Characteristics Of Civil Law PDF

Institute of Foreign and Comparative Law The characteristic features of the Civil Law Author(s): AJGM Sanders Source: The Comparative and International Law Journal of Southern Africa, Vol. 14, No. 2 (JULY 1981), pp. 196-207 Published by: Institute of Foreign and Comparative Law Stable URL: http://w...

Institute of Foreign and Comparative Law The characteristic features of the Civil Law Author(s): AJGM Sanders Source: The Comparative and International Law Journal of Southern Africa, Vol. 14, No. 2 (JULY 1981), pp. 196-207 Published by: Institute of Foreign and Comparative Law Stable URL: http://www.jstor.org/stable/23245238 Accessed: 13-10-2017 12:59 UTC JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://about.jstor.org/terms Institute of Foreign and Comparative Law is collaborating with JSTOR to digitize, preserve and extend access to The Comparative and International Law Journal of Southern Africa This content downloaded from 168.167.93.7 on Fri, 13 Oct 2017 12:59:35 UTC All use subject to http://about.jstor.org/terms The characteristic features of the Civil Law* AJGM Sanders** Institute of Foreign and Comparative Law University of South Africa Introduction The theme of my address immediately raises the question: "Why stud the laws of others ; are there not enough problems involved in mastering ou own law?" The answer is that the more one takes cognizance of the law of others, the less problems one experiences in understanding one's own law A study of foreign laws - provided, of course, that it is performed in scientific fashion - is bound to result in a clearer grasp of domestic la and, beyond that, of the phenomenon "law" in general. Such a study woul in addition not only assist one in improving one's one law but would also further international understanding. In the case of our continent, I may even add intercommunal understanding for the teaching of tribal and re ligious laws is often neglected at our law schools with the result that for many, if not most university trained lawyers in Africa, these laws too, bear a foreign stamp. The second question that calls for an answer, is: "How should laws be classified and compared?" As far as their classification is concerned, the numerous national, tribal and religious laws that exist can, with the help of the comparative law discipline,1 be reduced to a limited number of cate gories. This is done on the basis of certain general criteria. Regrettably, *This is the annotated text of the first of two guest lectures prepared for the law depart ments of the University of Sierra Leone and the University of Malawi. The second lecture which deals with the characteristic features of the Southern African legal system, will be published in a subsequent issue of this journal. I wish to make use of this opportunity to thank the abovementioned institutions for the hospitality bestowed on me during my visit in January of this year. **BA (Pretoria) LLB (South Africa) LLM (Victoria, NZ) *With regard to the history, nature and functions of comparative law, see David and Brierley Major Legal Systems in the World Today 2ed 1978 1-16; Ebert Rechtsvergleichung 1978 172-208; Gutteridge Comparative Law 1949 (reprint 1971) 11—40; Rheinstein Einführung in die Rechtsvergleichung 1974 11-76 and Collected Works vol I 1979 239-250; Rotondi Inchieste di Diritto Comparato (2) - Aims and Methods of Comparative Law 1973; Zajtay "Aims and Methods of Comparative Law" (1974) 7 CILS A 321; Zweigert and Kotz Einführung in die Rechtsvergleichung (of which there is an English translation by Tony Weir) vol I 1971 1-27, 48-66. This content downloaded from 168.167.93.7 on Fri, 13 Oct 2017 12:59:35 UTC All use subject to http://about.jstor.org/terms  Characteristic features of the Civil Law 197 comparative lawyers are not always in agreement on this matter.2 In my opinion macro-comparative law, or the study of the classification of laws, should employ two criteria or tests, namely, ideology and legal technique. These should be two distinct criteria because varying laws may adopt the same or a similar ideology, yet differ in the technique they are, or, vice versa, they may follow more or less the same technique, but operate on a different ideological basis. For present purposes, I can limit myself to a classification of laws according to the criterion of legal technique. The meaning and content of this criterion will become apparent from the main theme of this paper. In using the criterion of legal technique, one should, in my opinion, distinguish first of all between speciali2ed and non-speciali2ed legal systems. It is a typology which naturally flows from the belief, and actual practice in "developed" circles, that a distinction should be drawn between law, public morality and religion; that law should be divided into compartments according to various individual and public needs; and that it should be stated and administered on that basis. To a greater or lesser degree, tribal and religious laws lack such specialization and may therefore be termed ' 'non-specialized". In both categories, ie the specialized and the non-specialized legal systems, a number of subdivisions can be made. The main division within the category of the specialized systems is that between the Civil Law group and the Common Law group. As a result of European colonization modern Africa is very much part of this division. This division is a very broad one. Because of the American and Russian Revolutions, respectively, both the Common Law and the Civil Law groups lost much of their original homo geneity, so much so that today we may distinguish between the English branch of the Common Law and its American off-shoot, and within the Civil Law group, between the Western or Capitalist branch and the Eastern or Communist one. The possibility is not excluded - in fact, the signs are already there - that the recent Anti-Revolution will further weaken the unity within both groups. For purposes of this paper I shall confine myself to the original branches of each group, the reason being that, with relatively few exceptions, these are the systems that have been exported to Africa and which still dominate the African legal scene. Therefore, when I refer to the Civil Law, I have Western Civil Law in mind, and when I refer to the Common Law, English law serves as the prototype. Of course, the comparative law discipline should not stop at classifying laws but should also assist in comparing them in detail. The comparison of laws, subsequent to their classification, constitutes the field of micro-compara tive law. Although a consideration of the micro-comparative law discipline 2Compare, for example, David and Brierley 17-29; Ebert 38-44; Eörsi in Rotondi 179— 209; Lawson "The Field of Comparative Law" (1949) 61 Juridical Review 16 at 23; Rheinstein (1974) 77-114; Rozmaryn in Rotondi 585-589; Schlesinger Comparative Law 3ed 1970 251-254; Zweigert and Kötz 67-80. This content downloaded from 168.167.93.7 on Fri, 13 Oct 2017 12:59:35 UTC All use subject to http://about.jstor.org/terms 198 XIV CILS A 1981 lies beyond the scope of this paper, at least its "golden rule" shou mentioned.3 After all, it is my intention to encourage you to underta micro-comparative law studies. The golden rule of micro-comparative la "Compare the comparable" or "Like must be compared with like". parable are those rules which in respect of the same or a similar probl serve the same or a similar problem-solving function. All this may sou rather obvious; yet when one is searching for comparables the gre caution must be exercised. Firstly, differences in ideology or technique render comparison extremely difficult and at times even futile. Secon what is in one country governed by law, may in another be regul perhaps more efficiently, by extra-legal forces such as religion, p morality or gentlemen's agreement. Thirdly, different societies may at different meanings to the same term or concept, for example, "injury "marriage", "property". Fourthly, a society's "living law" may be different from its "book law". This list of warnings is far from exhaus the pitfalls on the path of the comparative lawyer are indeed numero The best way to protect oneself is to shed one's local preconceptions o Having outlined the major tenets of the comparative law discip I now progress to the theme of this paper. With an audience trained in Common Law, I need not, of course, elaborate on that legal system but immediately proceed to give an account of the distinguishing features o Civil Law. What distinguishes the Civil Law from the Common Law? I would suggest that, from a Common lawyer's point of view,4 the peculiarities of the Civil Law would be the following: its scholarly tradition; its romanistic style ; the sharp division it makes between public and private law, and, within private law, between civil and mercantile law; its conceptual and systematic nature; its theory of the formal sources of law; its techniques of law administration. Let us examine these features in some detail. 1 Scholarly tradition5 One often hears the remark that while the Common Law is judge-made, 3With regard to micro-comparative law techniques, see Ebert 22-30, 140-171 ; Gutte ridge 72-126; Rotondi; Schlesinger 618-636; Zweigert and Kötz 27-48. 4Of particular interest are the following publications by Common lawyers: Lawson A Common Lawyer Looks at the Civil Law 1953; Merryman The Civil Law Tradition 1969; Schlesinger Comparative Law 3ed 1970; von Mehren and Gordley The Civil Law System 2ed 1977. Apart from Lawson, who is English, the others are American writers. The publications of Lawson and Merryman are compact and eminently readable. Un fortunately they may be rather misleading for readers not familiar with the subject matter : whereas Lawson underplays the differences between the Civil and the Common Law, Merryman often exaggerates them. The other two publications are rich in informa tion and practical suggestions but, obviously written for American lawyers, place too great an emphasis on constitutional and procedural law matters. Uninitiated readers may find these publications rather unwieldy and at times even bewildering. For initial reading I would rather recommend David's English Law and French Law 1980 read together with the relevant parts of David and Brierley's Major Legal Systems in the World Today 2ed 1978. 5David and Brierley 38-46; Merryman cIX. This content downloaded from 168.167.93.7 on Fri, 13 Oct 2017 12:59:35 UTC All use subject to http://about.jstor.org/terms  Characteristic features of the Civil Law 199 the Civil Law is university-made, a droit savant or law of professors. There is some truth in this. Without doubt scholars played a prominent role in the formulation of the Civil Law: the revival of Roman law in the twelfth centurv and its subsequent development and adaptation to current conditions were the work of scholars, and so were the modern codes, the first of which appeared round about 1800. From its inception the teaching of law in the Civil Law world has been geared at presenting a "model law", and up to the present the emphasis has been on the ius civile or civil law in its original and more restrictive sense of private law excluding mercantile law. Even though, as a result of large-scale enactment (in particular the codes), the Civil Law became very much a law of the legislature, legal scholars in most countries retained their influential position. The emphasis in the teaching of law remains on "scientism". "Classroom law" has indeed a marked effect on the way the Civil lawyer - who, incidentally, is always university-trained - thinks and operates. However, the influence of univer sity teaching on the development of the Civil Law, past and present, should not be exaggerated: it relates to the substratum of the law rather than the specific rule. 2 Romanis tic style6 Another popular remark about the Civil Law is that it is based on Roman law. This, too, is a statement that is in need of qualification. What, exactly, is meant by the Roman law basis of the Civil Law? First let me point out what it does not mean. It certainly does not mean that Roman law, even in its revived version (the usus modernus iuris Romani), applied generally. In fact, in most countries which form part of the Civil Law world, Roman law as such never applied. Nor does it mean that modern day rules are of necessity based on Roman law. Firstly, the received Roman law was virtually limited to the Roman ius civile, as reformulated in the time of Emperor Justinian (527-565). Secondly, the Roman civil law was nowhere received in toto, but was blended with canon, local customary and mercantile law. True, the Civil Law countries derive a great many of their private law solutions from Roman law, but this in itself does not put them in a different category from the Common Law countries which also adopted Roman law inspired solutions, for example in the law of contract. What really matters is that the Civil Law world, unlike the Common Law one, adopted the Roman legal science. Whatever it borrowed from other systems of law was duly romanized. It is this infusion of Roman technique which is of crucial importance and has become a distinguishing feature of the Civil Law tradi tion. It is reflected in the Civilian codes and has been extended to the uncodified field of the public law as well. The Roman law influence is essentially a matter of style, terminology, divisions and concepts. It follows that a knowledge of Roman law, at any rate as regards its terminology and structure, is a valuable key to the study of the Civil Law. Let it be noted, however, that to the extent that the Civil Law bears the stamp of Romanism, it is not so much that of the classical Roman law but that of the Justinianic law as interpreted and 6David and Brierley 48-49; Gutteridge 75-76; von Mehren and Gordley 3-14; Zajtay "The Permanence of Roman Law Concepts in the Continental Legal System" (1969) 2 CILS A 181. This content downloaded from 168.167.93.7 on Fri, 13 Oct 2017 12:59:35 UTC All use subject to http://about.jstor.org/terms 200 XIV GILSA 1981 modernized - notably by the schools of the Glossators, the Commenta and the Pandectists - in other words the usus modernus iuris Romani. 3 The great divisions of the law7 The third characteristic feature of the Civil Law is the practical im portance attached to the following divisions of the law : that between private law and public law, and the subdivision of private law into civil and mercan tile law. Of these categories the civil law, which deals with persons, the family, property, succession and obligations, reigns supreme. It is the oldest component of the "Civil Law" (in capital letters). The systematic and con ceptual structure of the total Civilian legal order is the work of scholars in this branch of the law. Up to the present the civil law is studied first and study in other fields of law follows. (Contrast the Common Law which views all laws as being "public", in the sense of regulating the peace within the realm.) (a) Let us first consider the division between private and public law. From Roman times onwards this division has been accepted in the Civil Law world as obvious and fundamental. Public law is that part of the law which relates to the organization of the state and other public institutions, their relations inter se or with the individual citizen, with the state or other public institution acting "publicly", ie representing the public interest. Private law, on the other hand, deals with the private person (natural or legal) and governs the relations of private persons with one another, the relations between a private person and the state or other public institution acting privately , and the relations between public institutions themselves acting "privately", ie not acting as the representatives of the public interest. The practical importance of the distinction between public and private law is that it under lies a division of jurisdiction (see paragraph 6(a) below). Traditionally, the courts on the Continent of Europe had no jurisdiction in public matters other than criminal. This state of affairs was so firmly established that when, in the nineteenth century, it was accepted that the legality of administrative acts should be subject to judicial review, disputes of this kind were placed before special administrative courts. These courts have their own jurisdiction, form their own separate hierarchy and follow their own independent approach in solving problems. Over the years they have made an important contribution to the development of a new body of law, administrative law. The administrative law of the Civil Law countries is still uncodified and to a large extent "judge-made", much like the English common law. It must be remembered here that at the time of the great codifications legal thought was concerned primarily with private law; public law, with the exception of criminal and procedural law, had yet to be developed. Administrative law, as a new branch of law, had to be formulated without the aid of a set of authoritative principles. The autonomous position of the administrative courts and of the law they apply is indeed an important distinguishing feature of the Civilian legal order. (b) A consideration of the division of private law into civil and mercan 'David 27-41, 81-100 ; 135-149 ; David and Brierley 74-85 ; Merryman cXIII and XVIII ; Schlesinger 243-247, 347-365, 404-409; von Mehren and Gordley 341-491, This content downloaded from 168.167.93.7 on Fri, 13 Oct 2017 12:59:35 UTC All use subject to http://about.jstor.org/terms  Characteristic features of the Civil Law 201 tile law remains. I think it is fair to say that this division is a product of Civilian history rather than Civilian reason. Modern Civil lawyers generally view the division as unnecessary and a number of Civil Law countries have decided to dispense with it. The division goes back to the time Italy acquired control over the Mediterranean area. It was felt then that Roman law as blended with canon law and local customary law had become too scholarly and soit to be suitable as a basis tor business transactions. The traders (mercatores) were particularly disturbed by restrictions on the contract, limitations in regard to cession and proxy, the usury restricted or even rorbade the levying or interest, the extreme c regard to debtors, the lack of recognition of the concept of neg and the cumbersome and expensive court procedure. To circumv the merchant guilds developed their own usages. In course of tim ments, albeit reluctantly, acknowledged that these usages wo their own sphere, enjoy preference over the tus commune or the The guilds "codified" these rules which became known as statuta m Often official government recognition was granted them, but ev such recognition they were usually regarded as having the force due course, this new body of law became more uniform and dev a common mercantile law which extended throughout the co world, including England where Roman law on which the "law m was broadly based, had met with so much resistance. In addition, were given the power to constitute their own courts. The proce merchant courts was simpler than in the ordinary courts. Th applied was directed at equity and hence was often at varianc archaic scholastic law of the Middle Ages. Although over the ius commune lost many of its artificialities and restrictions, mer as a separate branch of private law and administered by special m courts was well-established at the time of the great codification prototypes of codification, namely the French and the German, this dichotomy by the enactment of a separate commercial co recognition oí merchant judges, albeit as part of the hierarchy oí the courts. (In England, the developing jurisdiction of the powerful c courts suppressed the particular merchant courts. In the process merchant" was incorporated into the common law.) 4 The Civil Law's conceptual and systematic nature, with special r the code technique8 The fourth characteristic feature of the Civil Law is its conce systematic approach, compared with the Common Law's relat abstraction and system. This Civilian feature is best illustrated wit to the Civilian code technique. Before we analyse this technique a few words about the orig codes. Both the French and the German codes - to confine this discussion to these two prototypes - were intended as the final step in the historic process of making the law nationally uniform, popularly accessible and 8David and Brierley 86-93; Gutteridge 77-79, 93-100; Schlesinger 222-234, 239-243; von Mehren and Gordley 48-96. This content downloaded from 168.167.93.7 on Fri, 13 Oct 2017 12:59:35 UTC All use subject to http://about.jstor.org/terms 202 XIV GILSA 1981 certain. In Continental Europe, unlike England, no central court had strong enough to shape a "common" law for the entire country. Th in the Civil Law countries was far from uniform, often scholarly, archaic and, for the layman, rather unintelligible. The only way out, thought, was for the monarch to restate, and where necessary refo law by way of codification. The suggestion that the law be codified w without feasibility for the legal growth point had already shifted to legis and juristic doctrine had developed to a level of abstraction and sys tion which made codification possible. It was now a matter of waiting right political climate in which to carry out the task. In fact, the gre cations took place at a time when the European countries entere phase in their history. In France, this was the period round about 1 Germany, it was to be a century later. It should be noted that only pa. of the law has been codified, na private law (civil and mercantile), criminal law and the law of procedu Regardless of country and date of enactment, a Civilian cod ideally be defined as a systematically organized piece of legislation in abstract and general terms, completely covers a substantial part of The various elements of this definition call for explanation. (a) Predominant is the element of completeness. A code is envisa being complete in a double sense: as standing upon its own foun and as encompassing its entire subject-matter. The codes, traditionally the products of political revolution o kind, are in themselves revolutionary in the sense that they are sup stand upon their own foundations. All prior law in the fields cover them is repealed, which means that at least formally the codes bre the past. As far as substance is concerned their break with the past i limited. Most of their provisions can easily be traced back to pre-ex law, be it Roman, canon, local customary or mercantile law. It is tr the compilers of the codes did not hesitate to formulate new rules or existing ones if they thought it necessary, but instances of innova relatively rare. Nonetheless, when the meaning of a code prov sought, there is seldom a reference to the "old" law; in fact, resear the historic, as distinct from the immediate legislative, background o rule or concept is considered or purely academic interest. In that sen break with the past is real. Regarding the alleged self-sufficient nature of the codes, one mu sider that, at the time the original codes were compiled, human rea thought to be altogether capable of regulating society. A code co should be complete so as to provide a solution for any problem that arise within the scope of its subject-matter; it should be a self-suff whole containing, in the form of logical principles inherent in its structure, its own method of adapting itself to new circumstances. To this a code had to be stated in broad principles which together had t an organic unity (see paragraph (b) immediately below). However, it became apparent that a self-sufficient code was, inevitably, a dream parts of the law, family law, for example, simply do not lend thems This content downloaded from 168.167.93.7 on Fri, 13 Oct 2017 12:59:35 UTC All use subject to http://about.jstor.org/terms  Characteristic features of the Civil Law 203 being stated in broad general terms which remain valid for a long period. (b) The other essential element of a code - apart from its alleged com pleteness - is that it aims at concise and abstract formulation and at a systematization of rules so that they form an organic unity. As we have seen, even in respect oí a code, old age has its infirmities. This, however, does not detract from the fact that the codes are truly efficient statements of law. Credit for this should go not only to their compilers. More often than not they found their answers ready-made by the centuries of doctrinal effort spent in transforming a law of actions and conveyances into a systematic body of abstract rules. By the nineteenth century, the old habit of inferring rights from remedies had already given way to the tendency to think in terms of rights rather than wrongs, to describe the normal instead of the abnormal, the general instead of the exceptional. Famous among the Civil Law generali zations as subsequently incorporated in the codes are the legal definitions contained in the General Part to the German Civil Code; articles 1382 and 1383 of the French Civil Code which formulate civil liability based on fault; the first sentence of article 812(1) of the German Civil Code which imposes liability for unjust enrichment; and the codes' "general clauses" which employ such elastic concepts as justice, good iaith, good morals and public policy. The technique of stating the law, as far as possible, in general terms while limiting qualifications, surely is a valuable asset of the Civil Law and accounts for much of its vitality. Of course, a workable code must maintain a balance between general provisions and specific ones. Consequently, not all code provisions are framed in general terms. In fact, a great number of them, particularly in the field of family law, the law of succession, the law of property and the law of procedure, are rather detailed. Nonetheless, the codes, considered as a whole, are governed by statements of a general nature. Directly related to the practice of stating the law in abstract and terms are the following subsidiary features of the Civil Law : its con legal rule and its deductive method of problem-solving. Common lawyers and Civil lawyers have different conceptions o rule. Whereas in the Common Law world most legal rules are o laid down by the courts for specific cases, in Civil Law countries t first and foremost the work of the legislature which, influenced by tradition, is inclined to operate in abstract and general terms. Cons what may appear to the Common lawyer to be nothing more than an abstract doctrinal precept, or at most a general directive, is a legal rule for the Civilian lawyer who into his concept of a legal rule eagerly incorporates, and in fact prefers, the general and the abstract. Directly related to this is the Civil Law's deductive method of problem solving. As general rules do not always offer a direct solution for particular problems, but may lay down only the major premises from which solutions should be derived, particular problems often have to be solved by a process of deduction, that is to say by the application of general principles to parti cular facts. The Common Law, on the other hand, still centres largely around previous decisions of individual problems and develops tentatively from case to case. Such general principles as there are, have often developed This content downloaded from 168.167.93.7 on Fri, 13 Oct 2017 12:59:35 UTC All use subject to http://about.jstor.org/terms 204 XIV CI LS A 1981 slowly, the method of law-finding being inductive, that is to say, moving from the particular to the general. 5 The theory of the formal sources of law9 The fifth characteristic feature of the Civil Law is contained in its theory of the formal sources of law. (a) Legislation. According to doctrine legislation reigns supreme and is self-sufficient. The alleged self-sufficient sovereignty of legislation which forms an integral part of the Civilian tradition is, of course, as naïve a fiction as the Anglo-Saxon theory that the Common Law has existed in the mind of judges from time immemorial and that every decision is merely a manifestation of it. Just as the Common Law is in fact judge-made, so at times is the written law of the Civil Law countries interpreted by the courts beyond recognition. The obvious example is the way in which article 1384(1) of the French Civil Code has been interpreted. This provision which was originally intended as a mere preface to the specific instances of vacanous liability and liability in respect of animals and buildings detailed in the remainder of the article and the two following articles, today serves as the basis of a comprehensive system of strict liability for damage caused by inanimate things, including motor vehicles. In fact, the older the legislation, the bolder the courts in "modifying" its contents under the guise of mere construction. By operating in this way, the Civilian courts do in fact make law. However, judicial law-making of this kind is of necessity limited and incidental for its develops within a defined framework established by the legislature. On the other hand, the Civilian judge interpreting legislation enjoys considerable freedom of movement. This is the direct outflow of a deliberate policy on the part of the legislature to state legislation in broad and general terms, and to refrain from interpretation Acts and interpretation clauses. I think the position is best summarized as follows : when the law is enacted in a Civil Law country, legislation is the primary, though not the exclusive, source of law. Being the primary source of law it should, of course, form the starting point for investigation. (b) Judicial decisions. Again, theory makes the position quite clear: it is the judge's task to apply, not to make or change the law. In practice, however, law is effectively made or changed by the Civilian courts. Such, for example, is the case with administrative law which is largely judge-made. As pointed out earlier, even the celebrated codes are subject to judicial law making. In fact, it would appear that judicial creativity is gathering strength in the Civil Law countries and that the courts are becoming more responsive to the social appropriateness of their decisions rather than their logical consistency. The Common lawyer may find it remarkable that this judicial law making takes place in the absence of a doctrine of precedent. Much has been 'David 16-26; David and Brierley 94-141 ; Gutteridge 77-82,101-116; Merryman c IV; Sereni "The Code and the Case Law" in The Code of Napoleon and the Common-Law World ed Schwartz 1956 55-79; Zajtay "Reasoning by analogy as a method of law interpretation" (1980) 13 CILS A 324. This content downloaded from 168.167.93.7 on Fri, 13 Oct 2017 12:59:35 UTC All use subject to http://about.jstor.org/terms  Characteristic features of the Civil Law 205 written about judicial precedent in the Civil Law world, most writings con taining the same message, namely that, although there is no Civil Law doctrine of precedent and the courts may therefore in a new case reverse their own opinions or dissent from a superior court, in practice there is a marked continuity of precedent. The reasons for this are the esteem in which higher tribunals are held, the need for certainty, and the fact that it would be futile to insist on ideas likely to be rejected on appeal. From a practical point of view precedent is followed in Civil Law countries in much the same way as in Common Law countries. In a Civil Law country, however, precedent exercises its influence not by reason of its pronouncement but because of its inherent persuasiveness or for the policy reasons just mentioned. There is therefore a marked value difference between the Common Law and the Civil Law precedent. (c) Customary law. In the Civil Law countries, as in all other specialized legal systems, custom in the sense of a regular and general social practice which is accepted as legally binding, plays only a limited role as a source or law, owing mainly to difficulty in proving this type of law. In view of the acknowledged primacy of legislation, customary law can never invalidate it. However, customary law can play a role in clarifying or extending it. Some writers prefer to classify established lines of judicial decisions under cus tomary law rather than recognize a new category of judge-made law. Accord mg to them an established line or judicial decisions has the rorce or law through custom, and not because these decisions can themselves be a source of law. Other writers - and theirs is the approach which prevails today - reject this kind of reasoning as being too artificial. (d) Legal writings. Because of their immediate participation in the development of the law legal writers in Civil Law countries are more respected than their counterparts in the Common Law world. In the history of the Civil Law, legal writings sometimes enjoyed even the force or law. Examples in point are the "law of citations" (426) of Emperors Theodosius II and Valentinian III, and, more recently, the force of law accorded by the Boer Republics to certain works by writers on Roman-Dutch law. But now adays legal writings are merely of persuasive force, never a source of law. In Common Law countries, too, legal writers may carry persuasive weight, but in Civil Law countries, because of the prestige of their group, they stand a better chance of having their voice heard, not only in the class-room but in the court-room, too. The well-known story of Napoleon who, when he saw the first commentary on his Civil Code, exclaimed that all his hard work had been ruined, is a rather telling illutration of the importance Civilian tradition attaches to legal writings. The authoritativeness of legal writings is of course not always the same, but depends on such variable factors as the strength of the law in issue, the degree of unanimity among legal writers and the extent to which doctrinal opinion corresponds to social reality. 6 Administration of the lau*10 The sixth characteristic feature of the Civil Law is the way in which the 10David 42-71; David and Brierley 125-132; Merryman c XVI and XVII; von Mehren and Gordley 97-208, 1127-1161. This content downloaded from 168.167.93.7 on Fri, 13 Oct 2017 12:59:35 UTC All use subject to http://about.jstor.org/terms 206 XIV CILS A 1981 law is administered. I shall deal with this under the following headings : (a) The organization of the courts. From a Common lawyer's point of view perhaps the most spectacular element of Civilian law administration the occurrence of more than one judicial hierarchy (see paragraph 3 abov Apart from the hierarchy of the ordinary courts one finds in most Civil L countries one or more other, totally separate hierarchy. Whereas genera speaking the hierarchy of the ordinary courts exercises jurisdiction in priv and criminal law matters, as a rule any other hierarchy deals with problem of an administrative law type. (b) The judiciary. In mercantile and administrative law cases the e ployment of lay judges, more particularly at the level of the courts of fir instance, is a common feature. The various courts of appeal, however, ar almost exclusively composed of professional judges. The professional judg are academically trained lawyers who, as a rule, will have chosen judi office as a career. They are, in other words, career judges. Usually the d sion to seek a judicial career is taken immediately after completion of one's academic law studies. Generally, recruitment is by examination, and not way of reward for a distinguished practice as a member of the Bar as is t case in Common Law countries. Traditionally, the judiciary in Civil L countries has a large membership, and, as far as promotion is concerned, judicial office bears a marked bureaucratic colour. This is not to say, how ever, that Civil Law judges are mere civil servants. Their independence i constitutionally guaranteed and their position respected even though the do not enjoy the rather exalted position of their Common Law brethern. (c) Procedure and evidence. In some respects the Civilian law of p cedure and evidence differs fundamentally from that of the Common L The reason is that in Common Law countries the law of procedure a evidence is modelled on the premise that the case will be tried by a jury whereas in Civil Law countries trial by jury is a rare exception in crimin matters and not used at all in civil matters. Modem Civilian procedure originated in the thirteenth century when, under the influence of canon law, a more rational and humane procedure than the local customary one was received. Over the centuries court pro cedure became increasingly streamlined and, as a result of nineteenth century Liberalism, also more democratic. A distinguishing feature of modern Civilian court procedure is the active role played by judges. Whereas civil proceedings in the Common Law countries follow the adversary method and the court's function is preponderantly that of an umpire, in the Civil Law countries these proceedings are basically inquisitorial. Similar is the position in criminal proceedings where the Common Law procedure is accusatorial while the Civil Law one is once more inquisitorial, the court taking an active and central part in the exploration of the truth. In defence of their inquisitorial method Civil lawyers will argue that to allow the examination of witnesses to be placed, in principle, in the hands of counsel is incom patible with the idea that it is the judge's chief function to find the truth rather than to decide which party adduced the better evidence. The inquisi torial method places the emphasis clearly on utility. Related to the inquisitorial method of procedure and the concomitant This content downloaded from 168.167.93.7 on Fri, 13 Oct 2017 12:59:35 UTC All use subject to http://about.jstor.org/terms  Characteristic features of the Civil Law 207 emphasis on utility is the principle of the free evaluation of evidence. Except for matters of privilege and personal incompetence to testify on grounds such as kinship, tender age or prior felony convictions, the Civil Law acknowledges no exclusionary rules of evidence, particularly no hearsay or opinion rule. In the eyes of Civil lawyers most of the grounds which under the Common Law serve to preclude the admission of evidence merely affect the weight to be attached to a particular item of evidence, which, according to them, should be a matter for the judge's free evaluation. (d) The style of judicial decisions. As I remarked earlier, the Civilian judge does not enjoy the exalted social status of his Common Law counter part. In fact, he tends to be a rather anonymous figure. His individuality is lost in the impersonal style of Civilian judicial decisions. Judicial decisions in Civil Law countries are impersonal in two ways. Firstly, in most Civil Law countries judicial decisions bear reference merely to the particular court, the date of the judgment and its reference number. Secondly, the judgments of most Civil Law courts are of a collégial nature: differences of opinion within the court, whether relating to the reasoning or the result, are not disclosed. The judgment may even have been written by a judge who found himself in the minority. Incidentally, Civilian judgments have nothing of the long-windedness one regularly encounters in judgments of the Common Law courts. This is partly because in the absence of a doctrine of precedent there is no need to refer to previous decisions, and partly the result of certain standard requirements regarding style. Conclusion The differences between the original branches of the Civil Law and th Common Law relate largely to techniques or methods of problem-solvin The legal problems themselves are very much the same and so are t solutions. According to that eminent comparative lawyer Max Theinstein some eighty per cent of all cases in the field of private law have the sam outcome.11 Since the countries concerned share similar environments, b physically and ideologically, this need not be surprising. I should prefer to refrain from passing judgment on the respect merits of the Civil and Common Law techniques. Techniques, like ideologi form part and parcel of the culture of the peoples for whose needs they h been developed; and beauty, after all, lies in the eyes of the beholder 11Collected Works vol I 1979 256-257. This content downloaded from 168.167.93.7 on Fri, 13 Oct 2017 12:59:35 UTC All use subject to http://about.jstor.org/terms