The Civil Law System: History and Mythology

Legal systems in the western world fall into two great legal traditions. On one hand, the Civil Law tradition is found in those countries or political entities that have drawn their inspiration largely from the Roman law heritage. These systems emphasize the systematic codification of their general law. On the other hand, the Common Law tradition draws its inspiration from the English common law. Common Law countries assign a pre-eminent position to case law, as opposed to legislation, as the ordinary means of expression of general law. In the United States, for example, most states follow the common law tradition, but Louisiana is a Civil Law state, as is Puerto Rico (a US territory). Latin American countries, for the most part, follow the Civil Law tradition.

Despite the obvious differences between the two traditions we will see how, in practice, both legal systems tend to work in similar ways. The previous paragraph presents ideal types that are not strictly followed by existing legal systems. Furthermore, it is also important to point out that there are many mixed systems that adopt elements of both traditions--many Latin American countries, for example, adopted constitutional structures that are very similar to those in the US, thus blending some elements of the common law with many of the civil law.

In this unit we will examine the civil law tradition. Many authors blame this tradition for the apparent weakness of the rule of law in the region, as well as for its underdevelopment. During the course of our discussions we will evaluate this argument.

• Reading 1: Merryman - "The Civil Law Tradition" (.pdf)
  • Study Questions
• Additional reading (suggested): Shapiro - "Courts and Politics in Comparative Perspective" (.pdf)
  • Study Questions
• Comparing Civil Law and Common Law Traditions Excercise (.doc)
• Map Denoting Worldwide Legal Traditions