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Legal History Question:
Evey first-year law student is confused by the use of the phrase "civil law" to mean two completely different things. There's civil law as opposed to common law, and then there is civil law as opposed to criminal law. I wonder: How did it happen that the same phrase came to be used to mean two different things?

  I understand that the use of "civil law" as opposed to common law comes from the Romans. The Roman empire set forth its law in compliations collectively handed down as the Corpus Juris Civilis, which I gather translates to something like "the body of law of the citizens," and so legal systems based on Roman law are "civil law" systems. Or so a little googling tells me. But how did we start to use "civil" to mean "non-criminal"? If there are any legal historians out there, latin geeks, or anyone else who might know the answer, please fill us in.
Steve McBride (mail):
Civil law came to mean non-criminal law after the Assizes of Clarendon (1166) and Northampton (1176) under Henry II in England. These great councils of barons, ministers of the crown, and bishops formalized rules in criminal jurisprudence and sanctioned pro-active inquests (grand juries) to identify violations of the king's peace or the rules prior to complaint. Prior to this time (with the exception of a case in the early 1160s) no pro-active means were employed to identify crimes. Prior to the assizes, all lawsuits required the victim to bring the lawsuit - agents of the king or local baron did not have jurisdiction outside of feudal obligations or violations of the peace. With pro-active enforcement, criminal prosecution became public (really regal or synodal) leaving all other areas of lawsuit private. Those cases which remained outside of public prosecution were deemed "Civil", though there is scant evidence, even in Glanvill that the distinction was recorded at the time.
12.9.2005 6:39pm
Paul Stanley (mail):
The Romans made some slightly different distinctions. As a basic text-book for Roman law students explained [Gaius, Institutes 1.1]: nam quod quisque populus ipse sibi ius consituit, id ipsius proprium est vocaturque ius civile, quasi ius proprium civitatis; quod vero naturalis ratio inter omnes homines consituit, id apud omnes populus peraeque custoditur vocaturque ius gentium, quasi quo omnes gentes utuntur.

[My loose translation]: That which each people lays down for itself is particular to it, and is called civil law, as the law proper to that community; but the law which natural reason lays down among mankind is kept by all peoples equally, and is called ius gentium, the law of nations, being the law observed by all nations.

(We have no easy translation of "ius gentium": it doesn't mean "international law" in our sense--closer perhaps to something like "universal law". The Roman writers distinguished "natural law", since that applied to animals too! see Digest 1.1.1.4. And in fact the exact relationship between ius gentium and ius naturale is complex, and dependent on the time at which the concepts were being used.)

Roman law was thus understood partly as "civil law" (law for Romans) and partly as "universal law", though that distinction was blurred as citizenship was extended. Civil law could be written or unwritten (Digest 1.1.5).

Romans made other distinctions. For instance, they distinguished between "private law" and "public law" (which would have been rather more widely conceived than we would). I am not aware of any view that public law could not be "civil law"--and Justinian's Digest includes books dealing with the duties of public officers, for example, which suggests they did not, or at least that there was a substantial overlap. On the other hand, the pre-eminent example of "civil law" may have come to be identified with the system of justice administered under the Praetorian edict, that is above all the core of Roman private law.

At other times, different distinctions were made. For instance, mediaeval universities generally gave degrees either in "civil law" or "canon law". For some time the "civil courts" were distinguished not just from the "criminal courts" (there was, of course, an overlap in personnel), but also from the "ecclesiastical courts" ... which dealt with various matters (e.g. family law) which a Roman lawyer would certainly have regarded both as "civil" and "private" law! For an early modern lawyer, the nature of the "law" may well have taken second place to the identity of the court concerned (meaning as much "whose court?" as "what court") and I suspect there was considerable blurring between what we would regard as criminal ideas and civil ideas (e.g., the idea that the king's courts were concerned with the maintenance of the king's peace, with the result that civil suits included allegations of conduct contrary to the king's peace). Others will be much better qualified than I am to comment on that.

I fear that is more antiquarian than helpful. In short, a most protean word, taking colour constantly from its context.
12.9.2005 7:02pm
Defending the Indefensible:
Paul Stanley:
Btw, the idea of "private law" persists in the term "privilege".
12.9.2005 8:46pm
Defending the Indefensible:
Another interesting evolution seems to be the dissolution of the boundaries between law and equity.
12.9.2005 8:48pm
byomtov (mail):
Wow. That's really confusing. Who ever heard of the same word or phrase meaning two different things. Utterly baffling.

You mean there are people admitted to law school who have trouble with that? Our legal system is in worse trouble than I thought.
12.9.2005 10:15pm
retrofuturistic (mail):
When you clear up the two meanings of "civil," maybe then you can explain to me how the word "sanction" means both approval and punishment.
12.9.2005 11:15pm
murky (mail) (www):
Science and medicine are full of needlessly confusing names too. I don't know if that's just how language develops or whether it's argot or what. Drives me bananas. The New Yorker does it right by choosing not to publish "non-fiction." They call it "fact." Plain speech everyone, please!
12.10.2005 1:37am
nk (mail) (www):
I pointed out the "civil" courthouse to a European friend who comes from a country which had originally adopted the Napoleanic Code and he at first thought that I was using the term to distinguish from "military" law. So there is a third meaning as well.
12.10.2005 8:16am
dt64 (mail):
In France, the summa divisioI is between Droit Public and Droit Privé.

The Droit Privé has the principal following branchs : Droit Civil, Droit Commercial (Trade Law) , Droit du Travail (Labor Law) and Droit pénal. But one can also consider an opposition between Droit Pénal and the other branches of Droit privé, the Trade and Commercial Law havind penal dispositions. Exist also la Procédure Civile and procédure Pénale.

The Droit Public is composed of the Droit Constitutionnel and Droit Administratif branchs

On the opposition civil/military : In a official ceremony the civil authorities are the Président, Prime Minister, Ministers, Presidents AN, Sénat, Conseil Constitutionnel (only constitutionnal court), Vice-President du Conseil d'Etat (highest administrative court), Premier President de la Cour de Cassation (highest court in private law, has civil, commercial, trade and social chambers), Premier President de la Cour des Comptes (highest accounting court, but the Conseil d'Etat has cassation juridiction in this matter) and the prefects and others inferior functionnaries. The military authorities are the general officers and other officers in the divers branchs (Army, Marine (Navy), Air (Air Force) and Gendarmerie
12.10.2005 9:50am
Paul Stanley (mail):
Defending the Indifensible:

Privilege has a different though related root. "Privus" (i.e., peculiar to oneself) + lex (= written law); not "privatus": (though there may well be an etymological connection between privus and privatus). "Privilege" means a law passed for the particular benefit of a particular individual. "Private law" (which would be "ius" not "lex" anyway, because it would not be limited to written law) was much wider: basically analogous, though not identical, to the French distinction between droit public and droit prive.
12.10.2005 1:00pm
Seamus (mail):

When you clear up the two meanings of "civil," maybe then you can explain to me how the word "sanction" means both approval and punishment.



And while we're at it, how "cleave" means both join together and split apart.
12.10.2005 5:24pm
Ga. JD:


When you clear up the two meanings of "civil," maybe then you can explain to me how the word "sanction" means both approval and punishment.


And while we're at it, how "cleave" means both join together and split apart.


And how "enjoin" means both to strongly urge and to prohibit.
12.10.2005 6:49pm
Dave Hardy (mail) (www):
I believe "civil law" was also used to distinguish secular law from canon law.

My late ex did her dissertation on changes in pontifical law schools in 15th century Burgundy. (How? She managed to get a pass into the Secret Archives of the Vatican, and yes that is the name of the place. As the original bureaucracy, they had records of student enrollment, scholarships, and courses from 500 years ago). What she found was that at the start of the century most ecclesiastic scholarships were for training in canon law ... why bother with the laws of man? At the end of the century most were for civil law ... training people to battle the royal courts, which were curtailing church rights and property whenever they could.
12.10.2005 7:42pm
triticale (mail) (www):
We're trying something new here, perhaps quixotic but I hope useful. We'd like the posts to be civil, of course (no profanity, personal insults, and the like), but we're also hoping that people try to be as calm, reasoned, and substantive as possible.
And for that matter, what is the general term for all wars which are not civil wars?
12.10.2005 9:29pm
Troy H:
I learned a lot here today... I learned about jus gentium, the cleavage of civil and criminal law and also of civil and common law. I also learned that Paul Stanley is not just the (once) babe-machine leader singer of KISS, but a damn smart legal historian. Perhaps Ace Frehley can answer some questions I have about quantum mechanics?
12.11.2005 11:21am
John McCall (mail):
(though there may well be an etymological connection between privus and privatus)
In fact, there is: privus (adj: individual) to privare (v: to separate) to privatus (past participle of privare: set apart).

cleave descends from two different Old English words, clifian (to adhere) and cleofan (to split); the words were conjugated differently, so it wasn't particularly difficult.

enjoin comes from the French, where it just means to order. I would guess that the sense of to prohibit was a back-formation from the legal use of injunction to specifically mean a court order prohibiting some action.
12.11.2005 11:35pm
En Revanche (mail):
Actually the designation of civil law was not to distinguish it from criminal law but from ecclesiastical law.

From the 11th through the 15th century there was a great deal of overlap in the jurisdictions of civil (state or local) courts and ecclesiastical courts. Since a major legal axiom of the time was "Justice is a great profit", neither church nor state was willing to surrender a jot or tittle of their jurisdictional claims. The whole issue became moot after Henry VIII's schism from Rome because the former ecclesiatical courts were subsumed under the Chancery - but by then the civil usage had become fixed.

Another example of strange names for courts were the "pie powder courts" (courts merchant) of the Middle Ages. Since "pie powder" was the Middle English equivalent of baking powder, how the blazes did they come up with "baking powder courts"?

In fact they didn't. Remember that French - not English - was the language of law and administration. "Pie powder courts" were cours des pieds poudres (courts of the dusty feet ie merchants). But it was the corrupted name that passed down into history.
12.12.2005 3:10am
Jeroen Wenting (mail):
So it wasn't because they broke at 1600 for High Tea and bisquits?

"I pointed out the "civil" courthouse to a European friend who comes from a country which had originally adopted the Napoleanic Code and he at first thought that I was using the term to distinguish from "military" law. So there is a third meaning as well."

He probably didn't understand the distinction between "civil" and "civilian", a distinction that in many other languages doesn't exist (so in his own language they may well be the same word).
So a "civil court" would be translated as "civilian court", in contrast to a "military court".
Here there's civil law and criminal law, both handled by civilian courts, and military law handled by military courts (though ever more often military personel are tried by civilian courts for what would in other countries likely be handled by a military court, blurring the line).
12.12.2005 8:00am