Institute of Foreign and Comparative Law

The characteristic features of the Civil Law

Author(s): AJGM Sanders
Source: The Comparative and International Law Journal of Southern Africa, Vol. 14, No. 2
(JULY 1981), pp. 196-207
Published by: Institute of Foreign and Comparative Law
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The characteristic features of the Civil
Law*
AJGM Sanders**
Institute of Foreign and Comparative Law
University of South Africa

Introduction

The theme of my address immediately raises the question: "Why stud

the laws of others ; are there not enough problems involved in mastering ou
own law?" The answer is that the more one takes cognizance of the law
of others, the less problems one experiences in understanding one's own law
A study of foreign laws - provided, of course, that it is performed in
scientific fashion - is bound to result in a clearer grasp of domestic la
and, beyond that, of the phenomenon "law" in general. Such a study woul
in addition not only assist one in improving one's one law but would also
further international understanding. In the case of our continent, I may
even add intercommunal understanding for the teaching of tribal and re
ligious laws is often neglected at our law schools with the result that for
many, if not most university trained lawyers in Africa, these laws too, bear
a foreign stamp.

The second question that calls for an answer, is: "How should laws be
classified and compared?" As far as their classification is concerned, the
numerous national, tribal and religious laws that exist can, with the help of
the comparative law discipline,1 be reduced to a limited number of cate
gories. This is done on the basis of certain general criteria. Regrettably,

*This is the annotated text of the first of two guest lectures prepared for the law depart
ments of the University of Sierra Leone and the University of Malawi. The second
lecture which deals with the characteristic features of the Southern African legal system,
will be published in a subsequent issue of this journal. I wish to make use of this
opportunity to thank the abovementioned institutions for the hospitality bestowed on
me during my visit in January of this year.
**BA (Pretoria) LLB (South Africa) LLM (Victoria, NZ)
*With regard to the history, nature and functions of comparative law, see David and
Brierley Major Legal Systems in the World Today 2ed 1978 1-16; Ebert Rechtsvergleichung
1978 172-208; Gutteridge Comparative Law 1949 (reprint 1971) 11—40; Rheinstein
Einführung in die Rechtsvergleichung 1974 11-76 and Collected Works vol I 1979 239-250;
Rotondi Inchieste di Diritto Comparato (2) - Aims and Methods of Comparative Law 1973;
Zajtay "Aims and Methods of Comparative Law" (1974) 7 CILS A 321; Zweigert and
Kotz Einführung in die Rechtsvergleichung (of which there is an English translation by
Tony Weir) vol I 1971 1-27, 48-66.

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 Characteristic features of the Civil Law 197

comparative lawyers are not always in agreement on this matter.2 In my

opinion macro-comparative law, or the study of the classification of laws,
should employ two criteria or tests, namely, ideology and legal technique.
These should be two distinct criteria because varying laws may adopt the
same or a similar ideology, yet differ in the technique they are, or, vice
versa, they may follow more or less the same technique, but operate on a
different ideological basis.
For present purposes, I can limit myself to a classification of laws
according to the criterion of legal technique. The meaning and content of
this criterion will become apparent from the main theme of this paper.
In using the criterion of legal technique, one should, in my opinion,
distinguish first of all between speciali2ed and non-speciali2ed legal systems.
It is a typology which naturally flows from the belief, and actual practice
in "developed" circles, that a distinction should be drawn between law,
public morality and religion; that law should be divided into compartments
according to various individual and public needs; and that it should be
stated and administered on that basis. To a greater or lesser degree, tribal
and religious laws lack such specialization and may therefore be termed
' 'non-specialized".
In both categories, ie the specialized and the non-specialized legal
systems, a number of subdivisions can be made. The main division within
the category of the specialized systems is that between the Civil Law group
and the Common Law group. As a result of European colonization modern
Africa is very much part of this division. This division is a very broad one.
Because of the American and Russian Revolutions, respectively, both the
Common Law and the Civil Law groups lost much of their original homo
geneity, so much so that today we may distinguish between the English
branch of the Common Law and its American off-shoot, and within the
Civil Law group, between the Western or Capitalist branch and the Eastern
or Communist one. The possibility is not excluded - in fact, the signs are
already there - that the recent Anti-Revolution will further weaken the
unity within both groups.
For purposes of this paper I shall confine myself to the original branches
of each group, the reason being that, with relatively few exceptions, these
are the systems that have been exported to Africa and which still dominate
the African legal scene. Therefore, when I refer to the Civil Law, I have
Western Civil Law in mind, and when I refer to the Common Law, English
law serves as the prototype.
Of course, the comparative law discipline should not stop at classifying
laws but should also assist in comparing them in detail. The comparison of
laws, subsequent to their classification, constitutes the field of micro-compara
tive law. Although a consideration of the micro-comparative law discipline

2Compare, for example, David and Brierley 17-29; Ebert 38-44; Eörsi in Rotondi 179—
209; Lawson "The Field of Comparative Law" (1949) 61 Juridical Review 16 at 23;
Rheinstein (1974) 77-114; Rozmaryn in Rotondi 585-589; Schlesinger Comparative Law
3ed 1970 251-254; Zweigert and Kötz 67-80.

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198 XIV CILS A 1981

lies beyond the scope of this paper, at least its "golden rule" shou
mentioned.3 After all, it is my intention to encourage you to underta
micro-comparative law studies. The golden rule of micro-comparative la
"Compare the comparable" or "Like must be compared with like".
parable are those rules which in respect of the same or a similar probl
serve the same or a similar problem-solving function. All this may sou
rather obvious; yet when one is searching for comparables the gre
caution must be exercised. Firstly, differences in ideology or technique
render comparison extremely difficult and at times even futile. Secon
what is in one country governed by law, may in another be regul
perhaps more efficiently, by extra-legal forces such as religion, p
morality or gentlemen's agreement. Thirdly, different societies may at
different meanings to the same term or concept, for example, "injury
"marriage", "property". Fourthly, a society's "living law" may be
different from its "book law". This list of warnings is far from exhaus
the pitfalls on the path of the comparative lawyer are indeed numero
The best way to protect oneself is to shed one's local preconceptions o

Having outlined the major tenets of the comparative law discip

I now progress to the theme of this paper. With an audience trained in
Common Law, I need not, of course, elaborate on that legal system but
immediately proceed to give an account of the distinguishing features o
Civil Law.

What distinguishes the Civil Law from the Common Law?

I would suggest that, from a Common lawyer's point of view,4 the
peculiarities of the Civil Law would be the following: its scholarly tradition;
its romanistic style ; the sharp division it makes between public and private
law, and, within private law, between civil and mercantile law; its conceptual
and systematic nature; its theory of the formal sources of law; its techniques
of law administration.
Let us examine these features in some detail.

1 Scholarly tradition5
One often hears the remark that while the Common Law is judge-made,

3With regard to micro-comparative law techniques, see Ebert 22-30, 140-171 ; Gutte
ridge 72-126; Rotondi; Schlesinger 618-636; Zweigert and Kötz 27-48.
4Of particular interest are the following publications by Common lawyers: Lawson A
Common Lawyer Looks at the Civil Law 1953; Merryman The Civil Law Tradition 1969;
Schlesinger Comparative Law 3ed 1970; von Mehren and Gordley The Civil Law System
2ed 1977. Apart from Lawson, who is English, the others are American writers. The
publications of Lawson and Merryman are compact and eminently readable. Un
fortunately they may be rather misleading for readers not familiar with the subject
matter : whereas Lawson underplays the differences between the Civil and the Common
Law, Merryman often exaggerates them. The other two publications are rich in informa
tion and practical suggestions but, obviously written for American lawyers, place too
great an emphasis on constitutional and procedural law matters. Uninitiated readers
may find these publications rather unwieldy and at times even bewildering. For
initial reading I would rather recommend David's English Law and French Law 1980
read together with the relevant parts of David and Brierley's Major Legal Systems in the
World Today 2ed 1978.
5David and Brierley 38-46; Merryman cIX.

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 Characteristic features of the Civil Law 199

the Civil Law is university-made, a droit savant or law of professors. There

is some truth in this. Without doubt scholars played a prominent role in the
formulation of the Civil Law: the revival of Roman law in the twelfth centurv
and its subsequent development and adaptation to current conditions were
the work of scholars, and so were the modern codes, the first of which
appeared round about 1800. From its inception the teaching of law in the
Civil Law world has been geared at presenting a "model law", and up to
the present the emphasis has been on the ius civile or civil law in its original
and more restrictive sense of private law excluding mercantile law. Even
though, as a result of large-scale enactment (in particular the codes), the
Civil Law became very much a law of the legislature, legal scholars in
most countries retained their influential position. The emphasis in the
teaching of law remains on "scientism". "Classroom law" has indeed a
marked effect on the way the Civil lawyer - who, incidentally, is always
university-trained - thinks and operates. However, the influence of univer
sity teaching on the development of the Civil Law, past and present, should
not be exaggerated: it relates to the substratum of the law rather than the
specific rule.

2 Romanis tic style6

Another popular remark about the Civil Law is that it is based on
Roman law. This, too, is a statement that is in need of qualification. What,
exactly, is meant by the Roman law basis of the Civil Law? First let me
point out what it does not mean. It certainly does not mean that Roman law,
even in its revived version (the usus modernus iuris Romani), applied generally.
In fact, in most countries which form part of the Civil Law world, Roman
law as such never applied. Nor does it mean that modern day rules are of
necessity based on Roman law. Firstly, the received Roman law was virtually
limited to the Roman ius civile, as reformulated in the time of Emperor
Justinian (527-565). Secondly, the Roman civil law was nowhere received
in toto, but was blended with canon, local customary and mercantile law.
True, the Civil Law countries derive a great many of their private law
solutions from Roman law, but this in itself does not put them in a different
category from the Common Law countries which also adopted Roman law
inspired solutions, for example in the law of contract. What really matters
is that the Civil Law world, unlike the Common Law one, adopted the
Roman legal science. Whatever it borrowed from other systems of law was
duly romanized. It is this infusion of Roman technique which is of crucial
importance and has become a distinguishing feature of the Civil Law tradi
tion. It is reflected in the Civilian codes and has been extended to the uncodified
field of the public law as well. The Roman law influence is essentially a matter
of style, terminology, divisions and concepts. It follows that a knowledge of
Roman law, at any rate as regards its terminology and structure, is a valuable
key to the study of the Civil Law. Let it be noted, however, that to the extent
that the Civil Law bears the stamp of Romanism, it is not so much that of the
classical Roman law but that of the Justinianic law as interpreted and

6David and Brierley 48-49; Gutteridge 75-76; von Mehren and Gordley 3-14; Zajtay
"The Permanence of Roman Law Concepts in the Continental Legal System" (1969)
2 CILS A 181.

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200 XIV GILSA 1981

modernized - notably by the schools of the Glossators, the Commenta

and the Pandectists - in other words the usus modernus iuris Romani.

3 The great divisions of the law7

The third characteristic feature of the Civil Law is the practical im
portance attached to the following divisions of the law : that between private
law and public law, and the subdivision of private law into civil and mercan
tile law. Of these categories the civil law, which deals with persons, the
family, property, succession and obligations, reigns supreme. It is the oldest
component of the "Civil Law" (in capital letters). The systematic and con
ceptual structure of the total Civilian legal order is the work of scholars
in this branch of the law. Up to the present the civil law is studied first and
study in other fields of law follows. (Contrast the Common Law which views
all laws as being "public", in the sense of regulating the peace within the
realm.)
(a) Let us first consider the division between private and public law.
From Roman times onwards this division has been accepted in the Civil Law
world as obvious and fundamental. Public law is that part of the law which
relates to the organization of the state and other public institutions, their
relations inter se or with the individual citizen, with the state or other public
institution acting "publicly", ie representing the public interest. Private law,
on the other hand, deals with the private person (natural or legal) and governs
the relations of private persons with one another, the relations between a
private person and the state or other public institution acting privately ,
and the relations between public institutions themselves acting "privately",
ie not acting as the representatives of the public interest. The practical
importance of the distinction between public and private law is that it under
lies a division of jurisdiction (see paragraph 6(a) below). Traditionally, the
courts on the Continent of Europe had no jurisdiction in public matters other
than criminal. This state of affairs was so firmly established that when, in the
nineteenth century, it was accepted that the legality of administrative acts
should be subject to judicial review, disputes of this kind were placed before
special administrative courts. These courts have their own jurisdiction,
form their own separate hierarchy and follow their own independent
approach in solving problems. Over the years they have made an important
contribution to the development of a new body of law, administrative law.
The administrative law of the Civil Law countries is still uncodified and to
a large extent "judge-made", much like the English common law. It must
be remembered here that at the time of the great codifications legal thought
was concerned primarily with private law; public law, with the exception of
criminal and procedural law, had yet to be developed. Administrative law,
as a new branch of law, had to be formulated without the aid of a set of
authoritative principles. The autonomous position of the administrative
courts and of the law they apply is indeed an important distinguishing feature
of the Civilian legal order.
(b) A consideration of the division of private law into civil and mercan

'David 27-41, 81-100 ; 135-149 ; David and Brierley 74-85 ; Merryman cXIII and XVIII ;
Schlesinger 243-247, 347-365, 404-409; von Mehren and Gordley 341-491,

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 Characteristic features of the Civil Law 201

tile law remains. I think it is fair to say that this division is a product of
Civilian history rather than Civilian reason. Modern Civil lawyers generally
view the division as unnecessary and a number of Civil Law countries have
decided to dispense with it. The division goes back to the time Italy acquired
control over the Mediterranean area. It was felt then that Roman law as
blended with canon law and local customary law had become too scholarly
and soit to be suitable as a basis tor business transactions. The traders
(mercatores) were particularly disturbed by restrictions on the
contract, limitations in regard to cession and proxy, the usury
restricted or even rorbade the levying or interest, the extreme c
regard to debtors, the lack of recognition of the concept of neg
and the cumbersome and expensive court procedure. To circumv
the merchant guilds developed their own usages. In course of tim
ments, albeit reluctantly, acknowledged that these usages wo
their own sphere, enjoy preference over the tus commune or the
The guilds "codified" these rules which became known as statuta m
Often official government recognition was granted them, but ev
such recognition they were usually regarded as having the force
due course, this new body of law became more uniform and dev
a common mercantile law which extended throughout the co
world, including England where Roman law on which the "law m
was broadly based, had met with so much resistance. In addition,
were given the power to constitute their own courts. The proce
merchant courts was simpler than in the ordinary courts. Th
applied was directed at equity and hence was often at varianc
archaic scholastic law of the Middle Ages. Although over the
ius commune lost many of its artificialities and restrictions, mer
as a separate branch of private law and administered by special m
courts was well-established at the time of the great codification
prototypes of codification, namely the French and the German,
this dichotomy by the enactment of a separate commercial co
recognition oí merchant judges, albeit as part of the hierarchy oí the
courts. (In England, the developing jurisdiction of the powerful c
courts suppressed the particular merchant courts. In the process
merchant" was incorporated into the common law.)
4 The Civil Law's conceptual and systematic nature, with special r
the code technique8
The fourth characteristic feature of the Civil Law is its conce
systematic approach, compared with the Common Law's relat
abstraction and system. This Civilian feature is best illustrated wit
to the Civilian code technique.

Before we analyse this technique a few words about the orig

codes. Both the French and the German codes - to confine this discussion
to these two prototypes - were intended as the final step in the historic
process of making the law nationally uniform, popularly accessible and

8David and Brierley 86-93; Gutteridge 77-79, 93-100; Schlesinger 222-234, 239-243;
von Mehren and Gordley 48-96.

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202 XIV GILSA 1981

certain. In Continental Europe, unlike England, no central court had

strong enough to shape a "common" law for the entire country. Th
in the Civil Law countries was far from uniform, often scholarly,
archaic and, for the layman, rather unintelligible. The only way out,
thought, was for the monarch to restate, and where necessary refo
law by way of codification. The suggestion that the law be codified w
without feasibility for the legal growth point had already shifted to legis
and juristic doctrine had developed to a level of abstraction and sys
tion which made codification possible. It was now a matter of waiting
right political climate in which to carry out the task. In fact, the gre
cations took place at a time when the European countries entere
phase in their history. In France, this was the period round about 1
Germany, it was to be a century later.
It should be noted that only pa. of the law has been codified, na
private law (civil and mercantile), criminal law and the law of procedu
Regardless of country and date of enactment, a Civilian cod
ideally be defined as a systematically organized piece of legislation
in abstract and general terms, completely covers a substantial part of
The various elements of this definition call for explanation.
(a) Predominant is the element of completeness. A code is envisa
being complete in a double sense: as standing upon its own foun
and as encompassing its entire subject-matter.
The codes, traditionally the products of political revolution o
kind, are in themselves revolutionary in the sense that they are sup
stand upon their own foundations. All prior law in the fields cover
them is repealed, which means that at least formally the codes bre
the past. As far as substance is concerned their break with the past i
limited. Most of their provisions can easily be traced back to pre-ex
law, be it Roman, canon, local customary or mercantile law. It is tr
the compilers of the codes did not hesitate to formulate new rules or
existing ones if they thought it necessary, but instances of innova
relatively rare. Nonetheless, when the meaning of a code prov
sought, there is seldom a reference to the "old" law; in fact, resear
the historic, as distinct from the immediate legislative, background o
rule or concept is considered or purely academic interest. In that sen
break with the past is real.

Regarding the alleged self-sufficient nature of the codes, one mu

sider that, at the time the original codes were compiled, human rea
thought to be altogether capable of regulating society. A code co
should be complete so as to provide a solution for any problem that
arise within the scope of its subject-matter; it should be a self-suff
whole containing, in the form of logical principles inherent in its
structure, its own method of adapting itself to new circumstances. To
this a code had to be stated in broad principles which together had t
an organic unity (see paragraph (b) immediately below). However, it
became apparent that a self-sufficient code was, inevitably, a dream
parts of the law, family law, for example, simply do not lend thems

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 Characteristic features of the Civil Law 203

being stated in broad general terms which remain valid for a long period.
(b) The other essential element of a code - apart from its alleged com
pleteness - is that it aims at concise and abstract formulation and at a
systematization of rules so that they form an organic unity. As we have
seen, even in respect oí a code, old age has its infirmities. This, however,
does not detract from the fact that the codes are truly efficient statements of
law. Credit for this should go not only to their compilers. More often than not
they found their answers ready-made by the centuries of doctrinal effort spent
in transforming a law of actions and conveyances into a systematic body of
abstract rules. By the nineteenth century, the old habit of inferring rights
from remedies had already given way to the tendency to think in terms of
rights rather than wrongs, to describe the normal instead of the abnormal,
the general instead of the exceptional. Famous among the Civil Law generali
zations as subsequently incorporated in the codes are the legal definitions
contained in the General Part to the German Civil Code; articles 1382 and
1383 of the French Civil Code which formulate civil liability based on fault;
the first sentence of article 812(1) of the German Civil Code which imposes
liability for unjust enrichment; and the codes' "general clauses" which
employ such elastic concepts as justice, good iaith, good morals and public
policy. The technique of stating the law, as far as possible, in general terms
while limiting qualifications, surely is a valuable asset of the Civil Law and
accounts for much of its vitality. Of course, a workable code must maintain a
balance between general provisions and specific ones. Consequently, not all
code provisions are framed in general terms. In fact, a great number of them,
particularly in the field of family law, the law of succession, the law of
property and the law of procedure, are rather detailed. Nonetheless, the
codes, considered as a whole, are governed by statements of a general
nature.

Directly related to the practice of stating the law in abstract and

terms are the following subsidiary features of the Civil Law : its con
legal rule and its deductive method of problem-solving.
Common lawyers and Civil lawyers have different conceptions o
rule. Whereas in the Common Law world most legal rules are o
laid down by the courts for specific cases, in Civil Law countries t
first and foremost the work of the legislature which, influenced by
tradition, is inclined to operate in abstract and general terms. Cons
what may appear to the Common lawyer to be nothing more than an
abstract doctrinal precept, or at most a general directive, is a legal rule for
the Civilian lawyer who into his concept of a legal rule eagerly incorporates,
and in fact prefers, the general and the abstract.
Directly related to this is the Civil Law's deductive method of problem
solving. As general rules do not always offer a direct solution for particular
problems, but may lay down only the major premises from which solutions
should be derived, particular problems often have to be solved by a process
of deduction, that is to say by the application of general principles to parti
cular facts. The Common Law, on the other hand, still centres largely
around previous decisions of individual problems and develops tentatively
from case to case. Such general principles as there are, have often developed

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204 XIV CI LS A 1981

slowly, the method of law-finding being inductive, that is to say, moving

from the particular to the general.

5 The theory of the formal sources of law9

The fifth characteristic feature of the Civil Law is contained in its
theory of the formal sources of law.

(a) Legislation. According to doctrine legislation reigns supreme and is

self-sufficient. The alleged self-sufficient sovereignty of legislation which
forms an integral part of the Civilian tradition is, of course, as naïve a
fiction as the Anglo-Saxon theory that the Common Law has existed in the
mind of judges from time immemorial and that every decision is merely a
manifestation of it. Just as the Common Law is in fact judge-made, so at
times is the written law of the Civil Law countries interpreted by the courts
beyond recognition. The obvious example is the way in which article
1384(1) of the French Civil Code has been interpreted. This provision which
was originally intended as a mere preface to the specific instances of vacanous
liability and liability in respect of animals and buildings detailed in the
remainder of the article and the two following articles, today serves as the
basis of a comprehensive system of strict liability for damage caused by
inanimate things, including motor vehicles. In fact, the older the legislation,
the bolder the courts in "modifying" its contents under the guise of mere
construction. By operating in this way, the Civilian courts do in fact make
law. However, judicial law-making of this kind is of necessity limited and
incidental for its develops within a defined framework established by the
legislature. On the other hand, the Civilian judge interpreting legislation
enjoys considerable freedom of movement. This is the direct outflow of a
deliberate policy on the part of the legislature to state legislation in broad
and general terms, and to refrain from interpretation Acts and interpretation
clauses. I think the position is best summarized as follows : when the law is
enacted in a Civil Law country, legislation is the primary, though not the
exclusive, source of law. Being the primary source of law it should, of
course, form the starting point for investigation.

(b) Judicial decisions. Again, theory makes the position quite clear:
it is the judge's task to apply, not to make or change the law. In practice,
however, law is effectively made or changed by the Civilian courts. Such, for
example, is the case with administrative law which is largely judge-made.
As pointed out earlier, even the celebrated codes are subject to judicial law
making. In fact, it would appear that judicial creativity is gathering strength
in the Civil Law countries and that the courts are becoming more responsive
to the social appropriateness of their decisions rather than their logical
consistency.

The Common lawyer may find it remarkable that this judicial law
making takes place in the absence of a doctrine of precedent. Much has been

'David 16-26; David and Brierley 94-141 ; Gutteridge 77-82,101-116; Merryman c IV;
Sereni "The Code and the Case Law" in The Code of Napoleon and the Common-Law
World ed Schwartz 1956 55-79; Zajtay "Reasoning by analogy as a method of law
interpretation" (1980) 13 CILS A 324.

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 Characteristic features of the Civil Law 205

written about judicial precedent in the Civil Law world, most writings con
taining the same message, namely that, although there is no Civil Law
doctrine of precedent and the courts may therefore in a new case reverse
their own opinions or dissent from a superior court, in practice there is a
marked continuity of precedent. The reasons for this are the esteem in which
higher tribunals are held, the need for certainty, and the fact that it would be
futile to insist on ideas likely to be rejected on appeal. From a practical point
of view precedent is followed in Civil Law countries in much the same way
as in Common Law countries. In a Civil Law country, however, precedent
exercises its influence not by reason of its pronouncement but because of its
inherent persuasiveness or for the policy reasons just mentioned. There is
therefore a marked value difference between the Common Law and the Civil
Law precedent.
(c) Customary law. In the Civil Law countries, as in all other specialized
legal systems, custom in the sense of a regular and general social practice
which is accepted as legally binding, plays only a limited role as a source or
law, owing mainly to difficulty in proving this type of law. In view of the
acknowledged primacy of legislation, customary law can never invalidate it.
However, customary law can play a role in clarifying or extending it. Some
writers prefer to classify established lines of judicial decisions under cus
tomary law rather than recognize a new category of judge-made law. Accord
mg to them an established line or judicial decisions has the rorce or law
through custom, and not because these decisions can themselves be a source
of law. Other writers - and theirs is the approach which prevails today -
reject this kind of reasoning as being too artificial.
(d) Legal writings. Because of their immediate participation in the
development of the law legal writers in Civil Law countries are more
respected than their counterparts in the Common Law world. In the history
of the Civil Law, legal writings sometimes enjoyed even the force or law.
Examples in point are the "law of citations" (426) of Emperors Theodosius
II and Valentinian III, and, more recently, the force of law accorded by the
Boer Republics to certain works by writers on Roman-Dutch law. But now
adays legal writings are merely of persuasive force, never a source of law.
In Common Law countries, too, legal writers may carry persuasive weight,
but in Civil Law countries, because of the prestige of their group, they stand
a better chance of having their voice heard, not only in the class-room but in
the court-room, too. The well-known story of Napoleon who, when he saw
the first commentary on his Civil Code, exclaimed that all his hard work had
been ruined, is a rather telling illutration of the importance Civilian tradition
attaches to legal writings. The authoritativeness of legal writings is of course
not always the same, but depends on such variable factors as the strength
of the law in issue, the degree of unanimity among legal writers and the
extent to which doctrinal opinion corresponds to social reality.
6 Administration of the lau*10
The sixth characteristic feature of the Civil Law is the way in which the

10David 42-71; David and Brierley 125-132; Merryman c XVI and XVII; von Mehren
and Gordley 97-208, 1127-1161.

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206 XIV CILS A 1981

law is administered. I shall deal with this under the following headings :
(a) The organization of the courts. From a Common lawyer's point of
view perhaps the most spectacular element of Civilian law administration
the occurrence of more than one judicial hierarchy (see paragraph 3 abov
Apart from the hierarchy of the ordinary courts one finds in most Civil L
countries one or more other, totally separate hierarchy. Whereas genera
speaking the hierarchy of the ordinary courts exercises jurisdiction in priv
and criminal law matters, as a rule any other hierarchy deals with problem
of an administrative law type.
(b) The judiciary. In mercantile and administrative law cases the e
ployment of lay judges, more particularly at the level of the courts of fir
instance, is a common feature. The various courts of appeal, however, ar
almost exclusively composed of professional judges. The professional judg
are academically trained lawyers who, as a rule, will have chosen judi
office as a career. They are, in other words, career judges. Usually the d
sion to seek a judicial career is taken immediately after completion of one's
academic law studies. Generally, recruitment is by examination, and not
way of reward for a distinguished practice as a member of the Bar as is t
case in Common Law countries. Traditionally, the judiciary in Civil L
countries has a large membership, and, as far as promotion is concerned,
judicial office bears a marked bureaucratic colour. This is not to say, how
ever, that Civil Law judges are mere civil servants. Their independence i
constitutionally guaranteed and their position respected even though the
do not enjoy the rather exalted position of their Common Law brethern.
(c) Procedure and evidence. In some respects the Civilian law of p
cedure and evidence differs fundamentally from that of the Common L
The reason is that in Common Law countries the law of procedure a
evidence is modelled on the premise that the case will be tried by a jury
whereas in Civil Law countries trial by jury is a rare exception in crimin
matters and not used at all in civil matters.

Modem Civilian procedure originated in the thirteenth century when,

under the influence of canon law, a more rational and humane procedure
than the local customary one was received. Over the centuries court pro
cedure became increasingly streamlined and, as a result of nineteenth century
Liberalism, also more democratic. A distinguishing feature of modern
Civilian court procedure is the active role played by judges. Whereas civil
proceedings in the Common Law countries follow the adversary method and
the court's function is preponderantly that of an umpire, in the Civil Law
countries these proceedings are basically inquisitorial. Similar is the position
in criminal proceedings where the Common Law procedure is accusatorial
while the Civil Law one is once more inquisitorial, the court taking an
active and central part in the exploration of the truth. In defence of their
inquisitorial method Civil lawyers will argue that to allow the examination
of witnesses to be placed, in principle, in the hands of counsel is incom
patible with the idea that it is the judge's chief function to find the truth
rather than to decide which party adduced the better evidence. The inquisi
torial method places the emphasis clearly on utility.
Related to the inquisitorial method of procedure and the concomitant

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 Characteristic features of the Civil Law 207

emphasis on utility is the principle of the free evaluation of evidence.

Except for matters of privilege and personal incompetence to testify on
grounds such as kinship, tender age or prior felony convictions, the Civil
Law acknowledges no exclusionary rules of evidence, particularly no hearsay
or opinion rule. In the eyes of Civil lawyers most of the grounds which
under the Common Law serve to preclude the admission of evidence merely
affect the weight to be attached to a particular item of evidence, which,
according to them, should be a matter for the judge's free evaluation.
(d) The style of judicial decisions. As I remarked earlier, the Civilian
judge does not enjoy the exalted social status of his Common Law counter
part. In fact, he tends to be a rather anonymous figure. His individuality is
lost in the impersonal style of Civilian judicial decisions. Judicial decisions
in Civil Law countries are impersonal in two ways. Firstly, in most Civil
Law countries judicial decisions bear reference merely to the particular
court, the date of the judgment and its reference number. Secondly, the
judgments of most Civil Law courts are of a collégial nature: differences of
opinion within the court, whether relating to the reasoning or the result, are
not disclosed. The judgment may even have been written by a judge who
found himself in the minority. Incidentally, Civilian judgments have nothing
of the long-windedness one regularly encounters in judgments of the
Common Law courts. This is partly because in the absence of a doctrine of
precedent there is no need to refer to previous decisions, and partly the result
of certain standard requirements regarding style.
Conclusion
The differences between the original branches of the Civil Law and th
Common Law relate largely to techniques or methods of problem-solvin
The legal problems themselves are very much the same and so are t
solutions. According to that eminent comparative lawyer Max Theinstein
some eighty per cent of all cases in the field of private law have the sam
outcome.11 Since the countries concerned share similar environments, b
physically and ideologically, this need not be surprising.
I should prefer to refrain from passing judgment on the respect
merits of the Civil and Common Law techniques. Techniques, like ideologi
form part and parcel of the culture of the peoples for whose needs they h
been developed; and beauty, after all, lies in the eyes of the beholder

11Collected Works vol I 1979 256-257.

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