Notes and Articles for Law students

User Tools

Site Tools


The Term Civil Law

The name civil law, though now fallen somewhat out of use in this sense, and though possessing certain other meanings, is the most proper and convenient title by which to distinguish the law of the land from other forms of law. Such law is termed civil, as being that of the civitas or state. The name is derived from the jus civile of the Romans. “ Quod quisque populus ipse sibi jus constituit, id ipsius proprium civitatis est, vocaturque jus civile, quasi jus propnum ipsius civitatis ”.

The other meanings of civil law are not such as to be likely to create confusion. It often means the law of Rome (corpus juris civilis) as opposed to the canon law (corpus juris canonici) these being the two systems by which, in the Middle Ages, the state and the Church were respectively governed; or as opposed to the law of England, inasmuch as England, unlike the rest of Europe, refused to receive the Roman law and developed a system of its own. The term civil law is also used to signify, not the whole law of the land, but only the residue of it after deducting some particular portion having a special title of its own. Thus, civil law is opposed to criminal law or to military law.

The term civil law, as indicating the law of the land, has been partially superseded in recent times by the improper substitute, positive law. Jus positvum was a title invented by medieval jurists to denote law made or established (positum) by human authority, as opposed to the jus naturale, which was uncreated and immutable. It is from this contrast that the term positive derives all its point and significance. It is not permissible, therefore, to confine positive law to the law of the land. All law is positive that is not natural. International law, for example, is a kind of jus positivum, no less than the civil law itself.

The term municipal law is sometimes used instead of civil law. This usage, however, is inappropriate and should be discouraged, having regard to the modem connotation of the adjective municipal as relating to a municipality or borough. Its use as a synonym of civil is derived from municipium in the sense of a self-governing political community within the Roman Empire Civitas and municipium were closely related in meaning and use. Both terms denoted a body politic or state. The name civil law is derived from one of them, and the name municipal law from the other. The term law is used in two senses, which may be conveniently distinguished as the abstract and the concrete. In its abstract application we speak of the law of England, the law of libel, criminal law, and so forth. Similarly, we use the phrases law and order, law and justice, courts of law. In its concrete application, on the other hand, we say that Parliament has enacted or repealed a law; we speak of the by-laws of a railway company or municipality; we hear of the corn laws or the navigation laws. In the abstract sense we speak of law, or of the law, in the concrete sense we speak of a law, or of laws. The distinction demands attention for this reason, that the concrete term is not co-extensive and coincident with the abstract in its application. Law or the law does not consist of the total number of laws in force. The constituent elements of which the law is made up are not laws, but rules of law or legal principles. That a will requires two witnesses is not rightly spoken of as a law of England; it is a rule of English law. A law means a statute, enactment, ordinance, decree or other exercise of legislative authority. It is one of the sources of law in the abstract sense. A law produces statute law or some other form of enacted law, just as a judicial precedent produces case law. There is much law recognised, applied and enforced in the courts of justice which has not been enacted by any law. Conversely, although laws commonly produce law, this is not invariably the case. Every Act of Parliament is called a law, but not all Acts of Parliament have as their purpose or effect the formulation of rules of law Statutes are essentially the formulation of the will of the sovereign legislature, and this may be directed to other purposes than the alteration of the legal system Before the establishment of the system of judicial divorce, a divorce could only be obtained by means of a private Act of Parliament. But such a statute or law ( sensu concreto) was no more a source of law (sensu abstracto) than is a judicial decree of divorce at the present day. Similarly, an Act of attainder, whereby an offender was declared a traitor and condemned to death, did not create law any more than does the sentence of a criminal court. It must be borne in mind, therefore, that law and laws; the law and a law; are not identical in nature or scope. All law is not produced by laws, and all laws do not produce law.

This ambiguity is a peculiarity of English speech. All the chief Continental languages possess distinct words for the two meanings thus inherent in the English term law. Law in the concrete is lex, loi, Gesetz , legge. Law in the abstract is jus, droit , Recht, dirtto. The law of Rome was not lex civilis, but jus civile. Lex, a statute, was one of the sources of jus. So in French with droit and loi, and in German with Recht and Gesetz. It is not the case, indeed, that the distinction between these two sets of terms is always rigidly maintained, for we occasionally find the concrete word used in the abstract sense. Medieval Latin, for example, frequently uses lex as equivalent to jus; we read of lex naturalis no less than of jus naturale; and the same usage is not uncommon in the case of the French loi. The fact remains that the Continental languages possess, and in general make use of, a method of avoiding the ambiguity inherent in the single English term.

It is to be observed, however, that this advantage has been obtained by these languages at a considerable cost, for the terms jus, droit , Recht, dirtto , are themselves ambiguous in another manner. They mean not only law (sensu abstracto), but also right or justice. In Continental speech and thought, therefore, it is always necessary to bear in mind the distinction between jus, droit , or Recht in their ethical and in their legal signification. A similar double meaning was in earlier usage possessed by the English term right. Common law and common right, for example, were synonymous. The same ambiguity is still possessed by the term equity, which means either natural justice, or that form of law which was developed and administered by the Court of Chancery.

Most English writers have, in defining law, defined it in the concrete instead of in the abstract sense. They have attempted to answer the question What is a law? while the true enquiry is What is law? The central idea of juridical theory is not lex , but jus, not Gesetz , but Recht. To this inverted and unnatural method of enquiry there are two objections. In the first place, it involves a useless and embarrassing conflict with legal usage. In the mouths of lawyers the concrete signification is quite unusual. They speak habitually of law, of the law, of rules of law, of questions of law, of legal principles, but rarely of a law or of the laws. When they have occasion to express the concrete idea, they avoid the generic expression, and speak of some particular species of laws; a statute, an Act of Parliament, a by-law, or a rule of court. In the second place, this consideration of law's instead of law, of leges, instead of jus, tends almost necessarily to the conclusion that statute law is the type of all law, and the form to which all of it is reducible in the last analysis. It misleads inquirers by sending them to the legislature to discover the true nature and origin of law, instead of to the courts of justice. It is consequently responsible for much that is inadequate and untrue in the juridical theory of English writers.

Navigation: Home»Jurisprudence