling legal materials, procedures, or the role of individuals engaged in the law
• This method does not concentrate on individual problems or solutions
• Macro-comparison involves comparing different techniques of legislation, styles of codification, and the role of precedents in legal systems

Micro-Comparison

• Micro-comparison focuses on specific legal problems and issues
• It deals with the rules used to resolve particular conflicts
• One example: determining manufacturer liability for harm caused by defective goods, determining the allocation of loss in traffic accidents, and determining custody in divorce cases

Classification of Legal Systems (Legal Families)

• Throughout history, there have been various attempts to classify worldwide legislations into broad legal families or systems

Division into 5 legal families

• French scholar Paul Esmein divided the legal systems into
  • Romanistic
  • Germanic
  • Anglo-Saxon
  • Slav
  • Islamic families

Division into 3 legal families

• René David distinguishes between three families
  • Romanistic-German
  • Common Law
  • Socialist Families

Division into 7 legal families

• Arminjon, Nolde, and Wolff divided legal legislation worldwide based on originality, derivation, and common elements into
  • French
  • German
  • Scandinavian
  • English
  • Russian
  • Islamic Families

Concept of Civil Law System (Romanistic-German Family)

• National legal systems are frequently categorized into groups or families
• France, Germany, Italy, Switzerland, Argentina, Brazil, and Chile are "Civil Law" nations
• England, New Zealand, India, USA and Canada are "Common Law" systems
• Civil Law refers to a legal family that originated in Western Europe, beginning with the Roman Empire in the 6th Century
• Body of law was assembled, organized, and distributed across the European continent during the 19th Century’s Enlightenment Period

Two Pillars of the Civil Law System

• The French Civil Code of 1804 and the German Civil Code of 1896 (BGB) exemplify civil law codification
• Elaborations were made to the laws in the 20th century, producing the Civil Law as known today
• Civil Law System (Romanistic-German family) is different from the term "Civil Law,” which deals with Law of Contract, Tort, Unjust Enrichment, and Property
• Civil Law is governed by provisions of civil codes known as The Civil Transaction Law in UAE

Corpus Juris Civilis

• "Civil Law” is an English translation of the Latin term Ius Civile, referring to the law applicable to Roman citizens
• The Corpus Juris Civilis, a compilation of Roman law, was the origin and model
• Roman Emperor Justinian established it in the 6th Century
• This code was divided into 3 main sections similar to today's civil codes

The 3 main sections:

• Law of Persons (Family Law)
• Law of Things (Property Law)
• Law of Obligations (Contracts and Torts)

Canon Law of Roman Catholic Church

• In the Middle Ages (12th to 16th century), a distinction was drawn between the Secular (Human) authority and the spiritual (Religious) authority of the Catholic Church
• Canon Law was the law of the Church, dictating Christian leader selection and authority
• Texts of the Corpus Juris Civilis were written by Roman jurists
• The texts of The «Corpus iuris canonici» were written by non-lawyers, based on Judaism and Christianity’s religious traditions, yet both had influence on each other

Modern Civil Law Codification

• In the Enlightenment Period, many Civil Law countries contributed to the codification process, led by France and Germany

Codifications of law in the french model

• The French Civil code started in 1800, producing the Code Civil Français (the Code of Napoléon) in 1804
• Code contained over 2000 articles, structured in three books

Three books :

• Book I: Status of persons or The Law person), which constitutes Family Law, marriage, divorce, and paternity; based on the principle of Bonus Pater Familia i.e. Good Family Father
• Book II: Real and personal property (The Law of Things); based on the Right of Property
• Book III: Law of Obligations), which governs Contracts and torts; based on principles like Fault and Pacta Sunt Servanda i.e. Freedom of Contract

Codifications of German law

• In 1873, a German commission was established to bring a uniform civil code
• In 1896 the German Civil code was approved known as The comprehensive Burgerliches Gesetzgebuch (BGB)
• Code is structured in five books

Five books:

• Book I: General Principles, definitions, prescriptive periods, and classification of legal acts
• Book II: Contracts and torts
• Book III: Real and Personal Property
• Book IV: Family law including marriage
• Book V: Law of succession, wills, etc

UAE Civil Transaction Law Structure

Introductory Chapter introduction to Law and Private international law provisions (Art. 1- Art. 123)

• Book 1: THE LAW OF OBLIGATION governs the sources of obligation and rules of obligation (Contracts, Unilateral Act, torts, Unjust enrichment, Law) (Arts. 124-487)
• Book 2: THE LAW OF CONTRACT (Nominated contracts) (Arts. 488-1132)
• Book 3: ORIGINAL RIGHTS IN REM Law of Ownership and other Real Rights deriving from ownership) (Arts. 1133-1398)
• Book 4: SECURITIES OVER PROPERTY The Pledge or mortgage, Possessory pledges or mortgages, Priority rights (Arts. 1399-1528)

Current Civil Law Systems

• Civil Law Systems are established in many countries on five continents

Continents and Countries:

• Europe: Germany, Austria, Scotland, Spain, France, Italy, Portugal, Romania, Switzerland, the Nordic countries in part
• North, Central and South America: Mexico, Chile, Quebec, Canada, Louisiana in the United States
• North Africa to South Africa Cameroon: Arab countries in Africa: Egypt, Morocco, Tunisia, Libya, Algeria, (Except Family Law which is governed by Islamic Law). Togo and Tanzania, Libya, Congo
• Asia: Turkey and Japan

Civil Law System Chart

• Legal system originally developed from Roman Law in continental Europe
• Codified in 6th century with "The Corpus luris Civilis " and "The law of the Church”
• Issued by Roman Jurists (Positive Law), and religious law
• Two pillars are The Napoleonic Law (French Civil Code 1804) and The German Civil Code (The BGB 1896)

Chapter 2: Defining Distinctive Elements of the Civil Law System

• The distinctive features of the Civil Law system originate from the influence of Roman law
• This has resulted in 3 major points

3 Major consequences:

• Crucial importance is given to Written Law) and Codification), where authority of Judge and Case Law Jurisprudence) have a secondary role
• Recognize the significant distinction Dichotomy) between Private Law and Public Law
• Recognize 3 legal professions typical to this system, lawyers/advocates, notaries, and non-lawyers

Codification in Civil Law System

• The most common distinction between Civil and Common Law systems is in the way they approach codes and case law
• Civil Law systems originate from codes with Common Law based on Case-law/Jurisprudence
• Civil law systems come from the Roman civil code, The Corpus Juris Civilis of Roman Emperor Justinian, in the 6th century
• Common law is generally uncodified, without a compilation of legal rules and relying on legislation

Civil Law:

• Countries possess comprehensive, continuously updated legal codes /written legislations
• Divided into Substantive Law and Procedural Law

Two categories:

• Substantive Law consist all legal rules which create, define/regulate rights, obligations and liabilities of persons in all areas of law such as
  • The Civil Code
  • Commercial Code
  • The criminal code
  • The Labour Code
• Procedural Law contains legal rules that govern the process law is enforced
  • Civil and Criminal Procedure
  • all procedures followed in trials and in appeals with codes like The Civil Procedure Code and The Criminal Procedure Code
• A judge's decision is less crucial in civil law systems than legislators drafting codes

Distinction between Private Law and Public Law

• The main division of law is in public and private laws is dichotomy for civil lawyers with rigid definitions unlike common law
• There is uncertainty about where the distinction originated
• Dealing with legal relations between rulers (State) and ruled (Citizen) was taboo for centuries under Roman law
• It ignored Constitutional and Administrative and regulated the relationship between the author of the offense and the victim

Differences of the divide

• Public Law versus Private Law divide is based on differences in the content and purpose of these two fields of Law
• Private Law governs relations between individuals with Public Law governs State and citizens
• Public Law rules aim to exercise public power for general interest with The state acting to protect and state and citizens. promote interests
• Private Law is marked by the equality of the parties with state acting to provide enforcement of individual (private) rights or the state as a referee
• Examples of public law include Administrative, Constitutional, and Criminal Law
• Examples of private law include Commercial and Civil codes

Court System/Jurisdictions

• There is a division between two jurisdictions in civil countries, typically France, between public and private law
  • Administrative jurisdiction
  • Ordinary jurisdiction
• Ordinary Jurisdictions are concerned with Private Law related litigations Civil, Commercial, Criminal, and Labour cases
• Administrative Jurisdictions handle where the state is a financial case, administrative cases, party but not criminal cases

Division of Legal Professions in Civil Law

• Characteristics are unfamiliar, particularly in the United States
• U.S. has too many Lawyers, Americans consider the Term “Lawyer“ Broadly

4 Legal Professions to Choose:

• There is the judge
• Advocate (lawyer strictly speaking), Legal advisor
• Notary
• Judges play a central role, focused on codified law and without precedents -There function is focused on continental countries focusing on codified law

Types of Judges

• First Instance (Trial judges): Preside over trials and initial fact-finding
• Appellate: Hear appeals, review decisions
• Specialized: Dedicated to specific areas of law like e.g., commercial, labor, family, or administrative

The civil law lawyer advocate

• An advocate closely resembles the U.S. version of a lawyer with rights to appear in court, represent clients, or even advice outside of it
• Avocat (in France)
  • Abogado (in Spain)
  • Avvocato (in Italy)
• Rechtsanwalt (in Germany)
• Process to becoming an advocate lawyer in civil law countries involve general, legal education, professional training, and examinations

Overview of Legal Education

- France 5 higher education in law, which is the Bar Exam CAPA including 18 months of schooling
- Germany requires 5 years at university, followed by The First State Exam with a legal clerk ship of 2 years and passing a second state exam  
 - Italy typically involves a 5 year law degree followed by a 18 month practical training and passing a bar exam

Legal Advisors/Counsel

• Provide legal guidance to companies, government entities, and individuals
• They are not typically involved in court cases, but focus on providing day-to-day legal support handling/ advising on compliance

The Civil Law Notary

• the Civil Law Notary is a person of considerable importance in contrast to (The U.S. Public of officer like a Lawyer Advocate), notaries civil law systems

• Recognized as public (decisions assigned ministerial ministerial

• Role: Draft contracts sales, e.g., property marriage, that the and an of its validity

• Training: Similar, notaries a law receive training and qualifications for their

General Overview of Professions

• Judges must judicial France, Lawyers must represent matter, bar

• Legal focus on Law, Notaries specialize documents and contracts, special notarial

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