THE COMMON LAW AND CIVIL LAW TRADITIONS
Above: Woodcut of a court scene from Praxis criminis persequendi, Jean Milles de Souvigny, 1541. The Robbins Collection.
Historical Development of Civil Law The 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 monumental compilation of Roman law commissioned by the Emperor Justinian in the sixth century CE. While this compilation was lost to the West within decades of its creation, it was rediscovered and made the basis for legal instruction in eleventh-century Italy and in the sixteenth century came to be known as Corpus iuris civilis. Succeeding generations of legal scholars throughout Europe adapted the principles of ancient Roman law in the Corpus iuris civilis to contemporary needs. Medieval scholars of Catholic church law, or canon law, were also influenced by Roman law scholarship as they compiled existing religious legal sources into their own comprehensive system of law and governance for the Church, an institution central to medieval culture, politics, and higher learning. By the late Middle Ages, these two laws, civil and canon, were taught at most universities and formed the basis of a shared body of legal thought common to most of Europe. The birth and evolution of the medieval civil law tradition based on Roman law was thus integral to European legal development. It offered a store of legal principles and rules invested with the authority of ancient Rome and centuries of distinguished jurists, and it held out the possibility of
a comprehensive legal code providing substantive and procedural law for all situations. As civil law came into practice throughout Europe, the role of local custom as a source of law became increasingly important—particularly as growing European states sought to unify and organize their individual legal systems. Throughout the early modern period, this desire generated scholarly attempts to systematize scattered, disparate legal provisions and local customary laws and bring them into harmony with rational principles of civil law and natural law. Emblematic of these attempts is the Dutch jurist Hugo Grotius’ 1631 work, Introduction to Dutch Jurisprudence, which synthesized Roman law and Dutch customary law into a cohesive whole. In the eighteenth century, the reforming aspirations of Enlightenment rulers aligned with jurists’ desire to rationalize the law to produce comprehensive, systematic legal codes including Austria’s 1786 Code of Joseph II and Complete Civil Code of 1811, Prussia’s Complete Territorial Code of 1794, and France’s Civil Code (known as the Napoleonic Code) of 1804. Such codes, shaped by the Roman law tradition, are the models of today’s civil law systems.