Chapter 2: The Civil Law

Many observers think that the civil law is codified and the common law depends entirely on case law analysis.
It is true that the French adopted a civil code in 1804, Germany in 1900, and Italy in 1865. But California adopted a civil code in 1872 and New York in 1848 and 1881.
- These days everybody has a civil code.
It is thought that Civilian codes are sometimes said to determine the outcome of all disputes in advance, before they arise. However, the language of the codes consists of propositions of great generality and abstraction, which implies that they require additional commentary or case law for their application.
- The French Code civil tries to regulate the entire body of tort law (responsabilite ́ civile) in five brief provisions.
- The primary provision of the French Code civil regarding the body of tort law is Article 1382: “Every action of a person that causes damage to another imposes an obligation of repair on the person whose fault the action is”. The breadth of this provision’s application requires judicial interpretation in concrete cases.
- The basic reference tool for French lawyers, the Dalloz edition of the Code civil, contained (as of 2001) fourteen pages of fine print on the meaning of these five provisions.
There is an important difference between statutes and a code.
- A code has structure. It reveals considerable thought in its choices of language and its internal organization.
- A statute states one provision after another. You need not master the whole of the statute book in order to understand the parts.
- A code hangs together as an organic whole.
- The word code is used often to describe federal statutes, such as the Internal Revenue Code, the Federal Codes of Criminal and Civil Procedure, and the Federal Criminal Code.
When Continental Europe lawyers begin their research on a legal problem, they turn first to the relevant code and the commentaries on the code that lead them to the case law and to the other scholarly commentaries.
Continental Europe lawyers do not go directly, as American lawyers do, to a database on their computers and search for cases based on similar facts. This means that the codes, their language, and their structure play a more important part in the process of thinking like a Continental lawyer.

Monistic Legal System

A system that relied solely either on statutory law or on judicial-created case law would be monistic.
Jewish law purports to be based entirely on the words that, according to the Bible, were revealed to Moses on Mount Sinai.
Although it might be theoretically possible to have a monistic system, it is difficult to find actual examples—particularly among modern legal systems.
There is a risk identified as long ago as Aristotle that attaches to a monistic system, or any system with only one source of laws, in that such systems are prone to abuse (abuse of power).
If the claim is that legislation—either human or divine—is the sole source of law, then that proposition invariably collapses in the face of necessary interpretation and adaptation of the legislated sources.
- As soon as the process of interpretation and adaptation begins, a class of recognized interpreters gains influence in the legal culture.
When courts provide the interpretations the system needs to function, their output is called “case law,” or in the intriguing phrase used in Romance languages, jurisprudence (“wisdom of the law”).

Diadic Legal System

If the primary source of law is a statute, therefore, the system will produce a second source of law in the form of a gloss or interpretation of the authoritative legislative words, written by either scholars, the courts, or, occasionally, officials in the bureaucracy.
- The designedly monistic systems invariably become diadic. Interpretation makes this process inescapable.
- A system is diadic if it recognizes one interpreter of the law and triadic if it recognizes both courts and scholars as interpreters of the authoritative words of the statute.

Case Law

In the eighteenth century, common lawyers regarded cases as “evidence of the law”; that is, the opinions of the judges as interpreters of the law were considered as evidence of what the common law really was.
Sometime in the late nineteenth century, however, lawyers in England and the rest of common law world began to pay less attention to the theories of law professors and more attention to the courts.
- The English legal system was becoming more dependent on legislation.
- Precedents were not merely evidence of the law but the law itself.
The conflict between the courts and legislative authority eventually became the preoccupation of common law courts, thus demoting the relevance of scholarly authority.
It is doubtful that the rule of the common law would have ever crystallized without the influence of great writers and system- atizers like Edward Coke and William Blackstone.
In the Continental tradition, the relationship of scholars to courts took a different turn. For one, the attitude toward precedent was that cases are merely evidence of the law.
Continental Lawyers claim that the interpretation is entitled to respect as law only if different judges converge on a single interpretation over time.

Scholarly Authority

The idea that scholars shape the law is well known in religious legal cultures.
- The learned ones—whether the rabbis, the bishops, the Ulama in Islam, or the Brahmans—instruct the people on the meaning of the law revealed by God.
The intellectual ties of law and theology were obvious in medieval universities. They are less obvious today because of the modern emphasis on law as a social science.
In Continental Europe, the study of law was first and foremost a university activity. The tradition dates back to Bologna in the thirteenth century, when scholars rediscovered Roman legal texts and began to write commentaries on them.
- By contrast, the training of English lawyers and the refinement of the law were not located in the universities but in theInns of Court, organized in the fourteenth century. The first university lectures on English law in English were not established until 1756.
The role of scholars in German legal developments of the nineteenth century enables us to understand the enormous difference in depth and organization between the French Civil Code of 1804 and the German Civil Code of 1900.
- The French Civil Code was drafted quickly, under pressure from Napoleon, and designed to be read by laypeople. The German Civil Code represents the culmination of a century of academic reflection on the foundations of private law and the elaboration of basic concepts of liability.
American Courts often cite the work of scholars, but many European courts do not (Spain, Italy, France).
To oversimplify the differences between the common law and civil law cultures, we could say that the civil law is an outgrowth of the authoritarian intellectual structures bequeathed to the West by Judaism and the Catholic Church and that the common law expressed the intellectual decentralization and democratic spirit later connected to and reinforced by the Protestant Reformation.
Americans would say that self-defense and insanity are “defenses” against liability. But the German response in the early-twentieth-century literature was that they are not defenses. They are denials of affirmative dimensions of criminal liability. This distinction needs a word of application.

Chapter 2: The Civil Law

Many observers think that the civil law is codified and the common law depends entirely on case law analysis.
It is true that the French adopted a civil code in 1804, Germany in 1900, and Italy in 1865. But California adopted a civil code in 1872 and New York in 1848 and 1881.
- These days everybody has a civil code.
It is thought that Civilian codes are sometimes said to determine the outcome of all disputes in advance, before they arise. However, the language of the codes consists of propositions of great generality and abstraction, which implies that they require additional commentary or case law for their application.
- The French Code civil tries to regulate the entire body of tort law (responsabilite ́ civile) in five brief provisions.
- The primary provision of the French Code civil regarding the body of tort law is Article 1382: “Every action of a person that causes damage to another imposes an obligation of repair on the person whose fault the action is”. The breadth of this provision’s application requires judicial interpretation in concrete cases.
- The basic reference tool for French lawyers, the Dalloz edition of the Code civil, contained (as of 2001) fourteen pages of fine print on the meaning of these five provisions.
There is an important difference between statutes and a code.
- A code has structure. It reveals considerable thought in its choices of language and its internal organization.
- A statute states one provision after another. You need not master the whole of the statute book in order to understand the parts.
- A code hangs together as an organic whole.
- The word code is used often to describe federal statutes, such as the Internal Revenue Code, the Federal Codes of Criminal and Civil Procedure, and the Federal Criminal Code.
When Continental Europe lawyers begin their research on a legal problem, they turn first to the relevant code and the commentaries on the code that lead them to the case law and to the other scholarly commentaries.
Continental Europe lawyers do not go directly, as American lawyers do, to a database on their computers and search for cases based on similar facts. This means that the codes, their language, and their structure play a more important part in the process of thinking like a Continental lawyer.

Monistic Legal System

A system that relied solely either on statutory law or on judicial-created case law would be monistic.
Jewish law purports to be based entirely on the words that, according to the Bible, were revealed to Moses on Mount Sinai.
Although it might be theoretically possible to have a monistic system, it is difficult to find actual examples—particularly among modern legal systems.
There is a risk identified as long ago as Aristotle that attaches to a monistic system, or any system with only one source of laws, in that such systems are prone to abuse (abuse of power).
If the claim is that legislation—either human or divine—is the sole source of law, then that proposition invariably collapses in the face of necessary interpretation and adaptation of the legislated sources.
- As soon as the process of interpretation and adaptation begins, a class of recognized interpreters gains influence in the legal culture.
When courts provide the interpretations the system needs to function, their output is called “case law,” or in the intriguing phrase used in Romance languages, jurisprudence (“wisdom of the law”).

Diadic Legal System

If the primary source of law is a statute, therefore, the system will produce a second source of law in the form of a gloss or interpretation of the authoritative legislative words, written by either scholars, the courts, or, occasionally, officials in the bureaucracy.
- The designedly monistic systems invariably become diadic. Interpretation makes this process inescapable.
- A system is diadic if it recognizes one interpreter of the law and triadic if it recognizes both courts and scholars as interpreters of the authoritative words of the statute.

Case Law

In the eighteenth century, common lawyers regarded cases as “evidence of the law”; that is, the opinions of the judges as interpreters of the law were considered as evidence of what the common law really was.
Sometime in the late nineteenth century, however, lawyers in England and the rest of common law world began to pay less attention to the theories of law professors and more attention to the courts.
- The English legal system was becoming more dependent on legislation.
- Precedents were not merely evidence of the law but the law itself.
The conflict between the courts and legislative authority eventually became the preoccupation of common law courts, thus demoting the relevance of scholarly authority.
It is doubtful that the rule of the common law would have ever crystallized without the influence of great writers and system- atizers like Edward Coke and William Blackstone.
In the Continental tradition, the relationship of scholars to courts took a different turn. For one, the attitude toward precedent was that cases are merely evidence of the law.
Continental Lawyers claim that the interpretation is entitled to respect as law only if different judges converge on a single interpretation over time.

Scholarly Authority

The idea that scholars shape the law is well known in religious legal cultures.
- The learned ones—whether the rabbis, the bishops, the Ulama in Islam, or the Brahmans—instruct the people on the meaning of the law revealed by God.
The intellectual ties of law and theology were obvious in medieval universities. They are less obvious today because of the modern emphasis on law as a social science.
In Continental Europe, the study of law was first and foremost a university activity. The tradition dates back to Bologna in the thirteenth century, when scholars rediscovered Roman legal texts and began to write commentaries on them.
- By contrast, the training of English lawyers and the refinement of the law were not located in the universities but in theInns of Court, organized in the fourteenth century. The first university lectures on English law in English were not established until 1756.
The role of scholars in German legal developments of the nineteenth century enables us to understand the enormous difference in depth and organization between the French Civil Code of 1804 and the German Civil Code of 1900.
- The French Civil Code was drafted quickly, under pressure from Napoleon, and designed to be read by laypeople. The German Civil Code represents the culmination of a century of academic reflection on the foundations of private law and the elaboration of basic concepts of liability.
American Courts often cite the work of scholars, but many European courts do not (Spain, Italy, France).
To oversimplify the differences between the common law and civil law cultures, we could say that the civil law is an outgrowth of the authoritarian intellectual structures bequeathed to the West by Judaism and the Catholic Church and that the common law expressed the intellectual decentralization and democratic spirit later connected to and reinforced by the Protestant Reformation.
Americans would say that self-defense and insanity are “defenses” against liability. But the German response in the early-twentieth-century literature was that they are not defenses. They are denials of affirmative dimensions of criminal liability. This distinction needs a word of application.