The Concept of Civil Law. Historical Dimension

(English version of the paper published in Revista de Derecho Actual, vol. III, 2017, PDF) (Spanish version)

The expression “civil law” — said Albaladejo (1996) — designates both the “general private law that regulates the most common relations of human coexistence”, as well as the legal science that investigates and explains it.

However, civil law is not a static concept, but a dynamic one, which was made manifest by Javoleno in the first century (Epistulae), because any definition of civil law is dangerous, because it is not immutable and someone may change its meaning or have to qualify or modify it.

Digest 50.17, De diversis regulis iuris antiqui 202, “Omnis definitio in iure civile periculosa est: parum est enim, ut non subverti posset”.

In Roman law — says Iglesias (1972) — to speak of ius is to talk about ius civile, “it is the only juridical system surrendered by force of grave and constant reason”. The reason was that Roman law is a municipal law and, therefore, it was identified with the proper regulation of each town, of the city — quod quisque populus sibi ipse constituit — said the jurisconsult Gayo.

Digest 1.1.9; Institutions 1.2.19, “Quod quisque populus sibi ipse constituit, id ipsius propium civitatis est vocaturque ius civile, quasi ius propium ipsius civitatis”.

The ius civile then identified itself as an own or private right, which reaffirms the principle of the personality of the laws of the ancient world, so the foreigner is out of the orbit of this one (Iglesias, 1972). In this sense, Justinian defined it as the law that each people constitutes exclusively for itself, which is the right of the citizens themselves, and that is why it is called civil law.

Justinian, Institutes 1.2.1, “Omnes populi, qui legibus et moribus reguntur, partim suo propio, partim communi omnium hominum iure utuntur; nam quod quisque populus ipse sibi ius constituit, id ipsius propium civitatis est vocaturque ius civile, quasi ius propium ipsius civitatis (…)”.

Moreover, it was by adapting then to the social and economic conditions of the time. In short, it became open and progressive.

As Iglesias (1972) affirms, “it stripped itself of its condition of national, filed and tempered in new ways, in which the principle of the free contractual form triumphs over the narrowness and rigidity of the old molds”. It is the ius gentium, the law applicable to relations between Romans and between Romans and foreigners, which natural reason establishes among men — quod naturalis ratio inter omnes homines constituit (Gayo, Inst. 1.1, Digest 1.1.9) — , that used by peoples -quo gentes humanae utuntur (Ulpiano, Digest 1.1.1.4).

In the same way, the ius civile and the ius gentium differ from the ius naturale, the right, which is reasonable and equitable.

Paulo, Digest 1.1.11, “Quod semper aequum ac bonum est ius dicitur, ut est ius naturale”.

The latter is not exclusive to the human race, but also animals — quod natura omnia animalia docuit (Ulpiano, Digest 1.1.1.3) — who are born on land, in the sea or birds, since it seems that they know this right since they unite and procreate or what we call marriage. Although the Justinian conception — sustains Albertario (1937) — substantially modifies such a position considering the natural Right a Right given by God to the men and not at the same time and under equal determination to men and animals .

In this way, the concept of ius privatorum arises as a union of ius civile, ius gentium and ius naturale — collectum etenim est ex naturalibus, praeceptis aut gentium aut civilibus — . As opposed to ius publicum which is the government of the republic — publicum ius est quod ad statum rei Romanae spectat — according to the classic distinction of Ulpiano.

Although, this distinction is not made for the sources of the origin, private or public. It does not make sense since every norm is born from the State, but Ulpiano differentiates community and individual and norms with the higher prevalence of the public or the private since it is impossible the absolute abstraction in any of the categories. Thus, the ius civile, as an integral part of private law, is considered to be that which watches over the interests of individuals — quod ad singulorum utilitatem (Digest 1.1.1.2).

The ius civile is then ius privatorum or simply Law. Now, if it is the law of every people’: does civil law also include public law?

For the majority doctrine, civil law is a part of Private Law, among others, hold this theory: Ehrlich, Perozzi, Bonfante, Costa, De Francisci, Arias Ramos, and Hernández Gil. On the contrary, they opt for the existence of a ius civile publicum, among others: Bouche-Leclercq, Willems, and, in Spain, among others, De Buen and D’Ors.

To the conclusion of the majority doctrine, De Buen denies value insofar as it affirms that the text of Ulpiano has been distorted or given a forced or erroneous version. In this sense, this author says that the words of Ulpiano want to demonstrate the triple origin of private law, which is constituted by natural law, the law of peoples, and civil law. However, not all civil law is private law but, like the law of each people, admits the existence of an ius civile publicum; Therefore — for this author — only natural law, the law of nations and ius civile privatum can be spoken of as part of private law. Among others, he criticizes Perozzi’s position since he attributes to the Romans a thought that they had not had in reality, are the failures — continuous De Buen — to attribute to the intellect of those who preceded us our way of thinking (for everything, De Buen, 1921).

According to D’Ors, civil law notion, as the right of each people contains the idea of exclusivity and totality. The first idea is that civil law is not the right to the city. The second idea refers to the fact that all the positive law of the Roman State is called civil law. Similarly, D’Ors reaffirms the existence of public civil law insofar as the valid distinguishing criterion for this author is the difference between the world of legal relations created by private autonomy and the legal situations created by a rule whose origin is always state and, therefore, public (quoted by Díez-Picazo, 1959). Jordano Barea (1963) maintains that there are legal norms of civil law that declare situations (Public law) that are not legal relations created by private autonomy (Private law).

In general, it is a constant among civilist doctrine to consider the term “ius civile” from different points of view. Indeed, the plurality of meanings of the expression “civil law” in Rome — affirms Díez-Picazo (1959) — is because jurists do not define it but limit themselves to contemplating its most essential aspects or characteristics, the task, therefore, must be the recomposition of a general concept of civil law from a meticulous study of the partial definitions.

If we classify, based on Roman jurisconsults, the concept of ius civile, according to Hernández Gil (1943), is ambiguous, with the expression sometimes being used in a negative sense, and sometimes in a positive sense. Thus, the different meanings that the term civil law can take are:

a) It can be considered as the right of a town, of the city, say Gayo and Paulo.

Gayo, Digest 1.1.8, “Omnes populi, qui legibus et moribus reguntur, partim suo propio, partim communi omnium hominum iure utuntur, Nam quod quisque populus ipse ipse sibi ius constituit, id ipsius propium civitatis est, vocaturque ius civile, quasi ius propium ipsius civitatis (…)”; Paulo, Digest 1.1.11, “(…) ltero modo, quod ómnibus aut pluribus in quaque civitate utile est, ut est ius civile”.

b) The right that is not created by the magistrates, by the jurisprudence, according to Papiniano.

Papiniano, Digest 1.1.7.1, “Ius praetorium est, quod paretores introduxerunt, vel suplendi, vel corrigendi iuris civilis gratia, propter utilitatem publicam; quod et honorarium dicitur, ad honorem praetorum sic nominatum” (Ius praetorium est, quod paretores introduxerunt, vel suplendi, vel corrigendi iuris civilis gratia, propter utilitatem publicam; quod et honorarium dicitur, ad honorem praetorum sic nominatum).

It is the meaning of civil law as common law as opposed to praetorian law, although some sector of the doctrine denies importance to the distinction. According to Díez-Picazo (1959), the essential difference between one and the other Law is the different position they take in front of identical problems in front of identical institutions. In this sense, the law of the praetorium, of the magistrates, is the law of legal innovation. It is the same relationship between ordinary law and current special law. Although, when the praetorian law acquires the category of common law, then it becomes civil law.

c) Also, Papiniano, affirms that it is the right coming from the laws, plebiscites, Senate consulted, and decrees of the princes.

Digest 1.1.7, “Ius autem civile est, quod ex legibus, plebiscitis, senatusconsultis, decretis principum, auctoritate prudentum venit”.

d) Law based on custom, according to ULPIANO.

Digest 1.1.6.1, “Hoc igitur ius nostrum constat aut ex scripto, aut sine scripto, ut apud legum aliae scriptae, aliae non scriptae”.

e) All private law as opposed to public law.

f) Finally, the law that could not receive a particular denomination was called ius civile — states Puig Peña (1972) — since it could not frame within the law of nations, which, according to Hermoganiano, grouped the essential civil institutions such as commercial traffic, sales, property, and obligations, except for some that were introduced by civil law itself.

Hermogeniano, Digest 1.1.5, “Ex hoc iure gentium introducta bella, discertae genes, regna condita, dominia distincta, agris termini positi, aedificia collocata, commercium, emtiones, venditiones, locationes, conductiones, obligationes institutae, exceptis quibusdam, quae a iure civili introductae sunt” (Ex hoc iure gentium introductae bella, discertae genes, regna condita, dominia distincta, agris termini positi, aedificia collocata, commercium, emtiones, venditiones, locationes, conductiones, obligationes institutae, exceptis quibusdam, quae a iure civili introductae sunt”.

Alternatively, as Ulpiano used to say, “civil law is that which neither departs entirely from the natural law or from that of people nor is it at all satisfied with it; and so, when we add or remove something from common law, we make our law, that is, civil law”.

Ulpiano, Digest 1.1.6.pr., “Ius civile est, quod neque in totun a naturale vel gentium recedit, nec persona omnia ei servit; itaque quum aliguid addimus el detrahimus iuri commnuni ius propium, id est, efficimus”.

In addition to the considerations of the Roman jurisconsults around the concept, for the majority doctrine, among others, De Castro (1984) and Hernández Gil (1943), it is in the texts of Cicero where the most important literary sources regarding the concept of civil law found. The contributions of this classic author only confirm the great variety of meanings that can be given to the concept. In general for this author, civil law comes from the collective will of the civitas (De Legibus 1.5.17) in force for the people who create it (De Legibus 1.7.23) and informed by the principles of natural law (De Legibus 1.6.18), although it had other meanings such as juridical science (De Oratore 1.182).

In the Late Middle Ages, civil law was characterized by its “continuity”, as a feature of its historicity of which it speaks (Mozos, 1965). According to him, “it derives from the concrete phenomenon of reception that constitutes in the Middle Ages, the fundamental chapter of that continuity and that is going to unfold, from then on, employing the Common Law”. The contribution of the common law to the formation of modern civil law are carried out — continues Mozos — shaping the very concept of civil law, through the study of the Corpus for its application to the needs of the legal life of peoples, already as common law. In this sense, a definite contribution made to the formation of the dogmatics and technology of modern private law.

In fact, at that time, the civil law contained in Justinian’s Corpus Iuris Civilis was identified with Roman law (eodem modo iuris civilis apellatione ius civile Romanorum intelligitur, Gloss “sed ius” to Instituta 1.2.2). Moreover, the civil law was opposed by the ius canonicum or Law of the Church contained in the Corpus Iuris Canonici, with which it shared the dominion of teaching in Universities. In both cases, civil and canon law, as opposed to the local, territorial, statutory law of each people, were configured as the ius commune.

In legal literature, the expression civil law was synonymous with Roman law. Thus it is found in the rubrics of the works of many of the jurisconsults of this time.

E.g. , Bartoli, Interpretum Iuris Civilis Coryphaei, in duodecim libros codicis, commentaria, Basileae, 1562; Acebedo, Comentarii juris civilis in Hispaniae regias constitutiones, Salamanca, 1585–1598, Madrid, 1602, Lugduni, 1737; Bugnudelius Bassus, Biblioteca Juriscanonico — civilis. Practica sen Repertorium Quaestionum magis practicarum in utroqueiure, Colonia Allogrogum, 1747; among many others.

Most of these texts are divided according to the Roman model into persons, things and, actions, so their content is not exclusively private law since they also refer to criminal law and especially to the process or adjective law or complementary to civil law.

The identification of civil law with Roman law by law schools gave way in modern times to nationalization and its conceptualization as private law from the auctoritas from which emanates Real legislation.

As Castán (1988) says, it is now that civil law, which had been identified with Roman law. Takes on its original meaning as the right of every people. It was extended to national laws. Particularly in the first Codes (such as the French and Austrian Codes). It was then defined as “the body of laws determining the private rights and obligations of members of the State to each other”.

In the 17th century, says De Castro (1984), it was already necessary to bring together national law, for example, the French procedural ordinances of 1667 or the land trade ordinances of 1673.

However, civil law as national law finds its basis in the legislative fixation of the latter, since it is the first step towards the nationalization of civil law. The second step is the imposition of the study of national law (Díez-Picazo, 1959).

The establishment of national legislation in the Modern Age is the first step towards the use of the same methodology of the study received from the doctors of Bologna, the canonists, and the civilists. The promulgation of the various regulations, such as those promulgated by the Catholic Kings of Spain — we limit ourselves to Spanish law — determined the substantial modification of the concept of civil law. In this sense, laws such as the “Cuaderno de Alcabalas” of 1491, the “Reales Ordenanzas de Castilla” of Díaz de Montalvo, the “Nueva Recopilación”, and other laws.

In addition to historical Spanish legal literature, such as:

Bibliographical works as: Acebedo, Comentarii juris civilis in Hispaniae regias constitutiones, Salamanca, 1585–1598, Madrid, 1602, Lugduni, 1737; Pérez de Salamanca, Commentaria in quator priores libros Ordinationum Regni Castellae, Salmanticae, 1609); Díaz de Montalvo, Fuero Real de España, diligentemente hecho por el Noble Rey Don Alonso IX: Glosado por el egregio Doctor Alonso Díaz de Montalvo,, Madrid, 1781; Ignacio Jordan de Asso and Miguel de Manuel, Instituciones de Derecho Civil de Castilla, Edición Quinta, Madrid, 1742; SALA, Ilustración del Derecho Real de España, 1ª ed., Madrid, 1803; or Martínez Marina, Ensayo histórico — crítico sobre la antigua legislación y principales cuerpos legales de los Reynos de León y Castilla, especialmente sobre el Código de d. Alonso el Sabio conocido con el nombre de las Siete Partidas, Madrid, 1808; among others.

In this way, — explains De Castro (1984) — the separation of civil law from Roman law originated with the existence of a large volume of laws, independent and irreducible to Justinian texts, and the birth of a specialized and self-confident legal literature, based on an awareness of one’s nationality. In this way, one can begin to speak of a national right.

However, the decisive step towards the delimitation of civil law occurs when the civil law is identified with private law or a set of rules based on natural and equitable rules. If the real formation of civil law as a discipline derives from the period of reception, where its “scientification” is achieved -says Mozos (1965)-, the decisive moment is determined by humanism, in the Modern Age, where “continuity” takes shape in the formation of the modern doctrine of natural law.

In effect, it is the dogmatics currents of rationalization of the law (17th century) — before the “disorder of the laws” — that determined and shaped civil law.

The concept of civil law was then restricted exclusively to private law, proof of which — as the majority doctrine states — is the work of Domat (1697): “Les lois civiles dans leur ordre naturel” which dealt exclusively with private law, as opposed to the work of the same author “Le droit public”.

The same author divides positive law into laws of religion and laws of politics. This last species is composed of public and private law. In the terminology of Domat (1697), in public and private, policy laws, the latter was considered by him as the ones that “order between individuals the conventions and all sorts of contracts of any nature, guardianships, prescriptions, mortgages, successions, wills and other similar matters” (chapter XI), and identifies private law with civil law but does not grant it total autonomy about public law. Civil law will also be comprised of public law, the law of nations, and canon law (chapter XI).

So, for Domat, civil law is a law that necessarily reigns over private persons, their status, capacity, family, and property as opposed to public law, which regulates men’s relations with the State (Chapter XI).

In this order of ideas, the identification of civil law with private law, in the opinion of Planiol (1904), is justified insofar as the doctors did not show interest in the study of public law contained in the Justinian compilation due to the transformation of public institutions, in this way, the ius civile meaning was equated to ius privatum as opposed to public law. The reason for such conceptual deviation — continues Planiol — is due to historical reasons. In this sense, it affirms that the ius civile as it studied by modern peoples in the Justinian compilation included both public law and private law. However, the political organization had changed so that public law had lost all interest and actuality; only private legal rules were analyzed.

The French codification movement regarded civil law as a subclass of private law, which, in principle, regulates the acts of individuals; alongside it, there were other subclasses, such as procedural and commercial law. Although he contextualized it as the one that contains the majority of the subjects of private law and those that represent the common law of a people, in general, civil law is the content of civil codes (Planiol, 1904).

For its part, in Spain, civil law is considered as the private law of each people, as the private national law. Roman law, about civil law, is considered as its origin. However, some authors do not disassociate themselves from the iusnaturalism tradition, such as Gutiérrez (1862) when defining it as “the set of principles by the spirit of natural law that establishes the relations of citizens among themselves as regards their persons and their goods” .

It is at the moment of the codifications, where History and Dogmatics are separated — affirms Mozos (1997) — , “beginning then the true history of modern civil law”.

After the codifying period, in the 20th century, civil law, based on social and political movements, was profoundly transformed, which deserves a much more in-depth investigation.

Well, as Díez-Picazo (1959) says:

“The nineteenth-century civil law, crystallized in the gigantic work of civil codes, is a beautiful but archaic reality. Traditional legal values suffer the effects of the changing times”.

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