Week 4 - Civil law

Question 1

Civil law is, along with common law, one of two legal traditions most studied in comparative law. What is a simplistic understanding of civil law?

Answer 1

A simplistic understanding of civil law is that it involves the codification of law.

This explanation is way to narrow, because civil law is more than mere codification. Codification is the culmination (eindpunt) of a certain understanding of law, which is the real hallmark of civil law.

Question 2

There is more to civil law than mere codification. It argues that codification is the culmination of a certain understanding of law - a certain kind of legal mindset - which is the real hallmark (kenmerk) of civil law. What does this hallmark include?

Answer 2

1. Systemization of law. The legal system works coherent and logical.
2. Method of statutory interpretation. The role of judges is restricted. They can only operate within the boundaries of the law.
3. Role of legal authorities. Legislators have a prominent role, since they draft laws.
4. Application of law. Legislation is central and important and not relying on judicial decisions or reusing precedents established by judges.
5. The legal system is a product of the specific historical evolution.

Question 3

Civil law is often cited as statutory law. What does this mean?

Answer 3

Statutory law means that law is expressed in statutes and the statutes reflect the substance of law.

This infers that law is only written, giving civil law a distinctive characteristic of positivism.

Question 4

Explain how civil law has a strong connection with democracy.

Answer 4

Democratically elected legislature defines law in a particular community.

Any attempt to derive law from sources other than the legislature must, therefore, defend itself against the charge that it ignores the will of the people and is thus deeply undemocratic.

Question 5

Explain why, according to some, in a civil law system there is a lack of a mechanistic concept of statutory law.

Answer 5

The mechanistic concept of statutory law means that you can read a law and apply it without any interpretation, like a machine follows a manual.

In a civil law system, judges do not simply read a rule and apply it like a machine. Instead, they need to interpret and understand the purpose, structure, and context of the law.

Question 6

Next to written law, in a civil law system we can also find customary law. What is customary law and what are its two components?

Answer 6

Customary law is unwritten law based on regular practice and this being the normative and consistent approach, and the belief that the practice is legally binding (opinio juris).

Question 7

How relevant is customary law in modern civil law systems?

Answer 7

Its practical importance is minimal, and some scholars question whether there are any principles that can be described as customary law.

This illustrates that civil law is predominantly codified and thus written.

Question 8

What are additional sources of law that influence civil law systems?

Answer 8

International law, EU law, and general principles of law.

Question 9

What are the two key aspects of a judge’s role in civil law systems?

Answer 9

1. Judges are not part of the legislative branch. Their task is to apply existing written law to individual cases. Judicial decisions are not considered formal sources of law, unlike in common law systems.
2. Despite this, previous court decisions are crucial in practice. They often clarify or develop detailed rules by interpreting broad or vague statutory provisions. In some areas, such case law becomes the only practical guidance.

Question 10

In civil law systems, there is a problem with judge-made-law. What is this problem?

Answer 10

Judges are bound by statutes (the underlying legal norms), not by previous judicial decisions (precedents). What is binding are not the rules established by a judge but only the norms on which they are ultimately based.

Question 11

It is widely recognized that judges do not only apply law and interpret law, but in doing so also develop it. What German term can be used to describe this?

Answer 11

Rechtsfortbildung. It is a German term for the judicial development of law. By using this term, the problematic term ‘judge-made law’ can be avoided.

Question 12

Why can we state that even in civil law countries, judicial decisions are highly important in the legal practice?

Answer 12

The judgments of judges do not merely decide individual cases, but also contain abstract statements about substance of legal norms which wil have an effect in the future and for all other cases.

Question 13

What is a common myth about civil law systems, and what actually characterizes them?

Answer 13

A major myth is that civil law systems are primarily defined by their codes (e.g., French Civil Code 1806, German BGB 1896). In reality, what characterizes modern civil law is the underlying principle of systematizing law and basing all legal decisions on statutes. The key is not just having codes, but the desire to codify—to organize laws systematically into clear, comprehensive statutes.

Question 14

What is a legal code?

Answer 14

A legal code is a systematic, comprehensive, and unified collection of laws with claims to exclusive authority.

Question 15

What is the primary aim of a legal code?

Answer 15

To collect all applicable laws in a specific area into a single instrument, while eliminating duplications, inconsistencies, and contradictions.

Question 16

What is the difference between a code and a statute?

Answer 16

A statute is an individual law.

A code is a collection of laws in a specific area in a single instrument. It basically is a large statute, not a different kind of law.

Question 17

What is the true distinguishing characteristic of civil law systems?

Answer 17

It is not just the existence of codes, but the underlying idea of systematization and conceptualization of law.

Question 18

What is one major benefit of systematizing law in civil law systems?

Answer 18

Consistent terminology is used so that the same terms have the same meaning within a law, across areas of law, and ideally throughout the entire legal system.

Question 19

What are the two main approaches to statutory interpretation in the German legal system?

Answer 19

The subjective approach focuses on the legislature’s original intent, while the objective approach focuses on the intent of the statute itself. Though the subjective view may seem logical, the objective approach helps ensure that statutes stay relevant over time.

Question 20

What are key objections to the subjective approach in statutory interpretation?

Answer 20

1. The legislature is not a single thinking entity—only individuals have intent. It can better be seen as the intent of certain individual parliamentarians.
2. Law should reflect the text of the statute, not the unclear intentions behind it.
3. Citizens must be able to rely on the written law, not hidden motives or statements.
4. Law must apply to unforeseen cases, meaning it must sometimes go beyond the legislature’s original intent.

Question 21

What is the prevailing view in the debate between subjective and objective statutory interpretation?

Answer 21

There is no definitive resolution. A pragmatic approach now dominates: legislative intent is considered important, but not the only factor in interpreting statutes.

Question 22

What are the four main methodologies of statutory interpretation in German law?

Answer 22

1. Grammatical – based on the ordinary meaning of the words in the statute.
2. Systematic – interprets the provision in relation to other legal provisions.
3. Teleological – aims to fulfill the purpose or goal behind the provision.
4. Historical – considers the origin of the law and its broader intellectual and legislative context.

Question 23

How is the French approach to statutory interpretation similar to the German approach?

Answer 23

In both systems, the statute is the starting point of legal reasoning, and judges are bound by it.

Question 24

How do the French approach statutory interpretation?

Answer 24

The focus in France critique of the early dominance of the exegetical school, where the text of the statute was given a central place in the interpretation.

Later, this method of interpretation was supplemented by a subjective variant, which used various means to determine the historical ratio legis.

Question 25

The school of free scientific research, founded by Francois Gény, had big critiques on the exegatical school. What was this criqitiue?

Answer 25

Gény argued that since the legislature cannot foresee everything, judges must sometimes develop their own solutions. While respecting legislative intent, judges should base their decisions on social, historical, political, and economic factors, as well as contemporary morality and justice, rather than personal preference.

Question 26

What is the Corpus Juris Civilius?

Answer 26

The first life of Roman Law ended in the 6th century with Emperor Justinian I’s Code of Justinian (Corpus Juris Civilis), which compiled past laws and jurists’ opinions. It consists of four books.

Question 27

What was the impact of the revival of Roman law in 11th-century Europe?

Answer 27

Roman law was granted a second life. At first is was studied in Italian universities. It later influenced Europe: It provided almost all of Europe with: 1. A common stock of legal ideas 2. A shared legal language and grammar 3. A unified body of legal rules

Question 28

How did Roman law influence all of Europe in its revival?

Answer 28

Roman law maintained some influence in some countries and gradually expanded through renewed interest and rediscovery, strengthening its role in other regions.

Question 29

Why was Roman law less influential in Germany during its revival?

Answer 29

Because many German territories had their own local laws, reducing the need to apply Roman law as a subsidiary source.

Question 30

How was the French legislation before the French revolution?

Answer 30

The country was separated in two parts: the southern part which had codified law, based on Roman-law, and the northern part, which had customary legal rules of Germanic origin.

Question 31

What was the significance of the French Revolution and the Napoleonic Code for French law?

Answer 31

The French Revolution (1789) triggered major political and legal changes. After stabilization under Napoleon Bonaparte, the Napoleonic Code (Code civil des Français) was adopted in 1804, forming the foundation of post-revolutionary French law and influencing many later legal codes.

Question 32

What is the significance of the Napoleonic Civil Code and Commercial Code in France today?

Answer 32

Both codes are still in force. The Civil Code plays a unique and central role in French law and culture, governing many commercial transactions through its contract rules. It is considered one of France’s greatest contributions to civilization, having survived 10 constitutions and continuously adapting to societal changes.

Question 33

What are the main features and structure of the Napoleonic Civil Code?

Answer 33

The Civil Code is divided into 5 books covering: 1. Persons (personal status and family law) 2. Property and property rights (in rem) 3. Ways of acquiring property rights 4. Security interests (suretyships, pledges, mortgages) 5. Special application in Mayotte (French territory)

Question 34

What is the role and function of the French Court of Cassation?

Answer 34

It can annul decisions of lower courts but does not issue a final decision itself. After annulment, the case is sent back to a lower court for reconsideration. Lower courts are not formally bound by the Court of Cassation’s legal interpretations initially. However, if the case is repeatedly appealed and annulled, the final lower court must follow the Court of Cassation’s legal position.

Question 35

How does Germany’s federal structure affect legislation?

Answer 35

Each federal state (Land) has its own parliament with limited legislative authority. Most important laws apply nationwide or is worded in a uniform manner. With this uniformity, a systematic approach is visible that covers different codes in a similar and holistic way for a consistent interpretation throughout the country.

Question 36

What are key features of the German legal system regarding legislation and precedents?

Answer 36

Like the French system, German law is primarily based on written statutes enacted by legislation. Judicial precedents are not formally binding but are published and usually followed for consistency.

Question 37

What are key characteristics of the German Civil Code (BGB)?

Answer 37

1. Rooted in Roman law traditions. 2. Drafted primarily by legal scholars. 3. Considered more modern in structure than the Napoleonic Code. 4.Reflects principles of individualistic liberalism.

Question 38

How is the German Civil Code (BGB) structured?

Answer 38

1. General Part (Allgemeiner Teil) – foundational rules (e.g., legal capacity, legal acts, time calculation, statute of limitations). 2. Law of Obligations (Recht der Schuldverhältnisse) – covers contracts and torts (major reform in 2002). 3. Rights in rem (Sachenrecht) – property law. 4. Family Law (Familienrecht). 5. Law of Succession (Erbrecht).

Question 39

How does the German BGB differ from the Napoleonic Code in terms of comprehensiveness and judicial role?

Answer 39

Unlike the Napoleonic Code, the BGB did not aim to be fully comprehensive. Controversial or unclear areas were left to special statutes. In cases of legal gaps (lacunae), judges are expected to create suitable rules, though these do not bind future courts.

Question 40

What are the structural strengths and criticisms of the German BGB?

Answer 40

Known for logical structure and systematic clarity. Criticized for lacking textual elegance and being hard to understand for non-jurists. Great effort was made to define legal terms consistently across all areas of private law.

Question 41

What is unique about the structure and responsibilities within the German court system?

Answer 41

Germany's highest courts are federal, but administrative and financial responsibilities, including judge appointments, lie with the individual Länder (states). The judiciary is a complex network, with each court specialized in specific legal matters.

Question 42

Name some similarities and differences between the French and the German legal system.

Answer 42

The German BGB was predominantly written by scholars. The Napolionic code isn't. Both legal systems are primarily bases on written statutory legal rules. In both legal systems, precedents don't aren't binding. In the French legal system, the text of the statute is given a central place in the interpretation. alongside various means to discover the historical ratio legis. In Germany, there is a combination between the subjective approach and the objective approach of statutory interpretation. The French Napolionic Code was made to be entirely comprehensive. In the BGB, more controversial questions were assigned to special statutes. When there was a gap in the legal system, the German judge is expected to place themselves in the position of law maker.