UNIVERSITY OF DAR ES SALAAM

SCHOOL OF LAW {SOL} ASSIGNMENT COURSE NAME COURSE CODE COURSE INSTRUCTOR DEGREE PROGRAM: LEGAL HISSTORY LW 205 DR.ZAKAYO, LUKUMAY BACHELOR OF LAWS.

QUESTION: The history of civil legal system, origin, evolution, applications and influence to the common law. NO. 1. 2. 3. 4. 5. 6. NAME JACKSON, ROSELIAN FUIME NICHOLAUS MASESA BONAVENTURE MINDE CHIZASO .N. OTHMAN OTHMAN .O. EVARIST HONEST REGISTRATION NUMBER 2012-04-04133 2012-04-04117 2012-04-04173 2012-04-04190 2012-04-04230 2012-04-04114 SIGNATURE

THE ORIGING AND DEVELOPMENT OF THE CIVIL LAW SYSTEM The origin of civil law can be traced far back from the written law and legal institution of Rome before the beginning of the Empire, in the second century B.C .Its name derives from the jus civile that means the civil law of Roman Empire and Roman republic. In this system there were jurists, persons learned in law or body of expertise that gave substantial contributions in the development of Roman by the end of the Republic, in 27 B.C. These jurists were the men from the upper class of Roman society interested in law and in providing counsel they provide advice to the parties to litigations and to the lay judges about the law as a public services, to the parties to litigations and to the lay judiciary who presided at the trials and judged the facts of the course and to legal magistrates who instructed the lay judges on issues, procedures and remedies available in particular cases. Due to some tremendous changes such increasing number of people and trade and development of cities as the outcome Rome in acquiring territories created the need for private law regime to determine and guide the relationship between citizens and noncitizens ,with this situation Roman jurists came into being. There were two main types of civil judges namely, praetor or magistrate and iudex judge for the trial whom both of them lack legal training1.Jurists had two functions ,one being responded to specific questions of law in a document known as responsa which was prepared for both praetors and iudex and using device of the interpretation from which specific statutory phases served as the basis of opinions thus they provided written technical advice to the judges and others about the state of the law and interpretation of the textual materials such as from the

G. James, an introduction to the comparative study of private law: reading cases material, (2006), Cambridge University, Cambridge, p19.

twelve tables (an early statement of existing law circa 450 B.C or edict,2 And in the sixth century the Emperor Justinian drove the final nail in the coffin of Roman judicial precedent (and judicial precedent in later systems as well) in the encyclopedic work commissioned by him, the Corpus Juris Civilis, with the dictum non exemplis sed legibus judicandum est (decisions should be rendered in accordance, not with examples, but with the law)3 THE EVALUATION OF CIVIL LAW; FROM ROMAN LAW TO CIVIL LAW AND CONTINENTAL LAW S The development of civil law can be divide in two conceptual intertwined perspective, the first being its development from roman law to civil law, by focusing on the intellectual development of codification process, and the second one is the trace from roman law to continental law, by focusing on the wide spread of roman to the continental Europe. o Development of civil law (the codification process). The codification process developed throughout the entire Europe in 14th century and 15th century, although codification process affected the entire continent of Europe (with exception of Britain), it will be appropriate to discuss the codification processes of France and Germany as an example of the European legal system, and one country from Latin America as a case study in central and south America,

2 3

G. James , op cit John P. Dawson, Oracles of the Law 103, 123 (1968); see The Institutes of Gaius, Book One, para. 2 (William M. Gordon & Olivia F. Robinson trans., 1988); Great Jurists of the World at xxvii (MacDonnell & Manson eds., 1968). Cited in A.G. James & D.P. Robert (1995), A primer on Civil-Law system, Federal Judicial Center, Judicial conference Unite state.

The codification process in France is highly linked with the rise of napoleon by the 17th century, he was not only the creation of civil law in France but also he was responsible to reception of it in the countries he conquered. The code civil des francais (1800), (later napoleon code of 18044) and in the present form is called the code civil of France. The structure of the civil code somehow replicated the corpus juris civilis ideas5. In Germany it was the BGB (burgertiches gesetzbuch of 1873), approved in 1896 contained 5 books, in which appendix c it is the German civil code6. In Latin America is connected with the conquest and colonization of Spain, in which the Portuguese Ordinance of Philips 2nd (1603) was highly based on the roman civil law Development of civil law (its wide spread in continental Europe). The spread of civil law in Europe stated with the teaching of corpus juris civilis in Rome Italy to scholars, law students and lay judges, in which by the middle of 19th century they had not only created law faculties in university but paved a way to the reception of roman law to the European countries. Italy scholars revised the corpus juris civils, which was later used by Spain scholars to prepare the codigo de las siete partidas (the code of seven parts of the law), which survived for 500 years before being replaced by the codigo civil (civil code) which is still in force to date in Spain. The code of seven parts of the law is so crucial so far as the spread of roman civil law is concern as it was used as a reception of Roman law to all Spain colonies in Latin America.

Napoleon regarded the creation of the Code Civil as his greatest achievement, overshadowing even his great military victories. During his exile on St. Helena he remarked, My true glory is not that I have won forty battles. Waterloo will blow away the memory of these victories. What nothing can blow away and will live eternally is my Civil Code. Jean Louis Bergel, Principal Features and Methods of Codification, 48 La. L. Rev. 1073, 107879 (1988), and Henri Mazeaud et al., Leons de droit civil, no. 45 (8th ed. 1986). 5 A.G. James & D.P. Robert (1995). A primer on Civil-Law system, Federal Judicial Center, Judicial conference Unite state of America. Page 15. 6 Ibid, page 16.

FEATURES AND DIFFERENCES OF CIVIL LAW TO THE COMMON LAW The in civil law system based on written codes and statues are designed to cover all eventualities or you can say that its principles are codified into a referable system which serves as primary source of law and judges have a more limited role of applying the law to the case in hand. Past judgments are no more than loose guides, when it comes to court cases, judges in civil law system tend to be investigators, while their peers in common law system act as arbiters between parties that present their arguments. The aim of codification is to provide all citizen with manners and written collection of the laws which applicable to them and judges must follow. Also conceptually, civil law proceeds from abstraction, formulates general principles and distinguishes substantive rules from procedural rules and it always hold case law to be secondary and subordinate to statutory law, this marked feature of civil law system is that they use codes with brief text that tend to avoid factually specific scenarios. Unlike common law system, civil law jurisdictions deal with case law apart from any precedence value. Civil law courts generally decide cases using code provision on a case by case basis, without reference to other (or even superior) judicial decision, so in actual practice an increasing degree of precedence is creeping into civil law jurisprudence and is seen in many countries High Courts The role of judges in civil law jurisdiction considerably differs from that of judges in common law system, here when different facts or new consideration arises, common law judges are free to depart from precedent and establish their new law. The civil law tradition views judges as government officials who perform essential but uncreative functions. Judges here administer the codes that are written by legal scholars and enacted

by legislators; also they may consult legal treaties on the issue in question, since the civil law system assumes that there is only one correct solution to a specific legal problem, therefore judges are not expected to use judicial discretion or to allow their own interpretation to a case before them. The trial of the case under civil law system is both parties to a suit presents arguments and witnesses in an open court and judges supervises the collection of evidence and examine all the witnesses in private, cross examination here by opposing partys attorney is rare. Also in this system the civil law action consists of a series of meetings, hearings, and letters through which testimony is taken, also evidence is gathered and judgments is rendered. This kind of practice eliminates the need for a trial and, therefore, for a jury Another feature is in civil law system there is a generally written constitution based on specific codes ( e.g. civil codes, codes cover corporate law, administrative law, tax law and constitutional law) which enrich basic rights and duties; administrative law is usually less codified and administrative court judges tend to behave more like common law judges. Courts specific to the underlying codes there are usually separate constitutional court, administrative court and civil court system and opine to consistency of the legislation and administrative acts with and interpret that specific codes Only legislative enactments are considered binding for all. There is little scope for judge to make law in all civil, criminal and commercial courts, although in real practice judge do follow previous decision; administrative and constitutional court can nullify laws and regulation and their decision in such cases are binding for all

Other features of civil law system are like the following; Clear expression of rights and duties, so that remedies are self-evident Simplicity and accessibility to the citizen, at least in that jurisdiction where it is codified. Advance disclosure of rules, silence in the codes to be filled based on equity, general principles, and the spirit of the law Richly developed and to some extent transnational academic doctrine inspiring the legislature and the judiciary. THE INFLUENCE OF CIVIL LAW IN COMMON LAW. Although the Roman law was not received in England to the extent that it was received on the Continent, Professor EDWARD .D. Re7 submits that its influence was hardly less pervasive. The concepts, the terminology, the Universality, and the jurisprudential principles of that vast system, were transmitted and infused into the body of English law throughout its development. While the growth of the Anglo-American law still continues, so may the contributions to its development by the Roman law, whose own growth so closely parallels the growth of civilization. It has been said that far more important than the reception of Roman "rules" of law by the English law "was the influence of the Roman law on the English way of looking at the law, on English jurisprudence and on English law writing." The reasons which justify [the study of Roman law], particularly for students who breathe a Common Law atmosphere, are principally these: 1. Roman law is one of the great things which have happened in the world. It is part of a liberal education to know something about it. 2. Roman law is an introduction to the study of the Science of Law, or, as we call it, Jurisprudence. For many centuries the Science of Law was Roman law. If in modem times it has widened its outlook and improved its methods its debt to Roman law remains unquestioned.
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Professor of Law, St. John's University School of Law

3. Roman law is a key to the terminology and, to a great extent, to the substance of foreign systems. 4. Roman law enlarges the mind. This has well said that "the science of law does more to strengthen the mind than to liberalize it. BRITAIN AS A ROMAN PROVINCE: ULPIAN, PAPINIAN AN PAUL In 53 B.C., Julius Caesar landed in Britain. In 43 A.D., the systematic conquest of Britain was begun by Agricola, and for the next three and a half centuries Britain was a Roman province. This occupation cannot be minimized, because it is clear that Britain was an imperial province of the first order. At one time it had a garrison of about 30,000 Roman soldiers and was regarded as an important Roman governorship. Likewise, it is well to remember that, centuries later, the Roman legions were withdrawn from Britain because they were needed to defend the Italian peninsula against the invasions from the north. They were not ousted from the island. It was not Britain that gave up Rome, but Rome that gave up Britain. Mommsen tells us that the Roman law "made rapid strides in Britain during the second and third centuries A.D., as is attested by the writings of the Roman jurists Javolenus and Ulpian, who discussed cases arising in Britain."" Reference must again be made to Papinian. He was chief justice at York with Ulpian and Paulus as his associate justices. Commenting upon this galaxy of talent, Dr. Sherman, writing in 1914, states that it was "as if the United States Supreme Court were to hold sessions in Alaska.8 THE ADVENT OF CHRISTIANITY: THE EARLY KINGS AND A NEW OUTLOOK The introduction of Christianity into Britain had far-reaching effects both upon the people and the law of the land. Since Constantine had adopted Christianity as the state religion in 325 A.D., this introduction had started in the later years of the Roman occupation of Britain. Assuming,
8

Sherman, The Romanization of English Law, 23 Yale L.J. 318 (1914).

however, that after the Romans left, the Britons had to be converted anew, this "reconversion" took place within a comparatively short time. The important date in this "reconversion" is 596 A.D., the date of the arrival of St. Augustine, who established contact between the English tribesmen and the Roman Church. During this pre-Norman period of English legal history, the Roman law was the law of the Romani, and in Britain, the Romani were the clergy. In such an era of personal laws, the Roman law was a living law as long as there were Romani. Although this led to a "vulgarizing" of Roman law, it is equally true that it continued the diffusion and dissemination of Roman law and Roman law concepts. THE NORMAN CONQUEST: WILLIAM AND LANFRANC The most important immediate consequence of the Norman Conquest was the introduction into Britain of an orderly system of law and government. William, apparently a gifted administrator, had developed a sound financial organization called the "Camera," or chamber.72 after nearly twenty years of preparatory work, he accomplished the remarkable feat of successfully invading England by crossing the English Channel. His victory over Harold at the Battle of Hastings and the date, 1066, are matters of common knowledge. However, even those who know of the contribution of William in systematizing the administration of the island may not know of the role played by Lanfranc, the lawyer from Pavia, most often described as "the Conqueror's righthand man." 3 This distinguished scholar, who in 1070 became Archbishop of Canterbury, was William's "prime minister and chief adviser."7 Not only was he a great prelate and theologian, but he was also an accomplished lawyer who had studied and taught Roman law at Pavia, in his native Italy. He was one of the "masters" of the "Longobardistic-Frankish" school of lawyers knowledge of the law." By training and experience he was uniquely suited for the role of "prime minister."

Lanfranc arrived at Normandy and opened a secular school at Avranches. While in Normandy he became a monk and taught at the Abbey although there is some doubt, it is probable that, in addition to grammar and rhetoric, he also taught Roman law both at Avranches and the probability is strengthened by the fact that he was remembered in Normandy as a discoverer of Roman law. By virtue of the special confidence reposed in Lanfranc by William, his influence upon the law at this most crucial period of English legal history cannot be overemphasized. POST-NOMAN DEVELOPMENT: THE ARCHBISHOPS, VACARIUS AND THE LEGISTS Any discussion of the influence exercised in England by the Roman Law will naturally fall into two divisions separated by the arrival in the year 1143 of Vacarius on our shores in the train of Archbishop Theobald, and his lectures on Roman Law at Oxford in and after 1149; for these events, which in European history form part of the current of Roman influence which sprang from the enthusiastic studies of the Law School at Bologna in the 12th century, begin a new era in the history of English law and of its connection with the legal system of Rome. In addition to teaching at the Archbishop's household, Vacarius founded the law school at Oxford, thus becoming the first law professor in England. THE FORMATIVE LEGAL LITERATURE: GLANVILL, BRACTON, AND MAGNA CARTA Surely, much more can be said about Vacarius and the influence that he must have exerted upon the minds of the intellectually curious of his time. Suffice it to say that it was a pupil of Vacarius, Ranulf de Glanvill (1130-1190), an ecclesiastic, to whom is attributed the writing of the most ancient work extant on the common law of England. This Latin text, written between 1187 and 1189, is called A Treatise on the Laws and Customs of England composed in the time of King
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Henry the Second while the honorable Ranzdf Glanvill held the home of justice. Glanvill, who enjoyed the complete confidence and respect of Henry II, who himself might have been a pupil of Vacarius," became Chief Justiciar of England in 1180. Whether this first classic text on the common law was actually written by Glanville, or merely under his supervision by his nephew and secretary, Walter Huber, a learned civil lawyer, who in turn was to become Chief Justiciar and Archbishop of Canterbury, is not important. What does matter is that it must have been written with the approval of Glanvill and Henry, and that the writer knew both Roman and canon law. CIVILIZATION AND THE UNIVERSALITY OF THE ROMAN LEGAL SYSTEM Scottish birth, may well demand an apology for daring to ignore the Roman law that survives in Scotland."' Yet, they would have to admit that some prominence was accorded to Lord Mansfield, whereas no mention was made of Lord Holt, who presided over the King's Bench from 1689 to 1710. Like Mansfield, Holt also was learned in the Roman law. Holt was introduced to the study of Roman law by reading Bracton, and through Lord Holt, some of Bracton's Romanisms and "academic speculations . . . became living common law." Not only did Holt prepare the way for Mansfield's adoption of the law merchant, but he actually anticipated Lord Mansfield's decision in Somerset v. Stewart which decided that one could not be a slave on English soil. Although he authored many decisions that were milestones in the development of the common law. Therefore the influence of civil law not only to the common law but also to world legal in general is not to be underestimated, as later jurisprudential writers influenced the development of the civil-law and the codification process. Samuel Pufendorf and Christopher Wolff in Germany

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attempted to build a legal system using the scientific methods of Galileo and Descartes9 as the so called international law those obligations binding all the state in the international community have much to do with the civil law by referring the so called jus gentium a part of the ancient roman law, not only that but also the system of dispute settlement used by international community the so called arbitration uses the roman law mode10, in which the judge (arbitrator) became an active party to help the part to reach amicable accord, and not remaining uninterested umpire, and lastly the International Court of Justices (ICJ) rarely if not never consider the so called stare desicis (precedent), the classical feature of civil law.

A.G. James & D.P. Robert op cit p. 13

10

L. Phillip, Landolt & Koch, (2011), The Contribution of Civil Law Systems to International Arbitration; A

Version of this article was published in Commercial Dispute 2011 Resolution of April.
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BIBLIOGRAPHY:

1. Edward D. Re, the Roman Contribution to the Common Law, 29 fordham law review, Rev. 447 (1961). 2. www.law.Isu.edu/index.cfm. (Retrieved on 15/12/2012). 3. R.H. Helmholtz, (1990), Continental law and common law: historical strangers or companions? Duke Law Journal. Vol. 6. 4. G. William (1857). Sources of Roman law: introduction to the institutes of Justinian T. & J. W Johnson & Co, Philadelphia, USA. 5. B. James, (1871), the academic study of civil law; inaugural lecture delivered at oxford, February 25, 1871. 6. J. M. Claude de Ferriere (1724), the history of the roman or civil law Blackswan publisher. 7. M. A. Edward (1904), institutes of Roman law by Gaius Revised edition by E.A. Whittuck, M.A, Oxford at the Clarendon Press. London. 8. A.G. James & D.P. Robert (1995). A primer on Civil-Law system, Federal Judicial Center, Judicial conference Unite state of America. 9. Sherman (1914), the Romanization of English Law, 23 Yale Law Journal. 318. 10.G. James, (2006), an introduction to the comparative study of private law: reading cases material. Cambridge University, Cambridge. 11. L. Phillip, Landolt & Koch, (2011), The Contribution of Civil Law

Systems to International Arbitration.

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