Legal History Exam Notes
Legal History (RGPRG50105)
Rijksuniversiteit Groningen
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LEGAL HISTORY 2016 EXAM NOTES: FINAL VERSION
LECTURE 1A: CODIFICATION, METHODS OF INTERPRETATION
What does codification mean? ● Codex = book/law code; facere = to make ●Criminal law: Government (‘prosecutor’) Citizen (‘suspect’)⬄ ●Private law: Citizen (‘plaintiff’) Citizen (‘defendant’)⬄
Codification & interpretation - Bentham - Invented codification: Wrote to American President to propose codification to him - But he actually had to mail the governors because of sovereign state system of private law - Some States took to his idea but then he died and David Dudley Field took over - “Field Code”: Dakota, Montana California used these codes.
Codification: 3 essential elements 1. Written provisions: Provisions committed to writing ● 18 th century: age of enlightenment ● Philosophers: people should start thinking for themselves & not have to ask experts o “Dare to think for yourself” - Voltaire ● People wanted to read law on own – one of the factors that led to codification.
Authority/Government: Issued by body with authority ● Each state has to have a legislator, judiciary, government. o Those three factors make up a state - trias politica - checks and balances. o Rules are made by legislator, applied by the Courts.
Exclusivity: no other sources of law to be used, because of government’s authority
- (Most important part) ● Formal completeness: Law code is only source of law! o NB other notion of exclusivity, material completeness: legislating every possible situation ▪ Impossible, as legislators learned. ● Revolutionary because had various written and unwritten legal sources o Local law, customary law, subsidiary law (i. Roman) ● Courts could pick and choose which to apply -> no legal certainty ->led to codifications being made in 18th century. ● NB: A code has to have all three of the above features! If not -> regular statute. o May have been created as a code and then not used exclusively so then it is no longer a codification, truly. (i. Field Code)
Codification & Interpretation: How can old law be used to settle disputes in modern society? ● When codifications of civil law in i.: ● NL 1809/11/38/1992. Germany (1900), France (1804), Justinian (533-534)
Codification & Interpretation ● Answer: interpretation by judiciary. Give meaning to words in code to apply to case. ● Continental Europe codes: abstract/general to catch everything ● Common law codes: specific to prevent judge from saying “It’s not in there” and using their preferred precedent. Legislation is superior to judicial decisions. ● Existence of codes not distinguishing criterion of civil/common law. ● Once statutes made it’s old and always has to be interpreted by courts ● Sometimes unexpected interpretation: i. Dutch Bathing act of Zandvoort (swim caps) ● When a judge gives a rule meaning it’s final unless the legislator says otherwise ● Interpretation by judiciary also gives the law code its exclusivity because judges can apply to each case by interpretation if they want.
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● Two rules: Do what you’d like to do but don’t do it to anyone else. Can make code based on this.
Interpretation methods: ● i. US: does theft of vehicle include airplane? Judge used restrictive because of nulla poena. ● Intrinsic approach o Grammatical interpretation: Literal meaning. Starting point of any interpretation. ▪ Not always possible i. multiple meanings. ● Extrinsic approaches : broader, not from text itself. o Systematic interpretation: ▪ Systematic assumption of law: term used in other acts has same meaning o Interpretation based on legislative history: ▪ What legislator had in mind when drafting. Debates préparatoires. o Historical interpretation: legal history of provision. Look at origin i. Roman law. ▪ Different historical sources than one the legislator codified to understand meaning of a provision. ▪ What was found before the act was introduced? ▪ When an act is being made it is in reaction to what used to be there before. ▪ 2 things is possible: ● Act wanted to change everything and no need to look at history of law before that act. ● Act is continuing legal development – giving some new things but not abolishing what existed before. o Teleological interpretation: purpose of the act. ▪ Often used with international treaties – preamble. ● Only systematic could realistically be used when law codes of Justinian were in force ● i. couldn’t use grammatical, legislative history [not there. no debates], historical interpretation [don’t know what was there before], teleological [not possible, Justinian didn’t say a purpose]. o Systematic, .. one?
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- Dramatic changes in the world
- 1453 Fall of Byzantine empire | 1493 Discovery of America |1517 Luther Sparks Reformation
- Start of ‘Renaissance’ (Rebirth) - focus on antiquity (ancient cultural history of Greece and Rome)
Grotius: pater iuris naturae ● Hugo Grotius (1583-1645) Dutch. Book: “On the law of war and peace” de iure belli ac pacis ● “Father of natural law” Why? o Disconnected idea of natural law from Canon law ▪ Preface: “even if there would be no God, there would still be natural law” ▪ New era: secular natural law o First to say Roman law is subsidiary to statutes Used when not equitable. o I. he found Roman private law transfer of ownership not equitable, wanted to deviate
Natural law 17th century “Vernunft Recht” ● Professors constructing “systems of natural law” (“Systeme”) o Natural law became its own discipline ● Pufendorf, Thomasius, Wolff o Pufendorf: To go from negative nature state need social agreements which give rights o Thomasius: first person who had a chair in natural law ● Taught nonexistent law: logical system of natural law not in force anywhere, how law should be
Age of Enlightenment (17th-18th century) ● Age of reason (ratio) - Philosophical movement ● Started enlightened/benevolent absolutism/despotism - monarchs who embrace rationality o Frederick I of Prussia, Catherine the Great of Russia, Josef II of Austria ● Codifications developed in c. 17th/18th as expression of Natural Law and Enlightenment ideas.
Jean Jacques Rousseau 1712-1778 “The Social Contract” ● “How to organize a state?” ● State: people are sovereigns who self-govern by creating social contract expressing general will ● Changed concept of “people” to individual members of society o No longer “estates of the realm”: nobility, clergy, citizenry ● Q. How minority bound by law created by majority? ● A. Contract: trade in some natural liberty for civil liberty. ● Customary law differs from region to region -> he wanted a codification (for private and penal law)
Natural law and codification ● Natural lawyers in favour of codification. Why (if it’s everlasting)? Explanations: ● 1) Montesquieu 1748: natural rights of each people according to special circumstances, o e. climate, language, religion. Attacked idea of universal natural law. ● 2) Intellectual economy: Easier to read ratio in book, rather than start reasoning yourself. ● 3) Beccaria: delle delitti e delle peni (1746). Legality principle - cannot punish without prior law.
Natural law in (attempted) codifications ● Attempted codifications: Prussian code, Dutch draft by Cras o Started to write far too large textbooks instead of codifications (material completeness) ● Codifications still valid today: French Civil Code (1804), Austrian Code 1811
Natural law and revolutions - American colonies 1750s: “No taxation without representation” - People in colonies thought since they weren’t represented in British parliament any laws affecting them are illegal under the Bill of Rights - Thomas Paine: “Common Sense” pamphlet telling colonies to fight for American Indepdnence - Natural law: “if king = tyrant, dispose of him”. Compare St. Thomas Aquinas. - 1776 Declaration of Independence, 1789 French revolution
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- However once revolutionary codes established, natural law was met with criticism and opposition.
20 th century natural law ● 19 th century: legal positivism, return to Epicureanism formal concept. But then: Nazi Germany ● Gustav Radbruch 1878- o Legal philosophy: Positivist who gave priority to statutory law from government but then post WWII 1946 “Radbruchsche Formel” o “Where statutory law is incompatible with justice, it must be disregarded by a judge” o “Wall shooters case” 1996 -> Court used formula to disregard non-retroactivity principle
Natural law in the 21st century ● Present: Dutch Code empowers judges to mitigate the legal consequences of obligations if the result in this case would be unreasonable and inequitable (i. violating human rights) ● NB: Natural law -> idea that people have inalienable human rights. i. ECHR, Bill of Rights
WG WEEK 1 NOTES:
- When assessing case, study: 1. The facts, 2. Applicable rule of law, 3. Legal question 4. Decision
- Importance of interpretation: without interpreting rule of law, cannot be applied to the facts, and the question of law cannot be decided.
- 18th century ideas of codification. Wanted to restrict power of judges & lawyers.
- Judges should just be les bouches de la loi (Montesquieu). Should only apply law.
- This idea inevitably faded. Need lawyers and judges to interpret.
California bigamy case of Mr. Oades - 3 trials. Loophole in California Civil Code which allowed Oades to married to two women. - Can’t be quashed by Constitution; can’t change law because of nulla poena - Problem of interpretation in application of law
- Law codes have to be interpreted and given meaning to apply it to the case at
hand. Once a statute has been made, they’re old, and courts have to take that
into consideration.
Last trial, methods of interpretation
- Penal Law - grammatical interpretation generally used. “Stick to the letter”. Nulla poena.
- Cannot be bigamy if Code allows you to have two marriages lawfully.
- Prosecutor used teleological argument: “The purpose of the law was to prohibit bigamy”.
Solutions that a legislator could use to avoid such a problem/loophole in code
- Two possibilities:
- Oblige the husband to pick one wife and then marriage with other wife is annulled.
- After first partner is deemed alive, second marriage is automatically annulled
- Which provision of Californian law exactly forms in casu an obstacle for a solution that
prevents bigamy as much as possible?
- S. 83 subdivision 2 of Civil Code (p. 5)
- There is no obligation on anyone to terminate one of the relationships, unlike the above solutions
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Consul (with 12 lictors - bodyguards) - Carried rods decorated with fasces - basis for fascist - And when outside of pomerium (religious boundary around Rome) held axes which symbolized power to carry out capital punishment. Their symbol.
Early Rome: sources of law (2) 2) Statute/edict by Consul - Process: - Magistrate (Consuls) wanted to propose bill - (Senate was consulted for non-binding opinion) - Magistrate proposed the law to the comitia/assembly who vote yes or no - Adopted bill became statute (“lex” - “leges” in latin) - This is how consuls were chosen by the comitia as well - Only for important matters - difficult to assemble everyone - Statute remained valid until revoked by comitia. Often for centuries (i. law of 12 tables) - Independent of imperium: validity above edicts since edicts = 1 year but statutes = long - If edict by magistrate (consul) and leges/statute by comitia conflict, statute comes first.
Early Rome: sources of law (3) - Voting procedure in comitia: - Only males. Census division in units to vote, not “one-man, one-vote” - Yet: people were the legislator. No representation, all citizens together for direct vote - Edicta <-> Leges (statute) - Why not govern only by edicts? Keep people happy, make sure laws in line with their will - But if immediate action necessary: edict because faster than lege
3 Patricians and Plebeians: Social struggle in the republic Patricians and Plebeians - Senate: senex (“old man) | patres = (“fathers of patricians”) - Plebeians = non-patrician Romans, not allowed in senate or consul, only assembly - Led to power struggle because plebeians wanted to legislate Republic too
NB: Four events in this battle between the two that are important for legal development: - Tribuni plebis, Demand of codification, Establishment of the praetura, Lex Hortensia
Power-struggle 1: Plebeian tribune 494 BC - Plebeians: strike on Holy Mountain (Mons Sacer) and threatened to found their own city which would cause Rome to halt since they’re the working class - Concession to the plebeians: tribunus plebis - Magistrate especially appointed to safeguard interests of plebeians - No imperium, but right of veto (“I forbid”)
Power-struggle 2: Codification - Plebeians demanded codification of law - Priests (patricians) used unwritten law so plebeians didn’t know their rights - 451 BC: Committee of 10 (decemviri) replaced consuls after 3 patricians studied Greek law - They had imperium and wrote a codification on 10 tables within a year. - 450 BC: New board of 10 made addition of 2 more tables - Law of XII Tables (lex duodecim tabularum)
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- 12 tables put on on forum in Rome so people can read the law
- First codification of Roman law
Intermezzo - Codification disappointment because interpretatio of 12 tables kept secret by patrician priests - Gaius: 180 AD writer about 12 tables. - examples of statute interpretation: use word tree from statute and not vines for vines. - Gnaeus Flavius: secretary to Appius Claudius (consul) who supported him - Legal uncertainty ended 100 years later when secret of interpretation was made public in a book of actions (legal procedures).
Power-struggle 3: establishment of praetura - 367 BC: Plebeians were given one of the Consuls after they went on strike again - Patricians demanded the creation of a patrician office in exchange for their concession, - Praetura: of which the holder (praetor) was to take part in the imperium. - Praetor: New magistrate (not judge) deciding whether a case would go before a judge - New phase in Roman law
Intermezzo: praetor - Soon also plebeian praetors - 1 appointed every year - Praetor had imperium - Could issue edicts like consuls, - in the edicts made rules on basis of which he decided when a case would go to judge. - Judges from then on came to be plain Roman citizens (no lawyers, priests). - Chosen from list of taxpayers (once in lifetime) to be a judge - - Like juries in common law. - Get to decide facts, there’s also a judge who decides points of law/procedure. - Division between points of law and points of fact. - Had to have lawyers advise whether plaintiff would be able to get an action (edict of praetor) - i. if buyer doesn’t pay for a good, give seller an action against a buyer. - Praetor was peer to consuls, but office was inferior - Being a praetor is a prerequisite to becoming a consul. - Didn’t change edicts often. Interested in finishing year and getting chosen for consul. - Edict was taken over each year. Rarely changed, which is what saved the edict. - Large part of Roman law was developed this way. - Praetor similar to English Lord Chancellor - Same capacities. - If you wanted to bring case before common law court had to get writ (same as action) - Lord Chancellor decides if you get that writ, then your case is decided by a jury.
Power struggle (4): Lex Hortensia 286 BC - Before: decisions plebeians took in plebi scita meetings only applied to them - After lex hortensia: had force of law which bound all of Rome (including patricians) - Named after Quintus Hortensius, Roman dictator who suggested it. - End of battle between patricians and plebeians.
Praetorian law (ius praetorium) - Trial, 2 stages - 1. Legal, before praetor (didn’t pass judgment himself)
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2B LECTURE ROMAN LAW
Gaius Julius Caesar 58-51 BC: The conquest of Gaul - Born 100 BC - Became consul in the Roman Republic (59 BC) - Conquered Gaul and wrote propaganda about himself doing great things - He was then well liked by his soldiers, known as greatest general - Took his allegiance back and this was not allowed - Somewhat of a dictator
Gaius Julius Caesar 49 BC: Alea iacta est (the die has been cast) - 49 BC civil war with his former father-in-law Pompey and his son in law - When he crossed the Rubicon river (border of Italy) and ignited war, Caesar said “Alea iacta est”
Gaius Julius Caesar: Death 15th March 44 BC - Stabbed by senators (led by Brutus). Thought he wanted to become King, Romans hated Kings. - Patrician senators especially didn’t like dictator because they had no say in ruling anymore
Octavianus aka Caesar Augustus (27 BC - 14 AD) - Emperor Gaius Julius Caesar Augustus - Adopted son of Caesar - He acted as if Rome was still a Republic but he had all the authority: imperium, veto, senate - Loved because he ended a century of civil wars and started Pax Romana - So he came to hold the power of the monarch de facto or de jure - Gaius/Ulpian (writers): legitimacy of emperor’s legislative competence derives from decision of people to assign him this imperium. Lex curiata de imperio. - No changes to existing constitution, but he combined important powers in Republic for himself: - 1) Proconsul for life -> imperium - Awarded himself the imperium of the pro-consul, imperium proconsulare - Proconsul = after you’ve been consul become proconsul, get province of empire. - Why go Rome to Province? Good financial opportunity to buy votes for election. - Caesar was broke when he reached consulate, then became proconsul and got tax money, Egyptian grain, soldiers from Gaul. - He had imperium for life - could issue edicts - 2) Tribunicia potestas -> veto - Gave himself power of tribune which means he has right to veto (for life) whatever magistrates did so he, in the end, pulled all the strings in Rome. - 3) Princeps (president of senate) -> senatus consulta - Senate made him president + “Augustus” after he defeated Antony & Cleopatra - Given title “Augustus” and was in control of making decisions of the Senate. - Senate opinions made binding, replaced laws by comitia which no longer met because he didn’t like how long it took to make decisions. - 27 BC: Result of giving himself these powers: Republic -> Empire (beginning of “imperial age”) - Form of government didn’t change - still had consuls, praetors, senate etc. - Praetors and consuls still chosen annually. Practically, no power. - Dispositions of emperor: constitutions - collective term for all sorts of imperial measures
Empire 27 BC - Types of binding imperial measures (decisions, since leges no longer issued)/Constutio:
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- Edicta: Rules by emperors, general legal norms laid down for officials and private citizens
- Mandata: judicial + administrative rules/instructions by emperors to high empire functionaries, to be employed by them in exercise of official functions. Especially to proconsuls of Provinces.
- Rescripta: written answers given by emperor to queries of officials or petitions of individuals
- Decreta: Imperial enactments (decrees) by emperors in exercise of jurisdiction in civil and
criminal matters, both as final judgments and as interlocutory decisions during the proceedings.
- Decisions taken by the imperial court.
- Emperors allowed appeal to litigants.
- (Before, preators decided if go to judge and then judge decided if right to appeal)
- Whenever a legal question was settled by the imperial (constitutional) court it came to be regarded as imperial legislation.
- Decreta: Imperial enactments (decrees) by emperors in exercise of jurisdiction in civil and
criminal matters, both as final judgments and as interlocutory decisions during the proceedings.
- Gradually all legislative power came into the hands of the Emperor.
- Constitutio example: Constitutio Antoniana 212 AD
- Granted all inhabitants of Empire Roman citizenship > meant Roman law applicable to all
- As a result, changed from personality principle to territorial principle
- Personality principle: each inhabitant lives according to the laws of his descent.
- Territorial principle: everybody within a certain territory lives according to the same laws.
Hadrianus 117-138 AD - 135 AD: Edictum perpetuum - “Perpetual Edict” - Got lawyer Salvius Julianus to make edicts of praetor final (instead of annual) - Law became fixed and only Emperor could alter it. - Thus the Praetor was bound by their own laws and couldn’t change them. - From then on, there was just 1 source of law - Emperor’s imperial legislation - (But still a lot of law had developed before that starting in 5 BC with 12 tables.)
Statutes and edicts needed interpretation - Already custom of lawyers (jurisconsulti) to give opinions/responsa to parties before proceedings. - 2nd important phenomenon from early imperial age: - Augustus granted some jurists approval to publicly give advice, which made it binding on judge - Knew most lawyers would want this which is why it was a trick. - This expressed the authority of the emperor - Responsum by jurist same authority as a rescriptum by the emperor. - Eventually these opinions became known as law (ius publice respondendi). - When they wrote about statutes, ius civile. edicts of preator = ius pretorium and its interpretation.
Law under the later Empire: - Came to be just two sources of law after later empire. - “Later” empire - until 250 AD writings by lawyers were published but then ceased because Emperors hired all the lawyers and everything signed by the Emperor. - After that, to know what the new law was you had to look at the imperial constitutions. - Later regard these books as legal sources.
Around 300 AD two legal sources remained: - 1) Leges: imperial law/constitutions made by emperors NB don’t confuse with leges by assembly - (public assembly had fallen into disuse for a long time) - 2) Ius: writing of the jurists became a legal source - law of jurists
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- It was a book full of secrets about the Emperor. wife etc.
- Restore the empire legally and faculty through armis (by force) and legibusque (by laws)
- force (arms):
- Began reconquering Africa, South of Spain,Italy
- Constantinople was only capital.
- For use in times of war
- by law:
- Codification of Roman law:
- Leges (imperial laws) + Ius (writings of jurists)
- First judges looked at ius, then imperial enactments.
- For use in times of peace
- His legislative work is reason Roman law passed to all of Europe
Emperor Justinianus - Corpus Iuris Civilis (body of civil law). 4 parts: - 1) 529 AD: Codex Justinianus (1st edition) - Started with statutes, like Theodosius should have - Consists of chronological constitutions (regulations made by emperor) - If 2+ constitutions conflicted, lex posterior (later) derogat legi priori - why Marcian’s constitution, which Justinian had revised, no longer valid. - Exclusive force, no other laws - Laws addressed to specific person given general force of law/general effect. - 2) 533 AD: Digesta (Pandects) - Added writings by jurists etc to law: ius. - Prohibited use of any jurist text that wasn’t in Digest - One constitution, so lex posterior rule doesn’t apply - Largest statute ever made, consists of core of Roman law - 50 scrolls. - 3) 533 AD: Institutiones (“Elements”) - Textbook for first year law students - Became a statute book and given force of law eventually; they were codified. - 534 AD: Codex repetitae praelectiones (revised/improved ed) - Wanted codification (with everything in one spot) so put writings of lawyers in his name. - at that point only one source of law: imperial enactments which had to be in the Code. - This is why he made a revised version of the code. - Law of citations disappeared - obsolete because of Digest - Incorporated constitution that made Digest & Institutes binding & put everything in Code - This is why we still talk about Roman law. - 12 books in honour of 12 Tables - 4) 534+ AD : Novellae post Codicem constitutiones (novel [=new] constitutions) - All new imperial constitutions issued after Justinian’s Code of 534. - Created under Justinus II and Tiberius II - Includes constitutions from 1453
Conclusion - Justinian’s legislation remained codification of Byzantine Empire for centuries - Greek texts had no own authority and eventually served as just an aid - Lasted until 900 AD when Leo published a text purifying Greek commentaries etc - In this purification Justinian’s legislation was reorganized, and determined which rules still applied and which were replaced by new ones.
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- This purgation known as Basilica - “the imperial laws”
- Reception of Roman law: West Europe has used Roman law since end of c. 11
- When Roman private law infiltrated the 3 source system
- As subsidiary law to supplement local law
- Became ius commune in Europe combined with canon law
WORKING GROUP 2
Marbury v. Madison - Judiciary Act conflicted with constitution - 1. Question: whether judiciary could review statutes with US Constitution - First time SC declared something unconstitutional - 2. Natural law arguments: It is the fundamental law of the nation; separation of powers - “A law repugnant to the constitution is void, and courts are bound by that”
Popov v. Hayashi - Case about baseball game and ownership. ROman law arguments: - Abandonment: if something is abandoned, possessor takes ownership through occupation - Transfer of ownership - Find a treasure: half goes to finder, half to proprietor. This is what court chose so they split auction money.
- Constitution of Justinian is an amendment of that of Marcian. Justinian’s valid and Marcian’s not because lex posterior derogat legi inferiori
Polybius: “How is it possible that the Romans conquered Greece?” - Answer: Because of their 3 governing institutions in Roman Constitution. - Mix 3 systems of governance to rule together and keep each other in check - Consuls (monarchy “to rule”), Senate (aristocracy “the best”), Comitia (democracy) - Influenced Montesquieu’s separation of powers. - NB: Thought judiciary was subdivision of executive because judge had no real influence, was “la bouche de la loi” - Trias doctrine then influenced by Montesquieu - The Histories Book VI - the powers: - 1) Consuls (monarchy “to rule): Could issue edicts - 2) Senate (aristocracy “the best”): Advisory board - 3) Comitia (democracy “power to the people”): “coming together” - public gathering
Julian & Praetor’s edict (q. 6) - Emperor Julian didn’t like that Praetor had imperium to make statute for duration of their office. - So he got Salvius Julian to freeze edict to create a definite final edict (perpetual edict) - Praetors were no longer free to change the edict when they took office.
Jurists’ opinions -> source of law in Roman law (q. 7) - Originally just helped interpret law. - Augustus - some established jurists would have authority to advise as if they were statutes issued by the emperor. - 426 AD: Theodosius II created Law of Citations which said opinions of only 5 jurists could be relied on in court: Gaius, Paulus, Ulpianus Modestinus, and Papinianus. - 533 AD: Justinian then codified the Digests (opinions of lawyers) -> officially part of law.
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3A: ITALY
personality vs territorial principle - legal diversity - glossators - commentators
Justinian conquering Ostrogoths - 553: Through laws and weapons Justinian conquered parts of Italian Peninsula from Ostrogoths to reinstall Empire after fall of West under Romulus Augustus.
Justinianus: introduction of legislation in Italy - 554: Pragmatic Constitution - introduced/sent Corpus iuris civilis to newly conquered parts of Italy - Just Digest (Greek “Pandectae”) at this time - Old writings of jurists (ius) compiled by Justinianus - but issued in his name. - 50 books (!) but all in one imperial constitution - Promulgated Digest December 30 533: “old law becomes latest law” - Digesta layout: Book, Title, Fragments = D.1.1-
Digesta: contradictions? - In Codex Justinianus (lex posterior (newer) derogat legi priori (older) - N. No ‘lex posterior rule’ in Digest! Ratio: it is one law from one emperor! - Assumption: emperor cannot self-contradict. Consequence: Digest has no contradictions? - Justinian: only apparent contradictions, not real ones... - Enantiophanes wrote book in which he tried to solve inconsistencies by interpretation
Justinian’s legislation mainly in Latin - Useful for tribes living in Italian peninsula (West) because they knew the Latin (unlike Greeks) - Codex Florentinus: closest survivor of official version of Digest portion of Corpus Juris Civilis
Corpus iuris civilis in Italy - All incorporated officially in 554 1. Digest (Pandectae): imperial (!) compilation of ‘ius’ (writing of jurists) 2. Justinian’s institutiones: introductory textbook 3. Revised Codex (534): compilation of constitutions 4. Novellae constitutiones: new imperial constitutions after 534 revised code - NB: Italy is only western European country where Justinian's legislation is introduced by law
Invasion of the Germanic Lombards in Northern Italy - 568: Justin II lossed northern Italy to German tribe of Lombards/Langobard - Kept contact with Byzantine empire, and laws other than Digest were known/used - Institutes + Novels
Byzantine Empire aka Roman Eastern Empire - Original name of Constantinople is Byzantium - Southern Italy remains in Byzantine hands for age - Knowledge of Roman private law decayed (institutions, novels, etc)
Changes in distribution of justice - Roman Empire: territorial principle aka territoriality principle - 212: Emperor Caracalla: constitutio Antoniniana - Roman citizenship for all inhabitants in the territory and Roman law would apply
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- Germanic tribes (Lombard): personality principle
- Applicable law: law of tribe (persona) of origin
- Romans in Italy continued to use Roman law, but based on personality principle
- Complicated: Roman law different in Italy (Corpus) v. France (Lex Romana Visigothorum)
Personality principle cont’d - Problem: Mixed bloodlines - different tribes in one territory due to intermarriage - What law must be applied to a person of mixed descent? i. ¼ Roman ¼ Visigoth - Professiones iuris: declarations of applicable law by individual - Majority of people in Italy of Roman descent and declared this - Superiority of Roman law compared to tribal law - Result: Establishment of Roman law as subsidiarity source and common law (ius commune)
Next phase: Local customary law - 9th century: Local customary law development started replacing tribal laws - Differed per region, depended on composition of local population - “law settles on the soil” - 2 customary law requirements: longstanding use + opinio necessitatis - Customary law is by definition unwritten, so its validity does not depend on law books.
How to prove a rule of customary law? Three ways: - 1) Government states customary law by officially writing it down. - Not codification because authority from people’s collective desire, not from the fact that a government authority created it. - 2) Hold an expert meeting - turbe in Dutch - 3) Applied by judge - demonstrate that judges have used it several times - NB proof is one of the problems of customary law. This is the advantage of a Code.
Legal diversity in Europe - Partly caused by: 1) Development of customary law (because differed per region) 2) Development of feudalism (feudal law) - Happens when government falls and no protector - Fall of Western Empire in 476 AD - No powerful central government - Trade - Lord/Liege: protection + subsistence - In Latin: fief = feudum = property/right granted by Lord - Vassal/Liegeman: advise and aid - “consilium et auxilium”
Development of Feudalism cont’d - Fiefs became inheritable, expansion of rules which scattered them - I. “Sword fief” (boys); “Female fief” - Possibility of sub-fiefs and sub-vassals - Allodium - land freely held, without obligation to an overlord - Nulle tere sans seigneur - No property without a liege - “Loan from the sun”? - Roman private law almost disappeared because people using customary and feudal law
4.1 Church and Empire - 774: Charlemagne overthrew Lombards, wanted to revive memory of Rome caput mundi
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- Bartolus created broad/extensive/purposive (teleo) interpretation method for Roman Private law:
- Mos italicus: “Italian method of teaching law”
- Allowed a lot of problems to be covered
- vs. mos gallicus by humanists which does take historical approach
- Mos italicus: “Italian method of teaching law”
- Advocated for a strict interpretation of customary law
- Roman private law became (subsidiary) source again and somewhat downgraded customary law
- It was so popular that:
- nemo jurista nisi bartolista: “no one is a lawyer, unless he is a Bartolist”
3B ITALY (2) LEGAL HISTORY
- Beccaria stated nulla poena principle ( natural law): helped Italians to be fans of codification
Unification of Italy - Codification is never solely done for logical reasons. Always political, also for Italy. - Beginning of c. 19 Napoleon defeated some Italian city-states and divided Italy into Kingdoms. - Unification began in 1815 with Congress of Vienna & end of Napoleon’s rule
Italian codifications - 1804 Napoleon introduced French civil code - 1865 introduction of Italian civil code - translation of Code Napoleon - Unification of Italy in full flow - King head of state - 1942 new code (under Mussolini). Still in use today (but after WWII purged of fascist ideology) - Strongest influence is French code, also some German influence
Canon law - Law originating from Catholic Church which had universal pretensions, just like Roman law - Pope was head of Church - religious leader and sovereign because the Papal state was a state - Dealt with organizational matters, marriage law. - Where could you find the canon rules? - Decretals: letters of pope that formulate ecclesiastical law, “starting from St. Peter” - Ecclesiastical (ecumenical) councils: meetings of bishops. First = Council of Nicaea (325) - Writings of Church Fathers, e. St. Augustine - NB disadvantage: no authoritative body (like Corpus) - unofficial collections of different kinds of material. Came from Church (Pope, Bishops etc.) and Emperor. Chaotic because all contributed
Charlemagne and Leo III 800 (300 years before Gratianus’ Decretum) - Charlemagne crowned by Pope Leo III to be new West Roman Emperor - Charlemagne + Leo III thought East Roman Emperor wasn’t an emperor because she was a female and didn’t ask to share imperium so they considered throne vacant - investiture battle: political struggle between Pope and Charlemagne (and successors) about who had power to nominate bishops - Pope’s opinion: most powerful because he crowns emperor and bible texts defend this - Emperor: used bishops to assist governance by giving them land which broke up feudal nobility areas because Lords couldn’t acquire it
Decretum Gratiani 1140 (Concordia discordantium canonum) - Irnerius (teacher of Gratian) supported emperor’s power - Gratian: monk that wanted to use Canon law to support Pope in political struggle still going on
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- which is why it was a success
- Aim: harmonise (concordia) contradictions in Canon law (due to many sources) by interpretation
- Can’t be considered a codification because:
- not made by the proper authority (Pope) 2. lacked exclusivity (other sources used)
- Importance not to be underestimated, comparable to rediscovery of the Digesta
- Respected and treated as close to a codification
- Canon law became second legal branch next to Roman Private Law so it was glossated
- Decretum glossated in 1220 by Johannes Teutonicus (John the German) before the Glossa
- Decretum said where canon law is lacking civil law should be used
Developments in education - Canon law added as subject of study and taught jointly with Civil - Degree: Doctor utriusque iuris, doctor in both laws - Universities founded across Europe - taught civil and canon law - so in every country a university, Latin trained lawyer was a Roman lawyer
Corpus iuris canonici (I) Five parts: 1. Decretum 1140: Gratian compilation of canon law. Not codification, yet authoritative book 2. Liber extra 1234: Compilation of papal decretals in 5 books. By pope Gregory IX: codification. - “Extra” next to Gratianus’ book 3. Liber sextus (6th) 1298: Compilation of new papal decretals. By pope Bonifacius VIII: codification 4. Clementines 1317: compilation of decretals by Clement V/French Pope (also ordered it). No exclusivity clause. 5. Extravagantes (end c. 15): Two privately compiled collections of materials. Not codification. - extra = outside, vagari = to wander.
Corpus Iuris Canonici - 1582 first edition, 5 elements: - Not codifications: Decretum, clementines, extravagantes - Codifications: liber extra, liber sextus - If not meant to be codifications originally, they weren’t codifications. - 1918 Code of Canon Law - 1st official codification of Latin canon law. - Took sections from 5 elements and made it written, governmental and exclusive - This code was replaced by a new code of canon law in 1983.
Law Hierarchy - Divine law: 1. Written: bible | 2. Unwritten: natural law, canonical equity. - Man-made law - 3. Ecclesiastical: Corpus Iuris Canonici & other ecclesiastical legal sources - Secular: 4. Written: Corpus Iuris Civilis & other statutes | 5. Unwritten: customary law
Influence of canon law on secular law - Aequitas canonica: equity of canon law - Aim: achieve harmony between already codified law and judgment required in specific situation - Ecclesiastical law is man-made law, also if the decretals have been issued by popes - Secular law is always judicially reviewed on (equity), with varying results: custom <-> Roman law
Influence of canon law on secular law: jurisdiction
Legal History Exam Notes
Vak: Legal History (RGPRG50105)
Universiteit: Rijksuniversiteit Groningen
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