The New International Encyclopædia/Civil Law
CIVIL LAW. (1) The law applicable to the citizens (cives) of a particular State (civitas). The Romans used the term jus civile in this sense, distinguishing it from the law observed by all nations (jus gentium), and from the ideal law of nature (jus naturale). (2) The Romans also described their ordinary law, established by custom and by legislation, as their civil law, distinguishing it from the law introduced by the edicts of their magistrates very much as we distinguish common law from equity. (3) In the Middle Ages, civil law meant Roman law as set forth in the law books of Justinian, in distinction from the ecclesiastical or canon law. In England, at the same period, civil law meant Roman law as distinguished from English law. (4) Because the part of the Roman law which has most influenced European legal development is that part which deals with the ordinary relations of private persons, civil law has come, in modern European usage, to mean private law in general, without regard to its origin, as distinguished from public law. (5) In modern English usage, civil law includes and designates all the existing systems of private law that are in the main based on the Roman law. Civil law in this sense is a blend of Roman, Teutonic, ecclesiastical, and purely modern institutions and rules, fitted into a framework which is still substantially Roman. It prevails not only upon the Continent of Europe and in the dependencies of the Continental European States, but also in Scotland and in many parts of the world that were first colonized and civilized by the Portuguese, Spanish, Dutch, or French, and which today are independent (Central American and South American republics), or are under the rule of Great Britain (e.g. South Africa, some of the West-Indian islands, the Province of Quebec) or are now included in, or belong to, the United States (e.g. Louisiana, Porto Rico, and the Philippines). It is also finding its way, in some measure, into non-Christian portions of the world (e.g. Turkey and Japan).
HISTORY OF THE CIVIL LAW.
I. The Roman City Law (jus civile), during the Royal Period (down to about B.C. 500), was largely religious in its character. The patricians had ‘sacral,’ or religious, customs which controlled the public law of the city and regulated their own family relations. The so-called Royal Laws (leges regiæ), of which some fragments have been preserved, were obviously priestly formulations of these customs. The plebeians apparently had no share in this religious law, and they certainly had special forms of marriage and of testament. The customs regulating property and debt were the same for both orders, and were secular in their character. The interpretation of all law, however, whether religious or secular, rested with patrician priests; and after the expulsion of the kings the enforcement of the law was in the hands of patrician magistrates. In consequence of plebeian complaints and agitation, the non-political custom of the city was reduced to writing; and the Law of the Twelve Tables, thus drafted, was submitted to and accepted by the popular assembly (c.451-50 B.C.) This code, of which numerous fragments have come down to us, set forth simple rules suitable to an agricultural community, in a remarkably clear and terse fashion. It established equal law for both orders, except in the matter of marriage; and a few years later (c.445 B.C.) even this inequality was removed. This law was prized by the Romans as a charter of liberties, and they were reluctant to amend its provisions by legislation. The necessary development of the law was therefore obtained during the following three centuries by interpretation. For two centuries the priestly order remained the authoritative interpreters; but after B.C. 252, when a plebeian became pontifex maximus, the legal system lost its predominantly religious character. With the expansion of Rome, its law was extended over Latium; but the Roman city law was not applicable to the Italian allies (socii), unless expressly made so by treaty. The best reconstruction of the Royal Laws is that of Voigt; of the Twelve Tables, that of Dirksen and Schöll. Both may conveniently be consulted in Bruns, Fontes Iuris Romani Antiqui, Leges et Negotia (6th ed., Mommsen and Gradenwitz, editors, Leipzig, 1893).
II. Roman Mediterranean Law (jus gentium).—The extension of Roman rule over the Mediterranean basin compelled the Romans to work out a new system of law. The Roman city law was not, in theory, applicable to the provincials, since these were not citizens, but subjects; and it would have been ill suited to the needs of Mediterranean commerce. Between the years B.C. 250 and 150, the new law required was developed: (1) in the edict of the pretor of the foreigners (prætor peregrinorum), who administered justice in Rome in all controversies except those in which both parties were citizens; and (2) in the edicts of the provincial governors (proconsuls and propretors). In matters of purely local interest (e.g. family relations and inheritance) the provincial edicts apparently preserved local usages; but in matters of commercial interest the provincial edicts were patterned after the edict of the foreign pretor in Rome. A common law of property, of contracts, and of judicial procedure was thus established for the entire Mediterranean basin. The sources of this law, according to the Romans, were the usages of all the ancient peoples (jus gentium) and natural reason. During the last century of the Republic, the rules of the new system were gradually made applicable to controversies between Roman citizens. This was accomplished in the edict of the city pretor. In this edict, moreover, the Roman law of inheritance was modified and made more equitable. Of the city edict in its final form, much has been preserved. The best reconstruction is that of Lenel, Das Edictum Perpetuum (Leipzig, 1883).
III. Roman Imperial Law.—At the close of the Republican Period. Roman citizenship had been extended throughout Italy. Under the Empire it was gradually extended through the provinces, until, early in the third century, Caracalla made all the free inhabitants of the Empire Roman citizens. With this change the city law of Rome became, in theory, the law of the Empire. The pretor of the foreigners and his edict disappeared; but the city edict and the provincial edicts remained in force. These, however, had ceased to develop; the city edict received its final revision in the reign of Hadrian (A.D. 117-138). During the first three centuries of the Empire, the law was developed partly by legislation, proceeding from the Emperor and the senate, partly by juristic interpretation. Legislation gradually effaced provincial diversities; interpretation fused the city law and the pretorian law into a harmonious system. In this period, the leading jurists were drawn more directly than before into the administration of justice. Three of the most famous, Papinian, Paul, and Ulpian, were successively chief justices of the Roman Empire. The juristic literature of the late Republic and early Empire (B.C. 100 to A.D. 250) was very extensive, and of the highest order of excellence. It consisted largely of the collection and criticism of recorded decisions (responsa) and the scientific formulation of the principles on which they were based; that is, it was substantially a progressive digesting of case law. Little of this literature has been preserved, except in the Digest of Justinian. Of the works which have survived—which may conveniently be consulted in Huschke, Jurisprudentiæ Antejustinianeæ quæ supersunt (5th ed., Leipzig, 1886)—the most important are the Institutes of Gaius and fragments of Paul's Sentences and Ulpian's Rules. (Gaius has been translated by Poste, Oxford, 1871, 3d ed. 1890; Gaius and Ulpian by Abdy and Walker, Cambridge, Eng., 1876, 3d ed. 1885; and by Muirhead, Edinburgh, 1880, 2d ed. 1895.)
IV. Codification.—After the middle of the third century, the law was developed solely by Imperial constitutions, viz. decisions (rescripta) and enactments (leges). The first attempts at codification were systematic arrangements of these constitutions. Such were the Codex Gregorianus (about A.D. 295) and a supplementary Codex Hermogenianus, published in the following century. These were private compilations. The first official revision of the Imperial laws was made under the direction of the Byzantine Emperor Theodosius II. The Codex Theodosianus was published A.D. 438, not only in Constantinople, but also, by arrangement with Valentinian III., in Rome. The greater part of this code has come down to us. The fullest edition is by Hänel, 1842. Some additional fragments have been edited by Krüger (1880). Theodosius had entertained, but did not carry out, a broader plan, involving an official digest of the older law, as set forth in the juristic literature. This plan was taken up by the Byzantine Emperor Justinian, and carried out under the direction of his minister, Tribonian. The law books published by Justinian were: (1) Institutes (November 21, A.D. 533). This book, which sets forth the elements of the law, is based on the Institutes of Gaius. It was intended primarily for law students, but it was published with statutory force. (2) Digest or Pandects (December 16, 533), a full exposition of the older law, civil and pretorian. It is composed of excerpts from the juristic literature of four centuries (c.100 B.C. to c.300 A.D.)—chiefly, however, from the literature produced between A.D. 150 and A.D. 250. The greater part of the excerpts seem to have been reproduced without change; but antiquated terms were replaced by those current in the sixth century, and in some cases the passages quoted were condensed or amplified. Like the literature from which it was compiled, the Digest is substantially a collection of case law. (3) Codex (April 7, 529; ‘second reading,’ December 17, 534)—a revised collection of Imperial constitutions, based on the earlier codes and replacing them. The language of these law books is Latin, although some passages in the Digest and many of the constitutions in the Code are in Greek. During the remaining years of his reign, Justinian issued many new constitutions (novellæ), mostly in Greek; but of these no official compilation was made. The combination of the Novels with the other law books of Justinian, under the general title Corpus Juris Civilis, dates from the twelfth century. The best edition is that by Mommsen and Krüger. There are complete French and German translations of the Corpus Juris, but only the Institutes have been translated into English (Moyle's Institutes, 2d ed. 1890). For the history of Roman law to Justinian, the best English work is by Muirhead, Historical Introduction to the Private Law of Rome (2d ed., Edinburgh, 1899).
V. Roman and Teutonic Law in the Middle Ages.—The law books of Justinian remained in force in the Byzantine Empire until the end of the ninth century, when they were condensed into a single Greek code, the Basilica. This, in its turn, remained nominally in force until the capture of Constantinople, by the Turks, in 1453; but, in fact, briefer private compilations were more generally used. One of these, the Hexabiblos, made in Thessalonica (Salonica) in 1345, had legal authority in Greece as late as the nineteenth century. In the Teutonic kingdoms established on the ruins of the Western Roman Empire, the conquered Romans continued to live (at least in their relations with one another) by the Roman law: and in some cases official compilations of Roman law (antedating those of Justinian) were made for their use. The most important of these was the Lex Romana Visigothorum, compiled at Aire, in Gascony, under the authority of Alaric II. and published A.D. 506, and commonly known as the ‘Breviary of Alaric’ (q.v.). It included Imperial constitutions, a condensation of the Institutes of Gaius, and passages from Paul's Sentences. Until the eleventh century, it was the principal source from which Roman law was drawn in western Europe. Even earlier, in the reign of Euric (466-84), the Visigoths had begun to reduce their own law to written form, and their example was followed by other Teutonic tribes. So came into existence the Leges Barbarorum (as they were termed afterwards), written in Latin, and exhibiting more or less Roman influence. The most important of these are: The Lex Antigua of the Visigoths, the law of the Burgundians (Lex Gundobada) , and the law of the Salian Franks (Lex Salica), all dating from the close of the fifth century; the law of the Ripuarian Franks, dating from the close of the sixth century; and the law of the Longobards, compiled in the seventh century. In Spain Visigothic legislation developed, in the course of the seventh century, into an elaborate code, the Lex Visigothorum (later known as the ‘Forum Judicum’ or ‘Fuero Juzgo’). It is a blend of Teutonic, Roman, and ecclesiastical law, and it bound Goths and Romans alike. In the eighth century this national development was arrested by the Moorish Conquest of the Iberian Peninsula. In the Frankish Empire (which, in the course of the eighth century, came to include all Christian Europe, except Great Britain and Ireland and the Byzantine Empire) the system of the ‘personal statute’ prevailed: each German tribe lived by its own law, and the people representing the Roman element in Gaul, Burgundy, and Italy lived by Roman law. Here also, as in Spain, new law (in this case European law) was in process of creation by Imperial legislation (capitularies) and the decisions of the Imperial courts; but in the ninth century this development also was arrested by the disruption of the Empire. In the new nations in process of formation, the royal authority was too slight either to enforce the old Frankish laws or to develop new national law. With the gradual disappearance of racial distinctions, the leges barbarorum became obsolete, and the ‘personal statute’ was supplanted by local law, largely customary in character. In southern France and in central and southern Italy, where the Roman element was strongest, the local laws were mainly Roman; in Germany and in northern France, they were mainly Teutonic; in northern Italy and in Spain, Roman and Teutonic rules were more equally blended; but each local system, in the absence of any appellate jurisdiction, developed independently. Across these local differences ran class distinctions; there were separate courts and different laws for the nobles, the peasants, and the townsmen. In most of these courts judgments were rendered by men familiar with the customs of their locality or their class (scabini, échevins, Schöffen), but without other legal training. The most important body of written law produced in this period (except the canon law) was a twelfth-century Lombard code of feudal law (Libri Feudorum), which obtained great authority throughout Europe. Many city laws, and not a few territorial and local customs, were also put into written form, usually by private persons. Among the more important are the so-called Etablissements de Saint Louis (1272 or 1273), the Grand coutumier de Normandie (1270-75), and the Mirror of the Saxons (Sachsenspiegel, about 1230).
VI. Canon Law.—Throughout the Middle Ages, there existed still another set of courts—viz. the ecclesiastic courts—applying a law which was not local, but European, and which bound all Christians. From the ordinary judge (judex ordinarius), the bishop or his surrogate, appeals ran to Rome, and the interpretation of the canon law was kept uniform by the decisions of the Papal Curia. In the Pope and the General Council the Church possessed also effective legislative organs. Canon law profoundly affected the development of European law in many matters; in particular, it gave Europe a common law of marriage and of family relations and rational forms of judicial procedure. For the development of the ecclesiastical law as a whole, and for its codification, see Canon Law.
VII. Reception of the Law Books of Justinian.—Till the eleventh century, the only texts of Roman law that were most used in Western Europe were the ‘Breviary of Alaric’ and similar scanty compilations. In the eleventh century, however, the law books of Justinian were studied and used in Lombardy, in southern France, and in Barcelona; and there was a regular law school in which the laws of Justinian were taught at Pavia. Early in the twelfth century a more thorough and minute study of these texts, particularly of the Digest, was inaugurated at Bologna by Irnerius; the canon law was taught with equal thoroughness; and by the close of the century the University of Bologna had 10,000 students, largely foreigners from all parts of Europe. Before the end of the thirteenth century law schools were established in twelve other Italian cities. From Italy the systematic study of the civil and canon laws spread through Europe. In Italy the text of Justinian was ‘glossed’—i.e. furnished with a running marginal commentary; and in the thirteenth century one Accursius digested the glosses of his predecessors and produced what came to be recognized as the standard gloss. The revival of the study of the law books of Justinian was followed, in many parts of Europe, by the ‘reception’ of these books as authoritative law; where, as in Italy and southern France, Roman law of a sort was already in use, the substitution of fuller and better texts was a simple matter, and here the reception came early. In Germany and the Netherlands it came late; it was not completed until the beginning of the sixteenth century. The reception was facilitated, especially in Germany and Italy, by the theory of ‘continuous empire,’ which viewed the Roman emperors as legal predecessors of the mediæval kings and princes. The reception, further, was in part the result, and in part the cause, of a gradual change in the organization of the courts, judges learned in the civil and canon laws taking the place of the scabini, or lay judges. The fundamental cause, however, of the reception of ancient Roman law was the inadequacy of mediæval law. The revival of commerce, in the twelfth and following centuries, and the social changes which ensued, necessitated a more highly developed law. The first result of the revival of commerce was the reception, throughout Europe, of the ancient law merchant, which had survived in the eastern Mediterranean region; but this law was applicable only to traders, and its reception did not solve the problems that were raised by the increasing importance of personal property. Hence the subsequent reception of the entire Roman private law. In those parts of Europe where economic conditions changed more slowly and local customs longer remained adequate—e.g. in Switzerland, in the Scandinavian kingdoms, and in Russia—the law books of Justinian were not received. These countries became civil-law countries later, partly through the influence of the universities, partly by borrowing or imitating French and German legislation. A second and negative cause of the reception was the inability of the mediæval State to work out the new law that was required. In those countries in which central legislative power existed, or in which appeals were running to a supreme court, the law books of Justinian were not received. They were not received in England, nor in northern France, nor in Aragon; and in Castile the Roman law, as taught in the universities, was received only indirectly, in the form of an independent Spanish code—viz. the law of the ‘Seven Parts’ (Las Siete Partidas), prepared under the auspices of Alfonso X. (1252-84). Even in those countries in which the Imperial Roman law was not received in gross, there was, nevertheless, more or less reception in detail; that is, special institutions and rules were borrowed. Where the law books of Justinian were received, they were applied: (1) as modified by the canon law; (2) as interpreted by the Italian commentators; (3) as subsidiary law, not overriding, but only supplementing, local laws. The judges trained in the Roman law were, however, not friendly to local laws. They insisted that such laws must be proved to be in force; and where the local law was unwritten, it was not easy to convince them of its validity.
VIII. Modern Codification.—In Spain and in France, the earlier modern codes were collections of provincial and local laws—viz. the laws (fueros) of the different Spanish provinces and cities and the revisions of the same, dating from the thirteenth century to the nineteenth; and the customs (coutumes) of the French provinces, published under royal authority in the fifteenth and following centuries. In Germany and in Italy the earlier modern codes were State codes—e.g. those of Bavaria (1756), Prussia (1794), Baden (a translation of the Code Napoleon, 1809), and Saxony (1863); and those of the Two Sicilies (1819), Parma (1820), Piedmont-Sardinia (1837), and Modena (1851).
The principal civil codes now in force in Europe are national codes. The oldest of these is the French Civil Code, commonly known as the Code Napoléon, promulgated in 1804. It is still in force in Belgium, and it has served as a model for much subsequent codification, especially in Latin countries. The Austrian Civil Code dates from 1811. The Italian Civil Code was published in 1865; the Spanish Civil Code in 1888-89; both of these are based upon the French Code. The German Civil Code was published in 1896, and has been in force since 1900. All of these codes, except the Spanish, have supplanted the older provincial and State codes; indeed, the chief object with which they were framed was to create common national law. Nearly all of the smaller European States have civil codes. In Switzerland, where cantonal codes are still in force, there is already a federal code of obligations, and a general civil code is in preparation.
In America, French law has been codified in Lower Canada (now the Province of Quebec; Code of 1805) and in Louisiana (Code of 1808, amended 1824, and since from time to time revised). In nearly all the Spanish-American States, the civil law has been codified, with the Code Napoléon as the chief model. The more important of these codes are those of Bolivia (1831), Peru (1851), Chile (1855), Uruguay (1868), Argentina (1869), Mexico (1870, revised 1884), Colombia (1873, revised 1887). Identical with the Chilean Code, or based upon it, are the codes of Nicaragua (1867), Guatemala (1882), Salvador, Honduras, Venezuela (1880), Costa Rica (1884), Ecuador (1890). The Argentine Code was adopted by Paraguay in 1889. The Spanish Civil Code of 1889 is in force in Cuba, Porto Rico, and the Philippines. To this list of civil-law codes should be added the new Civil Code of Japan (1898), since its provisions, except as regards the family, are largely drawn from modern European codes. A general history of European law is yet to be written, although there are good histories of the law of Germany, Italy, France, Spain, etc. Consult Savigny, Geschichte des römischen Rechts im Mittelalter (2d ed. Heidelberg, 1834-51), which is still the most important general work. There are special works on the reception of Roman law by Schmidt (Göttingen, 1868) and Modderman (Groningen, 1874).