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The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America
Designed for the general reader and students of law, this is a concise history and analysis of the civil law tradition, which is dominant in most of Europe, all of Latin America, and many parts of Asia, Africa, and the Middle East. This new edition deals with recent significant events―such as the fall of the Soviet empire and the resulting precipitous decline of the socialist legal tradition―and their significance for the civil law tradition. The book also incorporates the findings of recent important literature on the legal cultures of civil law countries.
192 pages, Paperback
First published October 1, 1969
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Displaying 1 - 14 of 14 reviews
November 1, 2018
It is strange that, for a significant proportion of law students and legal professionals, delving into a legal tradition other than that in which they are formally trained is not a more common occurrence. It is particularly strange for common law lawyers, considering that (1) twice as many people live under the civil law tradition, and (2) that when the common law began the civil law tradition was as old as the common law is today. These are the sort of facts that John Merryman throws at you in The Civil Law Tradition.
Admittedly, this is a book for nerds. Not necessarily law nerds, but general nerds. It's a book for people who find themselves in Wikipedia spirals, people who read the plaques of statues when walking in parks, and people who keep vocabulary lists on their phones whenever they do crosswords. It's not as approachable a book as a classic Malcolm Gladwell, but you needn't a legal background to enjoy it. Whilst Merryman is unable to do part with legalese in explaining certain parts of the civil law tradition, he does well in opening up these concepts and explaining them simply.
The book begins with a detailed articulation of the principal components of civil law - Roman civil law, canon law and commercial law. Merryman posits that these three components are the "principal historical sources of the concepts, institutions, and procedures of most of the private law and procedural law, and much of the criminal law of modern civil law systems". It will be striking to some readers to learn the sheer weight of societal influence of the Roman empire, the Catholic Church and travelling Mediterranean merchants over the course of history.
Merryman goes on to write about the "Revolution", highlighting a crucial difference between the common law and civil law traditions. Put simply, the former never suffered from a complete breakdown of trust in judicial institutions. For one reason or another, common law subjects have retained the near-prophetic status of judicial officers and continue to see the courts as altars of rationality and sound decision-making. Merryman provides an insightful appraisal of this divide.
The majority of the book is dedicated to explaining each and every component and mechanism that constitute the civil law tradition. These range from the often misunderstood civil law codes; the roles of legal scholars, judges, and lawyers and their astounding differences to the common law system; the nebulous field of legal science; the organisation of court systems and the legal process more generally. Some of these parts in Merryman's book at times read as if it were a university textbook, which is unsurprising given that Merryman is an academic. Some readers will find these overly dry and will struggle to fight the urge to skip sections altogether. Frankly, whilst the book as a whole is cohesive, most chapters are self-contained and skipping some will not hinder the reader's experience.
As a final point, Merryman's bias should be acknowledged. He originates from a common law jurisdiction and it is noticeably evident in his book that he harbours a certain degree of preference over common law jurisprudence and its modus operandi. This, however, does not detract from the quality of the book at all. If anything, Merryman adds some contentious discussion points over which the reader can mull throughout the course of the book.
The Civil Law Tradition will satisfy anyone who has ever wondered how those living on the other half of the world "do law". It is by understanding the ways and traditions of our neighbours that we can best begin to understand ourselves. Merryman introduces questions you possibly had never asked. Should unelected officials really make decisions that affect the entire population? Should the law be a field of technical expertise akin to engineering and science? Should laws be mechanically read and applied or "interpreted"? How far should such interpretation go? This book is an excellent introduction into the subject, and Merryman expertly packs it with insightful commentary and sound reasoning.
Admittedly, this is a book for nerds. Not necessarily law nerds, but general nerds. It's a book for people who find themselves in Wikipedia spirals, people who read the plaques of statues when walking in parks, and people who keep vocabulary lists on their phones whenever they do crosswords. It's not as approachable a book as a classic Malcolm Gladwell, but you needn't a legal background to enjoy it. Whilst Merryman is unable to do part with legalese in explaining certain parts of the civil law tradition, he does well in opening up these concepts and explaining them simply.
The book begins with a detailed articulation of the principal components of civil law - Roman civil law, canon law and commercial law. Merryman posits that these three components are the "principal historical sources of the concepts, institutions, and procedures of most of the private law and procedural law, and much of the criminal law of modern civil law systems". It will be striking to some readers to learn the sheer weight of societal influence of the Roman empire, the Catholic Church and travelling Mediterranean merchants over the course of history.
Merryman goes on to write about the "Revolution", highlighting a crucial difference between the common law and civil law traditions. Put simply, the former never suffered from a complete breakdown of trust in judicial institutions. For one reason or another, common law subjects have retained the near-prophetic status of judicial officers and continue to see the courts as altars of rationality and sound decision-making. Merryman provides an insightful appraisal of this divide.
The majority of the book is dedicated to explaining each and every component and mechanism that constitute the civil law tradition. These range from the often misunderstood civil law codes; the roles of legal scholars, judges, and lawyers and their astounding differences to the common law system; the nebulous field of legal science; the organisation of court systems and the legal process more generally. Some of these parts in Merryman's book at times read as if it were a university textbook, which is unsurprising given that Merryman is an academic. Some readers will find these overly dry and will struggle to fight the urge to skip sections altogether. Frankly, whilst the book as a whole is cohesive, most chapters are self-contained and skipping some will not hinder the reader's experience.
As a final point, Merryman's bias should be acknowledged. He originates from a common law jurisdiction and it is noticeably evident in his book that he harbours a certain degree of preference over common law jurisprudence and its modus operandi. This, however, does not detract from the quality of the book at all. If anything, Merryman adds some contentious discussion points over which the reader can mull throughout the course of the book.
The Civil Law Tradition will satisfy anyone who has ever wondered how those living on the other half of the world "do law". It is by understanding the ways and traditions of our neighbours that we can best begin to understand ourselves. Merryman introduces questions you possibly had never asked. Should unelected officials really make decisions that affect the entire population? Should the law be a field of technical expertise akin to engineering and science? Should laws be mechanically read and applied or "interpreted"? How far should such interpretation go? This book is an excellent introduction into the subject, and Merryman expertly packs it with insightful commentary and sound reasoning.
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May 10, 2018Clarifying and easy read! I appreciated this one.
March 28, 2021
Merryman gives a bit of useful history of the civil code, from the time of Justinian's Institutes, but especially pointing out the influence of the Code Napoleon on today's civil law systems and how much of it can be traced back to a reaction against the legal system of the Ancien Régime. The history of the common law and civil law tradition he gives is very helpful albeit brief. Among other ideological goals of the civil law are legislative supremacy, separation of judicial from legislative and executive powers, limited and strictly regulated role for judges, no stare decisis (law by precedent of a judicial ruling), primacy of civil code, and an emphasis on certainty. This is the ideology; in reality, as is pointed out, the civil law does not fully adhere to these ideals and has in many ways over time developed in ways which bring it nearer to common law practice.
Nonetheless, Merryman recounts [p. 132] what a comparative lawyer concluded, making it clear that there is indeed a difference between the two systems:
"He said if he were innocent, he would prefer to be tried by a civil law court, but that if he were guilty, he would prefer to be tried by a common law court."
Merryman states that "a person who would not think of going to a foreign nation without some understanding of its history, politics, language, and literature will almost invariably arrive in total ignorance of one of the oldest and most important elements of its culture: its legal tradition."
Unfortunately he does not go into it further, but he adds that this kind of ignorance may well affect relations between countries since policymakers and diplomats from common law countries are unlikely to be very familiar with the legal systems of the civil law countries they may have to deal with.
Lots of quirky differences between the systems that makes the book well worth reading.
Nonetheless, Merryman recounts [p. 132] what a comparative lawyer concluded, making it clear that there is indeed a difference between the two systems:
"He said if he were innocent, he would prefer to be tried by a civil law court, but that if he were guilty, he would prefer to be tried by a common law court."
Merryman states that "a person who would not think of going to a foreign nation without some understanding of its history, politics, language, and literature will almost invariably arrive in total ignorance of one of the oldest and most important elements of its culture: its legal tradition."
Unfortunately he does not go into it further, but he adds that this kind of ignorance may well affect relations between countries since policymakers and diplomats from common law countries are unlikely to be very familiar with the legal systems of the civil law countries they may have to deal with.
Lots of quirky differences between the systems that makes the book well worth reading.
September 17, 2017
An excellent (and short) comparative introduction to the civil law legal tradition.
May 22, 2019
As someone deeply interested in Latin America, I was eager to dive into this book. I found it to be a really good primer on the civil law traditions that are in use in Hispanisc countries as well as most of the rest of the world.
It is very a general introduction to civil law, and does an excellent job of giving the reader a good overview. It does assume that the reader has at least some knowledge of the common law system, so it may not be as accessible for the lay reader, but I really appreciated how it used common law traditions as a point of contrast to aid in understanding civil law traditions.
The structure of this book, starting with the history and development of civil law and ending with predictions of it's future development, also helped in giving a nuanced understanding of the tradition. It painted a clear picture of the prevailing structures and attitudes in civil law countries, where they come from and why, and the directions civil law might take under the increasing trend toward globalization. Although taking a broad approach, the authors did a really good job of striking the balance between breadth and depth.
I was a tad disappointed that while it did go somewhat more in depth with the French and German traditions, it just skimmed over Latin America. Luckily, it does have a list of recommended readings for anyone (like me) interested in learning more.
A great introduction and highly recommended for anyone interested in learning about civil law.
4/5 Stars
It is very a general introduction to civil law, and does an excellent job of giving the reader a good overview. It does assume that the reader has at least some knowledge of the common law system, so it may not be as accessible for the lay reader, but I really appreciated how it used common law traditions as a point of contrast to aid in understanding civil law traditions.
The structure of this book, starting with the history and development of civil law and ending with predictions of it's future development, also helped in giving a nuanced understanding of the tradition. It painted a clear picture of the prevailing structures and attitudes in civil law countries, where they come from and why, and the directions civil law might take under the increasing trend toward globalization. Although taking a broad approach, the authors did a really good job of striking the balance between breadth and depth.
I was a tad disappointed that while it did go somewhat more in depth with the French and German traditions, it just skimmed over Latin America. Luckily, it does have a list of recommended readings for anyone (like me) interested in learning more.
A great introduction and highly recommended for anyone interested in learning about civil law.
4/5 Stars
February 22, 2022
Its only fault as a survey is the readiness with which it adopts critiques of the civil law system. Even if these are taken from civil law sources, they present an ongoing critique which is not matched by his presentation of benefits or advantages.
An excellent job of explaining the reasoning and purpose behind the aspects of the civil law system, though.
An excellent job of explaining the reasoning and purpose behind the aspects of the civil law system, though.
January 6, 2025
A fine, but non-committal examination of the Civil Law tradition. Still, very informative and a great cursory glance at how legal systems develop and the differences between common and civil law. Puts to rest some incorrect assumptions and stereotypes, as well as the need for a "debate" between the two systems.
March 14, 2019
good comparative introduction. quite skimmable
August 28, 2015
Not just for fans of the law (Go, Law, Go!), this book provides insights into history, society, international relations, … ,all sorts of cool stuff.
As someone whose legal knowledge comes primarily from Perry Mason (et alia) and who lives under a hybrid Common/Civil system, his book helped me understand the differences and similarities between the two. For example, I now (think I) know why a U.S. Appeals Court can only deal with matters of law and not the facts of the original case, why "Inquisitorial" is not as ominous as it sounds, and why a civil law criminal trial is less likely to be as dramatic as a common law criminal trial.
As someone whose legal knowledge comes primarily from Perry Mason (et alia) and who lives under a hybrid Common/Civil system, his book helped me understand the differences and similarities between the two. For example, I now (think I) know why a U.S. Appeals Court can only deal with matters of law and not the facts of the original case, why "Inquisitorial" is not as ominous as it sounds, and why a civil law criminal trial is less likely to be as dramatic as a common law criminal trial.
July 31, 2011
A decent, readable basic primer on the common law/civil law distinction, focusing mainly on sources of law and procedure rather than differences in substantive law. Would have benefited from a more sophisticated discussion of the political, social, and economic forces driving changes in legal regimes.
August 20, 2013
I would definitely recommend such book to law students and those interested in the historic part of the legal system. Very concise and understandable.
February 7, 2015
Pro: Civil Procedure chapter was very clear.
???: More detail than I anticipated.
Con: Historical references outside my understanding.
???: More detail than I anticipated.
Con: Historical references outside my understanding.
August 7, 2020
Very useful book
December 4, 2012
probably essential reading for any common law lawyer new to the civil law world ....
Displaying 1 - 14 of 14 reviews