THE COMMON LAW AND CIVIL LAW TRADITIONS

Civil law is typical of Continental Europe as opposed to the English legal system

M ost nations today follow one of two major le-

gal traditions: common law or civil law. The
common law tradition emerged in England during
appropriate sentence based on the jury’s verdict.
Civil Law, in contrast, is codified. Countries
with civil law systems have comprehensive, continuously
the Middle Ages and was applied within British updated legal codes that specify all matters capable of
colonies across continents. The civil law tradition being brought before a court, the applicable procedure,
developed in continental Europe at the same time and the appropriate punishment for each offense. Such
and was applied in the colonies of European impe- codes distinguish between different categories of law:
rial powers such as Spain and Portugal. Civil law substantive law establishes which acts are subject to
was also adopted in the nineteenth and twentieth criminal or civil prosecution, procedural law establishes
centuries by countries formerly possessing distinc- how to determine whether a particular action consti-
tive legal traditions, such as Russia and Japan, that tutes a criminal act, and penal law establishes the appro-
sought to reform their legal systems in order to priate penalty. In a civil law system, the judge’s role is to
gain economic and political power comparable to establish the facts of the case and to apply the provisions
that of Western European nation-states. of the applicable code. Though the judge often brings
To an American familiar with the terminology the formal charges, investigates the matter, and decides
and process of our legal system, which is based on Eng- on the case, he or she works within a framework es-
lish common law, civil law systems can be unfamiliar tablished by a comprehensive, codified set of laws. The
and confusing. Even though England had many pro- judge’s decision is consequently less crucial in shaping
found cultural ties to the rest of Europe in the Middle civil law than the decisions of legislators and legal schol-
Ages, its legal tradition developed differently from that ars who draft and interpret the codes.
of the continent for a number of historical reasons, and The following sections explore the historical
one of the most fundamental ways in which they di- roots of these differences.
verged was in the establishment of judicial decisions
as the basis of common law and legislative decisions as
the basis of civil law. Before looking at the history, let’s
examine briefly what this means.
Common law is generally uncodified. This
means that there is no comprehensive compilation of
legal rules and statutes. While common law does rely
on some scattered statutes, which are legislative deci-
sions, it is largely based on precedent, meaning the ju-
dicial decisions that have already been made in simi-
lar cases. These precedents are maintained over time
through the records of the courts as well as historically
documented in collections of case law known as year-
books and reports. The precedents to be applied in the
decision of each new case are determined by the pre-
siding judge. As a result, judges have an enormous role
in shaping American and British law. Common law
functions as an adversarial system, a contest between
two opposing parties before a judge who moderates. A
jury of ordinary people without legal training decides
Above: Woodcut of a court scene from Praxis criminis persequendi, Jean
on the facts of the case. The judge then determines the Milles de Souvigny, 1541. The Robbins Collection.
 Above: Mosaic of Emperor Justinian I, 6th CE. Basilica of San Vitale,
Ravenna, Italy.
Historical Development of Civil Law

T he term civil law derives from the Latin ius civile,

the law applicable to all Roman cives or citizens. Its
origins and model are to be found in the monumen-
a comprehensive legal code providing substantive and
procedural law for all situations.
As civil law came into practice throughout
tal compilation of Roman law commissioned by the Europe, the role of local custom as a source of law
Emperor Justinian in the sixth century CE. While this became increasingly important—particularly as
compilation was lost to the West within decades of its growing European states sought to unify and orga-
creation, it was rediscovered and made the basis for le- nize their individual legal systems. Throughout the
gal instruction in eleventh-century Italy and in the six- early modern period, this desire generated schol-
teenth century came to be known as Corpus iuris civilis. arly attempts to systematize scattered, disparate
Succeeding generations of legal scholars throughout legal provisions and local customary laws and bring
Europe adapted the principles of ancient Roman law in them into harmony with rational principles of civil
the Corpus iuris civilis to contemporary needs. Medieval law and natural law. Emblematic of these attempts
scholars of Catholic church law, or canon law, were also is the Dutch jurist Hugo Grotius’ 1631 work, Intro-
influenced by Roman law scholarship as they compiled duction to Dutch Jurisprudence, which synthesized
existing religious legal sources into their own compre- Roman law and Dutch customary law into a cohe-
hensive system of law and governance for the Church, sive whole. In the eighteenth century, the reform-
an institution central to medieval culture, politics, and ing aspirations of Enlightenment rulers aligned
higher learning. By the late Middle Ages, these two with jurists’ desire to rationalize the law to produce
laws, civil and canon, were taught at most universities comprehensive, systematic legal codes including
and formed the basis of a shared body of legal thought Austria’s 1786 Code of Joseph II and Complete Civil
common to most of Europe. The birth and evolution Code of 1811, Prussia’s Complete Territorial Code of
of the medieval civil law tradition based on Roman 1794, and France’s Civil Code (known as the Na-
law was thus integral to European legal development. poleonic Code) of 1804. Such codes, shaped by the
It offered a store of legal principles and rules invested Roman law tradition, are the models of today’s civil
with the authority of ancient Rome and centuries of law systems.
distinguished jurists, and it held out the possibility of

2 THE COMMON LAW AND CIVIL LAW TRADITIONS

 Left: Originally issued in the year 1215, the Magna Carta was first
confirmed into law in 1225. This 1297 exemplar, some clauses of which are
still statutes in England today, was issued by Edward I. National Archives,
Washington, DC.

often were too rigid to adequately achieve justice. In

these cases, a further appeal to justice would have to be
made directly to the king. This difficulty gave birth to
a new kind of court, the court of equity, also known as
the court of Chancery because it was the court of the
king’s chancellor. Courts of equity were authorized to
apply principles of equity based on many sources (such
as Roman law and natural law) rather than to apply
only the common law, to achieve a just outcome.
Courts of law and courts of equity thus func-
tioned separately until the writs system was abolished
in the mid-nineteenth century. Even today, however,
some U.S. states maintain separate courts of equity.
Likewise, certain kinds of writs, such as warrants and
subpoenas, still exist in the modern practice of com-
mon law. An example is the writ of habeas corpus, which
protects the individual from unlawful detention. Orig-
inally an order from the king obtained by a prisoner or
on his behalf, a writ of habeas corpus summoned the
prisoner to court to determine whether he was being
detained under lawful authority. Habeas corpus devel-
oped during the same period that produced the 1215
Magna Carta, or Great Charter, which declared cer-
tain individual liberties, one of the most famous being
that a freeman could not be imprisoned or punished
without the judgment of his peers under the law of the
land—thus establishing the right to a jury trial.
In the Middle Ages, common law in England
coexisted, as civil law did in other countries, with other
Historical development of English Common systems of law. Church courts applied canon law, urban
Law and rural courts applied local customary law, Chancery
and maritime courts applied Roman law. Only in the

E nglish common law emerged from the changing and seventeenth century did common law triumph over the
centralizing powers of the king during the Middle other laws, when Parliament established a permanent
Ages. After the Norman Conquest in 1066, medieval check on the power of the English king and claimed
kings began to consolidate power and establish new the right to define the common law and declare other
institutions of royal authority and justice. New forms laws subsidiary to it. This evolution of a national legal
of legal action established by the crown functioned culture in England was contemporaneous with the de-
through a system of writs, or royal orders, each of velopment of national legal systems in civil law coun-
which provided a specific remedy for a specific wrong. tries during the early modern period. But where legal
The system of writs became so highly formalized that humanists and Enlightenment scholars on the conti-
the laws the courts could apply based on this system nent looked to shared civil law tradition as well as

THE COMMON LAW AND CIVIL LAW TRADITIONS 3

national legislation and custom, English jurists of
this era took great pride in the uniqueness of Eng-
lish legal customs and institutions.
That pride, perhaps mixed with envy in-
spired by the contemporary European movement
toward codification, resulted in the first systematic,
analytic treatise on English common law: William
Blackstone’s (1723-1780) Commentaries on the Laws
of England. In American law, Blackstone’s work
now functions as the definitive source for common
law precedents prior to the existence of the United
States.

Civil law influences in American law

T he American legal system remains firmly within

the common law tradition brought to the North
American colonies from England. Yet traces of the
civil law tradition and its importance in the hemi-
sphere maybe found within state legal traditions
across the United States. Most prominent is the ex-
ample of Louisiana, where state law is based on civil Above: Sir William Blackstone, 1774, by Thomas Gainsborough. Oil on canvas.
law as a result of Louisiana’s history as a French and Tate Collection, London.
Spanish territory prior to its purchase from France in
1803. Many of the southwestern states reflect traces its use is the 1805 case of Pierson v. Post, in which a
of civil law influence in their state constitutions and New York judge, deciding on a case that involved a
codes from their early legal heritage as territories of co- property dispute between two hunters over a fox, cited
lonial Spain and Mexico. California, for instance, has a a Roman law principle on the nature and possession
state civil code organized into sections that echo tradi- of wild animals from the Institutes as the precedent
tional Roman civil law categories pertaining to persons, for his decision. Today Pierson v. Post is often one of
things, and actions; yet the law contained within Cali- the first property law cases taught to American law
fornia’s code is mostly common law. students. United States v. Robbins, a 1925 California
And while Blackstone prevails as the principal case that went to the Supreme Court and paved the
source for pre-American precedent in the law, it is way for the state’s modern community property laws,
interesting to note that there is still room for the was based upon a concept of community property that
influence of Roman civil law in American legal tradition. California inherited not from English common law but
The founding fathers and their contemporaries from legal customs of Visigothic Spain that dated to
educated in the law knew not only the work of English the fifth century CE. Cases such as these illuminate
jurists such as Blackstone, but also the work of the the rich history that unites and divides the civil and
great civil law jurists and theorists. Thomas Jefferson, common law traditions and are a fascinating reminder
for example, owned several editions of Justinian’s of the ancient origins of modern law.
Institutes, and praised the first American translated
edition from 1812, with its notes and annotations
on the parallels with English law, for its usefulness
to American lawyers. Indeed, a famous example of

4 THE COMMON LAW AND CIVIL LAW TRADITIONS

Glossary Above: A world map showing countries today that have a civil law
system (light blue), countries that have a common law system (green),
and countries that have both (orange).
Canon law – the body of laws that govern the Catholic Church
and its members, deriving from the decrees and rules (“canons”)
the earliest editions compiled in England from the mid-thirteenth
made by the pope and ecclesiastical councils.
century until 1535, when they were superseded by officially printed
Civil law – the system of law that emerged in continental Europe and bound editions called Reports.
beginning in the Middle Ages and is based on codified law drawn
from national legislation and custom as well as ancient Roman
law.
Code – the collection of laws of a country or laws related to a
particular subject. Select Bibliography/Further Reading
Codification – the process of compiling and systematizing laws
into a code. J.H. Baker, An Introduction to English Legal History (London,
2002).
Common law – the system of law that emerged in England begin-
ning in the Middle Ages and is based on case law and precedent Manlio Bellomo, The Common Legal Past of Europe 1000-1800
rather than codified law. (Washington DC, 1995).

Corpus iuris civilis – meaning “body of civil laws,” the name given Alan Cromartie, The Constitutionalist Revolution: An Essay on
to the compilation of Roman law ordered by the Byzantine em- the History of England, 1450-1642 (Cambridge, 2006).
peror Justinian I in 529 CE. Joseph Dainow, “The Civil Law and the Common Law: Some
Equity – in English common law tradition, a body of legal princi- Points of Comparison,” American Journal of Comparative Law,
volume 15, number 3 (1966-7), p. 419-35.
ples that emerged to supplement the common law when the strict
rules of its application would limit or prevent a just outcome. S.F.C. Milsom, Historical Foundations of the Common Law
(London, 1981).
Precedent – a judicial decision in a court case that may serve as an
authoritative example in future similar caseses. Peter Stein, Roman Law in European History (Cambridge, 1999).
Writ – a formal written order from a judicial or administrative R.C. Van Caenegem, The Birth of the English Common Law
authority that directs a form of legal action. Originally writs were (Cambridge, 1988).
royal orders from the court of the English king.
Yearbooks/reports – collections of common law court cases and
judicial opinions recorded and organized by year. Yearbooks were ©2010 The Robbins Collection. Educational use only.

THE COMMON LAW AND CIVIL LAW TRADITIONS 5

 Justinian I
Institutes
Venice, 1478

One of the four parts of Emperor Justinian’s monumental sixth-century compilation of Roman law, the Institutes was created
as a textbook for law students. It has remained a resource for legal scholars for centuries because it offers a more rationally ordered and
concise summary of the main concepts of Roman law than the much larger Digest. The illuminated detail from this early printed edition
highlights the beginning lines of the Institutes: “Imperial majesty should be not only embellished with arms but also fortified by laws so
that the times of both war and peace can be rightly regulated.” Numerous marginal notes and markings reflect its use by students and
scholars.
 Even in modern common law culture, the Institutes and other important civil law sources may appear as precedent in case law. A
classic case still taught to American law students today is the 1805 property law case of Pierson v. Post. At its heart was a hunting dispute
in which the defendant killed and carried off from public land, in sight of the plaintiff, a fox that the plaintiff had been actively hunting
with his dogs for some time. Deciding for the defendant, the New York Supreme Court cited Book II, Title 1, Section 12, of the Institutes
as precedent for its finding that “pursuit alone gives no right of property in animals ferae naturae (wild by nature), which can be acquired
only by possession.”

The original citation, which defines the right to ownership of wild animals, may be found in this text detail from the 1478 Institutes
edition near the end of the page’s center text block, just below the ink-drawn manicula (pointing hand): “Ferae igitur bestiae, et volucres,
et pisces, et omnia animalia, quae mari, coelo, et terra nascuntur, simul atque ab aliquo capta fuerint, jure gentium statim illius esse inci-
piunt: quod enim ante nullius est id naturali ratione occupanti conceditur: nec interest feras bestias et volucres utrum in suo fundo quis
capiat, an in alieno.”

Examining this text detail closely, one can also see that the faint ink doodle just to the left of the passage is a human figure with
what appears to be a falcon, a wild bird of prey, flying overhead—presumably the work of a long-ago law student looking for a moment’s
diversion from his studies.
 Thomas Cooper
The Institutes of Justinian
Philadelphia, 1812

This is a page from the first American edition of the Institutes, translated and annotated by Thomas Cooper, a distinguished scholar
whose long career began with his appointment by Thomas Jefferson as the first professor of natural science and law at the University of
Virginia. Cooper sent a copy of the translated edition to his friend Jefferson, who replied, “I possessed Theopilus’, Vinnius’ and Harris’
editions, but read over your notes and the addenda et corrigenda, and especially the parallels with the English law, with great satisfaction
and edification. Your edition will be very useful to our lawyers, some of whom will need the translation as well as the notes.”

The page shown here shows the translation of the passage cited in Pierson v. Post: “Wild beasts, birds, fish, and all animals, bred
either in the sea, the air, or upon the earth, so soon as they are taken, become by law of nations, the property of the captor: for natural
reason gives to the first occupant, that which had no previous owner.
 Sir William Blackstone
Commentaries on the Laws of England
Oxford, 1765-1769

This title page is from the first edition of Blackstone’s Commentaries, considered by some scholars to be “the most important legal
treatise ever written in the English language.” Published in four volumes from 1765 to 1769, it was the first treatise on common law that
was comprehensive yet clear and accessible to a lay audience. As such, it was not only powerfully influential in Britain, but also provided
much of the common law foundation of the American legal system.

Each volume of the Commentaries addresses a distinct area of law: Book One treats “the rights of persons,” Book Two treats “the
rights of things” (property), Book Three treats “private wrongs” (torts and civil procedure), and Book Four treats “public wrongs” (crimes
and criminal procedure).
 Like the pages excerpted from the Institutes, these two pages from Book Two of Blackstone’s Commentaries, on “the rights of
things,” discuss laws relating to animals as property. One may see in the text how Blackstone compares the English common law on the
subject to Roman law as well as the contemporary laws of other nations.