Ministry of Education and Training

Ho Chi Minh City University of Law

International Law Faculty
------ -----

SUBJECT : COMPARATIVE LAW

TOPIC 1 :
THE CIVIL LAW SYSTEM

Lecturer LMM. Trần Ngọc Hà

Class 133 – CLCQTKD46

Full name Student ID

Ngô Ngọc Xuân Dung 2153401010025

Lê Trần Phương Nhi 2153401010084

Đặng Nguyễn Xuân Tiên 2153401010121

Lê Thị Ngọc Trăm 2153401010123

Phạm Trần Khánh Uyên 2153401010136

 TABLE OF CONTENTS

I. INTRODUCTION AND HISTORY OF CIVIL LAW SYSTEM 3

1.1. Introduction of Civil law system 3
1.2. History of Civil law system 3
1.2.1. The Customary law stage (before the 13th century) 3
1.2.2. The Statutory law system (from the 13th century to the end of the 18th
century) 4
1.2.3. The codification and development beyond Europe stage – (from the end of
the 18th century to the early 21st century and up to the present) 6
II. MAIN FEATURES: 7
2.1. Origin of law 7
2.2. Form of law 7
2.2.1. Statutory Law 8
2.2.2 Non-Statutory 10
2.3. Separation of public law and private law 12
2.4 The interrelationship between substantive law and procedural law 16
2.5 Role of judge 19
2.6 Codification 22
2.6.1 Overview of Codification in civil legal systems 22
2.6.2 Historical Development and Ideology 23
2.6.3 Process of codification 24
2.6.4 The result of codification 26
III. INFLUENCES AND SPREADING 26
3.1 Influences of civil legal system globally 26
3.2. Spreading 27
BIBLIOGRAPHY 30

2
I. INTRODUCTION AND HISTORY OF CIVIL LAW SYSTEM

1.1. Introduction of Civil law system

“Civil law”, in one context, refers to the entire system of law that applies to most
European nations (including France, Italy, Spain, Portugal, Germany, Austria, Belgium,
Luxembourg, Netherlands, Switzerland, Scotland), Latin American countries, parts of
the Near East, significant areas of Africa, as well as in parts of Asia. Its roots trace back
to ancient Roman law, originated in Europe on the basis of the Roman jus civile— the
body of private law governing relations among citizens within a state 1.
In another sense, “civil law” refers to the branch of law that regulates the non-
criminal rights, duties of persons (natural persons and legal persons) and equal legal
relations between private individuals.
In the field of comparative law, the Civil law system is understood in the first
sense, as the largest legal system in the world, founded on ancient Roman law. The
tradition of the civil law is characterized by a particular interaction in its early formative
period among Roman law, Germanic and local customs, canon law, the international
law merchant, and, later, by a distinctive response to the break of feudalism and the rise
of nation states, as well as by the specially important role it has accorded to the legal
science.2

1.2. History of Civil law system

The formation and development of the Civil law system includes three stages:
(1) The Customary law stage (La période du droit coutumier) - the period before the
13th century; (2) The Statutory law stage (La période du droit législatif) from the 13th
century to the end of the 18th century; (3) The codification and development beyond
Europe stage - from the end of the 18th century to the early 21st century and up to the
present.3

1.2.1. The Customary law stage (before the 13th century)

During this stage, the Roman Empire invaded and transformed most of the tribes
in continental Western Europe into its colonies, implementing a prolonged colonization
policy that lasted for 4 centuries. This process of colonization led to the profound
introduction and influence of the ancient Roman Law in this region. However, in 476,

1
De Cruz, P. (1999). Comparative Law in a changing world (2nd ed., pp. 43). London, Sidney: Cavendish
Publishing Limited.
2
Carozza, Paolo G.; Glendon, Mary Ann; and Wallace Gordon, Michael, "Comparative Legal Traditions in a
Nutshell" (1999). Books.
3
Ha Noi University of Law (2017), Comparative Law Textbook, Công an Nhân dân Hanoi Publishing House

3
the German leader Odoacer organized a rebellion that overthrew the rule of Emperor
Romulus Augustulus. From that point on, no Roman emperor ruled over the territory of
Italy. The year 476 is considered the year of the collapse and dissolution of the Western
Roman Empire, while the Eastern Roman Empire continued to exist.
In this period, local customs predominated throughout continental Europe,
including customary laws in France, Germany, the Slavian ethnic groups, and notably,
the Twelve Tables of Roman Law. Roman Law had a huge influence across Europe,
especially under the Eastern Roman Emperor Justinian.
In 528, the Emperor of the Eastern Roman Empire Justinian ordered to codify
and reinforce the Roman Law. The result of such acts created a major legal work known
as the Corpus Juris Civilis, including 4 parts: Code, Digeste, Institutes, and Novels,
which were declared from 529 to 534.
· Code is the part that systematized all the laws issued by Roman emperors,
eliminating unclear or contradictory provision.
· Digeste is a collection of legal theories and jurisprudence of Roman legal
scholars.
· Institutes is a textbook on law, written by Roman legal advisors.
· Novels include the new laws issued by Emperor Justinian.
This is regarded as one of the early foundations influencing the formation of the
continental European legal system. Although legal systems started to develop during
this period, they were still quite basic and mixed with moral and religious norms. After
the fall of the Roman Empire, the legal systems in various European countries became
fragmented and inconsistent, using different legal sources to manage social relations,
with customary law being a primary source.

1.2.2. The Statutory law system (from the 13th century to the end of the 18th
century)

By the end of the 12th century, European cities began to develop, and with that
came an increase in commercial activities and trade between various continental
European nations. Trade, commerce, and urban development (civitas) created the need
to distinguish between religion, moral codes, and law. In 1080, the University of
Bologna was founded in Italy, followed by the University of Paris in the 12th century,
and later, many universities were established across Europe. The legal perspective of
university professors during this era emphasized the idea of law as a tool, a model for
society. They argued that law, like moral codes, must guide humanity toward Sollen—
what ought to be done—rather than Sein—what is done in practice.4

4
Ha Noi University of Law (2017), Comparative Law Textbook, Công an Nhân dân Hanoi Publishing House

4
 From the 13th to the 18th century, through the study and teaching of Roman
Law, European universities made significant contributions to the development of a
common legal system for continental Europe, known as Jus Commune of universities
(common law of universities). There later ensued a succession of schools of thought,
including5:
- The Glossators: The Glossators were a group of scholars, who were apparently
founded by Irnerius, who initiated the systematic study of Roman law by analyzing the
individual texts of the Corpus Juris and attempting to reconcile them in a logical manner
with other texts. The development of the law, from the 12th century onwards, was
determined by the manner in which the Glossators used the Justinian texts, not Roman
law as Justinian might have intended, or as it might have existed in classical Rome.
Their style is, therefore, characterized by the short notes or glosses which they appended
to particular passages, for purposes of comparison with each other, in order to pose a
question or suggest a solution. As time passed, the work of the later Glossators
developed from gloss to commentary.
- The Commentators (or post-Glossators): Emerging in the 13th-14th centuries,
legal scholars no longer sought to understand and interpret the original meaning of the
Corpus Juris, but instead, aimed to reinterpret it to meet the demands of contemporary
society. This school of thought transformed Roman Law into the foundation of
European legal science.
- The Humanists: Emerging during the 16th and 17th centuries, based in the
French University of Bourges. They were opposed to both the Glossators and
Commentators’ approaches to the study of Roman law, and advocated the return to the
original Roman texts and sources. They believed that the only authentic method of
studying Roman law was to examine the classical texts without the influence of
commentary or glosses. However, their approach failed to convince practicing lawyers,
who required practical, applicable laws for daily use. As a result, this philosophy never
gained widespread popularity or acceptance.
- Usus Modernus Pandectarum (or Pandectist): Emerging in Germany in the
16th century, this school of thought focused on how to apply legal rules in practice,
ensuring they did not conflict with the legal customs in Germany.
- The Natural Law School: The Natural Law Movement represented an upsurge
of rationalism and the belief that ‘the law for any society could by the use of reason be
derived from principles inherent in the nature of man and society’ (Nicholas (1962)).
The Dutchman Grotius (1583–1645) was the first great natural law exponent, and he
applied it to the formation of a body of international law. However, his treatise on the

5
De Cruz, P. (1999). Comparative Law in a changing world (2nd ed., pp. 55-59). London, Sidney: Cavendish
Publishing Limited.

5
jurisprudence of Holland considerably influenced the course of Roman-Dutch law. But
it was in the international law field that the School of Natural Law was most influential,
although it led to the elimination of the more irrational or ‘authentically Roman’
features of the law which were replaced by liberal doses of ‘logic’ in the law.
The period from the XIII century to the XVIII century was the period of Europe’s
unified legal system. This period saw the process of developing the Civil legal system,
from such disorder and confusing sources of law now more unified and serving its true
purpose - a tool for society. This process was mainly seen in many Western European
countries such as Italy, France, Portugal,...
1.2.3. The codification and development beyond Europe stage – (from the end of
the 18th century to the early 21st century and up to the present)
This period marked the creation of many important legal documents, which in
turn signified the development and spread of Roman law. The first important legal
document to mention was the Declaration of the Rights of Man and of the Citizen in
1789 of France. This foundational document has established principles that have
influenced the constitutions of many other nations across Europe and the world.
Due to France's extensive colonial presence in North Africa, Middle Africa, West
Africa, South East Asia, South America, the French legal system expanded beyond its
European borders, particularly during the late 19th and early 20th centuries.Similarly,
many Western European nations, including Belgium, Spain, Portugal, the Netherlands,
and Italy, had numerous colonies on other continents, which allowed the civil legal
system to develop in these regions.
According to Rene David, the Civil legal system is common in Africa and
Madagascar. When the Western Europeans colonized these lands, there was no legal
system at first, so it was easy for the colonized to access the colonizers’ legal system.
The former colonies of France, Belgium, Spain, and Portugal have simultaneously
accessed the Civil legal system.
In America, Spain, Portugal, France, and the Netherlands colonies are the
territories that adopted the Civil legal system and built their own legal system based on
that of the Europeans.
In Asia, the Civil legal system also was adopted by many territories. For example
in Turkey, Egypt, Israel, Jordan, and Kuwait. Oriental nations such as China, Japan, and
Southeast Asian nations like Vietnam, Laos, and Cambodia also were heavily
influenced by the Civil legal system. These nations are not only influenced by the
theories, and legal ideals but also adopted the basis of specific legal codes such as
contracts, ownership,..

6
 With this development, the civil legal system has reached new peaks and
accomplishments, signifying the remarkable advancement of legal science. The legal
systems of countries within the civil legal system family exhibit the highest degree of
codification and unity compared to other major legal systems worldwide. Nations with
civil legal systems have established numerous extensive codes and regulations covering
various aspects.
In conclusion, from the 13th to the 18th century, the common legal system of
continental Europe emerged under the significant influence of the Corpus Juris Civilis.
Through these periods, we can explain the historical origins that shaped the European
continental legal system. This understanding makes it easier to study the main features
of the civil law system in Europe.

II. MAIN FEATURES:

2.1. Origin of law
The Continental European legal system is deeply influenced by ancient Roman
law. Most countries in Continental Europe were under prolonged Roman rule, which
led to Roman law having a strong impact on their legal systems. Through an analysis of
the formation and development of the Continental European legal system, it can be seen
that major legal codes such as the Napoleonic Civil Code (1804) and the German Civil
Code (1896) were developed based on a combination of local customary law and Roman
law. Built on the foundation of Roman law, the common legal system of Continental
Europe emerged and was adopted flexibly by many European countries. This, in turn,
created a major legal tradition worldwide with its own distinctive features.
2.2. Form of law
In the Civil legal system, the concept of legal sources (sources du droit, sources
of law) is widely used. Legal sources can be understood from both theoretical and
practical perspectives. According to the theoretical perspective of legal scholars, the
term legal sources is understood in three different dimensions. Firstly, it is the source
of legal opinions and thoughts. Secondly, it is the source that creates legal norms.
Lastly, it is the place where the law is published and manifested.
From a practical perspective, legal sources are the legal basis for judges and
authorized individuals to apply the law in rendering their judgments. Among the two
perspectives mentioned above, the practical perspective on legal sources is the most
common in this legal system. According to this perspective, legal sources include:
statutory law, case law (judge-made law), legal customs, legal doctrines, and legal
principles.6

6
Ha Noi University of Law (2017), Comparative Law Textbook, Công an Nhân dân Hanoi Publishing House

7
2.2.1. Statutory Law
In the Civil law family, statutory law is considered important and has a high level
of systematization and legal formalization. Up to the present day, statutory law is still
regarded as the most important source in the legal system. Written legal sources in the
Civil law family include the following types of documents:
- Constitution: The Constitution is a legal document of the highest legal effect
enacted by the parliament with the condition that at least two-thirds of the total number
of legislators in both houses vote in favor. The constitution regulates the most
fundamental issues regarding national sovereignty, political system, economic and
social policies; rights and basic obligations of citizens; organization and operation of
state agencies. In some countries, after both houses approve, a referendum must be held,
and the constitution is only passed when the majority of voters vote in favor (for
example, the 1958 Constitution of the French Republic). To protect the constitution,
most European countries have established constitutional courts or councils of
constitutional protection.
- Treaties: International treaties are formal agreements between states and
international organizations that have binding legal force. International Treaties are
usually signed when they do not contradict the national constitution, and in cases of
necessity, the constitution must be amended before signing the international treaty.
Once ratified, treaties in civil law systems hold the same authority as domestic statutes
and must be incorporated into national law to be enforceable. Some countries, such as
France and the Netherlands, stipulate that international treaties have legal authority
higher than domestic law. Generally, most continental European countries have a
relatively consistent view that international treaties hold legal authority lower than the
constitution but higher than national laws.
- Code: First, the term "code" is commonly used to refer to comprehensive legal
texts that systematize the regulations governing a specific area of social relations. A
code has a broader and more comprehensive scope than a specific statute. The content
of a code includes and relates to many aspects of social life activities. It addresses and
regulates issues not specified in other specialized laws. Civil codes, such as the French
Civil Code of 1804, systematically consolidate and organize laws related to private
matters (contracts, property, family law). Each area of law, such as criminal, civil, and
commercial law, is typically governed by its specific code. For example, when a dispute
arises between an employee and an employer regarding the non-fulfillment of terms in
an employment contract (such as wages, working hours, or benefits), the court will refer
to the Labor Code to resolve the dispute.
- Law: "Law" refers to legal texts enacted by the legislative body following a
specific process and must be approved by a majority of representatives in both houses.

8
Laws include various types: organizational laws (legislative organization laws,
government organization laws, court organization laws...), financial laws, laws passed
by referendum, and ordinary laws.
The scope of regulation of the law may be limited or unlimited. The scope of
regulation of the law can be unlimited, as in the UK, the US, Italy, socialist countries,
and France under the Third and Fourth Republics. The scope of regulation of the law
can also be limited, as in France under the Fifth Republic (from 1958 to the present). In
the case of limitations, there is a division between the legislative authority of the
parliament and the regulatory authority of the government.
Both codes and law from constitutional provisions, and both are enacted by the
National Assembly, thus having equal roles and legal validity within the legal text
system. The main difference between statutes and codes lies in their level and scope of
regulation. Generally, codes have a higher level of synthesis, with a broader scope that
encompasses a complete area of significant social relations such as criminal, civil, labor,
and maritime law. In contrast, statutes only regulate narrower groups or types of social
relations. Both statutes and codes play fundamental roles in the system of normative
legal texts.
- Decree (Décret): A decree issued by the President (in France, since 1958, the
Prime Minister can also issue them) has lower legal authority than laws. However, there
are decrees issued in areas of law under the authorization of the parliament that will
have legal effect equivalent to that of laws.
- Ordinance: Ordinance is a formal order issued by the executive branch to
provide specific guidelines for the implementation of existing laws. Ordinance issued
by the government in the field of regulations and has lower legal force than the law and
decree. However, there are ordinances issued by the parliament under authorization in
the legal field, when not yet approved by the parliament, it has the effect of an ordinary
ordinance but after being approved by the parliament, it will have the force of law.
- Decision (Décision): A decision is a formal judgment rendered by a court or
an administrative body. The President's decision to utilize special powers as outlined in
Article 16 of the 1958 French Constitution. These decisions do not need to be
countersigned by the appropriate ministers. For example, a consumer protection agency
may issue a decision requiring a business to recall products that do not meet safety
standards. This decision will help protect consumers' rights and prevent the circulation
of other low-quality products.
- Decisions (Arrêté) issued by ministry of mayors
- Directives from superiors to subordinates

9
 - Circular (Circulaire) issued by superiors to subordinates and most circulars
are mandatory.
2.2.2 Non-Statutory
Non-statutory law in civil law systems refers to sources of law outside the formal
statutes, such as judicial decisions, customs, and legal doctrine. These sources play a
complementary role in interpreting and applying statutory law.
- Customary Law: In the field of civil law, there are various theoretical
perspectives on the role of legal customs. The sociological legal perspective asserts that
customs play a dominant role among the sources of law, with customs serving as the
foundation of law, determining the methods for applying and developing law as
established by judges and scholars. In contrast, the legal realism school seeks to deny
the role of customs. Both perspectives, whether exaggerated or downplayed, do not
provide an accurate view of legal customs. Customs are not the primary and foremost
element of law; they are merely one of the contributing factors in seeking fair solutions
to legal issues.
In practice, countries within the civil law system all recognize legal customs as
procedural rules that form spontaneously, endure over time, are transmitted from
generation to generation, and become natural habits that have general binding force like
legal norms. Legal customs can be divided into three types7:
(i) Customary application beyond the law (Praeter legem): These are customs
recognized and widespread within the state and society, such as children taking their
father's surname or daughters adopting their husband's surname.
(ii) Customary application according to legal inference (Secundum legem):
A clear example can be found in inheritance rights under the Civil Code. In many
countries, the Civil Code stipulates inheritance rights and property division. In some
cases, the law allows for reference to local customs if there are no clear regulations on
the issue. This is reflected in Article 658 of the Vietnamese Civil Code, which permits
the division of inherited property according to customary practices if the parties have
an agreement.
(iii) Customary application against the law (Adversus legem): This refers to
certain customs that are illegal but must be recognized due to their prevalence. For
instance, unfair property distribution customs exist.
- Case law (Jurisprudence): Case law is understood as a judgment that has been
pronounced or an explanation, where the application of the law is considered a
precedent for future judges to apply in similar cases.

7
Ha Noi University of Law (2017), Comparative Law Textbook, Công an Nhân dân Hanoi Publishing House

10
 In the prevalent theoretical perspective of legal systems on the continent of
Europe, the principles and jurisprudence drawn from case law do not hold the same
value as statutory law. These solutions are uncertain and can be canceled or modified
at any time depending on new circumstances. The practical adjudication of the court is
not bound by the norms it creates and cannot rely on those norms to justify its decisions.
Case law is only applied when the judge deems it appropriate for the case being heard.
Case law is not considered a fundamental source of law.
Despite the obstacles outlined above, the increasing significance of case law is
being recognized and demonstrated in the development of the law. For example, in the
field of compensation for damages in France, case law is mainly relied upon because
there are very few provisions on this issue in the Civil Code.
Currently, in many continental European countries, there are official case law
compilations, such as in France, Germany, Spain, Italy, Switzerland, and Turkey, and
case law is increasingly being recognized as one of the indispensable sources of law.
- Legal Doctrine: In the past, doctrine played a central role in the legal systems
of Europe. Today, while doctrine is no longer the primary source of law, if we consider
law in a broader sense as a framework for justice and equity, legal theory still maintains
its significance as an important source. The role of legal theory is to create a repository
of legal concepts and arguments that legislators utilize. Furthermore, it also establishes
methods for accurately understanding and interpreting the law. It is undeniable that
during different historical periods, legislators have been directly or indirectly influenced
by various legal theories, and therefore, in the legislative process, they have reflected
the ideas of those legal theories within the law. Examining the current constitutions of
European continental countries and other continents, we can observe the profound
influence of theories on the distribution of power within the organization and
mechanisms of the state.
In conclusion, the sources of civil law include legislation, judicial decisions,
legal doctrine, and customs. These sources work together to provide a comprehensive
framework for managing civil matters, ensuring legal certainty and promoting justice.
By understanding the sources of civil law, legal professionals and individuals can
navigate the legal system more effectively and contribute to the continuous
development and evolution of civil law. Understanding the sources of civil law is
essential for grasping the foundation and development of legal systems worldwide.
- General principles of law: According to the common view of Civil law
systems, the general principles of law are unwritten principles that are recognized in the
national laws of most countries. These principles may be expressed in constitutions,
codes, and laws, but many general principles of law are implemented in practice without
being explicitly written in the legal codes, often recognized in the legal systems of

11
ancient Rome. General principles can be reflected in constitutions, legal codes, and
laws; however, many general principles also originate from case law or ancient Roman
law. These general principles serve to fill gaps in the law and assist judges in finding
fair solutions for practical cases. Some general principles of Roman law that are widely
recognized by many countries in continental Europe include 8:
+ Affectio tuanomen imponit operi tuo ( your motive gives a name to your act)
+ Non bis in idem ( A person shall not be twice tried for the same crime)
+ Affectus punitur licet non sequatur affectus ( The intention is punished even if
the object is not achieved)
+ Affirmations est probare ( The person who affirms must prove)
+ Nemo in propria causa testis esse debet ( No one can be a witness in his own
cause)
+ Nemo jus sibi dicere potest ( no one can give judgment for himself)
+ Nemo cogitationsis poenam patitur ( No one suffers punishment for his thoughts)
+ Non obligal lex nisi promulgata ( A law is not binding unless it has been
promulgated)
2.3. Separation of public law and private law
In civil law countries, the public-private distinction serves as an organizing
principle of the entire legal system. The distinction between private and public law is
traceable to the Roman jurist. Private law in Rome was that which concerned the
interests of individuals; Public law addressed matters of public concern, “such as the
powers of magistrates and the state religion.” Perhaps because of the great influence of
Roman law in the development of European and Latin American legal systems, the
public-private distinction has long been of central importance in the Civil law. Ulpian,
who drew the distinction (usually placed at around 200 AD), had a statement that
appears near the beginning of the Digest and is repeated on the first page of Justinian’s
Institutes: “There are two aspects of this subject: public and private law. Public law
deals with the State ... private law with the well-being of individuals.” (quoted in Kahn-
Freund, Levy and Rudden (1991), p. 10). As John Henry Merryman has written, “The
main division of law in the civil tradition is into public law and private law. The
distinction seems to most civil lawyers to be fundamental, necessary, and on the whole,
evident.” (The Civil Law Tradition 91 (2d ed. 1985)).
In functional terms, Public law (droit public) governs relations to which the State
(or a subdivision of it such as a département, or a State owned enterprise, or a public
authority) is a party (this means relations between public bodies inter se and between
public bodies and private persons). In contrast, Private law (droit privé) governs the
rights and duties of private persons and corporations. Public law administers State run

8
Ha Noi University of Law (2017), Comparative Law Textbook, Công an Nhân dân Hanoi Publishing House

12
bodies that provide public services, schools, hospitals, and municipalities, as well as
regulates the legal position of persons who serve the State (such as civil servants or
soldiers)9.
The method of regulation serves as the foundation for the division of law into
public and private law. The characteristic method of regulation of private law is the
method of free agreement of wills and equality between the parties to a legal
relationship. On the other hand, command is the primary tool used to regulate public
law. Nonetheless, there is another view that the division of law into public law and
private law stems from the very popular view of continental European lawyers
(typically Ulpian) that the relationship between the ruler and the ruled is specific and
requires legal regimes distinct from those made in individual relationships; public
interests and private interests cannot be compared with each other.
Also, according to the perspective of continental European jurists, public law
and private law can be distinguished by fundamental principles and distinctive
characteristics.10
● Characteristics and principles of Public Law:
1. Principles:
- All state power belongs to the people, the supreme sovereignty of the state belongs to
the people;
- Ensuring the separation of powers and restraining the balance between the legislative,
executive, and judicial branches in the organization and operation of the state apparatus;
- Ensuring that the judicial organs are independent from the legislative and executive
organs;
- Ensuring that civil rights and human rights are respected and exercised;
- Building a rule-of-law state (L'Etat de Droit).
2. Characteristics:
- The purpose of public law is to safeguard the interests of the public, signifying that
such benefits must serve the community, society, and the state, rather than individual
interests;
- Public law norms are broad and set out general principles, allowing for their
application across varied situations.
- The characteristic adjustment method of public law is the command method.

9
Comparative Law in a Changing World/ Peter de Cruz (2nd ed.). (1999). London, Sidney: Cavendish
Publishing Limited.
10
Ha Noi University of Law (2017), Comparative Law Textbook, Công an Nhân dân Hanoi Publishing House.

13
 Public law often shows inequality between legal subjects, in which state agencies
(or competent persons) often make imperative decisions that other parties must execute.
The branches of law included in the Public law system in specific countries are
not the same, stemming from political, economic, and socio-cultural characteristics, as
well as the way of perceiving law in each country is different. However, in general, in
countries with this legal system, the following three branches of law are classified as
public law11:
- Constitutional law: determines the political organization of the State and its
powers.
- Administrative law: is a body of the law created by Administrative Agencies in
the form of Regulations, Orders, and Decisions.
- Criminal Law: is the body of law that relates to crime. It enumerates Acts that
are threatening, harming, or otherwise endangering the health, safety, and moral
welfare of people. It also provides for the punishment /penalty to which any one
committing such acts will be liable.
Besides that, it may include Criminal Procedure, Public finance law, Law of the
State considered in its quasi-private personality, Procedure relating to the State as so
considered and Judge made Law. In short, Public Law governs the relationship between
the State with its citizens and also the relationship between individuals directly
concerning the society12.
● Characteristics and principles of Private Law:
1. Principles:
- Principle of Free will: Parties participating in a legal relationship are free to agree on
the terms of their relationship.
- Principle of Equality of Legal Subjects in expressing their will and exercising legal
rights and obligations.
- Principle of Good Faith, Honesty (bonne foi): Legal subjects must act in good faith in
establishing and exercising their legal rights and obligations.
- Principle of Respect for good Morals and Traditions of the community.
- Principle of Non-Infringement of the Legitimate Interests of Other legal subjects.
2. Characteristics:

11
Unilaw. (2024, February 15). THE CONTINENTAL EUROPEAN LEGAL SYSTEM. UNILAW LAW FIRM
LLC.
12
Menon, N. R. M., Loughlin, Salmond, Holland, & Vago, S. (n.d.). Public Law and Private Law. In
INTRODUCTION TO LAW.

14
- Private law regulations aim to protect private interests;
- Private law norms are frequently highly specific and detailed: These norms are crafted
to provide clear guidance to individuals and businesses engaging in legal relationships.
This clarity is crucial for ensuring all parties understand their rights and obligations
from the outset;
- The characteristic method of judicial adjustment is the free will of the parties
participating in the legal relationship: Parties are generally free to negotiate and agree
upon the terms governing their interactions, as long as those terms comply with broader
public policy considerations;
- Private law legal relations demonstrate the equality of the subjects participating in
legal relations.
The object that private law aims at is the interests of the subjects participating in
the relationship (private interests). This benefit is associated with the subjects
participating in that relationship. Therefore, Private law focuses on the legal
relationships between individuals, including interactions between citizens and private
companies, as long as these relationships don't have significant public implications. The
state essentially plays the role of a neutral party in this realm. Its role is to acknowledge
and enforce existing private law norms and settle disputes through the judicial system.
Private Law as per Holland is substantive and defines the rights of individuals in
their dealings with each other. Examples include property rights, contract rights, and
certain personal rights; Or it may be adjective indicating the procedure for enforcing or
protecting these substantive rights. This includes rules of evidence, civil procedure, and
dispute resolution mechanisms.
In essence, Private law provides the framework for individuals and private
entities to interact with each other. It defines their rights and obligations, establishes
procedures for resolving disputes, and ensures a fair and predictable legal environment.
Thus, Private law includes many branches of law such as Law of obligations/Law of
Contract (organizes and regulates legal relations between individuals under contract);
Law of Tort (addresses and remedies issues for civil wrongs, not arising from any
contractual obligation); Law of Property; Law of Succession; Family Laws 13.
Separation of Public Law and Private Law
In the civil law system, there is a clear difference between public law and private
law. They distinguish relationships and responsibilities between the state and
individuals or organizations, and between individuals or organizations and each other.

13
Menon, N. R. M., Loughlin, Salmond, Holland, & Vago, S. (n.d.). Public Law and Private Law. In
INTRODUCTION TO LAW.

15
 Regulation in some spheres of social relations stems only from the directives of
one organization, namely the state government. Each individual has a distinct legal
status assigned to them by the state, which outlines their rights and obligations toward
other people as well as the governmental machinery as a whole. Regulations governing
individual positions within the relevant sphere of relations can only be established by
the state. The state claims sole jurisdiction in this domain, forbidding any alternative
wills or efforts. As a result, norms emanating from the state are mandatory and
enforceable. The rights granted by the state come with associated obligations that need
to be met. Failure to exercise a right implies a failure to fulfill the associated obligation.
These methods and measures reflect the "legal centralism" that characterizes public law.
In contrast to public law, private law regulates social relations through distinct
mechanisms and approaches. The state government abstains from giving commands and
regulations in this area. Rather than taking on the role of the exclusive authority, the
state assigns the responsibility of policing connections to a variety of smaller entities,
which can be regarded as independent social units and legal subjects. In most
circumstances, these entities are individual humans (natural persons), but they can also
be fictitious entities (legal persons). These subjects exercise their own will and
initiative, and they have the authority to regulate their relations with each other. Instead
of defining these relationships explicitly and mandatorily, the state serves as an entity
that protects the agreements reached by the parties involved. Therefore, private law
rules are typically supportive and complementary rather than obligatory. By agreements
between the parties, they can be modified or abolished. Consequently, civil rights are
essentially rights rather than obligations. A right may or may not be exercised by its
holder. Failure to exercise a right is not considered an infringement.
The distinction between public law and private law is fundamental to the
understanding of legal systems. Public law regulates the relationship between the state
and individuals, while private law governs relations between individuals. The methods
and mechanisms employed in each sphere reflect the different underlying principles and
objectives. In summary, public law is the domain of power and dependency, while
private law is the domain of freedom and individual initiative.

2.4 The interrelationship between substantive law and procedural law

The interrelationship between substantive law and procedural law is a critical
aspect since they are inevitable components of any legal system. Substantive law and
procedural law are mutually reinforcing and one acquires greater meaning and validity
in presence of the other. Both of these laws have their own functions and significance.
1. Concept of Substantive Law and Procedural Law

16
 Substantive law is the statutory or written law that comprises the fundamental
principles and regulations governing legal rights and obligations of those who are
subject to it. It defines the legal relationship of people with other people or between
them and the State. In other words, substantive law defines, in regard to a specific
subject, the legal rights and relationship of people with other people or as between them
and the State. Crucial to upholding order and fairness, substantive law serves as a guide
for legal proceedings and decision-making. In addition to protecting the interests of
individuals and fostering social harmony, it guarantees uniformity and predictability in
results. By outlining rights, duties, and remedies, substantive law underpins the
functioning of the civil legal system, creating a framework that allows for the just
resolution of disputes and the protection of legal rights.
Substantive law defines civil rights and liabilities in civil law as well as crimes
and punishments in the criminal law. It is codified in legislated statutes or can be enacted
through the initiative process. For example, in criminal law, substantive law defines
what constitutes a crime and the penalties attached to committing that crime. In civil
law, it determines the rights and obligations of individuals in matters like contracts,
property ownership, or family law. Substantive law provides the content and substance
of legal rights but does not itself dictate how those rights are pursued or defended in
court.
On the other hand, the law which tells about how the courts and the officers
dealing with the law act in giving effects to the substantive law of the land is known as
Adjectival or Procedural law. The law of procedure is that branch of law that governs
the process of litigation. It embodies the rules governing the institution and prosecution
of civil and criminal proceedings. Procedural law comprises the rules by which a court
hears and determines what happens in civil or criminal proceedings. According to
Salmond (Fitzgerald, 2006) the law of procedure is the law of actions. The word 'actions'
is used in the sense to include all legal proceedings. Procedural law deals with the means
and instruments by which the ends of administration of justice are attained, i.e., effective
administration or application of substantive law. Procedural law regulates the conduct
of the Courts and the litigants in respect of the litigation itself, whereas substantive law
determines their conduct and relations in respect of the matters litigated14.
In brief, the procedural law:
- Informs about the process that a case will go through (whether it goes to trial or
not);
- Determines how a proceeding concerning the enforcement of substantive law
will occur; and

14
Amiita Punj; V. Hemalatha Devi; Nagaseshamma, S. (2018), “Unit 2: Substantive Law and Procedure Law”,
Essentials of Indian Legal System, p.40

17
 - Prescribes the practice, procedure and machinery for enforcement of the rights
and liabilities.
Thus, procedural law ensures that the legal system functions fairly and
efficiently, by laying out the steps that must be followed to bring a case to court, conduct
a trial, and ensure the judgment is carried out. For example, procedural rules will define
how an accused person in a criminal case is to be notified of charges, how a trial will
proceed, and what rights of appeal exist.
2. The interrelationship between substantive law and procedural law
Both substantive law and procedural law are related to each other as follow:
- Substantive law and procedural law are the two main categories within the law. One
without the other is useless. Both are essential for the delivery of justice.
- Procedural law is an adjunct or an accessory to substantive law and renders the
enforcement of substantive rights very effective.
- Both, substantive law and procedural law, are codified in the form of rules. While the
substantive law refers to the body of rules that stipulate the rights and obligations of
individuals and collective bodies, the procedural law is also the body of rules, but
governing the process of determining the stipulated rights and liabilities of the parties
in the given facts and circumstances.
- Substantive laws and procedural laws exist in both civil and criminal laws. But, in
criminal law, if the procedural law is used to prevent the commission of offenses, then
it assumes the character of substantive law as well.
The interrelationship between the two becomes unambiguous since substantive
law precedes the procedural law, and procedural law acts as the vehicle for substantive
law to be applied. Without procedural law, the substantive rights granted by the law
would be difficult to claim or protect in practice. Justice Schroeder (Sutt v Sutt, 1969)
explained in a family law case that "It is vitally important to keep in mind the essential
distinction between substantive and procedural law". Substantive law creates rights and
obligations, and is concerned with the ends which the administration of justice seeks to
attain. It defines the actual law set down by the legislature, such as elements of a right,
liability/obligation, crime, penalties to be imposed, rules of evidence, etc. Procedural
law defines the manner in which the case proceeds and will be handled.
In essence, substantive law defines the rights and duties, while procedural law
provides the machinery or mechanism for enforcing the rights and duties. However, the
clear differentiation between substantive law and procedural law is that the latter sub-
serves the former. Although both substantive law and procedural law are integral
components of the civil legal system, substantive law frequently receives greater
emphasis and attention because it defines rights, duties, and legal principles.

18
Nonetheless, it is critical to acknowledge the mutual reliance between substantive and
procedural law, since both contribute to the administration of justice and the protection
of individual rights within society.

2.5 Role of judge

Role of judges in theory
Judges play an essential role in the civil legal system. Their legal reasoning is
crucial in determining the main facts of a case and applying the relevant legal
provisions. In addition, judges act as directors of the entire legal process. They
undertake tasks as appraisers, evaluating evidence and supervising the trial. If there is
insufficient evidence, the judge may request additional documents in civil cases or
return the case file to the investigating agency for additional adjustment in criminal
cases. 15
In the civil legal system, judges play the following important roles:
One of their primary roles is to “Interpret and Apply the Law.” Given that legal
texts can be complex and open to various interpretations, judges, with their extensive
knowledge of legal principles and precedents, must interpret the law and apply it fairly
to the specific facts of each case. This involves examining the language of the law and
determining its relevance to the case at hand.
Secondly, judges are responsible for overseeing the entire trial process. They
manage tasks such as scheduling trials, resolving disputes related to evidence, and
handling pre-trial motions. Judges ensure that both parties comply with court rules,
maintain order in the courtroom, and address issues that arise during the trial. They also
have the authority to make decisions on motions, such as those for summary judgment
or to dismiss the case. This helps to avoid unnecessary disputes, reduce delays, and
ensure a timely resolution. During the trial itself, judges control the proceedings to
ensure they run smoothly, explain legal doctrines to the jury, and guide them on how to
apply the law to the facts. Ultimately, they are responsible for ensuring that the trial is
fair and adheres to the rules of evidence.
Another important role of judges is “resolving disputes.” Given that disputes can
often be complex and emotionally charged, judges, with their legal expertise and
experience, are well-equipped to serve as impartial mediators between the parties
involved. This ensures that both sides have a fair opportunity to present their case, while
the law is applied impartially. Judges may also assist the parties in resolving their
disputes through negotiation, mediation, or arbitration. If no agreement is reached, the

15
Roles in Civil Legal Systems. (2023, June 7). https://www.justice.gov/nsd-ovt/roles-civil-legal-systems

19
judge will make a final decision based on the facts and applicable law, facilitating a
quick and fair resolution, thereby avoiding unnecessary litigation.
Additionally, “protecting the rights of the parties” is an important part of the trial
process. Judges ensure that legal procedures are properly followed, safeguarding basic
rights such as the right to a fair trial and the right to present evidence. They make sure
that everyone has the chance to express their opinions and that justice is carried out
fairly, following principles of fairness and impartiality.
Another key responsibility of judges is “issuing decisions.” These judicial
decisions are conclusions or judgments made after carefully reviewing the evidence and
arguments presented by both sides. These decisions include findings of fact, legal
conclusions, and the final resolution of the case. Judges may also provide written
opinions that explain the legal reasoning behind their decisions, offering guidance for
future cases.
Lastly, judges are responsible for “enforcing court orders.” This means they
ensure that the parties comply with the court’s rulings. If a party fails to follow the
court’s orders, the judge can take actions such as issuing injunctions or requiring
monetary compensation. If noncompliance persists, the judge can impose additional
penalties or other punishments to ensure that the court’s orders are upheld.
It is clear to state that judges play a crucial role in the civil legal system. Their
work is designed to ensure that the process of resolving disputes is fair, efficient, and in
accordance with the law. The civil legal system operates based on the public's trust that
it can deliver fair and clear outcomes. Judges, through their impartiality and correct
application of the law, help maintain this trust. Additionally, the civil legal system is
based on the principle of separation of powers, where government power is divided into
three branches: legislative, executive, and judicial. Judges belong to the judicial branch,
and their duty is to interpret and apply legal provisions to specific cases.
Role of judges in legislative aspects
Case law refers to a judicial decision or the interpretation and application of the
law that serves as a precedent for judges to follow in similar future cases. 16
The recognition of case law within civil law systems is the result of a long and
complex historical development. While written law is considered primary, case law still
plays a significant role in developing, interpreting, and supplementing the law,
contributing to a more adaptable, fair, and unified legal system.

16
Ha Noi University of Law (2017), Comparative Law Textbook, Công an Nhân dân Hanoi Publishing House

20
 When courts make decisions, those decisions can set a precedent for future cases.
Lower courts are often required to follow the precedents set by higher courts, ensuring
that the law is applied consistently throughout the judicial system.
One key reason judges contribute to the creation of laws is that they help
“supplement existing laws.” Even though laws are carefully drafted, they cannot
anticipate every possible scenario. Thus, when new or ambiguous cases arise, judges
interpret and apply the law based on existing statutes, filling in any gaps. For instance,
the law may define theft, but in cases involving “intellectual property,” judges might
need to extend legal interpretations.
Additionally, judge-made law allows the legal system to “adapt to changes in
society.” Social norms and technology often evolve more quickly than the law itself.
Judges help ensure the legal system remains current and adaptable by applying
established legal principles to new situations or creating new interpretations. This is
particularly important in areas like “privacy law,” where the rapid expansion of social
media demands new court rulings to regulate and address emerging issues.
There are four key characteristics of case law that contribute to its effectiveness:
- Based on precedent: Case law is based on decisions from previous cases,
especially those from higher courts. When facing similar cases, lower courts rely
on these rulings to make their decisions. This ensures that cases are handled
consistently, fairly, and predictably. If two identical cases were judged
differently, it would erode public trust in the legal system.
- Created by judges: Judges play a crucial role in creating case law through
“interpreting the law” and making decisions on specific legal matters. Through
their rulings, judges address situations not clearly covered by written law, thus
expanding the scope of the legal system and forming new legal interpretations.
This active role by judges allows the law to evolve and adapt to society's
changing needs.
- Flexibility: Case law is more adaptable to societal changes than written law,
which often takes a long time to modify. As society, technology, and norms
change, judges can adjust case law accordingly, ensuring that the legal system
stays up to date with the times.
- Complementing written law: While written law provides a legal framework, it is
sometimes unclear or incomplete. Case law helps clarify these ambiguities in
written law, ensuring it is applied correctly and reasonably in real-world
situations.
Judge-made law (case law) also has some limitations. One issue is that it can
cause confusion because there are sometimes disagreements about how to interpret past

21
rulings, making case outcomes harder to predict. Additionally, relying too much on case
law can affect the balance of power between the legislative and judicial branches. If
judges have too much authority in "creating laws," it can weaken the role of the
legislative branch, which is primarily responsible for making laws. Therefore, to
maintain the principle of separation of powers, there needs to be a balance between
legislative authority and judicial interpretation.
Examples of case law: Roe v. Wade (1973): The U.S. Supreme Court legalized abortion
across the entire country.17
In conclusion, in the civil legal system, case law is crucial because it helps make
the law more flexible and adaptable while ensuring clarity and fairness in its
application. Despite the challenges, the value of case law is increasingly recognized and
widely used. For example, in France, where the Civil Code lacks many rules on
compensation for damages, people often rely on case law. In England, the development
of case law has contributed to strengthening the power of the courts. In France, since
2000, government agencies have made court rulings publicly available online, making
it easier for citizens to access and understand the law.
2.6 Codification
2.6.1 Overview of Codification in civil legal systems
Codification in civil law refers to the process of compiling and organizing laws
into a coherent, comprehensive system or “code.” This system encompasses various
legal principles, general clauses, and rules that govern specific areas of law, such as
contracts, property, and family law. Unlike common law systems, where legal
precedents play a significant role, civil law relies heavily on codified statutes as the
primary source of law.
In civil law systems, the primary purpose of codification is to provide clarity,
predictability, and uniformity in the application of the law. Codified legal systems
reduce the need for extensive judicial interpretation by providing a clear and accessible
set of rules that citizens can understand and apply to their daily lives.
Moreover, “the most important and widespread product of the civilian legal
tradition is, of course, codification.” 18 It is evident that in civil law systems, codification
plays a vital role in shaping and structuring the legal framework. This systematic
approach to organizing legal principles ensures coherence, accessibility, and uniformity
across various branches of law.

17
Laura Temme, Esq (2023), “Roe v. Wade Case Summary: What You Need to Know”, available at
https://supreme.findlaw.com/supreme-court-insights/roe-v--wade-case-summary--what-you-need-to-know.html,
18
Cooper, T. M. (1950). The common and the civil law. a scot's view. Harvard Law Review,
63(3), 468.

22
2.6.2 Historical Development and Ideology
Codification has roots in Roman law, particularly the Corpus Juris Civilis of
Emperor Justinian (529-534 CE), which sought to eliminate prior laws and create a new
legal order. These legal texts aimed to consolidate and preserve Roman legal principles.
Roman law laid the foundation for later European legal systems, emphasizing written
statutes and comprehensive legal principles that governed civil life.
After the fall of the Western Roman Empire and the eventual decline of the
Byzantine Empire, the Justinian Code was largely forgotten for several centuries,
especially in Western Europe. However, starting in the late XI century, this body of
Roman law was rediscovered in Medieval universities, particularly in Bologna, Italy.
Legal scholars, known as Glossators, began to read, annotate, and interpret these texts.
They adapted Roman legal principles to address the legal needs of their contemporary
societies. Since scholars came from all over Europe to study in Bologna, they
disseminated the principles of Roman law throughout the continent when they returned
to their home countries. This led to the establishment of legal studies at prominent
universities like the Sorbonne in Paris (founded in 1253), and later at Oxford,
Cambridge, and other European institutions. These scholars read and wrote in Latin,
which was the scholarly language of the time, leading to the development of a common
legal culture across Europe, often referred to as “ius commune” (common law of
Europe, distinct from the English "common law" tradition) 19.
The Corpus Juris Civilis, also known as the Body of Roman Law, became a
cornerstone for this shared legal tradition.
Later on, the stage of codification and development of modern law extending
beyond continental Europe (from the late XVIII century to the XIX century and
onwards, is marked by legal documents that are significant in the evolution of human
law, starting with the human rights declarations up to the Declaration of the Rights of
Man and of the Citizen in 1789 by France. The fundamental provisions of this renowned
declaration became the principles underlying the constitutions of many other European
continental countries and the world.
The codification efforts continued prominently with the French Napoleonic Code
of 1804, one of the most significant moments in the history of civil law codification. It
aimed to centralize and codify laws under the authority of the state, promoting legal
unity across France. The code was based on Enlightenment ideals of reason, individual
rights, and the separation of powers. The code was based on Enlightenment ideals of
reason, individual rights, and the separation of powers. France’s leadership in
codification efforts was exemplified by the creation of five significant codes during the
early 19th century, which served as a model for many other nations. These codes include

19
Stein, P. (n.d.). Roman Law in European History. Cambridge University Press.

23
the Civil Code of 1804, the Code of Civil Procedure of 1806, the Commercial Code of
1807, the Code of Criminal Procedure of 1808, and the Penal Code of 1810.
Among these, the Civil Code of 1804 stands out as the most monumental. This
legal work is often regarded as a pinnacle of legal development due to its comprehensive
nature, containing nearly 2,300 provisions. Unlike hastily drafted laws, the Civil Code
was meticulously constructed, drawing from previous legal frameworks to create a more
refined and advanced system of laws. Its development was a culmination of years of
legal refinement. This thorough process contributed to its lasting influence and legacy
in civil law traditions worldwide. Due to France’s extensive colonial presence in North
Africa, Central Africa, West Africa, Southeast Asia, and South America, French law
extended beyond European borders, reaching Africa, Asia, and South America,
especially during the late 19th and early 20th centuries
In addition, The German Civil Code of 1896, by contrast, emerged from a more
scientific and historical approach. It aimed to carefully codify the principles of German
law by drawing on centuries of legal development, including Roman law and Germanic
traditions. Germany also established five fundamental legal codes, including the
Commercial Code of 1866, the Penal Code of 1877, the Criminal Procedure Code of
1877, the Civil Procedure Code of 1877, and the Civil Code of 1896, (particularly the
Civil Code of 1896), gained widespread influence due to its scientific and rational
structure. Its impact extended beyond Africa, influencing various countries. While
former German colonies such as Namibia, Burundi, parts of Cameroon, and Tanzania
in Africa, as well as Western Samoa in the South Pacific, adopted German legal
principles, its reach also extended to nations like Japan, South Korea, Thailand, Greece,
and parts of China.
These renowned legal codes represent a major achievement for the Civil law
tradition, signifying a pivotal moment in the evolution of legal science.
2.6.3 Process of codification
The process of codification of documents under the law involves a
collaborative effort between two principal bodies, the Government and the
Parliament- the legislative body responsible for enacting laws, these are the subject of
codification activity in the civil legal system. These two bodies undertake the task of
synthesizing and integrating legal documents into a comprehensive codified text. This
process is structured through a series of well-defined steps20:
1. Initiation of the Codification Proposal: Relevant government bodies (ministries)
evaluate the necessity for codifying legal documents within a particular domain.

20
Hoàng Xuân Hoan, Nguyễn Duy Thắng (2019), “Kinh nghiệm thực hiện pháp điển của Cộng hòa
Pháp” https://danchuphapluat.vn/kinh-nghiem-thuc-hien-phap-dien-cua-cong-hoa-phap. (n.d.).

24
 If deemed necessary, these bodies compile anticipated legal texts and case laws
into two separate catalogs: one for Parliamentary documents and one for
Governmental and ministerial documents. These compilations are reviewed and
advised upon by the Supreme Codification Committee before being forwarded
to the Government for preliminary approval and subsequent submission to
Parliament for authorization to execute and finalize the codification. This
authorization is granted for a period of one to two years, depending on the
complexity of the subject matter, ensuring adherence to existing legal standards
and allowing for specific amendments under defined conditions.
2. Drafting the Codified Set: Following Parliamentary authorization, the
Government delegates the Supreme Codification Committee to lead the
codification process in collaboration with the relevant ministries. The outcomes
of this phase are submitted to the Council of State (an entity independent of the
Government) for evaluation and recommendations.
3. Evaluation of the Codification Draft: The Council of State assesses the
codification outcomes, possessing the authority to amend any provisions that do
not conform to the stipulated criteria. In instances of discord among the
ministries, the Supreme Codification Committee, and the Council of State, the
Secretary-General of the Government consolidates opinions and submits a
proposal for the Government’s decision.
4. Government Ratification of the Codified Laws: After review, the government
promulgates a decree to adopt the codified laws within the designated
authorization period formally. This decree explicitly annuls all previous legal
documents that have been subsumed into the new codified corpus.
5. Parliamentary Approval of Codification Results: After the period of
authorization, the Government presents the codification results to Parliament for
approval. Parliament’s review focuses primarily on the legal consistency of the
codified provisions with existing laws. It approves the codification if it retains
the original statutes or incorporates only permissible modifications. Should there
be any substantive changes that Parliament finds unacceptable, it will decline
approval and may either amend the disputed content itself or require the
Government to adjust the proposed codification accordingly before granting its
consent.
The codification process can exhibit variations based on particular legal
jurisdictions and traditions; however, the outlined steps generally represent the
customary procedure for codification within a civil law system.

25
2.6.4 The result of codification
Codification within civil law jurisdictions typically results in the assembly of
comprehensive legal codes or statutes that cover various areas of civil law. This process,
termed codification, involves the consolidation of legal regulations by state authorities,
which helps eliminate any inconsistencies, redundancies, or contradictions.
Additionally, it allows for the introduction of new provisions that enrich the legal
framework. These legal documents can range from a single Code to an extensive
Codification Set, which varies by the depth and breadth of the legal matters they
address.
Civil law systems are highly codified, meaning that all legal rules are organized
and clearly laid out in laws and regulations. This level of organization helps create a
consistent legal structure across regions, making legal procedures easier to follow and
the law itself more predictable and clear. Additionally, this structured approach helps
update and refine the law by including new changes and eliminating outdated texts,
ensuring the legal system stays relevant and effective.
In summary, countries within this civil law tradition possess the highest level of
unification and codification among the world’s major legal systems. These nations have
developed numerous codes across various fields. For instance, in France, the
codification process has resulted in the establishment of approximately 40 distinct legal
codes, showcasing the extensive scope and depth of codification in civil law systems.
This example highlights the significant unification and standardization that codification
brings to the legal systems of nations within this tradition, which possess the highest
level of codification among the world’s major legal frameworks.

III. INFLUENCES AND SPREADING

3.1 Influences of civil legal system globally

The influence and spread of civil legal systems globally can be traced back to
the codification of Roman law under Emperor Justinian in 533-534 AD, which laid the
foundation for many modern civil law systems. The Corpus Juris Civilis emphasized
the importance of written legal codes over customs, elevating legal scholars’ roles and
minimizing the reliance on legal precedents. This system encouraged civil law judges
to adopt an inquisitorial approach in legal proceedings.
A significant turning point came with the introduction of Napoleon’s Civil Code
in 1804, which was designed to be accessible, clear, and applicable to all citizens,
contributing to legal unity in France. This code’s influence spread beyond Europe,
particularly through French colonialism, affecting legal systems in regions such as

26
Québec and Louisiana21. Civil law codification became a model for many countries
across Europe, Asia, South America, and Africa, particularly in modernizing legal
frameworks in jurisdictions with customary or religious law backgrounds. The
codification movement has also greatly contributed to the development of comparative
law, enabling legal scholars to identify adaptable legal solutions across different
systems.
Moreover, the clear and organized structure of civil law has supported
international trade by providing a reliable legal framework that reduces legal
uncertainty in cross-border transactions. Overall, codification in civil law has had a
long-lasting global impact, fostering the convergence of legal principles, encouraging
legal innovation, and providing a strong foundation for legal modernization in diverse
jurisdictions.

3.2. Spreading

Figure 3.2. Global Map of Legal System Distributions 22

The Civil Law system is prevalent across Europe, South America, and significant
parts of Africa and Asia. It started in continental Europe and was exported to parts of
Asia, Central and Latin America, and parts of Africa. In Europe, most countries adhere

21
Blanc-Jouvan, Xavier, "Worldwide Influence of the French Civil Code of 1804, on the Occasion of its
Bicentennial Celebration" (2004). Cornell Law School Berger International Speaker Papers. Paper 3.
http://scholarship.law.cornell.edu/biss_papers/3
22
JuriGlobe. (n.d.). © University of Ottawa. https://www.juriglobe.ca/eng/

27
to Civil Law, including nations like France, Germany, Italy, and Spain. South America
is entirely governed by Civil Law, with countries such as Brazil, Argentina, Chile, and
Colombia adopting this legal framework. In Africa, Civil Law is prominent in countries
like Algeria, Morocco, and the Democratic Republic of Congo, particularly in the
northern and central regions. Asia also has major countries, including China, Japan, and
Indonesia, operating under Civil Law. This system is especially dominant in Europe
and South America, where it serves as the primary legal framework for most nations.
Due to many Western European countries such as France, Spain, the
Netherlands, and Italy possessing overseas territories across various continents, civil
law has been able to evolve and expand beyond Europe. This period is marked by
significant legal texts that have shaped the legal evolution of humanity, starting from
declarations of human rights to the French Declaration of the Rights of Man and of the
Citizen of 1789. The foundational principles of this notable declaration have become
the underpinnings of the constitutions of many other European continental countries
and globally.
According to Rene David, civil law has developed extensively in places like
Africa and Madagascar before Western colonization, since these regions lacked a
developed legal system, making them more receptive to the adoption of Western legal
systems as adopting a superior legal culture system23. Initially, countries that were
former territories of France, Spain, the Netherlands, the Mavriky Islands, and the
Seychelles Islands, which were later part of the British Commonwealth, also belonged
to this legal family. Additionally, North African countries under the civil law system
were influenced by French and Italian legal traditions, political rule, and cultural
influences, despite civil law not being predominant. Various other countries such as
Egypt, Iraq, Israel, and Jordan have been deeply influenced by European continental
law during their legal development processes- the continental European legal provisions
have been intermingled with Islamic law to form blended legal systems.
In South America, the Civil Law system is the dominant legal framework, having
been adopted by all countries on the continent. This legal tradition was largely inherited
from European colonizers, particularly from Spain and Portugal, which practiced Civil
Law during their colonial rule. As a result, South American countries like Brazil,
Argentina, Chile, Colombia, Peru, and Venezuela integrated Civil Law into their
national legal systems. On the contrary, in North America, regions formerly colonized
by Spain, the Netherlands, and France, such as Louisiana, California, New Mexico,
Arizona, and Texas, still retain some aspects of civil law, although the common law
system primarily governs. Notably, specific jurisdictions like Louisiana in the United
States, Quebec in Canada, and Puerto Rico have maintained a hybrid legal system that
incorporates both civil law and common law principles. These regions reflect the
23
Ha Noi University of Law (2017), Comparative Law Textbook, Công an Nhân dân Hanoi Publishing House

28
continued influence of civil law provisions alongside the predominant common law
framework. This coexistence highlights the adaptability and integration of civil law
traditions into the legal systems influenced by different colonial legacies. Civil Law in
South America is characterized by comprehensive legal codes, where laws are written,
codified, and easily accessible. Unlike Common Law, which relies on judicial
precedents, Civil Law systems in South America emphasize statutes and legal codes as
the primary sources of law.
In Asia, countries such as Turkey recognized civil law as a model for legal
system reform as early as 1839. By 1926, Turkey had adopted the Swiss Civil Code
even though it was a country that had previously adopted Islamic law. Other countries
like Vietnam, Laos, and Cambodia have also been significantly influenced by civil law
in public, commercial, and civil matters. Almost all countries in the region have
experienced the influence of various legal theories and regulations such as contract law,
property law, and business law in their legal systems and have incorporated them into
their governmental, judicial, and administrative regulations. Current legal reforms and
enhancements in these countries continue to reflect the influence of European civil law,
contributing to the ongoing development and perfection of their legal systems alongside
other global regions.

29
 BIBLIOGRAPHY

1. Comparative Law in a Changing World/ Peter de Cruz (2nd ed.). (1999). London,
Sidney: Cavendish Publishing Limited.
2. Ha Noi University of Law (2017), Comparative Law Textbook, Công an Nhân dân
Hanoi Publishing House.
3. “The common law and civil law traditions” (2017), Berkeley Law - University of
California, available at: https://www.law.berkeley.edu/wp-
content/uploads/2017/11/CommonLawCivilLawTraditions.pdf
4. The Civil Law Tradition, 3rd Edition. (n.d.). Google Books.
https://books.google.com.vn/books?id=6OJf9CbgKTkC&printsec=frontcover&hl=vi
&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false
5. Cooper, T. M. (1950). The common and the civil law. a scot's view. Harvard Law
Review, 63(3), 468.
6. Hoàng Xuân Hoan, Nguyễn Duy Thắng (2019), “Kinh nghiệm thực hiện pháp điển
của Cộng hòa Pháp”
https://danchuphapluat.vn/kinh-nghiem-thuc-hien-phap-dien-cua-cong-hoa-phap.
(n.d.).
7. JuriGlobe. (n.d.). © University of Ottawa. https://www.juriglobe.ca/eng/
8. Carozza, Paolo G.; Glendon, Mary Ann; and Wallace Gordon, Michael,
"Comparative Legal Traditions in a Nutshell" (1999). Books.
9. Stein, P. (n.d.). Roman Law in European History. Cambridge University Press.
10. U.S. Department of Justice, “Roles in Civil Legal Systems”
https://www.justice.gov/nsd-ovt/roles-civil-legal-systems
11. Legal Education and the Civil Law System
https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?article=1444
context=nyls_law_review
12. Roe v. Wade Case Summary: What You Need to Know
https://supreme.findlaw.com/supreme-court-insights/roe-v--wade-case-summary--
what-you-need-to-know.html
13. Unilaw. (2024, February 15). THE CONTINENTAL EUROPEAN LEGAL
SYSTEM. UNILAW LAW FIRM LLC.
https://unilaw.vn/binh-luan-an/he-thong-phap-luat-chau-au-luc-dia.html
14. Menon, N. R. M., Loughlin, Salmond, Holland, & Vago, S. (n.d.). Public Law and
Private Law. In INTRODUCTION TO LAW (pp. 163–165).
https://www.nios.ac.in/media/documents/SrSec338New/338_Introduction_To_Law_E
ng/338_Introduction_To_Law_Eng_L12.pdf
15. Amiita Punj; V. Hemalatha Devi; Nagaseshamma, S. (2018), “Unit 2: Substantive
Law and Procedure Law”, Essentials of Indian Legal System, p.40, 41.
https://egyankosh.ac.in/bitstream/123456789/9895/1/Unit-2.pdf,
16. Roles in Civil Legal Systems. (2023, June 7).

30
https://www.justice.gov/nsd-ovt/roles-civil-legal-systems.
17. Blanc-Jouvan, Xavier, "Worldwide Influence of the French Civil Code of 1804, on
the Occasion of its Bicentennial Celebration" (2004). Cornell Law School Berger
International Speaker Papers. Paper 3. http://scholarship.law.cornell.edu/biss_papers/3

31