Definition
The canon law and the civil law are two distinct but historically intertwined legal systems that together formed much of the jurisprudential foundation of medieval and early modern European law. As a paired phrase, "the canon and civil laws" refers collectively to both systems as they operated alongside — and often in dialogue with — the common law tradition inherited by England and the United States.
Canon law is the internal law of the Christian church, developed primarily through papal decrees, councils, and ecclesiastical precedent. It governed matters of religious discipline, marriage, inheritance (in some periods), oaths, and the moral conduct of clergy and laity alike. Its principal compilation, the Corpus Juris Canonici, organized church doctrine into enforceable legal rules administered through ecclesiastical courts.
Civil law, in this context, does not mean the modern distinction between civil and criminal proceedings. Rather, it refers to Roman civil law — the legal tradition descended from the Corpus Juris Civilis of Justinian, the great sixth-century codification of Roman legal science. This system governed property, contracts, obligations, and status in continental Europe and formed the basis of Scots law, French law, Spanish law, and other civilian traditions. In early English legal writing, "the civil law" almost always means Roman law or its derivative, not the common law.
Together, the phrase "the canon and civil laws" signals that both systems are being invoked as interpretive or comparative authorities — a common rhetorical move in early English and American legal writing when common law rules were uncertain or undeveloped.
---
Common Confusion
Modern researchers frequently misread "civil law" in historical legal texts. When a pre-twentieth-century treatise or court opinion cites "the civil law," it almost certainly refers to Roman law or the continental civilian tradition — not to the civil/criminal procedural distinction that dominates modern legal vocabulary. Conflating these meanings produces serious misreadings of historical legal arguments. Similarly, "canon law" is sometimes confused with general ecclesiastical regulations or church policy; in legal writing, it specifically refers to the jurisprudential system administered by church courts with enforceable legal authority. The paired phrase reinforces the historical practice of citing both systems as distinct bodies of learned law standing apart from — and sometimes correcting or supplementing — the common law.
---
Why It Matters in Research
This paired phrase is a reliable marker of historical legal writing and signals several things a corpus researcher should recognize immediately.
First, when you encounter "the canon and civil laws" in primary sources, the author is almost certainly engaging in comparative legal argument — pointing out that a common law rule agrees with, departs from, or can be understood through the lens of these two learned law traditions. This was standard rhetorical practice from the sixteenth through the nineteenth centuries.
Second, ecclesiastical courts in England retained jurisdiction over marriage, legitimacy, testamentary matters, and defamation involving moral imputations well into the nineteenth century. Any historical document touching these subjects may blend canon law principles into what looks like ordinary common law analysis. Researchers working with family law, probate, or early contract materials should be alert to this.
Third, the phrase disappears almost entirely from American legal writing after the mid-nineteenth century, as the ecclesiastical court jurisdiction was abolished in England (Marriage Act 1836; Probate Act 1857; Matrimonial Causes Act 1857) and was never formally established in the United States. Its presence in a source therefore helps date the intellectual tradition of the text even when the text itself is undated.
Fourth, later American legal dictionaries often omit or minimally treat this phrase because the systems it references had ceased to exercise direct jurisdictional authority. Rapalje & Lawrence's inclusion of it reflects their commitment to historical completeness and their awareness that practitioners and scholars consulting older authorities would need to understand the reference.
---
Historical Dictionary Support
Rapalje & Lawrence treat this phrase as part of a larger project of comprehensive coverage, including Latin maxims and citations drawn from a broad sweep of English and American case law. Their inclusion signals that the phrase carried enough practical significance in reported cases to warrant a distinct entry — that courts and treatise writers were still invoking the canon and civil laws as interpretive authorities in cases that generated published opinions.
What historical legal dictionaries as a class tend to underemphasize is the procedural dimension: the canon law and civil law each brought with it not only substantive rules but distinctive procedural forms, including the civilian inquisitorial mode of proceeding, the use of written pleadings and depositions in lieu of jury trial, and the prominent role of learned judges rather than lay juries. These procedural inheritances surfaced in Admiralty, Probate, and Divorce courts in ways that shaped American federal admiralty practice and continue to have doctrinal relevance today.
Historical dictionaries also rarely explain that "the civil law" in pre-modern usage carried a prestige that modern readers may underestimate. Roman legal science was treated as a repository of legal reason, and citation to the Digest or Institutes of Justinian carried genuine persuasive weight in English courts, particularly in Chancery and Admiralty, through the eighteenth century.
---
Jurisdictional Note
In the United States, canon law has no direct jurisdictional force in civil courts, though it may become relevant in disputes involving internal church governance, religious organization property, or contractual arrangements governed by religious rules. Roman civil law retains direct operative force in Louisiana, whose legal system descends from French and Spanish civilian traditions, and civil law concepts appear throughout Puerto Rico's legal system as well. In federal admiralty law, civilian doctrinal influences persist and practitioners working in that area will still encounter arguments grounded in civilian principles.
---
Encyclopedia Cross-Reference
Civil Forfeiture and Its Intersection with Criminal Law (The Law Mind Criminal Law Encyclopedia) — for background on the civil/criminal distinction that may help contextualize why "civil law" as Roman law can be misread in modern research.
Family Law — Contempt in Family Court (Civil vs. Criminal) (The Law Mind Family Law Encyclopedia) — for the modern procedural sense of "civil" that most sharply contrasts with the historical usage addressed here.
---