CIVIL LAW

DEFINITION
• Civil law (common law), the area of law in common law countries governing relations
between private individuals
• Civil law (legal system), a system of law based on the Corpus Juris Civilis prevalent in
continental Europe, Central and South America, South Africa, Scotland, Québec, and
Louisiana
• Corpus Juris Civilis:
In the 6th Century, the Roman Emperor Justinian decided to organize and
assemble the scattered legislation and legal commentary of the Empire. The
Corpus Juris Civilis was the result—a comprehensive reduction of Roman Law
to a single, written text.
It was divided into basic sections familiar to those with knowledge of today’s
civil codes: Of Persons (Family Law), Of Things (Property Law), and Of
Obligations (Contracts and Torts). In the years following, this comprehensive
text spread throughout Europe.
During the period between the 11th and 15th Centuries, Roman Law was
revived and studied by scholars in Italy, and some customary law was
incorporated.
• The term Civil Law refers to a legal family that organically emerged from the
European Continent, starting during the Roman Empire. It was not until the
19th Century, however, that this body of law was assembled, organized, and
distributed across the continent.
France and Germany are considered to be prime examples of this codification
effort. In the 20th century a number of elaborations were made to these laws,
producing the Civil Law most know today.
This term for a particular legal family is not to be confused with the use of the
term “civil law” to describe the laws and procedures governing a case in
controversy between private litigants.
• Civil law (civil law), the area of law in civil law countries governing relations between
private individuals, it is a part of private law.
• Civil code, the systematic compilation of civil law
• Civil Law in contrast to Criminal Law, Administrative Law, Constitutional Law and
International Law
MAJOR LEGAL SYSTEMS
• The three major legal systems of the world today consist of

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– Continental legal system (civil law)
– Anglo-American legal system (common law)
– Religious legal systems
• Each country often develops variations on each system or incorporates many other features
into the system.
CONTINENTAL LEGAL SYSTEM
• It is a legal system inspired by Roman law, the primary feature of which is that laws are
written into a collection, codified, and not determined, as in common law, by judges.
• The principle of this system is to provide all citizens with an accessible and written
collection of the laws which apply to them and which judges must follow.
• It is the most prevalent and oldest surviving legal system in the world.
• Continental legal system is sometimes inappropriately referred to as Roman law or
otherwise called Romano-Germanic law, especially by people under its jurisdiction.
HISTORY
• The civil law system is based on Roman law, especially the Corpus Juris Civilis of Emperor
Justinian, as later developed by the Middle Ages
• The acceptance of Roman law had different characteristics in different countries. In some of
them its effect resulted from legislative act - it became positive law, whereas in other ones it
became accepted by way of its processing by legal theorists.
• A second characteristic, beyond Roman law foundations, is the extended codification of
the adopted Roman law - its inclusion into civil codes. The concept of codification dates
back to the Code of Hammurabi in ancient Babylon.
CODIFICATION
• The concept of codification was further developed during the 17th and 18th century, as an
expression of both Natural Law and the ideas of the Enlightenment.
• The political ideal of that era was expressed by the concepts of democracy, protection of
property and the rule of law. That ideal required the creation of certainty of law, through the
recording of law and through its uniformity.
• So, the mix of Roman law and customary (local) law ceased to exist, and the road opened
for law codification, which could contribute to the aims of the above mentioned political
ideal.
• The French Napoleonic Code of 1804, Austrian civil code of 1811 and the German civil
code of 1900 were the most influential national civil codes.
• Civil Law, in contrast, is codified. Countries with civil law systems have comprehensive,
continuously updated legal codes that specify all matters capable of being brought before a
court, the applicable procedure, and the appropriate punishment for each offense. Such
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codes distinguish between different categories of law: substantive law establishes which acts
are subject to criminal or civil prosecution, procedural law establishes how to determine
whether a particular action constitutes a criminal act, and penal law establishes the
appropriate penalty. In a civil law system, the judge’s role is to establish the facts of the case
and to apply the provisions of the applicable code. Though the judge often brings the formal
charges, investigates the matter, and decides on the case, he or she works within a
framework established by a comprehensive, codified set of laws. The judge’s decision is
consequently less crucial in shaping civil law than the decisions of legislators and legal
scholars who draft and interpret the codes.
SUBGROUPS
• However, since continental European traditions are by no means uniform, scholars of
comparative law usually subdivide civil law into four distinct groups:
• French civil law – in France, Belgium, Luxembourg, Quebec (Canada), Louisiana (USA),
Italy, Spain and former colonies of those countries
• German civil law – in Germany, Switzerland, Brazil, Portugal, Turkey, Japan, South Korea,
China
• Austrian civil law – in Austria, Czech republic, Slovakia, Greece, Serbia, Romania
• Scandinavian civil law – in Sweden, Denmark, Finland, Iceland, Norway
Anglo-American legal system
• Common law is law developed by judges through decisions of courts and similar tribunals
(called case law), rather than through legislative statutes or executive action, and to
corresponding legal systems that rely on precedential case law.
• Common law legal systems are in widespread use, particularly in England where it
originated in the Middle Ages, and in nations that trace their legal heritage to England as
former colonies of the British Empire, including the United States, Singapore, Pakistan,
India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and
Australia
Religious legal systems
• Religious law refers to the notion of a religious system or document being used as a legal
source
• The main kinds of religious law are Sharia in Islam, Halakha in Judaism, and Canon law in
some Christian groups
Canon law is the body of laws and regulations made or adopted by ecclesiastical authority for
the government of Christian communities.
Islamic law is the religious law that applies in many Muslim communities to varying extents.
Islamic law is a basic set of rules that are based on two primary sources: the Koran and the
Sunnah (the model written behavior of the Prophet Muhammad), but also on a variety of legal

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interpretations. In some countries, Islamic law only governs family matters and all other legal
issues are handled through the secular court system.
Talmudic law applies in some countries and regions with heavily concentrated Jewish
populations. The major sources of law in this legal system are the Torah (the first five books of
the Old Testament in the Christian western tradition), both written and oral, as well as the
Talmud. The Talmud is a written commentary of valuable opinions about the content of the
written and oral Torahs.
Socialist law
• Socialist law is the official name of the legal system used in Communist states. It is based
on the civil law system, with major modifications and additions from Marxist-Leninist
ideology
• Prior to the end of the Cold War, Socialist law was generally ranked among the major legal
systems of the world
• However, many contemporary observers no longer consider it to be such, due to similarities
with the civil law system and the fact that it is no longer in widespread use following the
dismantling of most communist states.
Mixed legal systems
• Mixed legal systems are mostly defined as the combination of civil law and common law
• Examples - South Africa, Louisiana, Israel
• Israel's legal system combines English common law, civil law, and Jewish law
• Legal enclaves – territories surrounded by different legal culture
KEY ISSUES
• Codes and Case-Law
• Structure of the Legal Education System
• Structure of the Legal Profession
• Trials and Rules of Procedure
Codes, Commentary & Case-Law
• Public v. Private Law
• Basic Codes
• Commentary
• Case Decisions
Public v. Private Law
Fundamental Concept: Despite its fundamental nature, there is an emerging debate as to
its theoretical scope. Nevertheless, the distinction could be described as follows: Private
Law: Sole function of the government is to recognize and provide enforcement of individual
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(private) rights. Examples of this would be commercial codes and civil codes; and Public
Law: The state is acting to protect and promote public interests. Examples of this would be
administrative law, constitutional law, and criminal law.
Legal Structures: Court systems generally utilize this public-private distinction. “Ordinary
courts” handle private law and the basic public law field of criminal law. Specialized
“administrative courts” handle other areas of public law. Legal education and practice
generally divide on similar lines.
Usage by Civil Lawyers: All Civil Law lawyers will reference this distinction. It is seen as
basic to an understanding of all legal theory, and it gives guidance to Civil Law practitioners
about the nature and effect of individual rights. For example, in private law matters there
will generally be more discretion as to remedies, but in the case of public law matters, the
remedies will be legislatively prescribed and constrain judicial discretion. Due to the latter,
certain Common Law practices, such as plea bargaining in criminal cases, have been
historically understood to be prohibited because the public law sphere has legislatively
prescribed penalties that limit a judge’s discretion.
Modern Scope: With the advent of constitutionalism, decline in parliamentary supremacy,
and the increase in judicial review, the public-private distinction is increasingly difficult to
apply uniformly across jurisdictions. Consequently, many Civil Law jurisdictions now
admit greater judicial discretion in traditional areas of public law.
Basic Codes
• Civil Code
• Civil Procedure Code
• Commercial Code
• Criminal Code
• Criminal Procedure Code
Commentary
• Not a Formal Source of Law
• Scholarly Doctrine Drives the System
– Legislatures Defer to Doctrine
– Judges Typically Refer to Doctrine
Case Decisions
• No stare decisis Effect, but Cases are
– Always Consulted
– Commonly Followed
• Most Influential in New Areas of Law

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• Structured Differently
THE CIVIL CODE
• A civil code is a systematic compilation of laws designed to comprehensively deal with the
core areas of private law.
• A jurisdiction that has a civil code generally also has a code of civil procedure.
CONTENT OF THE CIVIL CODE
• The older civil codes such as the French, Egyptian, and Austrian ones are structured under
the Institutional System of the Roman jurist Gaius and generally have three large parts:
– Law of Persons (personae)
– Law of Things (res)
– Issues common to both parts (actiones).
• The newer codes such as the ones of Germany, Switzerland and Portugal are structured
according to the Pandectist System:
– General part
– Law of Obligation
– Law of Real Rights
– Family Law
– Law of Inheritance
• The civil code of the state of Louisiana, following the institutions system, is divided into
five parts:
– Preliminary Title
– Of Persons
– Things and Different Modifications of Ownership
– Of Different Modes of Acquiring the Ownership of Things
– Conflict of Laws
Prominent civil codes
A prominent example of a civil law code is the Napoleonic Code (1804), named after
French emperor Napoleon. The Napoleonic code comprises three components:
• the law of persons
• property law, and
• commercial law.
Another prominent civil code is the German Civil Code, which went into effect in the
German empire in 1900. The German Civil Code is highly influential, inspiring the civil
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codes in countries such as Japan, South Korea and Switzerland (1907). It is divided into five
parts:
1. The General Part, covering definitions and concepts, such as personal rights and legal
personality.
2. Obligations, including concepts of debt, sale and contract;
3. Things (property law), including immovable and movable property;
4. Domestic relations (family law); and
5. Succession (estate law).
Towards a European Civil Code
In 1997 the Dutch Government, as then Chair of the European Union, held a conference
titled 'Towards a European Civil Code'. The conference considered the feasibility of such a
code and led to the creation of a book titled Towards a European Civil Code. The third
edition was published in 2004 and although the primary focus is European contract law, it
considers other areas of private law that may form part of a European civil code as well. The
years following this conference have seen the development of many academic groups
focusing on different areas of private law. These include:
• The Study Group on a European Civil Code, formed in 1997 and chaired by
Professor Christian von Bar at the University of Osnabrück.
• The Acquis Group (official name: Research Group on EC Private Law) at the University
of Münster focuses on existing European Community private law.
• The Commission on European Family Law based at Utrecht University.
• The European Group on Tort Law, also called the Spier/Koziol group, in association
with the European Centre of Tort and Insurance Law in Vienna.
• The Common Core of European Private Law project conducted by Mauro
Bussani and Ugo Mattei at the University of Trento.
• The Académie des Privatistes Européens at the University of Pavia, headed by Giuseppe
Gandolfi. It published a Draft Code ('avant-projet') in 2002.
• The Leuven Centre for a Common Law of Europe, founded in 2001 by professor Walter
Van Gerven, who wrote a number of European casebooks together with Basil
Markesinis.
• The Joint Network on European Private Law has also been created and includes several
of the above groups.
ORGANIZATION AND INTERPRETATION OF CODES
French Civil Code
➢ Drafted by 4 appointees of Napoleon – two from customary law North, two from Roman
law South.
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➢ The organizational scheme of the French Civil Code is similar to that of Gaius’
Institutiones. Whether this similarity is accidental or due to the Roman law learning of
the Code’s draftsmen is somewhat controversial. Since the ideology of the Code is
implicated in the organizational scheme, what does that say about the Roman ideology?
➢ Code is divided into 3 sections:
o Persons. Nationality, domicile, marriage, divorce, etc.
o Property
o Acquisition and Transfer of Property. Wills, contracts, torts, etc.
➢ System of torts (non-contractual civil liability) is based on principle of fault with a few
exceptions.
German Civil Code
➢ Was drafted after almost 100 years of debate.
➢ German civil code is a more ‘academic’ example of ‘legal science.’ Germans saw law as
systematic and pure – detached from both social sciences and search for values.
➢ Like the French, Germans emphasized property and individuals. However, by the time it
was passed, this was already regarded as a conservative position because labor unions,
corporations, etc. were much more important.
➢ First part of the Code deals with concept of ‘legal transactions’ (Rechtsgeschaft) – any
declaration of an intention which produces effects that the legal system recognizes and
guarantees. It embraces all the elements common to contracts, wills, negotiable
instruments …, and one sided declarations such as notices and renunciations.
➢ There are separate abstract general provisions dealing with equity, justice, and good
morals that have been expanded to allow for positive rights.
➢ German Code (in contrast with French) contains a “General Part” which serves as a
reservoir of rules and principles of such abstractness and generality that they pervade all
of the – functionally quite diverse – areas of the law covered by the Code.
➢ Note that in some parts of the German code, there are exceptions to provisions in the
general part, for example, requiring personal declarations and thus precluding the use of
an agent for certain family and estate law acts.
Dualism of Civil and Commercial Codes
➢ Agreement between French and German systems that the total area of substantive private
law should be divided into (a) non-commercial (“civil”) law and (b) commercial law, and
that this division should be reflected in the enactment of two separate codes.
➢ Argued by unitarists (opponents of the dual system) that with adequate education
available to all, there is no longer any need for a separate body of law governing the
transactions of the more sophisticated class, i.e., of the merchants.

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➢ Swiss legislator unified the ‘law of obligations’ to cover the law of contracts, most areas
of commercial law, and the law of corporations.
➢ Italian and Dutch systems have also unified commercial and civil law by collapsing the
former in the Civil Code.
Particularities of Other Codes
➢ Netherlands code includes a German-style General Part, but limits its effect to those
areas of the law which deal with “patrimony,” i.e., with rights having a money value.
➢ Swiss Code is divided between the “Law of Obligations” (see above) and the Civil Code,
which deals with those parts of private law (family law, succession, etc.) not already
included in the law of obligations.
Continental System
• Rules of Civil Law System were formulated basically by the legal scholars in universities
• not interested in the administration and application of these rules----these were vested to
legal practitioners
• It has evolved basically as a private law
• occurred in the 13th Century, mostly because of the Renaissance + idea of secular society
• increase of the number of big cities and trade relations among them, rule of law or “legal
system” became more important than before for the protection of “rule and order” in
Europe
Civil Law System
• collapse of the Roman Empire----the arbitrariness---- a need to formulate a social relation
based on law instead of arbitrariness
• Universities played an important role and the University of Bologna in Italy was at the top
of this list
• Academics---the principles of justice and methods (ways) of finding out these principles
• They were not interested in the solutions by courts to pending cases
• They did not teach the local law, because it was primitive and it contained confusing
elements. The law was related with the philosophy, theology and religion during this
period.
• For them---Contrary to the Local law—Roman Law could offer an organized and clear
understandable system
• Day by day the Roman Law was simplified + adapted and applied for the solution of new
problems
• Roman Law was used as a basis for the creation of Romano-Germanic System
• Academic scholars adapted these Roman Laws to the society of their own time

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• Romano-Germanic System has contributed to the unification of Europe but on the other
hand it respected the diversity of European countries
• In the 17th and 18th Century---A new approach within the Civil Law System Occurred and
called as “Natural Law School”: Contributions:
• order of a system is not because of a divine will (like god or king), but because of the
human being itself----“man” in the middle and the “man’s reason” was accepted as
the most important element for the creation of a legal system (secular)
• a different method in the application and interpretation of Roman Law-----there has
to be public law in addition to the private law for the Roman Law---this public law
was established by way of supporting the “natural rights of man” approach and by
enhancing freedom and liberties of individual
• Another contribution was Codification.
• Codification means the collection and harmonization of rules and transforming
them into a written form as “codes” mostly by way of enacting legislation through
the legislative bodies
• At the end of the codification process-----“National legal systems” of different
European countries.
• In 19th Century----different “Civil Codes” in Germany + France + and Switzerland.
• these codes were adapted to the changing needs of societies in which they were
applied
• Because of the same techniques and methods derived from the original Roman Law----we
can find;
• similar fundamental branches in European Countries
• they use same vocabulary and ideas
SOURCES OF CIVIL LAW SYSTEM
• These are the countries of written law-therefore “legislation” forms the basic source of
law
• Sources:
1- Legislation (Primary source)
2- Custom
3- Court decisions
4- Doctrinal or legal writing
5-General principles of law
Rules and principles on Legislation:

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– Can be understood easily than other sources—written + explicit +
general====➔”ignorance of law is no excuse”
– Includes more than one source and there is a hierarchy between these sub-branches of
legislation
– Constitution is at the top of this hierarchy----All other ordinary legislation must be
consistent with the Constitution-----result: “judicial control of constitutionality of
ordinary legislation” in these countries.
– International treaties: undertakings of state -------- are transformed into domestic
legal system -------- than become part of the legislation
Codes and enacted laws (or statutes)
Sources enacted by executive organs instead of legislative one.-----they are called as
“regulatory acts”:
– They are promulgated for the implementation of statutes by administrative
authorities
– They are subordinate to the legal statutes
– They are: Statutory decrees + regulations + by-laws
Constitution:
– Supreme law of the land---no law can be contrary to it
– Art. 11 Turkish Constitution:
– “Supremacy and Binding Force of the Constitution
“The provisions of the Constitution are fundamental legal rules binding upon
legislative, executive and judicial organs, and administrative authorities and other
institutions and individuals. Laws shall not be in conflict with the Constitution”
Codes and Statutes (Laws)
– Different laws have different sphere of application
• Some applies to entire territory and all citizens/residents (Criminal code)
• Some applies to only some citizens (Labor law or laws on particular areas--
cities)
• Some applies for a certain amount of time: earthquake—tax exemptions
• Sometimes a law applies to a certain citizen
– Procedure for a law to be “put into force”
International Treaties
– Treaties of which that state is party to...

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– are approved by the National Assembly by enactment of a law.-----therefore----
technically treaties are Laws and like other Laws become enforceable following their
publication in the Official Gazette
– But----the constitutionality of treaties---unlike other statutes (Laws) Cannot be
challenge.--
Statutory Decrees
• National Assembly can authorize the Council of Ministers by a special law to issue
statutory decrees on certain topics.
• They are the decrees having the effect/force of law.
• Although statutory decrees are enacted by the executive authority, instead of the legislative
one, they are submitted to the Parliament for the review and approval.
• This special law-----describes scope + principles and duration of the power to issue a
statutory decrees.
• subject to judicial control of the constitutional court.-----They have to be consistent with
the constitution + with codes and statutes + and with this special law.
• In case of emergency and martial law--Council of Ministers has power to issue statutory
decrees without an authorization from the Parliament.----Constitutionality of this kind of
statutory decrees cannot be controlled and annulled by the Constitutional Court.
Regulations
• The Council of Ministers has the power to issue regulations in order to determine and
regulate the implementation of statutes.
• to issue a regulation-----there has to be a clear reference within the statute on the
promulgation of regulations.
• Regulations contain more concrete and specific rules than statutes (Laws)
• You can get annulment of a regulation if it contains provisions contrary to statutes from the
Council of State highest administrative court
• High Court (sitting as Administrative Court)
By-laws
• According to Constitution prime Ministry + the ministries + and public corporate
bodies have the right to issue by-laws in order to ensure the enforcement of statutes and
regulations
• they should be published in the official gazette
• Universities and municipalities may also issue by-laws in order to regulate their internal
business and relations with individuals
– Exp: by-laws on grading and evaluation + attendance

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• By-laws must be compatible with the statutes and regulations.
• If a by-law is issued by a ministry and applied throughout the country-----the Council of
State is the body which has power to declare by-laws as “null” if it is contrary to the statute
or regulation.
• But by-laws issued by other corporate bodies---not applied throughout the country
might be invalidated by lower administrative courts.
Custom -Second source of Law in Civil Law Countries
• In the primitive communities---customary rules played an important role---But development
of legislators in world—in the modern communities
• In some countries, legal system for a custom to have legal validity----there are some
requirements that must be satisfied:
– Antiquity
– Continuity
– Popular belief in the rightness of a custom
– State sanction
– Agreement with statutory law
Conditions of Custom
• Continuity: This is the “objective (material) factor” for the validity of a custom. A
customary rule must be continuously observed➔If it is abandoned or its practice is
interrupted in favor of another custom---the continuity requirement is not fulfilled
• antiquity: As a principle----a customary rule must have existed for a long time and no
living person should know the beginning of it
– Exceptions---recently existed custom due to new inventions----custom on space law
• Popular belief in the rightness of a custom: This is the “subjective factor-element” for
the validity of a custom. A customary rule must consciously or unconsciously be
considered “right” by the members of the society----
– This is called “opinio juris” in Roman law
– If a custom is maintained only by force---it cannot be considered as valid custom.
• State sanction: A customary rule receives legal recognition when it is enforced by court
order.-----But a statute is law even before it is enforced by a court decision
– When does a court apply customary law rules?
– civil code says: “where no provisions are applicable, the judge should decide
according to existing customary law…”
– When the statutes are silent-----judges are allowed to apply customary principles
• Agreement with statutory law: A valid custom must be in agreement with statutory laws
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• statutory laws are superior to the customary rules.
• polygamy (having more than one spouse at the same time) was abolished in many countries
by law➔religious custom became “null and void”
Other Sources in Civil Law Systems
• Court Decisions—Jurisprudence-third source of Law in Civil Law Countries:
– judges tend to decide in accordance with the pattern of previously decided cases:
easy + safe
– Contrary to Common Law system---in the Continental countries judicial
precedents are not regarded as direct source of law
– court decisions play a creative part in the process of interpretation of legislative
texts only. And court decisions do not directly create legal rules
Court decisions
• In some countries, only certain precedents are followed.------inferior civil and criminal
courts are bound by some decisions of the Court of Cassation and this court is also
bound by some of its own decisions.
• Again---inferior administrative courts are bound by some decisions of the Council of
State.
– “some decisions”----Chambers responsible for “unified decisions” of superior courts
• binding and authoritative decisions of higher courts are-----Court of Cassation + Council
of State + Military Court of Cassation + High Military Administrative Court
Legal Writing-Doctrine
• position of universities within the evolution of the Romano-Germanic Family
• With the codification----this primacy of doctrinal writing was replaced by the enacted
law
• legal writings are often persuasive and used as a supportive element of a certain decision
of the courts
• offers some amendments and additions to the legal rules currently in force and they
contribute to the dynamic evolution of law.
• Doctrine also creates some guidelines for the authorities administering the law
General Principles of Law
• Examples:
– “Principle of good faith” (bona fide principle): if you misuse your right it would be
impossible for you to exercise it again in future

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– “the principle of non-retroactivity of laws”: a statute could not change rules
applicable to past events.------and it is very important for the stability of law and legal
order
• a safeguard of democracy and personal freedom
– Exception----reduction case-in favor of the offender“Ignorance of law is no
excuse”:
– Lex posterior
– Lex specialis
– Presumption of innocence
– No need to see such principles in a written form in laws or other forms of
legislation
Force of Precedent in Civil Law Jurisdictions
National Approaches to Precedent
➢ England has the most binding use of precedents of any legal system. House of Lords
could not reverse its own past decisions until 1966.
➢ Stare decisis in Common Law is actually a relatively late feature. Also, recent research
has suggested that it derives from Roman Canon law.
➢ In Latin America, there is a “doctrina legal” where the highest court can set binding
precedent through a series of cases – usually 3 or 5.
➢ In Germany and Italy, it is provided that certain decisions of the Constitutional Court
shall have the force of law.
➢ In other civil law systems, a line of decisions by the highest court is highly persuasive
but not formally binding.
➢ Louisiana Supreme Court distinguished between doctrine of stare decisis and doctrine of
jurisprudence constante. Latter applies adherence, not to a single decision but to a
services of decisions that illustrate the same rule.
The Role of Precedent in Practice and Scholarship
➢ The idea that judges cannot create law and must rely only on the Code is called the
‘Byzantine Doctrine’ by common law scholars.
➢ A corollary of the Byzantine Doctrine is that since judges may not make law, judicial
precedent has no authority.
➢ Portalis, one of the architects of the French Civil Code, wrote in 1804 that he recognized
the tension between civil law dogma (Byzantine Doctrine), which said that precedent has
no value, and real judicial decision-making, which relies on the development of law in
practice.

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➢ The “lex-ius” distinction, which implies that there is such a thing as unwritten law, has
gained new strength in part because of Constitutionalism. This weakens the idea that
judges simply apply the Code.
➢ Because they are still supposed to be merely applying the code, civil law judges must
hide gaps in the law, while common law judges can openly create new law.
➢ Abandonment of the Byzantine Doctrine in practice justified by:
o Issues of judicial economy (not wanting to reinvent the wheel)
o predictability of law
o equality of treatment
o hierarchy of courts (lower judges don’t like being overruled)
➢ Civil Law judges still give equal weight to judges and jurists (scholars) – and will first
reach for commentaries when researching a law.
➢ Civil Law judges don’t distinguish between dictum and holding, don’t give much weight
to a single precedent, and still don’t openly acknowledge making law.
➢ Because of its strong system of precedent, decision by common law judges are more
‘fact specific.’
➢ Decisional law tends to be more common in periods of political and social upheaval,
when judges have to fashion decisions without guidance from the legislature.
➢ As Princess Soraya case shows, German courts will see precedent as stronger if it is
accompanied by the approval of scholars – which is evidence that it adheres to the
general concepts of justice.
Customary Law and Jurisprudence
➢ There are 3 levels of intensity of customary law in terms of their relation to enacted law:
o Secundum legem (following the statute): the interpretive patina formed around any
permanent statute by its practical application, reflect in judicial decisions.
o Praeter legem (beyond the statute): legally binding rules inspired (but not
compelled) by enacted law, and not incompatible with it.
o Contra legem (against the statute): legally binding rules “repealing” rules of
statutory law.
➢ This gets to the distinction between ius and lex.
➢ In France it is generally taught that a custom may supplement, but not abrogate a rule of
written law. But judge-made customary law supplementing the written law is of great
importance in France. French refer to it as jurisprudence.
LEGAL EDUCATION
• Law Faculty

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• Bar Exam
• Practical Training
• Magistrate Schools
Law Faculty
• Students
– No Entrance Exams
– High Failure Rate
– Early Specialization
– Graduates Often Don’t Practice
• Professors
– Usually in Private Practice
– Arduous Tenure Track
– Full Professors Serviced By Team of Assistants
– Less Interactive Style
– Emphasize Theory
– Oral Exams Common
Bar Exams
• One of Several Criteria to Practice
• Failure Rates may be High
• Contains Oral and Written Components
• May be Administered Over More than One Session
• May Include Special Certifications
Practical Training
• Prerequisite to Practice
• Unique to Each Jurisdiction
• May Involve Multiple Stages or Internships
• May Allow Trainee to Earn Income
Magistrate Schools
• Judicial Training as a Special Legal Education Track
• Magistrates May Include Prosecutorial Functions
• Emphasizes the Judge as a Civil Servant

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Structure of the Legal Profession
• Lawyer/Advocate
• Notary
• Non-Lawyers Who Provide Legal Advice
Lawyer/Advocate
• Right to Appear in Court
• Geographic Limitations
• Law Offices Typically Smaller
• Different Role of Legal Ethics
Notary
• Draft Contracts, Wills, etc.
• Certify Documents as “Public Acts” for Court
• Safeguard Records
• Quasi-Monopolies
Non-Lawyer Advisers
• Accountants
• Tax Advisers
• Insurance Advisers
Trials and Rules of Procedure
• Court System
• Evidence and the Court Record
• Court Proceedings
Court System
• Three Levels
• Clear Substantive Specializations
• Juries Only in Serious Criminal Trials
• De Novo Appeals
Evidence and the Court Record
• Discovery is Limited
• Judges Question Witnesses
• Verbatim Transcripts/ Recording Rare

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• Preliminary Record May Not Be Prepared by Trial Judge
Court Proceedings
• Rules of Procedure
– Civil Procedure
– Criminal Procedure
– Administrative Procedure
• Influence of Civil Procedure
• No “Trials” in the U.S. Sense
Civil Procedure
• Three Stages
– Preliminary
– Evidence-Taking
– Decisionmaking
• No Single Trial Event
• No Cross Examination
• No Contingent Fees
• No Contempt Powers
• Use of Experts
JURISDICTION
General Observations
➢ Linked to national sovereignty. Nations tend to be jealous of their jurisdictional power.
➢ Reasonable grounds for jurisdiction include:
o Minimum contacts
o Location of property
o Consent (e.g., forum selection clauses)
o Location of tort
o Domicile or nationality
➢ ‘Exorbitant’ grounds for jurisdiction include:
o Nationality of plaintiff (France only)
o Physical presence (U.S. only)
Service of Process

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➢ In civil law, service is not synonymous with attaining jurisdiction
➢ Service under civil law is an official act and not one that a private person can accomplish
alone.
➢ Signification au parquet was a procedure through which a document to be served from a
civil law country to another country was first transmitted to the local prosecutor’s office
who then attempts to have it delivered to the addressee, usually through, typically slow,
diplomatic or consular channels. Service was usually considered completed by the
delivery to the prosecutor.
➢ Note that signification au parquet could result in default judgments if the prosecutor fails
to deliver the service. Sometimes, the defendant’s right to appeal the default judgment
had passed under a statute of limitations before the defendant even knew about that
judgment.
➢ Signification au parquet has been modified under the Hague Convention, which now
requires that a reasonable attempt has been made to serve the defendant before a default
judgment can be entered.
Letters of Rogatory
➢ These are requests for assistance made by a court in one country to a court in another
country in connection with litigation.
➢ Used for various purposes, including obtaining evidence located elsewhere, obtaining
depositions of witnesses, or effectuating service.
Abatement
➢ Brussels Convention Article 21 provides that where proceedings that involve the same
cause of action between the same parties are brought in courts of different Contracting
States, any court except the court “first seized” must stay its proceedings.
➢ Under German law, courts will dismiss an action if there had been an earlier action in
foreign courts that would have been entitled to recognition in Germany.
Transnational Issues
➢ Brussels Convention. Recently transformed into an EU regulation.
o Signatory states must recognize judgments of others except in case of ‘exorbitant’
bases. Note that judgments against non-member defendants under France’s
‘exorbitant jurisdiction’ are still valid in other member States.
o All proceedings which have as their object rights in rem (e.g., quieting of title) in
immovable property or tenancies of immovable property are under the exclusive
jurisdiction of the State in which the property is located.
o Signatory states give full faith and credit to judgments of other members. In cases
in rem, the second court may not even reexamine the jurisdiction of the original

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court; it may only review, in the case of a default judgment, whether the defendant
received adequate notice.
o Convention does not cover administrative law or cases involving divorce,
separation, or annulment.
➢ Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in
Civil and Commercial Matters.
o Provides for the transmittal of documents to a central authority, which must then
make sure that the party is properly served.
o A default judgment may not be entered in a Hague Convention country against a
defendant in another signatory country unless actual receipt of notice has been
reasonably demonstrated by one of the several methods of proof of service
provided by the Convention.

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COMPARISON OF LEGAL EDUCATION: FRANCE AND GERMANY
General Requirements for Practice
➢ Study at university for requisite period (often 3 years).
➢ Take initial examination for license or degree.
➢ Period of apprenticeship.
➢ Second examination.
➢ (optional) transnational degree, such as LL.M.
Legal Education in France
➢ There is an open admissions policy to university law faculties for any student with a
baccalaureat diploma. However, attrition after the first year approaches 50%.
➢ Class size, especially in Paris in the basic courses, is extremely large.
➢ First 2 years of the curriculum are a “first cycle” which includes political science, legal
history, etc. Completion of first cycle leads to a general studies diploma, which may
qualify candidates for some civil-service positions.
➢ Third year leads to license degree which is useful for business or related careers, but
does not qualify a student to take the legal qualifying exam.
➢ Fourth year leads to maitrise degree which qualifies students to take the entrance exam
for a one-year professional education program.
➢ The one-year professional education program is free and consists of classroom
simulations, lectures on professional ethics, and a legal internship.
➢ At the end of the year, students must submit a report summarizing their work
experiences. This is followed by an examination, which leads to the Certificat
d’Aptitutde a la Profession d’Avocat (CAPA).
➢ Finally, there is a two-year probationary period during which the new avocat may use her
professional title, but may not practice without a collaborator for one year and must
attend further legal education programs.
Legal Education in Germany
➢ Students begin legal study after secondary school. Once they enter university, they have
great flexibility in their schedules.
➢ After graduating, students take a first legal entrance exam. This exam has a moderate
rate of failure and gives honors to a very limited number of high-scoring students.
➢ If they pass the first legal exam, students take a 2-year legal practical training course.
This includes internships with government agencies and lawyers, and determine which
branch of law the student takes up.

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Students then take a second legal exam. More than 90% of students pass this exam, but
very few get honors grades. It appears that this qualifies them to practice.
The BGB served as a template for several other civil law jurisdictions, including
Portugal, Estonia, Latvia, Japan, Brazil and Greece. It never had, anyway, the same
world impact as the French code. What had a tremendous impact all over the cili law
countries was German scholarship and the German method strongly influencing Italy,
Spain, Latin America, and quite all the jurisdictions that maintained a French like
legislation. So, after all, also Germany became a codified system, and quite all civil
law jurisdictions can be deemed to be a “hybrid” of French legislation and German
scholarship.
Organization of the Legal Profession
General Observations
➢ In pre-codification civil law world, Latin and a university education were needed for the
higher courts ruled more prominently by Roman Law. Therefore, a split emerged in the
profession: “advocates” worked in the imperial courts and “procurators” in the lower
courts.
Types of Professionals
Notaries
➢ Profession developed in ancient Roman, originally to draw up public instruments for
illiterate citizens.
➢ The notarial profession survived the fall of the Roman Empire and reemerged as an
important part of the legal system as written public instruments developed.
➢ The profession is divided functionally between judicial and non-judicial notaries. The
former kept court records; the latter drew up public documents.
Judges
➢ Are career civil servants, generally have not been practicing lawyers.
Lawyers
➢ Divisions in France
o France retains a functional distinction between avocats and avoues. Today,
avocats are allowed to perform avoue functions in region where their offices are
located.
o Avocats function: to argue cases and give legal advice.
o Avoues function: [?] and argue before intermediate courts. Their numbers are
severely limited by statute.
o An unlicensed person may give legal advice in France, if they have at least a
licence degree in law.

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➢ Divisions in Germany
o The Rechtsanwalt performs functions of both the avocat and avoue.
o There is no allowance for unlicensed legal advisors.
Treatment of foreign professionals
➢ In France:
o lawyers from any country (including non-EU countries) can become avocats by passing an
exam on French lawyer, as long as reciprocity exists with the other country.
Lawyer’s Fees
➢ No Contingency Fees. These used to be verboten in civil law countries, but are slowly becoming
accepted. In 1991, France took a limited step toward recognition of contingency fees.
➢ In Europe, lawyers’ fees are generally based on a fee schedule system.
➢ Winner-takes-all system is generally in place for civil litigation. Note that litigation
costs have traditionally been lower in Europe than in the United States.
Legal Aid
➢ In America, there is more of an emphasis on mass impact litigation than on individual
clients. System tends to be one of legal aid “staff attorneys.”
➢ In Europe, there is a ‘judicare’ system in which lawyers take on individual clients – both
poor and middle class.
➢ Need for lawyers partly mitigated in civil law systems and Britain because judges play a
larger role in conducting investigations.
➢ In France and Germany, a plaintiff may receive legal aid as long as the case is not
frivolous.
➢ In Germany, the court appoints legal aid advocates. In France, they are selected by the
client or appointed by the head of the bar association.

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COMPARISON CIVIL AND COMMON LAW
Legal System
Civil Law
originating in Europe whose most prevalent feature is that its core principles are codified
into a referable system which serves as the primary source of law.
Common Law
characterized by case law, which is law developed by judges through decisions of courts and
similar tribunals.
Countries
Civil Law
Spain, Japan, Germany, most African nations, all South American nations (except Guyana),
most of Europe
There are around 150 nations with predominantly civil law systems: Spain, Japan, Germany,
most African nations, all South American nations (except Guyana), most of Europe
Common Law
approximately 80 countries with common law systems: United States, England, Australia, New
Zealand, Canada, India, Singapore, Malaysia…
History
Civil Law
developed in continental Europe at the same time and was applied in the colonies of European
imperial powers such as Spain and Portugal.
Common Law
evolved primarily in England and its former colonies, including all but one US jurisdiction and
all but one Canadian jurisdiction. For the most part, the English-speaking world operates under
common law.
Constitution
Civil Law
• Relatively recent
• easily amended
• comprehensively addresses relations between –state- government- people
• Constitution subject to will of people as determined by legislature
Common Law
• Long standing

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• not easily amended
• Enunciates a few principles in expansive terms
• Constitution is paramount statement of will of people to which government, including
legislature is subject
Law
Civil Law
• A comprehensive set of codes adopted by legislature
• set forth in a logical scheme
• Addressing all issues
• (comparable to US Internal Revenue Code)
Common Law
• Judicially developed principles derived from cases or legislative enactments
Court
Civil Law
• Inquisitorial
• One or a panel of judges
• Judge actively participates in seeking of evidence and examining of witnesses
• (does not culminate in a trial like in US)
• Courts are dedicated to specific areas of law ( criminal, labor, commercial, et cetera)
• Separate appeals courts for specific- civil/ administrative processes
Common Law
• Adversarial
• Judge and jury
• Proceeding culminates in a trial dominated by lawyers with judge as referee
• Courts of general jurisdiction hearing all matters
• Single hierarchical appellate process culminating in a supreme court
Judges
Civil Law
• A profession selected by student as a career choice and similar to a civil service position in
which advancement is by tenure.
Common Law
• Generally selected after demonstration of competence in practice.
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• Elevation to higher courts based on demonstration of demeanor and ability.
Civil Law
• A limited set of submissions by each party, responses to inquiries from court and correction
of record by each party.
• (No discovery in sense of American practice.)
• Preference for written documents based on underlying belief that people will lie
Common Law
• Each party fashions a series of inquiries, examinations and review of all relevant documents
and testimony prior to organizing into a presentation to court.
• Preference for oral testimony based on underlying belief that papers can be forged but that
the truth can be better determined in a face to face confrontation before the tribunal.
Decisions
Civil Law
• Judge uses deductive reasoning to determine applicable sections of Code.
• Inappropriate for Court to fashion a remedy not set forth in the Code
Common Law
• Judge uses inductive reasoning about the facts, applicable prior cases and relevant law to
reach a decision
• Court may fashion an equitable remedy- one that is “fair”
Legal Education
Civil Law
• Student commences legal study immediately upon completion of secondary school
• Limited liberal arts/sciences curriculum
• Lectures based on learned writers about the Code
Common Law
• Post baccalaureate degree
• Inter-active discussion about significant cases, their relevance and possible alternative
outcomes
Lawyers
Civil Law
• Many persons study law and go into other fields
• Admission to practice before courts restricted
• Persons have diverse academic background or experience
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• A professional course of study dedicated to practice of law
Common Law
• Persons have diverse academic background or experience
• A professional course of study dedicated to practice of law
Lawyers- Notaires
Civil Law
• A public functionary
• Usually limited number (hereditary or political grant)
• Person authenticates signatures, public instruments, validates wills, property transfers
• Responsible for accuracy of form (more like US Recorder of Deeds office)
Common Law
• An insignificant public role
• Usually obtainable upon payment of a fee
• Merely attests to identity of person signing
Legal representation
In both civil and common law countries, lawyers and judges play an important role.
Civil Law
the judge is usually the main investigator, and the lawyer's role is to advise a client on legal
proceedings, write legal pleadings, and help provide favorable evidence to the investigative
judge.
Common Law
the judge often acts as a referee, as two lawyers argue their side of the case. Generally, the
judge, and sometimes a jury, listen to both sides to come to a conclusion about the case.
Contracts
Civil Law
Civil law countries on the other hand have a more sophisticated model for contract with
provisions based in the law.
Common Law
Freedom of contract is very extensive in common law countries, i.e., very little or no
provisions are implied in contracts by law.

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CASE STUDY
1. Canexco Ltd., a Canadian engineering company located in Edmonton, is negotiating an
arrangement with an Australian architect and an American steel supplier, whereby the three
companies will form a consortium to construct a new hotel in Hanoi, Vietnam.
Law governing this construction business?
2. You represent a person who was involved in an auto accident in a European country that has a
civil code.
Your client has asked you, "what is the pertinent law in this area?"
Assume that there is no specific auto liability law in effect in this country.
Assume further that there is a law that reads: "Whoever causes damages to another through
fault or negligence must pay the damages so caused."
Where would you expect to find that rule?
What sources would you study in order to answer your client's question and how
would you explain to her their binding effect or reliability?
3. The governments in Germany and the United States are both against hunting endangered
animals in their country, and they both have anti-hunting majorities in their lower chamber of
parliament. By controlling the upper chamber of parliament, pro-hunting parties in each of these
systems hope to be able to stop the adoption of a law prohibiting hunting.
Explain your choice, citing legal provisions where appropriate.
Note that this question is about the lawmaking procedure.
4. France, Germany and Netherlands have all passed a law prohibiting the sale alcoholic drinks on
Sunday. Assume a lower judge in France, a lower judge in Germany and a lower judge in
Netherlands are of the opinion that such a law violates their respective Constitution.
What can be the three judges do about this?
Give reasons for answers, citing legal provisions where appropriate.
5. You worked as the senior chief assistant in the law department of a company (M). You have
been assigned to oversee the negotiation and signing of one of the largest contracts with which M
has ever been involved. The M subsidiary that is most directly involved is located in a state that is
a member of the Convention on International Sales of Goods 1980 (CISG). Three other firms are
also going to be parties to the contract. One is located in a state which has a civil law legal system;
the other is located in a state which has a common law legal system.
Should the parties agree that the CISG will be the governing law, what aspects
of the contract will be governed, nevertheless, by local law?
6. If a driver drives when drunk and causes an accident in which a pedestrian is injured, under
criminal law the state will punish the driver: he may have to go to prison. The primary objectives
of the driver’s imprisonment are punishment and prevention (specific prevention of the driver:

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while he is in prison he cannot commit the same crime again; and his imprisonment may make him
think twice if he wants to drink before driving in the future; general protection of society: others
may learn from the example of the driver and may think twice before drinking and driving).
Another public law sanction may be that in administrative law his driving license may be
temporarily or permanently withdrawn. This sanction serves the same purposes as above.
However, the situation of the injured party is little affected by these remedies.
What aspects of this case will be governed by civil law? Which parts of civil code will
be governed?
7. Imagine that Lien receives an amount of money in her bank account by mistake from someone
she does not even know. By some technical mistake, or the mistake of either the sender or the
employee of the bank, one figure within the 24 digits of the original recipient’s bank account
number was mistyped, and the mistyped bank account number displayed Lien’s account. Even
upon moral considerations, anyone would feel that Lien should return the amount transferred by
mistake. She should not be allowed to keep the money thus received. Yet in this relative
relationship which exists between Lien and the sender of the money, there was no contract: Lien
and the sender did not even know each other. There was no wrongdoing on Lien’s side either: she
did not do anything to get the money, it just, all of a sudden, appeared in her account.
Contract or delict, or not?.
8. Latvian businessman concludes a contract with a Swedish business entity about some joint
investment in Russia. The contract is signed in Estonia during a business fair. What law would
decide such questions whether or not the contract needs to be signed by witnesses or an attorney or
not; or the level of care during performance; or the time and method of performance; etc.
Would it be the law of Latvia, Sweden, Russia or Estonia?
If a legal controversy arises, should the plaintiff turn to a court in Latvia,
Sweden, Russia, Estonia or in some other country?
What happened if a Latvian immigrant to the United States dies and leaves his
European holiday home located on the French Riviera to his Latvian relatives?.
In which country should questions of inheritance be decided, and the inheritance
law of which country should apply?
9. When Dinh and Yen decide, that Dinh will buy Yen’s watch, they both have the option to
decide whether or not Janis will buy and Yen will sell the watch
Whether or not the contract for the sale of Yen’s watch will be valid?.
What the major conditions of the deal should be – price, time and place of
performance, supplementing services?.
Whether or not they will want to start dating each other and later on be married
to each other?.

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FURTHER READING
Rodrigo Sadi, Legal Education and the Civil Law System, 62 N.Y.L. SCH. L. REV. 165
(2017-2018).
The comparative analysis of the contents and structures of the Ethiopian Civil Code Vis-à-vis
the major european codes, International Journal of Current Research Vol. 10(Issue, 11,
November, 2018)
Comparative Civil Procedure: A Guide to Primary and Secondary Sources,
[Link]
William Tetley, Mixed jurisdictions : common law vs civil law (codified and uncodified),
[Link]

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