Civil Law

From dKosopedia

Category: Law

Except for a few countries which have either a British legal tradition, known as Common Law countries, or a handful that have their own unique legal systems (such as China and Iran), the countries of the world use what are called a "Civil Law" system.

Civil Law countries have a "Civil Code" usually based either on the French Civil Code established by Napoleon (which in turn has some basis in the Roman Empire's Civil Law), or on the German Civil Code, established in the tradition of "German legal science" as a refinement of the French Civil Code. This Civil Code sets out in a single book the law of contracts, torts, property, inheritance, family law, guardianship and a number of other concepts relating to relations between private individuals in an organized, terse fashion. A Civil Code is often viewed as a more important legal document than the constitution of the country to the people. The ease with which a Civil Code could be adopted by a country with no history of a Westernized court system is one of the main reasons the Civil Law system has been favored outside of Europe by developing and undeveloped countries. In contrast, in a Common Law court system, a huge, disorganized collection of cases provide the source of the law.

The term Civil Rights which now has a specialized meaning in the U.S. legal culture, once referred to the rights granted by a Civil Code or their Common Law equivalents.

Most Civil Law countries have judges who are more similar to ordinary civil servants than political actors. Judging is a seperate profession, and not a second career that one works one's way into after a long and successful career as a private or public lawyer. Civil Law countries almost never give ordinary judges either the power of "judicial review" (i.e. the ability to invalidate a law based on higher legal principals, something usually reserved for a special "Constitutional Court" in such countries), the power to impose punitive damages, or the "Contempt of Court" power (i.e. the power to enforce an order to take specific actions or to punish disrespectful action in the courtroom summarily with imprisonment or a fine). Most Civil Law countries also treat "Public Law" (i.e. suits challenging government actions) in a seperate court or quasi-court system such as the French Council of State. Also, while "Common Law" judges are allowed to adapt the law to fit unexpected situations reasoning from general principals to even create entirely new kinds of lawsuits over time, "Civil Law" judges are expected to apply legislatively enacted statutes only. As a result, much of the political power of judges in the U.S. Court system is not present in Civil Law courts (although it is not completely absent).

In non-criminal cases, Civil Law countries generally hear cases in the "First Instance" (i.e. at the "trial court level") in a series of hearings before either a single judge (in less important cases), or an "investigating judge" who acts on behalf of a panel of three judges (in more important cases). Proceedings are often conducted in an office environment and are far less dramatic. Advanced contact by lawyers for a party with a witness is generally considered unethical in the Civil Law system. Court proceedings are generally recorded only with the judge's notes and not with a Court Reporter taking a verbatim transcript of the proceedings. A dissatisfied party may appeal both findings of fact and findings of law made by the "First Instance" court to a higher court. Typically, a "Supreme Court" in a Civil Law country will have dozens of judges, organized by subject matter expertise, rather than the handful of judges found on the Supreme Court's in "Common Law" court systems.

Many Civil Law countries have criminal law procedures influenced by, but not copying, American jury trials. One of the key structural differences between Civil Law criminal justice systems and the U.S. system is that in Civil Law systems, the prosecutors generally have a duty to prosecute all crimes of which they have notice, while in the U.S., prosecutors have near absolute discretion to prosecute or not prosecute a case, regardless of the merits, based on policy grounds.

Civil Law countries generally approach "Public Law" (i.e. suits against the government) from the assumption that the government generally is subject to the rule of law. In contrast, Common Law countries generally approach "Public Law" from the assumption that the government called the "Sovereign" in the British tradition, is immune from all liability except where the government has specifically consented to liability (such as in a contract, or in a statute authorizing particular claims on particular terms).