Civil Law Research Paper

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One major accomplishment of the Roman Empire was the development of a civil law system comprising statutes, forms of procedure, judicial decisions, imperial edicts, senate legislation, opinions of jurists, and the assimilation of some local customs across its vast territory. By modern times civil law applied to most of the world, with the exception of Britain and its domains.

What began as Roman law, ius civile (“citizens’ law”), became an imperial, continental, and then a global organizing principle. Roman law started as a set of binding rules that aimed to ensure harmony and facilitate commerce by confronting challenges, accommodating change, creating institutions, embracing legal concepts, and enshrining oral customs in a written format. Civil law did not usually apply to slaves. The goal was to fully regulate the lives and relations of citizens.

Civil law had diverse, incremental sources. Composed of statutes, basic forms of procedure, decisions by judges, imperial edicts, senate legislation, opinions of jurists, and the assimilation of some local customs, civil law helped consolidate the management of a heterogeneous empire. The development of uniform laws across its vast territory throughout Europe, the Middle East, and North Africa was one of the most notable accomplishments of the Roman Empire. By modern times civil law applied to most of the world, with the exception of Britain and its domains.

Ancient Rome

In 450 BCE, Roman leaders (consuls) proclaimed the Twelve Tables that organized public prosecution and punishment of crimes while instituting an adjudication of civil disputes. Common people (plebeians) were to be protected from the predominance of the privileged class (patricians). Male heads of families (patriarchs) wielded decisive power over their families.

Beginning in 366 BCE, praetors (magistrates from the social elite who administered justice) clarified philosophical and practical conflicts. They also proclaimed the principles of justice by which they would interpret the letter of the law. The spirit of the law was typically conservative, aspiring to protect lives, property, and the reputations of citizens. Correcting wrongs and reversing injustice were additional guidelines. Growing relations with foreigners who lived under Roman jurisdiction (or close to it), necessitated the formation of the ius gentium (“peoples’ law”). Its application did not discriminate between people on the basis of their citizenship. This concrete framework, coupled with ius naturale (“natural law”), a more philosophical set of principles, facilitated a more universal conception of laws.

Gaius (flourished 130–180 CE) authored the Institutes (“foundations”) around 130 CE. This treatise analyzed Roman law and serves as a major source for civil law. The Institutes described the different status persons possess; belongings, and how ownership is acquired, including wills; interstate succession (what to do when a person dies without leaving a will) and obligations; and various forms of actions (how to properly conduct legal issues).

Justinian’s Contribution

The roots of civil law as conveyed to subsequent generations are derived primarily from Roman law as preserved and formulated by legal experts commissioned by the Byzantine emperor Justinian I (527– 565 CE). He wanted to provide a systematic imperial law amid confusion after centuries of contested decisions. A further reason was to highlight, in Latin, the legitimacy and piety of Roman traditions as a proper foundation for Christian communities, and in the process position himself as a enlightened, reform-minded leader, thus consolidating his own political authority.

The result was the Codex Justinianus (Justinian Code), proclaimed in 529 CE. Justinian then commissioned sixteen lawyers to order and codify the legal opinions of the Roman jurisconsulti (“legal experts”). They issued the Digest of Roman jurisprudence (much of which transmitted, verbatim, Gaius’s Institutes) in 533 CE. In the same year, Justinian’s team published a handbook of civil law, which was to serve as a textbook for law students. Through its name, Institutes, they clearly tried to build upon, and replicate, the reputation of Gaius’s work four hundred years earlier.

An authoritative version of the Codex Justinianus, updated through the labor mentioned above, was published in 534 CE. Justinian forbade any commentary on the Digest, and possibly on the other legal instruments as well, making this corpus juris civilis (“body of civil law”) the normative standard for over a millennium. Finally, although the project was completed only after his death, Justinian inspired the composition of the Novels, new laws issued—primarily in Greek, symbolizing the political transfer of power to Byzantium—after the Corpus.

Overall, these compilations reflect quite accurately contemporary Roman laws. In the legal heritage that was his legacy, Justinian exuded confidence in his own understanding of God’s guidance to the type of Christianity he espoused, but showed little tolerance toward any other versions, much less to Jews or pagans. Perhaps thanks to the influence of his controversial wife, Theodora (c. 497–548 CE), Justinian improved the status of women. He was also particularly attentive to equitable administration of the provinces.

The Middle Ages

Justinian’s volumes were coupled with incremental jurisprudence composed of judicial decisions, the opinions of legal scholars, wide public obedience toward emerging norms in criminal, commercial, and maritime law, and evidence of continuous custom. These were complemented by canon law. Combined, they serve as the sources of modern civil law.

After the breakdown of the world order that followed the gradual collapse of the Roman Empire around 500 CE, civil law was used by the multiple successor sovereignties and political entities. It thus became the organizing legal principle of continental Europe. Charlemagne (Charles the Great, reigned 768–814 CE) relied on Roman traditions to derive legitimacy and for practical reasons. When, blessed by Pope Leo III (reigned 795–816 CE), Charlemagne established the Holy Roman Empire on Christmas Day 800 CE, the principles of its civil law governed matters of private law, together with local Frankish customs and notions of Christian justice.

The Modern Era

Starting from the sixteenth century, the civil law system expanded to the colonial territories of European states—including France, Belgium, Portugal, and Spain—in Latin America, Asia, and Africa. Other countries affected by contact with European powers, such as Japan and China, also adopted civil law. Socialist countries, beginning with Russia, adopted it as the legal system. Civil law has also served as the foundation for the principles of international law. The Roman phrase ius gentium (commonly translated in this context as “the law of nations”) was the initial designation for the legal system that addressed more than one center of sovereignty.

The most important example of a modern corpus juris civilis is the 1804 Napoleonic Code. It became a role model for others, thanks to its relatively inclusive and progressive spirit, especially the emancipation of religious minorities such as the Jews. Napoleon Bonaparte (1769–1821) consolidated French influence, and his own rule as an emperor, over a considerable segment of the world amid his wars with Britain and its allies. His code has three parts (governing personal status, property, and the acquisition of property), roughly corresponding to the structure of the Codex Justinianus.

Relationship with Common Law

Civil law is distinguishable from the British common law tradition, established after William the Conqueror successfully invaded England in 1066. Historically, there were substantive differences. Whereas common law relied on unwritten custom, then on long renderings of judicial opinions primarily affirming or rejecting precedents, civil law is based on detailed, explicit clauses in binding codes or other legislative acts, and on short judgments interpreting and applying the norms exemplified by such binding instruments. In addition, as its name denotes, common law only applied, at least initially, to the lower classes in the empire, in England and beyond, but not to the monarchy and the titled aristocracy. The jurisdiction of civil law, in contrast, was meant to be more comprehensive, incorporating all citizens. In reality, however, many of these distinctions were more semantic than substantive.

Some places, such as the Canadian provinces of Quebec and New Brunswick, and Louisiana in the United States, because of their considerable French heritage, possess strong civil law traditions (in 1774 the British Parliament passed the Quebec Act allowing this territory to retain the French civil code; Louisiana adopted its own code in 1821). Because they are part of a federal framework, the ultimate authority over such jurisdictions is vested in their supreme courts, where the majority inevitably comes from areas governed by common law; Canadian custom allots Quebec three of nine seats in the Supreme Court.

The Future

Since World War II, and the speedy availability of case law and scholarly research to most interested jurists and institutions, common law and civil law converge much more than they diverge, linguistic and cultural distinctions notwithstanding. As the harmonization of laws necessitated by globalization continues, civil law may come to be remembered more as a relic of the past than a unique organizing principle, even in continental Europe, where its legacy cannot be erased. The pioneering importance of civil law will serve as guidance as international law expands into dimensions hardly known or practiced until the twentieth century, such as the promotion and protection of human rights and the environment.

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Watson, A. (1998). Ancient law and modern understanding: At the edges. Athens: University of Georgia Press.

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