THERE ARE two highly influential legal traditions in the contemporary world: civil law and common law. This book is about the older, more widely distributed, and more influential of them: the civil law tradition.
The reader will observe that the term used is “legal tradition,” not “legal system.” The purpose is to distinguish between two quite different ideas. A legal system, as that term is here used, is an operating set of legal institutions, procedures, and rules. In this sense, there are one federal and fifty state legal systems in the United States, separate legal systems in each of the other nations, and still other distinct legal systems in such organizations as the European Union and the United Nations. In a world organized into sovereign states and organizations of states, there are as many legal systems as there are such states and organizations.
National legal systems are frequently classified into groups or families. Thus, the legal systems of England, New Zealand, California, and New York are called “common law” systems, and there are good reasons to group them together in this way. But it is inaccurate to suggest that they have identical legal institutions, processes, and rules. On the contrary, there is great diversity among them, not only in their substantive rules of law but also in their institutions and processes.
Similarly, France, Germany, Italy, and Switzerland have their own legal systems, as do Argentina, Brazil, and Chile. It is true that they are all frequently spoken of as “civil law” nations, and we try in this book to explain why it makes sense to group them together in this way. But it is important to recognize that there are great differences between the operating legal systems in these countries. They have quite different legal rules, legal procedures, and legal institutions.
In former editions of this book a third major legal tradition was briefly recognized. For much of the twentieth century, socialist law reigned in the Soviet Empire, China, and several other nations that embraced state socialism. At that time, even in the official language of diplomats a sharp distinction was made between the first (capitalist) world, the second (socialist) world, and the third (developing) world. Socialist law embraced the political and economic premises and objectives of state socialism, implying a distinctly different vision of the state, law, and society. Indeed, during the height of Soviet state socialism there was an organized effort to construct an independent and valid socialist legal tradition. However, most of the nations with socialist law had previously been participants in the civil law tradition, to which they reverted when the socialist law superstructure collapsed.
Such differences in legal systems are reflections of the fact that for several centuries the world has been divided into individual states, under intellectual conditions that have emphasized the importance of state sovereignty and encouraged a nationalistic emphasis on national characteristics and traditions. In this sense, there is no such thing as the civil law system or the common law system. Rather, many different legal systems exist within each of these two groups or families of legal systems. But the fact that different legal systems are grouped together under such a rubric as “civil law,” for example, indicates that they have something in common, something that distinguishes them from legal systems classified as “common law.” It is this uniquely shared something that is here spoken of as a legal tradition and that makes it possible to speak of the French and German (and many other) legal systems as civil law systems.
A legal tradition, as the term implies, is not a set of rules of law about contracts, corporations, and crimes, although such rules will almost always be in some sense a reflection of that tradition. Rather, it is a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught. The legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legal system into cultural perspective.
Of the great variety of living legal traditions, the two mentioned above are of particular interest because they are in force in powerful, technologically advanced nations and because they have been exported, with greater or lesser effect, to other parts of the world. Of the two, the civil law tradition is both the older and the more widely distributed. It goes back to Roman law, for which historians use the year 450 BC, the supposed date of publication of the Twelve Tables, as the beginning of Roman law. Historians also highlight that the great development happened in the classical period (100 BC to AD 250), and another great moment was the compilation of the classical jurisconsults’ opinions by Emperor Justinian in AD 533. The civil law tradition is today the dominant legal tradition in Europe, all of Latin America, many parts of Asia and Africa, and even a few enclaves in the common law world (Louisiana, Quebec, and Puerto Rico). The civil law was the legal tradition familiar to the European scholar-politicians who were the founders of international law. The basic charters and the continuing legal development and operation of the European Union are the work of people trained in the civil law tradition. It is difficult to overstate the influence of the civil law tradition on the law of specific nations, the law of international organizations, and international law.
We in the common law world are not accustomed to thinking in these terms. Hence, it bears repeating that the civil law tradition is older, more widely distributed, and more influential than the common law tradition. In these senses, at least, it is more important. It should be added that many people believe the civil law to be culturally superior to the common law, which seems to them to be relatively crude and unorganized. The question of superiority is really beside the point. Sophisticated comparative lawyers in both traditions long ago abandoned discussions of relative superiority or inferiority. But it is to the point that many people think that their legal system is superior to ours in the United States. That attitude itself has become part of the civil law tradition.
Hence lawyers from a relatively undeveloped nation may be convinced that their legal system is measurably superior to that of the United States or Canada. Unless they have cultivated the comparative law, they may be inclined to patronize a common lawyer. They will recognize the more advanced economic development or envy the standard of living of the other country, but they will find compensatory comfort in thinking of common lawyers as relatively uncultured people. The mirror attitude is also frequent. There are common lawyers who think their legal system and their legal cultures are clearly superior because the country is wealthier or politically more stable. Failure to take these attitudes of some civil lawyers and common lawyers into account can result in misunderstanding and difficult communication. One of the purposes of this book is to enable a better dialogue between civil and common lawyers.
The date commonly used to mark the beginning of the common law tradition is AD 1066, when the Normans defeated the defending natives at Hastings and conquered England. If we accept that date, the common law tradition is well over nine hundred years old. As a result of the remarkable expansion and development of the British Empire during the age of colonialism and empire, however, the common law was very widely distributed. It is today the legal tradition in force in Great Britain, Ireland, the United States, Canada, Australia, and New Zealand, and it has had substantial influence on the law of many nations in Asia and Africa. The birth of the civil law tradition is foggier. Civil lawyers claim to be the inheritors of Roman law, and the translation of this book into Spanish presents it as the tradition of Roman and canonical law. Spanish, Portuguese, and French colonialism expanded it in the world.
Although Japan and China were not colonized by any European country, by the end of the nineteenth century or the beginning of the twentieth they had imported codes and other instruments of the civil law tradition. That is why many jurists from Japan, Korea, and China think of themselves as part of the civil law world. Still, comparative lawyers recognize a distinct tradition in East Asia, whose cultures emphasize social harmony and respect for social hierarchies. Some observers relate these traits to Confucian thought and suggest the existence of a Confucian legal tradition. Certainly, Japanese law and legal culture are not substantially similar to those in Germany, even if the civil code is practically the same and German law books have an audience in Japan. American public law has a strong influence in Japan and Korea, but no one would suggest that they are common law nations.
The Islamic world has felt a variety of significant legal influences. Early in the twentieth century Turkey imported the Swiss civil code as part of its modernization process. Lebanon and Algeria, colonized by the French, received the French law but later became independent and followed their own paths. Other countries, like Yemen and Saudi Arabia, were less influenced by Western law. In many countries with large Islamic populations, their religion has had a vigorous revival and has produced a renewed emphasis on Islamic legal traditions. Still, much secular law in those nations has its origins in the civil law and common law traditions.
The civil law and common law have not been isolated from each other. As components of a common Western history and culture they have had multiple contacts and reciprocal influences. Common lawyers and civil lawyers coexisted in England for centuries. The constitution of the United States could be partially explained by the influence of the European Enlightenment. Later, United States constitutionalism had an enormous influence in Latin America and Europe. Judicial review, for example, is now firmly embedded in both traditions. The condominium, a civil law invention, has been enthusiastically embraced in the United States, and many civil law systems have incorporated the common law trust. The education of lawyers in universities, perhaps the most distinctive trait of the civil law tradition, is now accepted in common law countries.
The fact that these two legal traditions are of European origin should give us pause. There are, of course, many other legal traditions in today’s world, and new ones are forming. The dominance of the two traditions of which we have spoken is the direct result of European imperialism in earlier centuries, just as the dominance of Roman law in an earlier age was a product of Roman imperialism.
Historians are used to dealing with the coexistence of permanence and change in human affairs. Although we do not here purport to be writing legal history, our discussion of the civil law tradition necessarily treats it as something that endures, even as particular elements of the legal systems that share that tradition rise, fall, and evolve. The civil law tradition we describe would not be recognizable to lawyers in France or Spain in the eighteenth century, just as Wall Street lawyers are quite different from the serjeants-at-law in Elizabethan times. Change and permanence in the traditions are some of the issues we discuss in this book.