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Civil law can refer to two distinct legal concepts. On the one hand, civil law refers to a form of litigation between two parties. These civil lawsuits stand in contrast to criminal proceedings. (For more on this topic, see Civil Procedure.) On the other hand, civil law also refers to an overarching system of law that evolved from the laws of Roman emperor Justinian. This system is in force in Quebec in the form of a Civil Code. In civil law, laws are codified through statue by legislators, rather than through court rulings by judges. As Canadian law professor John Fairlie has explained, “any modern civil code… is essentially an authoritative statement of rules regulating conduct in a particular society.” These codes must be comprehensive to be effective. If they are not, they leave de facto law-making power in the hands of judges. Hence, civil law contrasts with the British system of common law (used in the rest of Canada). In common law, laws are determined by judicial precedents.
Background History
Most legal systems around the world, both historically and currently, have had a civil law rather than a common law character. The first major civil code in history was the Code of Ur-Nammu, written in Mesopotamia around 2100–2050 BCE. This set of laws determined what citizens could and could not do. In some cases, justice for infractions resembled what we now call criminal law. For instance, the “eye for an eye” rule implied that violent punishment of criminals should be conducted by the state. In other cases, justice involved compensation for the victim from the perpetrator. For instance, someone who cut down a tree on someone else’s property without permission was required to compensate the owner financially. These rules set the precedent for what we now call tort law. It is designed to grant compensation to injured parties for the wrongdoing of others.
A second major landmark in the history of civil law came in the late period of the Roman empire. Commissioned by the Roman emperor Justinian between 529 and 534, the Corpus Juris Civilis — also known as the Code of Justinian — attempted to synthesize and rationalize existing judicial rulings, which by then had become overwhelmingly complex.
Despite the decline of Rome, the Code of Justinian was adopted to some extent by several societies across southern and central Europe. Throughout the medieval period, both canon law and civil law formed the legal framework of the Roman Catholic Church in Europe. However, in the late 11th century, legal scholars — especially those at Europe’s first university in Bologna, Italy — revisited the Code of Justinian. Several European governments partially adopted (or readopted) it in the following centuries.
A third major event in the history of civil law came with the enactment of France’s Napoleonic Code in 1804. Alongside the constitutions that emerged from the American and French revolutions, the Napoleonic Code was one of the most significant documents in modern legal history. It adopted many ideas of secular rationality that had emerged from Enlightenment thinkers. For example, it removed Church control of civil institutions, as well as inherited aristocratic privileges. The Code left a major imprint on France’s colonies and many of the areas temporarily conquered by Napoleon’s army. Quebec voluntarily adopted elements of the Code because of their ideological affinity with it and France.
In a global perspective, civil law has taken different forms in the past two centuries. Comparative legal scholars generally identify four main traditions: 1) the French system rooted in the Napoleonic Code; 2) German civil law, which has influenced many states across Europe and Asia; 3) Nordic civil law; and 4) East Asian civil law, which was enacted in 1930.
Civil law in Canada
In English Canada, the legal system has always been based on British common law. Quebec has followed a unique pathway that borrows more from the civil law tradition. This was formalized in the 1866 Civil Code in Quebec. It adopted several principles from the Napoleonic Code.
Canada’s unique synthesis of common law and civil law makes it one of few “bijural” countries in the world. Although Canadian bijuralism is somewhat unique, its significance should not be overstated. In Quebec, private law — including property, commercial, and family law — is rooted in the Civil Code. But public law, which shapes government institutions, is rooted in common law. Also, law students in Quebec are trained in both the civil and common law traditions. But elsewhere in Canada they are trained only in common law. (This is why the Supreme Court of Canada requires that at least three of its nine justices be from Quebec.)
At the same time, the practice of common law and civil law has converged in recent decades. This has been especially true with the rise of constitutional and human rights laws in the 20th century.
(See also Civil Law; Civil Procedure; Civil Code; Civil Liberties; Criminal Code of Canada.)
