3.1 Civil law legal systems
This first section introduces some basics with regards to the distinction between civil law legal systems and common law legal systems. It is important to be aware of this in order to fully understand why Germany, with its civil law legal system, and the UK, using a common law legal system, are difficult to compare directly.
Figure 8 below shows which legal systems apply to each country. Red refers to common law countries, while blue highlights those applying civil law. The countries in brown apply a mixed or bijuridical legal system and the countries highlighted in yellow rely on Islamic law, the sharia.
As you can see, the civil law legal system is used widely and its origins date back to Roman law. It quickly became the dominant legal tradition in Western Europe. However, Roman law is not the only influence on it. Canon law, as the law of the church, and commercial law have also had an impact on the development of the civil law legal system.
Traditionally, a nation with a civil law legal system builds its legal order around a written constitution, accompanied by four other legal codes. Together with the constitution, a very strong and detailed civil code and a criminal code form the core of the substantial law. As every law in a civil law legal system is codified, all procedural rules have to find their place in writing as well. Therefore, a civil law and criminal law procedural code will exist in some form. This makes five codes on which a civil law legal system is founded:
- civil code
- criminal code
- civil law procedural code
- criminal law procedural code.
The term ‘civil legal system’ is being used due to the Roman Law being the oldest source of its legislative rules. Elements of the civil code are based on ancient Roman law. The civil code is therefore forming the traditional basis for this legal system.
The codification of all law in the civil legal system has a huge impact on the role of the judge. There is no judge-made law – no common law, in place. In a civil law legal system the judge establishes the facts of a case and applies the relevant provisions as set out by the codes. Parties do not argue before the judge. They simply offer facts and the court then decides whether it trusts those or not. The judge’s decision will have a big impact on the parties, but hardly ever on the legal system. The judge is just applying the law as it stands; he or she is not adding anything to it. The civil law legal system is shaped by its codes and laws, not by the judiciary.
Also worth noting is the absence of a jury in most civil law legal systems. Those applying a mixed legal system have some form of jury in some criminal law cases. Other civil law legal systems will have another way of involving lay personnel, but the civil law legal system does not lend itself to the inclusion or use of juries in the way that a common law legal system does.