The Civil Law System

• Author: Mark Bourrie
• Pages: 111-177

111

chapter six

he Civil Law System

Civil law is, in eect, private law and private litigation using, for the

most part, common law made by judges. To understand the common

law, a person needs to go back a thousand years to the Norman Con-

quest of England. e English spoke a language that we would not

understand today, something that resembled the language of Frisia,

in the northern part of the Netherlands. e Normans spoke French.

en William the Conqueror, Duke of Normandy, seized England in

1066, he took control of a country that already had established laws and

legal customs that seemed to work well enough.

William added some new laws, all of them wrien in French and

Latin. William and his knights had no desire to be bilingual or bicultural.

e point of the Conquest was to generate as much wealth for William

and his men as the country could pay, at the least expense. ere were

no Norman lawyers to appoint to the bench. e Anglo-Saxon judges

were, for the most part, kept on. ey enforced the common law, which

was created to deter people from using force to sele disagreements.

e old Germanic law codes used by the Anglo-Saxons imposed

nes for oences such as wounding and the (as did the law of many

First Nations, including the Iroquoian peoples). ey gave judges power

to enforce property rights by, for example, ordering the payment of

damages for trespass. Agreements were sworn before judges or priests.

ese became contracts, enforced by the courts using the old, unwrien

common law. Law — or, as it’s sometimes crudely called — judge-made

FUNDAMENTAL LAW FOR JOURNALISTS112

law is, in fact, anchored in hundreds of years of legal debate and consen-

sus that reected the values of the society that it helped to regulate.

But the king retained his right to be the nal arbiter in law. If you

didn’t like a legal verdict and you were able to get into the presence of

the king to make your case, the king could overturn a judge’s decision

and make an order in your favour. He could do it in an arbitrary way,

but kings took coronation oaths to uphold justice, and most kings took

these oaths seriously. e beer ones would not make a decision that

went against common law unless he could nd a reason why common

law needed to be corrected. e use of royal power to correct gaps or

injustices in common law was called “equity.”1 During the reign of

William the Conqueror, there were only about two million people in

England. A person with any kind of wealth or social standing had a real

chance of seeing the king. All the nobles were entitled by law to address

the king. Over the generations, as England’s population grew, there

was not enough king time to go around. e power of equity was given

to a royal ocial, the lord chancellor. Some were crooked and lazy. But

some codied logical, fair decisions of equity. en the country grew

large and complicated, the lord chancellors delegated power to courts

of Chancery.

At the same time, there was a third great power in the land: the

church. It had its own courts, which heard cases dealing with internal

church maers, issues involving its huge land holdings, and oences

such as slander (a breach of the commandment against bearing false

witness).

For hundreds of years, England and its colonies and possessions

had three court systems. Starting with the Reformation under Henry

VIII, the power of the (now Anglican) church courts was pruned away

until they became unimportant to the legal system. But through the

early modern age, right up until the middle of the 1800s, we had courts

of law — common law — and courts of equity. The latter were not

appeal courts. ey continued to x gaps in the common law and in

the laws passed by parliaments (statutes). ey were more likely to deal

1 Don’t mistake this for equity among dif‌ferent groups in society. The word means

fairness, but the law of equity in common law has very little to do with f‌ixing social

injustices.

The Civil Law System113

with cases that involved things in the future. As noted in Chapter 1, an

injunction is a remedy in equity. Rules of trust law are laws of equity.

Courts of Chancery and courts of law are now melded into one

system. Amalgamations happened in most Anglosphere jurisdictions,

although three US states, including Delaware, still have courts of Chan-

cery. In Delaware, the court is needed to handle all the trusts and busi-

ness law generated under the state’s absurdly corporate-friendly laws.

Modern civil courts end up dealing with anything that’s not crim-

inal and sometimes deal with the fallout of criminal actions, like

wrongful death lawsuits in murder cases, especially when the killer has

been acquied by a criminal court. ese courts handle private con-

icts and cases where a government seeks money from an individual

for a debt. at means these courts rule on contract disputes and lis-

ten to cases involving business law (such as claims by shareholders that

they’re being cheated). ey hear claims in accident (negligence) cases,

adjudicate defamation claims, and review decisions made by govern-

ment agencies. So it’s no surprise that, in a country like Canada, where

the population has doubled in the last sixty years and few new court-

houses have been built, the civil courts are busy and oen backlogged.

You, as a journalist, will likely spend some time in court. You’re

much more likely to cover criminal cases than civil disputes. ey’re

complicated, and I hope this book helps make them understandable.

ey can also be gold mines for stories, though the process is usually so

slow that it requires you to be organized and doggedly determined not

to lose track of the case or miss a selement that’s been made behind

closed doors. You may also nd yourself in the stressful situation of

being a defendant in a defamation lawsuit. It’s part of the job, and a libel

suit almost always comes out of the blue on seemingly minor stories.2

Civil law procedural rules are almost insanely complicated, and, to

make things worse, they vary from place to place. ere are, however,

some basic steps in a lawsuit, usually starting with the ling and deliv-

ering of a statement of claim by the plainti, the serving and ling of a

2 I was once sued by a man because I was the f‌irst member of the Canadian Par-

liamentary Press Gallery to put his name in print. He had been f‌ighting with the

Gallery for years. The case was thrown out within a few weeks, at a cost of about

$15,000. I was paid $2,000 for the magazine piece. The only moral of this story:

make sure your publication has libel insurance.