The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America, Fourth Edition

Stanford University Press

Stanford, California

© 1969, 1985, 2007, 2019 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved.

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Library of Congress Cataloging-in-Publication Data

Names: Merryman, John Henry, author. | Pérez-Perdomo, Rogelio, author.

Title: The civil law tradition : an introduction to the legal systems of Europe and Latin America / John Henry Merryman and Rogelio Pérez-Perdomo.

Description: Fourth edition. | Stanford, California : Stanford University Press, [2018] | Includes bibliographical references and index.

Identifiers: LCCN 2018012684 (print) | LCCN 2018013709 (e-book) | ISBN 9781503607552 (e-book) | ISBN 9781503606814 (cloth : alk. paper) | ISBN 9781503607545 (pbk. : alk. paper) | ISBN 9781503607552 (e-book) Subjects: LCSH: Civil law systems.

Classification: LCC K585 (e-book) | LCC K585 .M467 2018 (print) | DDC 340.5/6—dc23

LC record available at https://lccn.loc.gov/2018012684

Typeset by Newgen in 10/12 Galliard

JOHN HENRY MERRYMAN AND ROGELIO PÉREZ-PERDOMO

The Civil Law Tradition

AN INTRODUCTION TO THE LEGAL SYSTEMS OF EUROPE AND LATIN AMERICA

Fourth Edition

STANFORD UNIVERSITY PRESS

STANFORD, CALIFORNIA

For Nancy, Len, Sam, and Bruce, in celebration of April 1, 1953, and other great days.

—J.H.M.

For Camila.

—R.P.P.

CONTENTS

Preface to the Fourth Edition

Preface to the Original Edition

I. Two Legal Traditions

II. Roman Civil Law, Canon Law, and Commercial Law

III. The Revolution

IV. The Sources of Law

V. Codes and Codification

VI. Judges

VII. The Interpretation of Statutes

VIII. Certainty and Equity

IX. Scholars and Legal Education

X. Legal Science

XI. The General Part

XII. The Legal Process

XIII. The Division of Jurisdiction

XIV. Legal Categories

XV. The Legal Professions

XVI. Civil Procedure

XVII. Criminal Procedure

XVIII. Constitutional Review

XIX. Perspectives

XX. The Future of the Civil Law Tradition

Recommended Readings

Index

PREFACE TO THE FOURTH EDITION

PROFESSOR JOHN HENRY MERRYMAN passed away on August 3, 2015, after a long, active, and productive life. He made enormous contributions to legal scholarship: he created a new field, art in the law, and he conceived a new approach to comparative law. He was interested in comparing legal systems in action and using the social sciences and quantitative indicators in his analysis. He studied the Italian law in depth and was familiar with French and German law as well the main Latin American legal systems.

This book is one of his early works in comparative law. It is a masterpiece: clear, comprehensive, and at the same time of an unusual depth. The previous three editions in English are a good proof of its acceptance in the English-speaking (common law) world. The translation into many languages of the countries of the civil law tradition shows its worldwide acceptance. Professor Merryman asked me to participate in its updating for the third edition in 2006, and I was honored when he recognized me as his coauthor. In 2013 and 2014 we taught together Comparative Law and Society at Stanford Law School, and this was the occasion for new conversations on the continuing evolution of the civil law tradition. Generally, we agreed in our understanding of these changes. I think this fourth edition reflects these conversations and our areas of agreement.

In the first two editions, it was clear that an American jurist was explaining the civil law tradition in comparison with his native tradition. I am a native of the civil law tradition, but in this edition the American law is maintained as an anchor for the comparative law purposes. The general appreciation and success of the previous editions of this book encouraged a conservative approach that avoided unnecessary changes.

R.P.P.

Stanford, 2018

PREFACE TO THE ORIGINAL EDITION

THIS BOOK is written for amateurs, not professionals. It speaks to the general reader who wants to know what it is that binds together the legal systems of Western Europe and Latin America and that distinguishes them from the legal systems of the Anglo-American world; to the nonlawyer who wishes to know something about the legal side of European and Latin American culture; to the student seeking collateral reading for a course in history, politics, sociology, philosophy, international relations, area studies, or law. This book may also have some use among lawyers who have not studied foreign and comparative law and wish, for practical or other reasons, to begin to remedy this deficiency. It can provide background reading for persons with public or private business in Europe or Latin America (or other civil law nations). My professional colleagues in foreign and comparative law, however, are likely to find the work too elementary and too general to engage their interest.

Although I have tried to make it clear in the text that this book does not attempt to describe any specific national legal system, a special word should be said here about the peculiar problem posed by France and Germany. Each of these nations has made a major contribution to the civil law tradition, and each still occupies a position of intellectual leadership in the civil law world. At the same time, neither is a typical civil law system. Indeed, they are in a sense the least typical of all. The French revolutionary ideology and the French style of codification had only a limited impact on German law. German legal science has never really caught on in France. Elsewhere in the civil law world, however, there has been a strong tendency to receive and fuse both influences. This is particularly true in Mediterranean Europe and Latin America, but it also applies to some extent to most other parts of the civil law world. French or German readers may find much in this book that is not representative of their legal system. The reason is that their system is atypical. The civil law world includes a great number of national legal systems in Europe, Latin America, Asia, Africa, and the Middle East. This book is about the legal tradition they share, not about French or German law.

Something should also be said about perspective. I do not mean to suggest that all lawyers in civil law nations accept and believe in those aspects of their tradition that will appear to the reader to be excessive or deficient. On the contrary, I have tried to indicate throughout (and to hammer the point home again in Chapter XIX, which I beg the reader not to skip) that I am describing prevailing attitudes. There is the common run of lawyers, and there is the sophisticated, critical jurist at the growing point of legal thought. Sophisticated jurists always constitute the smaller and less representative group, but even in the most backward nation one can expect to find a few lawyers who will honestly say: I don’t think that way at all. In a more advanced civil law nation like France or Germany, the proportion of enlightened and liberated lawyers and the extent to which the legal order has freed itself of the defects of the tradition will be greater. That is another indication of the atypicality of France and Germany. This book, however, is about the way the common run of lawyers in the civil law world generally think, even though the avant-garde of legal thought tells them they are wrong.

Dean Bayless A. Manning of the Stanford School of Law persuaded me that there was a need for this book, and encouraged me to write it. Three outstanding comparative lawyers—Professors Mauro Cappelletti of the University of Florence, F. H. Lawson, formerly of Oxford University, and Konrad Zweigert, of the Max Planck Institute in Hamburg—kindly read the manuscript and suggested a number of changes that improved it. One of my colleagues at Stanford, Dr. George Torzsay-Biber, was particularly helpful on a number of questions concerning Roman civil law. Generations of imaginative and industrious scholars have produced a rich literature on foreign and comparative law, from which most of the ideas contained in this book were drawn. Dr. Hein Kötz, Research Associate at the Max Planck Institute in Hamburg, and Gernot Reiners, a Teaching Fellow at the Stanford School of Law, 1967–68, assisted me in a variety of ways, and in particular gave me authoritative information on German law. Mrs. Lois St. John Rigg prepared the manuscript for publication with skill, patience, and good humor. To all, my thanks.

J.H.M.

Stanford, 1969

I

TWO LEGAL TRADITIONS

THERE ARE two highly influential legal traditions in the contemporary world: civil law and common law. This book is about the older, more widely distributed, and more influential of them: the civil law tradition.

The reader will observe that the term used is legal tradition, not legal system. The purpose is to distinguish between two quite different ideas. A legal system, as that term is here used, is an operating set of legal institutions, procedures, and rules. In this sense, there are one federal and fifty state legal systems in the United States, separate legal systems in each of the other nations, and still other distinct legal systems in such organizations as the European Union and the United Nations. In a world organized into sovereign states and organizations of states, there are as many legal systems as there are such states and organizations.

National legal systems are frequently classified into groups or families. Thus, the legal systems of England, New Zealand, California, and New York are called common law systems, and there are good reasons to group them together in this way. But it is inaccurate to suggest that they have identical legal institutions, processes, and rules. On the contrary, there is great diversity among them, not only in their substantive rules of law but also in their institutions and processes.

Similarly, France, Germany, Italy, and Switzerland have their own legal systems, as do Argentina, Brazil, and Chile. It is true that they are all frequently spoken of as civil law nations, and we try in this book to explain why it makes sense to group them together in this way. But it is important to recognize that there are great differences between the operating legal systems in these countries. They have quite different legal rules, legal procedures, and legal institutions.

In former editions of this book a third major legal tradition was briefly recognized. For much of the twentieth century, socialist law reigned in the Soviet Empire, China, and several other nations that embraced state socialism. At that time, even in the official language of diplomats a sharp distinction was made between the first (capitalist) world, the second (socialist) world, and the third (developing) world. Socialist law embraced the political and economic premises and objectives of state socialism, implying a distinctly different vision of the state, law, and society. Indeed, during the height of Soviet state socialism there was an organized effort to construct an independent and valid socialist legal tradition. However, most of the nations with socialist law had previously been participants in the civil law tradition, to which they reverted when the socialist law superstructure collapsed.

Such differences in legal systems are reflections of the fact that for several centuries the world has been divided into individual states, under intellectual conditions that have emphasized the importance of state sovereignty and encouraged a nationalistic emphasis on national characteristics and traditions. In this sense, there is no such thing as the civil law system or the common law system. Rather, many different legal systems exist within each of these two groups or families of legal systems. But the fact that different legal systems are grouped together under such a rubric as civil law, for example, indicates that they have something in common, something that distinguishes them from legal systems classified as common law. It is this uniquely shared something that is here spoken of as a legal tradition and that makes it possible to speak of the French and German (and many other) legal systems as civil law systems.

A legal tradition, as the term implies, is not a set of rules of law about contracts, corporations, and crimes, although such rules will almost always be in some sense a reflection of that tradition. Rather, it is a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught. The legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legal system into cultural perspective.

Of the great variety of living legal traditions, the two mentioned above are of particular interest because they are in force in powerful, technologically advanced nations and because they have been exported, with greater or lesser effect, to other parts of the world. Of the two, the civil law tradition is both the older and the more widely distributed. It goes back to Roman law, for which historians use the year 450 BC, the supposed date of publication of the Twelve Tables, as the beginning of Roman law. Historians also highlight that the great development happened in the classical period (100 BC to AD 250), and another great moment was the compilation of the classical jurisconsults’ opinions by Emperor Justinian in AD 533. The civil law tradition is today the dominant legal tradition in Europe, all of Latin America, many parts of Asia and Africa, and even a few enclaves in the common law world (Louisiana, Quebec, and Puerto Rico). The civil law was the legal tradition familiar to the European scholar-politicians who were the founders of international law. The basic charters and the continuing legal development and operation of the European Union are the work of people trained in the civil law tradition. It is difficult to overstate the influence of the civil law tradition on the law of specific nations, the law of international organizations, and international law.

We in the common law world are not accustomed to thinking in these terms. Hence, it bears repeating that the civil law tradition is older, more widely distributed, and more influential than the common law tradition. In these senses, at least, it is more important. It should be added that many people believe the civil law to be culturally superior to the common law, which seems to them to be relatively crude and unorganized. The question of superiority is really beside the point. Sophisticated comparative lawyers in both traditions long ago abandoned discussions of relative superiority or inferiority. But it is to the point that many people think that their legal system is superior to ours in the United States. That attitude itself has become part of the civil law tradition.

Hence lawyers from a relatively undeveloped nation may be convinced that their legal system is measurably superior to that of the United States or Canada. Unless they have cultivated the comparative law, they may be inclined to patronize a common lawyer. They will recognize the more advanced economic development or envy the standard of living of the other country, but they will find compensatory comfort in thinking of common lawyers as relatively uncultured people. The mirror attitude is also frequent. There are common lawyers who think their legal system and their legal cultures are clearly superior because the country is wealthier or politically more stable. Failure to take these attitudes of some civil lawyers and common lawyers into account can result in misunderstanding and difficult communication. One of the purposes of this book is to enable a better dialogue between civil and common lawyers.

The date commonly used to mark the beginning of the common law tradition is AD 1066, when the Normans defeated the defending natives at Hastings and conquered England. If we accept that date, the common law tradition is well over nine hundred years old. As a result of the remarkable expansion and development of the British Empire during the age of colonialism and empire, however, the common law was very widely distributed. It is today the legal tradition in force in Great Britain, Ireland, the United States, Canada, Australia, and New Zealand, and it has had substantial influence on the law of many nations in Asia and Africa. The birth of the civil law tradition is foggier. Civil lawyers claim to be the inheritors of Roman law, and the translation of this book into Spanish presents it as the tradition of Roman and canonical law. Spanish, Portuguese, and French colonialism expanded it in the world.

Although Japan and China were not colonized by any European country, by the end of the nineteenth century or the beginning of the twentieth they had imported codes and other instruments of the civil law tradition. That is why many jurists from Japan, Korea, and China think of themselves as part of the civil law world. Still, comparative lawyers recognize a distinct tradition in East Asia, whose cultures emphasize social harmony and respect for social hierarchies. Some observers relate these traits to Confucian thought and suggest the existence of a Confucian legal tradition. Certainly, Japanese law and legal culture are not substantially similar to those in Germany, even if the civil code is practically the same and German law books have an audience in Japan. American public law has a strong influence in Japan and Korea, but no one would suggest that they are common law nations.

The Islamic world has felt a variety of significant legal influences. Early in the twentieth century Turkey imported the Swiss civil code as part of its modernization process. Lebanon and Algeria, colonized by the French, received the French law but later became independent and followed their own paths. Other countries, like Yemen and Saudi Arabia, were less influenced by Western law. In many countries with large Islamic populations, their religion has had a vigorous revival and has produced a renewed emphasis on Islamic legal traditions. Still, much secular law in those nations has its origins in the civil law and common law traditions.

The civil law and common law have not been isolated from each other. As components of a common Western history and culture they have had multiple contacts and reciprocal influences. Common lawyers and civil lawyers coexisted in England for centuries. The constitution of the United States could be partially explained by the influence of the European Enlightenment. Later, United States constitutionalism had an enormous influence in Latin America and Europe. Judicial review, for example, is now firmly embedded in both traditions. The condominium, a civil law invention, has been enthusiastically embraced in the United States, and many civil law systems have incorporated the common law trust. The education of lawyers in universities, perhaps the most distinctive trait of the civil law tradition, is now accepted in common law countries.

The fact that these two legal traditions are of European origin should give us pause. There are, of course, many other legal traditions in today’s world, and new ones are forming. The dominance of the two traditions of which we have spoken is the direct result of European imperialism in earlier centuries, just as the dominance of Roman law in an earlier age was a product of Roman imperialism.

Historians are used to dealing with the coexistence of permanence and change in human affairs. Although we do not here purport to be writing legal history, our discussion of the civil law tradition necessarily treats it as something that endures, even as particular elements of the legal systems that share that tradition rise, fall, and evolve. The civil law tradition we describe would not be recognizable to lawyers in France or Spain in the eighteenth century, just as Wall Street lawyers are quite different from the serjeants-at-law in Elizabethan times. Change and permanence in the traditions are some of the issues we discuss in this book.

II

ROMAN CIVIL LAW, CANON LAW, AND COMMERCIAL LAW

WE HAVE been discussing the civil law tradition as though it were homogeneous. Now we must face the unhappy fact that it is really not that simple. The civil law tradition is a composite of several distinct elements or subtraditions, with separate origins and developments in different periods of history. In this and the next few chapters these subtraditions are described under the following headings: Roman civil law, canon law, commercial law, the revolution, and legal science. A brief discussion of each of them provides a convenient way of summarizing the historical development of the civil law tradition and indicating something of the complexity of that tradition.

The oldest subtradition is directly traceable to the Roman law as compiled and codified under Justinian in the sixth century AD. It includes the law of persons, the family, inheritance, property, torts, unjust enrichment, and contracts and the remedies by which interests falling into these categories are judicially protected. Although the rules actually in force have changed, often drastically, since 533, the first three books of the Institutes of Justinian (Of Persons, Of Things, Of Obligations) and the major nineteenth-century civil codes all deal with substantially the same sets of problems and relationships, and the substantive area they cover is what a civil lawyer calls civil law. The belief that this group of subjects is a related body of law that constitutes the fundamental