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Published: Fri, 02 Feb 2018
The Belgium Civil Law System
Belgium is a federal state with a civil law system. Civil law system has its origin and inspirations from Roman law, as codified in the Corpus Juris Civilis Justinian  . It has later on developed in Continental Europe and the rest of the world. The great influence of the French Civil Code  of 1804 had a lot to do with the fact that Belgian law has a civil law system. Napoleon’s victorious armies imposed the French Civil Code also on Belgium. The Belgian state was formed as a constitutional monarchy in 1830, as a compromise between French and Dutch claims, with the help of the British government. At that time it was already largely influenced by the French legal system and this was laid down in the constitution. The main feature of civil law is that it is contained in civil codes. In Belgium, legislation is the one and only primary source of law.  Classic fields of law have been codified into specific codes.
Common law is a native product of Britain. The history of the common law starts with the arrival of William the Conqueror on the British islands in 1066. English law is the basis of common law. However, the influence of the Corpus Juris Civilis on the structure of the common law has been modest. The essence of English law is that it is made by judges sitting in courts, applying their common sense and knowledge of legal precedent to the facts before them. In the early centuries of English common law, the judges were responsible for adapting the Writ system to meet every day needs, applying a mixture of precedent and common sense to build up a body of internally consistent law. Civil law judges initially look to code provisions to resolve a case, while common-law judges instinctively reach for casebooks to find the solution to an issue in a case. So it is very casuistic.
An indication for Belgium being a civil law country is the fundamental distinction they make between ‘Public’ and ‘Private’ law. The common law countries, in contrast to civil law countries, make no technical distinction between private and public law. The English law is not characterized by watertight categories. There are subject areas in law  , but there are no sharp distinctions between them. To Belgian and all the other civil law lawyers, this distinction is necessary and basic. But among the same lawyers there is no agreement on its theoretical basis, and there is no uniformity among countries as to the scope of the private and public law. Belgian private law is all about disputes between individuals. It’s law of obligations. It regulates the legal relationships among citizens. The public law focuses on the relationship between these citizens and the state, on the internal organization of the State and on the legal relations with other States. It focuses on the effectuation of the public interest by state action.
The next level of divergence between Belgium civil law system and the English common law system is in vocabulary. In Belgium the general rules are given by the legislator based on principles of law. Belgian legislator mostly use vague terminology. That is because in civil law system the legislator formulates concepts, so the term has to be very general. It has to have a wide and broad legal scope so that it can be applied to different and varied cases. Civil law contains a great number of general rules and principles. They often lack details. The law only provides a frameworks and guidelines. The courts apply and interpret the law contained in a code to a case fact. The legal writings are also very important for explaining the vague terms and for formulating concepts. The code needs to regulate all cases that could occur in practice, that’s why it has to be broad enough. When certain cases are not regulated by the code, the courts can then apply some of the general principles. That’s how the gaps are filled in civil law system. In the English common law however there is not a whole of abstract rules which waits for a concrete case to be applied, like in the civil law.
The common law do not occupy themselves with general fundamental rights, but with generalizing concrete solutions in specific case. That’s because the judges do not decide on the law, but they are going to decide on the common sense. English judges create the law by delivering written judgments about the cases. That’s why in common law the vocabulary is very precise. Sometime they even have to come up with new words. A strict common system can because of this be somewhat inflexible; it would not adjudicate a case that did not fall precisely under the purview of a particular write.
The next divergence has to do with the sources of law. If we look to the sources of law we see difference in order of priority between the systems. Belgium has a written Constitution.  This document is the highest legal rule in the internal legal order.  Priority in civil law is given to doctrine over jurisprudence. While in Common law the jurisprudence is much more important. To explain this different we must look at the position of the legislator. In Civil law countries is the separation of the powers very important  . So it is the legislator who legislates, and not the judge. The judges cannot come up with a total new concept. But they can interpret and do suggestions. In common law, on the other hand, we speak of judge-made-law. Judges have the authority to make law. Jurisprudence sets out a new specific rule to a new specific set of facts and provides the principal source of law in the common law system. While civil law jurisprudence applies general principles, and is only a secondary source of law of explanation.
In English law precedents have a legal binding force for future cases. In Belgium that’s not the case. There are only two exceptions  . In practice however, the decisions of the highest courts do have a strong moral authority. Customary law is in Belgium also a binding source. It’s only not that important anymore, while nowadays there is a form of legislation for everything. In English law the customs must be reasonable, certain and ancient.
Despite all these differences, the contrast between civil law and common law legal systems has become less visible, with the growing importance of jurisprudence in civil law countries, and the growing importance of statute law and codes in common law countries.
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