Civil Law (Part II End)
III GEOGRAPHICAL EXPANSION
From its origins in continental Europe, the civil law gradually spread to all of the areas in Africa, Asia, and Latin America that were colonies of France, the Netherlands, Belgium, Spain, or Portugal. When they gained independence, most of the former colonies continued the civil-law orientation of their legal systems. Other nations that voluntarily adopted civil-law systems include Japan, South Korea, Thailand, and Turkey.
In a number of countries, moreover, the civil law constitutes an important component of a mixed legal system. For example, in Scotland, South Africa, and Sri Lanka the legal system combines civil- and common-law elements. In North America, the same phenomenon can be observed in the state of Louisiana and in the province of Quebec. The legal systems of many North African and Middle Eastern nations are strongly influenced by the French civil-law codes, even though in some areas of law—especially those relating to the family and to family property—these countries tend to follow Islamic tradition (see Shari’ah Law).
IV COMPARISON OF CIVIL LAW AND COMMON LAW
The codes of civil law and court procedures vary widely, but in general, they are distinguished from the common law in several significant ways. In contrast to the uninterrupted evolution of common law, the development of civil law was marked by a major break with the past, which occurred as the result of the 19th-century codification efforts. In civil law, judicial interpretations are based primarily on this system of codified written law, rather than on the rule of precedent that is emphasized in the common law. The law of evidence, so important in common-law countries, has no counterpart in the civil law.
Much more systematically than the common law, the civil law separates public and private law. In most civil-law nations, public-law disputes are determined by a hierarchy of administrative courts, which are separate from the ordinary courts that have jurisdiction over private-law disputes and criminal cases. In common-law countries, private- and public-law disputes are usually determined by the same courts.
Trial by jury, a major feature of the common-law system, is not often used in the civil law. In the United Kingdom, a jury is never employed in the determination of civil disputes. In some civil-law countries, laypeople participate in the adjudication of criminal cases; generally, however, these laypeople do not sit as jurors but act as judges who, together with professional judges, decide on the innocence or guilt of the accused and on the sentence to be imposed.
Other differences are also apparent. The approaches of the two types of legal systems differ, for example, in matters of contractual law and freedom of gestation. The civil-law systems go further in implementing the principle of freedom of contract, by specifically upholding almost all contractual promises and by enforcing penalty clauses. Freedom of gestation, on the other hand, is more restricted in civil-law nations, where the testator’s children—and not only a surviving spouse—receive a certain portion of a parent’s estate regardless of the provisions of the will.
The differences between civil law and common law, however, should not be overstated. Despite divergences in methods and terminology, a basic similarity is found in the ultimate results reached by both systems. The trend is towards a closer relationship between the approaches of the common law and the civil law.