Definition
A Latin term from Roman and early common law meaning "civil action." The term carries two distinct meanings depending on the legal system being referenced:
1. In Roman (civil) law: An action founded on the jus civile — the proper Roman law as developed through statutes, plebiscites, and juristic interpretation — as opposed to an actio honoraria (or prætorian action), which derived its authority from the edict of the prætor. The distinction reflects the dual origin of Roman procedural law: the ancient, formal civil law on one side, and the more flexible, equity-like prætorian system on the other.
2. In common law: A civil action, as distinguished from a criminal action. Bracton, the foundational English legal treatise writer, divided personal actions into criminalia and civilia — those arising from wrongdoing (maleficia) and those arising from contracts — placing actio civilis in the latter category.
Common Confusion
The term's meaning shifts depending on which legal tradition is invoked, and historical sources do not always signal the shift clearly. In a Roman law context, actio civilis marks a distinction within the civil law itself (civil vs. prætorian). In a common law context, it marks a distinction between civil and criminal proceedings. A researcher encountering the term in a historical source must first establish which legal tradition the author is drawing from before the term's meaning becomes usable.
Recognized Forms
/SUBTYPES
Within Roman law, the actio civilis stood in contrast to:
- Actio honoraria (actio prætorian): An action created or recognized by the prætor's edict, not traceable to the jus civile proper. The prætorian system introduced remedies where the strict civil law provided none, functioning roughly as Roman equity.
Why It Matters in Research
This term is a signal term — its presence in a source often indicates the author is working in a civil law or mixed-jurisdiction tradition, or is reaching back to Roman procedural categories to structure an argument. Researchers should be alert to which tradition is being engaged.
The dual-context problem is the primary research trap. Burrill's entry correctly identifies both the Roman law and common law meanings, while Black's (both editions) focuses almost exclusively on the common law usage. A researcher relying solely on Black's will miss the Roman law distinction between jus civile and prætorian authority — a distinction that matters enormously in sources engaging with continental legal theory, early equity jurisprudence, or Scottish and Louisiana law.
Bouvier's cross-reference to the general ACTIO entry is useful: researchers working with actio civilis in any Roman-law context should consult actio alongside the specific term, as Bouvier's fuller treatment of the actio taxonomy (actio in personam, actio in rem, actio honoraria, etc.) provides the structural context the stand-alone entry lacks.
The Bracton reference in Black's is significant for common law researchers. Bracton's division of personal actions into criminalia and civilia was influential in shaping early English procedural categories. Researchers tracing the civil/criminal action distinction in medieval and early modern English law will find actio civilis appearing as a structuring concept before modern procedural terminology stabilized.
For Louisiana and other mixed-jurisdiction research, the Roman law meaning remains live long after it becomes archaic elsewhere in American legal sources.
Historical Dictionary Support
The four source dictionaries handle the term with varying depth and focus.
Black's (both editions) defines actio civilis exclusively through the common law lens — civil action as opposed to criminal — and grounds the definition in Bracton. The Roman law dimension is absent. This is a meaningful gap for researchers using Black's as their primary entry point.
Burrill's is the most complete of the sources, presenting both meanings in sequence and correctly naming the contrast class in Roman law (actio honoraria). The Latin formula — aut civiles dicuntur aut honorariae — anchors the entry in authentic Roman juristic language and reflects awareness of the Institutes of Justinian and Gaius's taxonomy of actions.
Bouvier's declines to define the term independently, cross-referencing only to the parent ACTIO entry. This is editorially defensible — Bouvier's ACTIO entry carries substantial Roman law content — but inconvenient for researchers who encounter actio civilis in isolation and do not know to follow the cross-reference.
The historical sources collectively agree on the core meaning in each tradition but do not resolve the dual-context problem for the reader. None flags the potential for confusion when the term migrates between the Roman and common law traditions in a single source.
Jurisdictional Note
The Roman law meaning of actio civilis remains relevant in Louisiana, Quebec, and other mixed civil-common law jurisdictions, where Roman procedural categories informed early codification efforts. In purely common law jurisdictions, the term is largely historical and replaced by modern procedural vocabulary (civil action, civil suit, civil proceeding).