CIVIL LAW. (1) The law applicable to the
citizens (cives) of a particular State (civitas). The Romans used the term jus civile in this sense, distinguishing it from the law observed by all nations (jus gentium), and from the ideal law of nature (jus naturale). (2) The Romans also described their ordinary law, established by custom and by legislation, as their civil law, distinguishing it from the law introduced by the edicts of their magistrates very much as we distinguish common law from equity. (3) In the Middle Ages, civil law meant Roman law as
set forth in the law books of Justinian, in
distinction from the ecclesiastical or canon law. In
England, at the same period, civil law meant
Roman law as distinguished from English law. (4) Because the part of the Roman law which has most influenced European legal development is that part which deals with the ordinary relations of private persons, civil law has come, in modern European usage, to mean private law in general, without regard to its origin, as distinguished from public law. (5) In modern English usage, civil law includes and designates all the existing systems of private law that are in the main based on the Roman law. Civil law in this sense is a blend of Roman, Teutonic, ecclesiastical, and purely modern institutions and rules, fitted into a framework which is still substantially Roman. It prevails not only upon the Continent of Europe and in the dependencies of the Continental European States, but also in Scotland and in many parts of the world that were first colonized and civilized by the Portuguese, Spanish, Dutch, or French, and which today are independent (Central American and South American republics), or are under the rule of Great Britain (e.g. South Africa, some of the West-Indian islands, the Province of Quebec) or are now included in, or belong to, the United States (e.g. Louisiana, Porto Rico, and the Philippines). It is also finding its way, in some measure, into non-Christian portions of the world (e.g. Turkey and Japan).
I. The Roman City Law (jus civile), during
the Royal Period (down to about 500), was
largely religious in its character. The patricians
had ‘sacral,’ or religious, customs which controlled
the public law of the city and regulated their
own family relations. The so-called Royal Laws
(leges regiæ), of which some fragments have
been preserved, were obviously priestly formulations
of these customs. The plebeians apparently
had no share in this religious law, and they
certainly had special forms of marriage and of testament. The customs regulating property and debt were the same for both orders, and were secular in their character. The interpretation of all law, however, whether religious or secular, rested with patrician priests; and after the expulsion of the kings the enforcement of the law was in the hands of patrician magistrates. In consequence of plebeian complaints and agitation, the non-political custom of the city was reduced to writing; and the Law of the Twelve Tables, thus drafted, was submitted to and accepted by the popular assembly (c.451-50 ) This code, of which numerous fragments have come down to us, set forth simple rules suitable to an agricultural community, in a remarkably clear and terse fashion. It established equal law for both orders, except in the matter of marriage; and a few years later (c.445 ) even this inequality was removed. This law was prized by the Romans as a charter of liberties, and they were reluctant to amend its provisions by legislation. The necessary development of the law was therefore obtained during the following three centuries by interpretation. For two centuries the priestly order remained the authoritative interpreters; but after 252, when a plebeian became pontifex maximus, the legal system lost its predominantly religious character. With the expansion of Rome, its law was extended over
Latium; but the Roman city law was not
applicable to the Italian allies (socii), unless
expressly made so by treaty. The best reconstruction
of the Royal Laws is that of Voigt; of the
Twelve Tables, that of Dirksen and Schöll. Both
may conveniently be consulted in Bruns, Fontes
Iuris Romani Antiqui, Leges et Negotia (6th
ed., Mommsen and Gradenwitz, editors, Leipzig, 1893).