Civil Law: Understanding
the Basics“You are not in Kansas anymore.”
Introduction
Rationale
Historical Basis
Key Issues
Modern Convergence
Rationale
Provide basic knowledge to be effective in Civil Law jurisdictions
Understand basis of most legal systems
Avoid being the “Ugly American”, or even worse, the “Ugly American Lawyer”
Create opportunities for dialogue
Historical Basis
Continental in Origin
Codified First in 19th Century
Developed Fully in the 20th Century
Historic Laws of the Continent
Corpus Juris Civilis
Customary Law
Canon Law
Lex Mercatoria
19th Century Codifications
French Revolution:Code Napoléon
Bismarckian Republic:German Civil Code
20th Century Innovations
Austrian Constitutional Court
“Decodification”
Council of Europe
European Union
Constitutionalism
Key Issues
Codes and Case-Law
Structure of the Legal Education System
Structure of the Legal Profession
Trials and Rules of Procedure
Codes, Commentary & Case-Law
Public v. Private Law
Basic Codes
Commentary
Case Decisions
Public v. Private Law
Fundamental Concept
Frames Legal Structures
Self-Evident to Civil Law Lawyers
Modern Scope Evolving
Basic Codes
Civil Code
Civil Procedure Code
Commercial Code
Criminal Code
Criminal Procedure Code
Commentary
Not a Formal Source of Law
Scholarly Doctrine Drives the System
Legislatures Defer to Doctrine
Judges Typically Refer to Doctrine
“Civi l law is a law of the professor .”
John Merryman
Case Decisions
No stare decisis Effect, but Cases are
Always Consulted
Commonly Followed
Most Influential in New Areas of Law
Structured Differently
Structure of theLegal Education System
Law Faculty
Bar Exam
Practical Training
Magistrate Schools
Law FacultyStudents
No Entrance ExamsHigh Failure RateEarly SpecializationGraduates Often Don’t Practice
ProfessorsUsually in Private PracticeArduous Tenure TrackFull Professors Serviced By Team of AssistantsLess Interactive StyleEmphasize TheoryOral Exams Common
Bar ExamsOne of Several Criteria to Practice
Failure Rates may be High
Contains Oral and Written Components
May be Administered Over More than One Session
May Include Special Certifications
Practical Training
Prerequisite to Practice
Unique to Each Jurisdiction
May Involve Multiple Stages or Internships
May Allow Trainee to Earn Income
Magistrate Schools
Judicial Training as a Special Legal Education Track
Magistrates May Include Prosecutorial Functions
Emphasizes the Judge as a Civil Servant
Structure of the Legal Profession
Lawyer/Advocate
Notary
Non-Lawyers Who Provide Legal Advice
Lawyer/Advocate
Right to Appear in Court
Geographic Limitations
Law Offices Typically Smaller
Different Role of Legal Ethics
Notary
Draft Contracts, Wills, etc.
Certify Documents as “Public Acts” for Court
Safeguard Records
Quasi-Monopolies
Non-Lawyer Advisers
Accountants
Tax Advisers
Insurance Advisers
Trials and Rules of Procedure
Court System
Evidence and the Court Record
Court Proceedings
Court System
Three Levels
Clear Substantive Specializations
Juries Only in Serious Criminal Trials
De Novo Appeals
Federal Republic of Germany
County CourtAmtsgericht
(1 Prof. Judge in Civil and Family Divsions)(2 Prof. & 2 Lay Judges in Criminal Division)
District CourtLandgerichte
(3 Prof. Judges in Civil and 1 Prof. & 2 Lay in Commercial Divisions)(6 Prof. & 5 Lay Judges in Criminal Division)
Court of AppealsOberlandesgericht
(3 Professional Judges)
Federal Supreme CourtBundesgerichtshof
(5 Professional Judges)
Labor Court(1 Professional & 2 Lay Judges)
Court of Labor Appeals(1 Professional & 2 Lay Judges)
Federal Supreme Court of Labor(3 Professional & 2 Lay Judges)
Administrative Court(3 Professional & 2 Lay Judges)
Court of Administrative Appeals(3 Professional & 2 Lay Judges)
Federal Supreme Court of Administration(5 Professional Judges)
Tax Court(3 Professional & 2 Lay Judges)
Federal Tax Court(5 Professional Judges)
Court of Social Matters(1 Professional & 2 Lay Judges)
Court of Appeals for Social Matters(3 Professional & 2 Lay Judges)
Federal Supreme Court of Social Matters(3 Professional & 2 Lay Judges)
Specialized Courts
Constitutional CourtBundesverfassungsgericht
(8 Professional Judges)
Evidence and the Court Record
Discovery is Limited
Judges Question Witnesses
Verbatim Transcripts/ Recording Rare
Preliminary Record May Not Be Prepared by Trial Judge
Court Proceedings
Rules of ProcedureCivil Procedure
Criminal Procedure
Administrative Procedure
Influence of Civil Procedure
No “Trials” in the U.S. Sense
Civil ProcedureThree Stages
PreliminaryEvidence-TakingDecisionmaking
No Single Trial EventNo Cross ExaminationNo Contingent FeesNo Contempt PowersUse of Experts
Criminal Procedure
Three StagesInvestigative Phase
Examining Phase
Trial
No Plea Bargaining
Posture of the Prosecutor’s Office
“Judges in cr iminal cases have no right to interpret
penal laws, because they are not legislators.”
Cesare Beccaria
Modern Convergence
Decline of Parliamentary SupremacyRise of ConstitutionalismAcceptance of Judicial ReviewHarmonization of Commercial Practice
Legislature v. Judiciary
Role of Legislature
Fundamental Rights
Spectrum of Judicial Review
France
Increased Delegation to the Executive
Introduction of Limited Constitutional Review
1971 Conseil Constitutionnel Decision
Role of Administrative Courts
England
No Written Constitution
Parliamentary Supremacy Declining
EC Act of 1972
ECHR Incorporation
Limited Judicial Review
Germany
Impact of National Socialism
The Basic Law
“Centralized” Judicial Review
Constitutional Court as Supreme Arbiter
United States
Judicial Branch as Co-Equal
“Diffuse” Constitutional Review
Due Process Jurisprudence
Supreme Court as Ultimate Arbiter
Questions and Comments
“My true glory is not that I have won forty batt les . Water loo wil l blow away the memory
of these victor ies . What nothing can blow away and wil l l ive eternal ly is my Civi l Code.”
Napolean Bonaparte in Exile on the Is land of St . Helena