O Civil Law, also called the Roman-Germanic system, it is a legal system that has the law as an immediate source of law, that is, using the rules as a basis for resolving disputes.
Jurisprudence, doctrine and principles are also sources of law, but they are secondary, as what prevails are the written norms of the legal system.
This legal system is used in all countries in continental Europe and Latin America and in several countries in Asia and Africa.
difference between the civil law it's the common law
civil law and common law they are the two most used legal systems in the contemporary world. O civil law uses the laws as the main source of the law and the common law uses jurisprudence.
the legal system common law it is used in the United Kingdom, the United States and several other countries that were formerly British colonies.
At the common law, the primary source of Law is jurisprudence, that is, decisions that were taken in previous judgments. Written laws serve as a basis only when jurisprudence is not able to resolve the issue.
Court decisions in common law they have an ambivalent nature, as in addition to resolving disputes, they will serve as norms for future cases. This system uses the inductive analysis process.
in the legal system civil lawOn the other hand, written laws are the primary source of law, ie judgments are based on what is written in the law and jurisprudence will be used in cases of gaps in the law.
The analysis of cases in civil law takes care of deductive process of analysis, in which the norm is interpreted to be applied to specific cases.
In short, it can be said that common law first resort to jurisprudence and then to laws and civil law first resort to laws and then to jurisprudence.
Both systems seek legal certainty and predictability of law. At the civil law this would be achieved by codifying the law into clear, coherent and complete norms.
At the common law this security is attributed to the confidence given to magistrates in judging each case, considering its particularities.
Learn more about common law.
Brazil: civil law or common law?
Since the times of colonization, Brazil has based its legal system on the civil law, where concrete cases are judged according to the Constitution, norms and laws.
The practices of common law, however, have been increasingly applied in Brazil. This means that the judicial system has increasingly resorted to previous decisions to resolve similar disputes.
This trend of approximation between legal systems also occurs in other countries and is explained by the impossibility of existing laws complete enough to cover the infinity of possible cases in the reality.
The use of jurisprudence also has a practical justification: given the numerous similar cases, applying such a decision helps to streamline the processes.
understand what it is jurisprudence.
Features of the civil law
- The criteria used for court decisions are based on legality, that is, on what is established in the laws of a country;
- General and abstract rules are used to solve a plurality of cases;
- Jurisprudence and customs, doctrine and principles are still sources of law, but are used as secondary sources.
understand what they are mores, Principles and doctrine.
Origin of civil law
O civil law originates in Roman law and is established from the 18th century, especially after the French Revolution, when constitutionalism began.
The bourgeois revolutions sought to end absolutism and the discretion of justice. In this sense, laws would serve to limit state power and guarantee freedom and equality among citizens.
The laws would be created by the Legislative Power and the judge would only be responsible for interpreting and applying them to concrete cases. Therefore, laws should be coherent, clear and complete.
In this way, the aim was to guarantee legal certainty and security, preventing the rules from being “created” by the judges.
See also the meaning of legal order and remember what was the French Revolution.