COURT SYSTEMS AND LAWbelieve in the superior efficiency of the system of
law they happen to use.
On the other hand, a close examination of
legal procedures can have much to teach about the
assumptions taken for granted in the culture (Ross
1993; Nelken 1997). In a report on a personal
experience in Indonesia, Lev (1972) tells of an
accident in a hotel in which a toilet tank, affixed
high up on a wall, fell, nearly hitting a friend. To
Lev’s amazement, the hotel presented him and his
friend with a bill for repairs. Lev refused, turning
for help to a local judge, who was also a friend, for
support for what Lev felt were his legal rights. The
judge, while agreeing that those were indeed his
legal rights, proposed that Lev make a token pay-
ment as evidence of ‘‘good will.’’ With reluctance,
Lev did so since compromise or peace was, the
judge reminded him, after all, more important
than vindication of rights. An even more obvious
example is presented in a Mexican case in which
the supreme court absolved a court for liability for
the theft of money and jewels left in the care of the
court pending settlement of the case. After all, said
the court, Mexico is a poor country that cannot
afford safe deposit boxes or secure storage places,
but they do the best they can. The court then
quotes what it clearly sees as a universal ‘‘principle
of law,’’ ‘‘impossibilium nulla obligatio est,’’ which
the court translates simply as ‘‘No one is obligated
to do the impossible’’ (quoted in Merryman, Clark,
and Haley 1994, p. 684). These considerations are
spoken of by Glendon (1987) as the ‘‘hortatory’’
function of law in civil law systems. She contrasts
that with a view that American and British law
usually involve a command backed up by punish-
ment. Yet, whatever the system, laws, whether self-
consciously doing so (as in civil law systems) or
inadvertently (as in common law systems), always
teach lessons as persons observe their operations.
Understanding of the civil law systems re-
quires recognition that they come to us in two
widely separated parts. The first is what is owed
(and that is a great deal) to Roman law as codified
in the sixth century under the Emperor Justinian
as the Corpus Juris Civilis. This magnificent collec-
tion includes the law of persons, family, inherit-
ance, property, contracts, and remedies, all of
which the juriconsults (the legal experts) of the day
saw as forming a unified body of law and which has
been largely seen that way ever since. The influ-
ence was not simply on the Civil law system as such
but has had a strong effect on civil law (narrowly
conceived) in common law countries as well. Basic
principles the Roman jurists developed echo
through the ages up to the present.
With the invasions of Rome that followed,
much of this law fell into disuse or was united with
the local laws of German tribes. However, canon
law, as developed by the Catholic Church for its
own uses, came to be widely adopted and grafted
onto classic Roman law, influencing family law and
civil procedure as well as much else, though not
public law for the most part. Then, with the Ren-
aissance, classic Justinian law was revived, especial-
ly in Bologna, where scholars gathered from all
over Europe to study it, in Latin of course, and
then spread it, where it came to be known as the jus
commune. However, as it spread, it was inevitably
influenced by local laws and customs that were
often simply added to it in the interests of utility
for solutions of local problems. A third develop-
ment was commercial law, also from Italy, at about
the time of Crusades, when there was much trans-
port of goods and persons. The guilds and towns
that developed this law were, for the most part,
only tangentially influenced by Roman law since
the focus was on rules merchants developed for
their own use. Such rules spread even more widely
than the jus commune up to the present day, where
much of it can be found in admiralty law and
related fields. It is quite clear, for example, that
when two ships approach one another on the high
seas there had better be a clear understanding as
whether they both keep to the right or to the left,
and that understanding must be clear whatever
the differences in language, culture, or tradition.
It is the nearest thing law offers to a truly interna-
tional and intercultural system.But there is more to modern civil law than a
revival and Renaissance enrichment. The system
was almost totally transformed by the ideas that
gave birth to the political revolutions that began in
the seventeenth century and are far from over at
the present day. The revolutions were, of course,
the American and French Revolutions, the mili-
tary and ideological events associated with the
unification of Italy and Germany, the coming new
nations as the Turkish Empire disintegrated, the
movements for freedom from Spanish and Portu-
guese domination in the Americas, as well as the
chaos that followed the great wars of the nine-
teenth and twentieth centuries. While the word