15 September 2014


A new article from Legal History eJournal (click here to browse all abstracts of the Journal)

"Civil Law"
Centre for the Study of European Contract Law Working Paper Series No. 2014-06
Amsterdam Law School Research Paper No. 2014-43
MARTIJN W. HESSELINK, University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
Email: m.w.hesselink@uva.nl
The concept of civil law has two distinct meanings. First, civil law may refer to the branch of the law that deals with civil disputes, ie disputes between private parties (individuals, corporations), as opposed to other branches of the law, such as administrative law or criminal law, which relate to disputes between individuals and the state. Secondly, the term civil law is often employed to indicate a legal "tradition" or a "family" of legal systems, this time in contrast with other legal traditions or families, in particular the common law. This is the sense in which we say, for example, that France and Germany are civil law countries while the United States and Australia are common law countries. This forthcoming contribution to The Encyclopedia of Political Thought (M. Gibbons ed.) is concerned exclusively with the civil law in the latter sense.

The entry concludes that the number of contexts in which the concept of "civil law" today can be employed unproblematically, ie without running the risk of reductionism, anachronism, oversimplification or indeed caricature, seems rather limited. The similarities, differences and interconnections between the various jurisdictions in the world seem almost invariably to be far too complex to be capable of being usefully captured in the general concept of "the civil law" and its contrast with "the common law". In any case, the concept and its use is hardly ever neutral. Therefore, at best it can provide a convenient starting point for further critical analysis and discussion.

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