Transcript Slides for Class 3 (Jan. 14, 2003)

Comparative Law
Spring 2003
Professor Susanna Fischer
CLASS THREE
HISTORICAL ORIGINS OF THE
CIVIL LAW: ROMAN LAW
OPENING YOUR MIND TO
COMPARATIVE LAW
Try to take a scholarly, objective
perspective to other legal systems,
putting cultural stereotypes and
preconceptions out of your mind
Few legal systems are absolutely bad or are
so good as not to be able to benefit from
other ideas
Try not to assume that any law that
differs from that of the United States is
inherently inferior
Never close your mind to new ideas
TODAY’S CLASS
A flying tour of Roman law from the 8th
century B.C. to the 6th century A.D.
We will focus in particular on the corpus juris
civilis of the Emperor Justinian
We will see how Romans very gradually
developed legal institutions and also
developed “law as learning, in written form
and subject to rigorous requirements of
reasoning” (Glenn p. 119)
Roman law has high points and low points
over this period
WHY STUDY ROMAN LAW?
John Henry Merryman has stated: “Roman
law is often said to be the greatest
contribution that Rome has made to Western
civilization.”
The Romans (through jurisconsults) were the
first to look at law as a kind of science for
ordering the world, including people and
property and their relationships.
Clarity, simplicity, orderliness of classical
Roman law
Heritage of Roman law lives on today in many
modern legal systems of the world
ROMAN LAW
Originally chthonic.
Pontiffs interpret law
Rome originally a
monarchy until 6th c. BC
Republican Rome: in
451 B.C. decemvirs
write the Twelve Tables
Ius becomes lex
Issues decided by iudex
(a lay juror)
Initially law quite
draconian: e.g. winning
party could kill debtor if
did not pay up, but later
becomes modified
Excerpt from the Twelve Tables
“If a man is summoned to appear in court
and does not come, let witnesses be heard
and then let the plaintiff seize him. If he
resists or absconds, the plaintiff can use
force. If he is too ill or too old, let the
plaintiff provide a beast to bring him; but if
he declines this offer, the plaintiff need not
provide a carriage…If a man is killed while
committing theft in the night, that killing is
lawful.
Note – in entire Republican period, v. little
statute law. Law is mainly case law based.
More from the 12 Tables
TABLE IV
Law II
If a father sells his son three times, the
latter shall be free from paternal
authority.
TABLE IV
Law III
A father shall immediately put to death
a son recently born, who is a monster,
or has a form different from that of
members of the human race.
Development of Roman Law in
the Later Half of the Republic
367 BC est. of Praetor
Formulary procedure
moderates harshness of
Twelve Tables
After Punic Wars of 3d
c. BC, Empire leads to
development of ius
gentium, applicable to
non-citizens (peregrini)
unlike ius civile
From 250BC there
arises a class of
jurisconsults
Roman Law During the Empire
Expansion of Roman citizenship
Growth of imperial legislation
0-200 A.D. was the classical period of Roman
law: the law had become very sophisticated
despite the barbarism of some ruling
emperors like Nero and Caligula
2d c. AD : Gaius– a jurist teacher whose
student work, Institutes, became very
influential for centuries after his death
(though not in his lifetime). Divided into
Persons, Things, Actions
Imperial Roman Jurists
Edict of Emperor
Caracalla (l.) (212 A.D.)
made many Empire
residents into Roman
citizens. Now, even if
they did not know Latin,
they had to follow ius
civile.
Most distinguished third
century jurists:
Papinian, Paul, and
Ulpian
4th C. AD: An Empire Under
Germanic tribes
Siege Divides in Two (Visigoths, Goths,
Vandals) attackthe
frontiers of the western
part of the Roman
empire
On the death of
Emperor Theodosius in
395, the Roman Empire
divides into eastern and
western parts.
Empire is christianized.
Emperor Constantine’s
Edict of Milan of 313
ends persecution of
Christians.
Post-Classical Roman Law: Less
Precision and Less Consistency
Cognitio procedure replaces formulary
procedure – professional judge replaces
iudex; courts opened up to direct access
Best brains turn away from law
Law becomes less precise
Growing provincialism of law and increase of
customary law leads to lack of consistency of
Roman law throughout the empire
In the 5th century, Emperor Theodosius II
prepares a code which has not survived but
has been substantially reconstructed
Collapse of Rome
Visigoths sack Rome in 410 A.D.
In village, villa, cross-roads, district, field
down every roadway, and at every turning,
death, grief, destruction, arson are revealed.
In one great conflagration Gaul is burning.
Why tell the deathroll of a falling world which
goes the accustomed way of endless fear?
Why count how many unto death are hurled
when you may see your own day hurrying
near?
-5th Century Roman poet
The Start of What Some Have
Called the “Dark Ages”
In the 5th century, as Rome collapsed,
invaded and plundered by Germanic
tribes (which some have called
“barbarians”), Europe entered a period
of widespread poverty, illiteracy, and
intellectual stagnation
JUSTINIAN AND THE CORPUS
JURIS CIVILIS
When and where did
the Roman emperor
Justinian live?
JUSTINIAN AND THE CORPUS
When and where did
JURIS CIVILIS
the Roman emperor
Justinian live?
Ruled in
Constantinople
between 527 and
565 with his wife,
the actress
Theodora
Justinian’s Empire
Military actions
Architecture
Law
Map of Justinian’s Empire: ca
565
CORPUS JURIS CIVILIS
What is this?
Why was it created?
Who drafted it – was it Justinian’s
work?
CORPUS JURIS CIVILIS
Justinian ordered the preparation
of the Corpus Juris Civilis by a
commission under the supervision
of the jurist Tribonian.
The commission included lawyers,
a civil servant, law professors
CONTENTS OF CORPUS JURIS
CIVILIS
What are the 4 different parts of
Justinian’s compilation, which came to
be called the corpus juris civilis, called?
Describe each part
CONTENTS OF CORPUS JURIS
CIVILIS
What are the 4 different parts of Justinian’s
compilation, which came to be called the
corpus juris civilis, called?
Code (update of Theodosian code) Digest
(anthology of extracts from great jurists like
Ulpian), Institutes (textbooks for students),
Novels (constitutions)
Digest/Institutes became law in 533, and
revised Code in 534.
JUSTINIAN’S GOALS
Justinian believed that the postclassical Roman law of his time
was decadent. He wanted to
restore past glories, remove
obscurities, errors, conflicts, and
doubts, and create a systematic
whole.
Did he succeed?
JURISCONSULTS
What approach did Justinian take
toward legal commentaries?
Was this a realistic approach, in your
view?