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Civil
law is the predominant system of law in the world, with
its origins in Roman law, and sets out a comprehensive system
of rules, usually codified, that are applied and interpreted
by judges.
However, modern systems are descendants of the 19th century
codification movement, during which the most important codes
(most prominently the Napoleonic Code and the BGB) came
into existence.
As discussed in detail below, the civil law systems of Scotland
and South Africa are uncodified, and the civil law systems
of Scandinavian countries remain largely uncodified.
Civil or civilian law is a legal tradition which is the
base of the law in the majority of countries of the world,
especially in continental Europe and the former Soviet Union,
but also in Quebec (Canada), Louisiana (USA), Puerto Rico
(a U.S. territory), Japan, Latin America, and most former
colonies of continental European countries.
The Scottish legal system is usually considered to be a
mixed system in that Scots law has a basis in Roman law,
combining features of both uncodified and Civil law systems.
In western and southwestern parts of the US, laws in such
diverse areas as divorce and water rights show the influence
of their Iberian civil law heritage, being based on distinctly
different principles from the laws of the northeastern states
colonized by settlers with English common-law roots.
History
The civil law is based on Roman law, especially the Corpus
Juris Civilis of Emperor Justinian, as later developed through
the Middle Ages by mediæval legal scholars.
The acceptance of Roman law had different characteristics
in different countries. In some of them its effect resulted
from legislative act, i.e.
it became positive law, whereas in other ones it became
accepted by way of its processing by legal theorists.
Consequently, Roman law did not completely dominate in Europe.
Roman law was a secondary source, that was applied only
as long as local customs and local laws lacked a pertinent
provision on a particular matter.
However, local rules too were interpreted primarily according
to Roman law (it being a common European legal tradition
of sorts), resulting in its influencing the main source
of law also. |
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A
second characteristic, beyond Roman law foundations, is the
extended codification of the adopted Roman law, i.e. its inclusion
into civil codes.
The concept of codification developed especially during the
17th and 18th century, as an expression of both Natural Law
and the ideas of the Enlightenment. The political ideal of
that era was expressed by the concepts of democracy, protection
of property, and of the rule of law. That ideal required the
creation of certainty of law, through the recording of law
and through its uniformity.
So, the aforementioned mix of Roman law and customary and
local law ceased to exist, and the road opened for law codification,
which could contribute to the aims of the above mentioned
political ideal.
Another reason that contributed to codification was that the
notion of the nation state, which was born during the 19th
century, required the recording of the law that would be applicable
to that state. |
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