Page 213 - Law of Peace, Volume ,

Pam 27-161-1

CHAPTER 11
THE CIVIL LAW SYSTEM

11-1. Introduction. The legal status of members of the The recent trend in the common law of combining "law"
United States Armed Forces in foreign countries may to a and "equity" functions in a single court closely resembles
great extent depend on the law of the country where the the consolidation that occurred in the civil law. 7 Through
member is located. 1 The United States Supreme Court the centuries the prestige of the praetors increased and
once stated that "[it] is well settled that a foreign army their opinions and advice were followed. Attempts to col-
permitted to march through a friendly country, or to be lect the work of the praetors culminated when Emperor
stationed in it, by permission of its government or Justinian caused Roman law to be compiled in Justinian's
sovereign, is exempt from the civil and criminal jurisdic- Code. In subsequent centuries the codified Roman law
tion of the place." 2 This proposition is no longer ac- was alternately in and out of favor in Europe. During the
cepted. The doctrine of "extra-territoriality," upon which 18th and 19th centuries it found increasing favor with pro-
the exemption of foreign troops from "territorial jurisdic- minent European jurists and the great codification move-
tion" was based, has been abandoned and is now ob- ments of France and Germany occurred. These legislative
solete. 3 The broad waiver once thought to be implicit in codifications are the bases of the civil law system. 8
the grant of permission by a receiving State to station 11-3. Modem Civil Practice. When investigating a
troops in its territory is no longer recognized by modem foreign custom or a manner of doing something that is
state practice or by authoritative text writers. 4 Ac- different than what one is accustomed to, the temptation
cordingly, it is of practical importance that members of the is to use the familiar as a standard of excellence and to
United States Armed Forces appreciate the legal systems seek to determine how much deviation exists between the
which they are likely to encounter outside the United familiar and the practice under investigation. The obser-
States. vations of a French jurist in the 1920's may reduce such a
11-2. The Early European Models. a. In Western temptation:
Europe, two prominent legal systems developed: the When a lawyer of the Continent comes for the fust time to America, he
common law of the Anglo-Saxon contries, and the civil is usually full of admiration for the administration of justice in the
law of continental Europe. The effect of these two systems United States. He sees "efficiency" and "service" written and worship-
ped everywhere. His imagination begins to work, and he thinks im-
has been worldwide since many countries have used them
mediately of American courts like small Ford factories, where rights are
as sources of their legal systems. recognized, set in motion, sanctioned in less time than is necessary to
b. Roman origins. "Civil Law" can have several build a "fliwer." Then he enters into a courtroom. . . .Instead of look-
meanings. For example, it is used in contradistinction to ing at a trial conducted as a business meeting, with all the work prepared
criminal law or as a synonym for private law in general. by well-trained specialists, what does he see? That nothing has been
done before the trial to ascertain the facts; that oral evidence is seriously
Primarily the notation "civil law" is used to distinguish it
considered as reliable; nay! that such evidence is gathered not by a criti-
from the common law. 5 The common law has its origins cal and impartial inquiry, but by squeezing the witness through the
in the feudal system of England. The civil law system has a theatrical scheme of cross-examination; that the inquiry is conducted by
different origin and a different emphasis; the ius civile lawyers who are not interested in the discovery of truth, but, to say the
finds its bas; in legislative codif~catibns aid its brigins in least, in a certain presentation of the facts; that abstract mles, called evi-
Roman legal practice. Early in Roman history the jus civile dence (!!), decide a priori what is relevant or not, what canbe proven or
not; that a stenographer takes down all that is said at the trial and makes
applied only to citizens of Rome, while the jus gentium it eventually one of several volumes.9
was developed for noncitizens. The Roman legal system
contained relatively strict provisions which often resulted To add to this confusion, consider the consternation of the
in excessive hardships. To resolve this harshness, the of- civil lawyer who then realizes that the complicated facts
must be unraveled and a decision reached by "ordinary"
fice of praetor was established to temper the jus civile. 6
persons. A number of years ago, the civil law
1. see chap. 10, supra. methodology was described thusly:
2. Coleman v. Tennessee, 97 U.S. 509, 515 (1878). "The
sovereign is understood . . . to cede a portion of his territorial jurisdic- In the civil system the Code is central; judges and case law have a dis-
tinctly inferior position, in comparison with common law jurisdictions.
ti& when he allows troops of a foreign prince to pass through h5 do- The controlling conceptualism of the civil law is contained within these
minions." Id. mitten Code texts, which are authoritative because of their political
3. See, e.g., Lauritzen v. hen, 345 U.S. 571, 584-85 (1952),
and Chung Chi Cheung v. The King [1938] A.C. 1960 (H.L. 1938).
4. For a survey of authorities and a comprehensive bibliography, 7. Dainow, The Civil Law and Common Law:Some Points of Com-
see 99 CONG. REC. 9062-70 (1953) (statement of Attorney General parison, 15 AM. J. COMP. L. 419, 423 (1967) [hereinafter referred to
Brownell). as Dainow].
5. SeeZepos, The Legacy of Civil Low, 34 Lo. L. Rev. 895 (1974); 8. Id. at 420, 21.
R. Schlesinger, Comparative Law, 245, 251 (3d ed. 1970); R. David & 9. Pugh, Cross-Observations on the Administration of Civil Justice
J. Brierly. Mqior Legal Systems in the World Today, 18-53 (1968). in the United States and France, 19 U. Miami L. Rev. 345, 346 (1965)
6. This introduced a concept similar to "equity" which was to citing LePaulle, Administration of Justice in the United States, 4 West
develop centuries later in response to the hardships of the common law. Pub. Co. Docket 3192 (1928).