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Summary The Civil Law Tradition by Merryman and Pérez-Perdomo
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Chapter summaries of the entire course book of Introduction to Legal Systems: 'The Civil Law Tradition' by Merryman and Pérez-Perdomo
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Civil Law Tradition Book SummariesChapter 1 - Two Legal Traditions
● This chapter introduces the distinction between legal systems and legal traditions.
○ A legal system is an operating set of legal institutions, procedures, and rules.
○ A legal tradition is a set of deeply rooted, historically conditioned attitudes
about the nature of law, the role of law in society and the polity, the proper
organization and operation of a legal system, and the way the law is or should
be made, applied, studied, perfected, and taught.
● While there are numerous legal systems in the world, these systems can be grouped
into legal traditions based on shared characteristics.
● The focus of the book is on the civil law tradition, which is distinguished from the
common law tradition.
○ The civil law tradition, often referred to as the older and more widely
distributed of the two, has been influenced by Roman law and is dominant in
Europe, Latin America, and other regions.
Chapter 2 - Roman Civil Law, Canon Law, and Commercial Law
● This chapter discusses the civil law tradition, highlighting its complexity and the
presence of several distinct elements or subtraditions with separate origins and
developments throughout history:
○ Roman Civil Law
■ This subtradition traces its roots to the Roman law codified under
Emperor Justinian in the 6th century AD, the Corpus Juris Civilis.
■ It covers various areas, including law related to persons, family,
inheritance, property, torts, unjust enrichment, contracts, and their
judicial protection.
■ Roman civil law has been a fundamental component of the civil law
tradition and has had a significant influence on modern civil law
systems.
○ Canon Law
■ The canon law of the Roman Catholic Church emerged in the early
Christian era. It primarily governed the church's internal affairs and the
rights and obligations of its members.
■ Canon law influenced the development of family law, succession,
criminal law, and procedural law in civil law systems.
■ It was widely studied alongside Roman civil law.
○ Commercial Law
■ European commercial law developed during the Crusades, especially
in Italian merchant guilds and maritime cities.
■ This pragmatic system was influenced by the needs of commerce and
the interests of merchants.
■ It soon became international and formed the basis of modern
commercial law.
● These three subtraditions played crucial roles in shaping the civil law tradition and
provided the foundation for modern civil law systems.
, ○ They were received and adapted by nation-states during the process of
codification in the 19th century.
● The influence of Roman law, canon law, and commercial law can still be seen in the
civil codes, commercial codes, and other legal codes of civil law jurisdictions.
● These subtraditions were studied and taught in medieval universities (starting in
Bologna), contributing to the development of a common legal language and method
of scholarship in Europe.
○ The convergence of these different legal elements was explored under the
concept of the jus commune, highlighting the substantial influence of Roman
law in modern civil law systems.
● There was a later emphasis on preserving and identifying indigenous legal
institutions as nation-states formed, resulting in a blend of Roman law with native
legal contributions.
Chapter 3 - The Revolution
● This chapter discusses the intellectual and social revolution that significantly
influenced the civil law tradition, focusing on the era beginning around 1776.
● The revolution brought about changes in the way people thought about government
and the individual, resulting in the development of public law and the transformation
of the civil law system.
● Key points covered in this chapter include:
○ Historical Sources of Law:
■ Roman civil law, canon law, and commercial law served as the
historical sources of much of the law embodied in civil law codes.
■ However, public law, especially constitutional and administrative law,
was notably absent from these sources.
○ The Western Revolution:
■ The revolution of this period encompassed significant events such as
the American and French revolutions, Italian Risorgimento, Latin
American independence movements, German unification under Otto
von Bismarck, and the liberation of Greece.
■ These events were connected to a more fundamental intellectual and
social revolution.
○ Intellectual Revolution:
■ The intellectual revolution challenged established ideas about
government and individuals.
■ It was rooted in the concept of secular natural law, emphasizing the
equality of all individuals, natural rights to property, liberty, and life,
and the role of government in securing these rights.
○ Anti-Feudalism:
■ The revolution was particularly anti-feudal, seeking to abolish the
inequality and privilege associated with feudal societies, emphasizing
individual property rights, and advocating for personal freedom.
○ Separation of Powers:
■ The separation of powers, as outlined by Montesquieu, was promoted
to prevent the judiciary from interfering with lawmaking and executive
functions.
, ■ This concept differed from the system of checks and balances found in
the United States.
○ Age of Reason:
■ The revolution was characterized by rationalism and optimism about
the power of reason to shape legal institutions and policies.
○ Glorification of the Secular State:
■ The revolution promoted the idea of allegiance to the state rather than
religious or feudal obligations, and it aimed to simplify the legal
universe by emphasizing the role of the individual and the state.
○ Nationalism:
■ The revolution celebrated the idea of national legal systems, using
national languages, and incorporating distinct national legal concepts.
○ Utopianism:
■ The revolution often led to exaggeration and idealization of its goals,
fostering utopian ideals and creating an atmosphere of ideological
passion.
○ French Revolution Influence:
■ The French Revolution, which was characterized by fervent
utopianism, had a profound impact on revolutionary reforms,
influencing legal systems beyond France.
● Overall, the revolution brought about significant changes in the civil law tradition,
shaping public law, the legal system's organization and administration, and the
content of the civil law codes, with its intellectual underpinnings significantly affecting
legal thought and practice.
Chapter 4 - The Sources of Law
● This chapter discusses the transition from the medieval political structure to the
modern nation-state and the development of the ideology of nationalism.
● The emergence of the modern nation-state required a more efficient and centralized
government, and nationalism served as the prevailing ideology to achieve this
transformation.
● Sovereignty was a fundamental concept closely associated with this legal expression
of nationalism.
○ The concept of sovereignty had been evolving for centuries and was
developed as a legal idea by thinkers like Jean Bodin, Hugo Grotius, and
Thomas Hobbes.
○ Sovereignty was defined in terms of internal and external aspects of the
state's supremacy in ordering relations with its citizens and other nations.
● The revolutions in Europe during this period had a secular character, which led to a
decline in the influence of divine law and religious authority over the state.
○ The notion of the state as the ultimate lawmaking power gained prominence,
marking a shift towards legal positivism.
● The emergence of the modern nation-state disrupted the legal unity provided by the
common acceptance of Roman-Canonic jus commune in feudal and early modern
Europe.
○ The jus commune, associated with the Holy Roman Empire, was replaced by
centralized monarchies and the authority of the state as the principal source
of law.
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