Transcript COMPARATIVE LAW

COMPARATIVE LAW
Spring 2003
Class 4
The Civil Law Tradition I
TODAY’S CLASS
• More on Justinian’s Corpus iuris civilis
• The revival of Roman law in the 12th
century and the development of ius
commune
• The civil law tradition, viewed broadly (its
nature and underlying justifications)
WRAP-UP: JUSTINIAN’S
GOALS
• Justinian believed that the post-classical
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?
CONTENTS OF JUSTINIAN’S
CORPUS JURIS CIVILIS
• 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. There was an earlier Code that did
not survive.
• Written in Latin (so many Greek-speaking
Byzantine lawyers could not understand it!)
Institutes Book I Of Persons I
“Justice and Law”
• A textbook for students
• “Having explained these general terms, we think
we shall commence our exposition of the law of
the Roman people most advantageously, if we
pursue at first a plain and easy path, and then
proceed to explain particular details with the
utmost care and exactness. For, if at the outset we
overload the mind of the student, while yet new to
the subject and unable to bear much, with a
multitude and variety of topics, one of two things
will happen--- . . .”
Institutes
• “we shall either cause him wholly to
abandon his studies, or, after great toil, and
often after great distrust to himself (the
most frequent stumbling block in the way of
youth), we shall at last conduct him to the
point, to which, if he had been led by an
easier road, he might, without great labor,
and without any distrust of his own powers,
have been sooner conducted. “
Digest
• 50 books culled from an enormous amount
of Roman juristic writing over hundreds of
years
• Contain material from 39 jurists
• Written very quickly – so did not succeed in
removing all inconsistencies
ROMAN LAW OF DELICT
• Juris praecepta sunt haec: honeste vivere,
alterum non laedere, suum cuique tribuere
(Ulpian, quoted in Justinian Institutes I, I, 3;
Digest I, I, 10
• In English: The maxims of law are these: to live
honesty, to hurt no one, to give every one his
due
• Public law delicts (crimes); private law delicts
(torts) – Lex Aquilia (Republican statute 286 BC)
• Categories: theft, damage, insult, robbery
• Object of Roman law to penalize wrongdoer not to
compensate from wrong
An Example from the Digest
“ULPIAN..when some people were playing
with a ball, one of them hit it hard, and it
knocked the hands of a barber, with the
result that the throat of a slave, whom the
barber was shaving, was cut by the jerking
of the razor. In which of the parties does
the fault lie? For it is he who is liable under
the Lex Aquilia.”
LASTING SIGNIFICANCE OF
THE CORPUS JURIS CIVILIS?
• Justinian’s Code did not attract much
attention at the time, and was not widely
used by Germanic tribes ruling western
Europe in the early middle ages (though
Roman law influenced “barbarian” codes)
• So what is the significance for civil law
systems of Justinian’s corpus juris civilis?
Revival of Roman Law and the
Ius Commune
• A revival of interest in Justinian’s Digest from the late
11th century
• The oldest European university, the University of
Bologna, became well known for the study of Roman
law. Medieval scholars known as “glossators” wrote
their own commentaries on Justinian’s Corpus Juris
Civilis.
• Students spread a common body of law/writing about
law (based on the revived of Roman law as interpreted
by the glossators and influenced by canon law) known
as the ius commune across Europe.
• Roman law was formally received into the law in some
parts of Europe, and informally in others
• Why was Justinian’s Corpus Juris Civilis so
The Twelfth Century Renaissance
• Cities and towns grow
• Commerce grows
• Rise of universities, e.g. Bologna gives rise
to scholars, jurists
• A revival of interest in Roman law
MEDIEVAL UNIVERSITIES:
REVIVAL OF ROMAN LAW
• University of Bologna
• Glossators
• Commentators
SPREAD TO OTHER
UNIVERSITIES
• E.g.
• Oxford (on left is
Merton College (1264)
• Heidelberg
• Paris
• Cracow (Jagellonian)
LAW MERCHANT
• Customary Law
Developed by Guilds
and Merchant
Organizations
• Eventually became
international
• Commercial rules for
business
LASTING SIGNIFICANCE OF
THE CORPUS JURIS CIVILIS
• John Henry Merryman has stated: “Roman ways
of thinking have certainly percolated into every
Western legal system. All Western lawyers are in
this sense Roman lawyers. In civil law nations,
however, the influence of Roman civil law is much
more pervasive, direct and concrete than it is in
the common law world. We have had no reception
of Roman law.”
• The significance is lasting despite the growth of
national legal systems starting around the 15th
century when nation states started to develop
MIDDLE AGES – GROWING CONFLICT
BETWEEN CHURCH AND STATE
• Famous Example – conflict
between Henry IV and Pope
Gregory VII in the late 11th
century over lay investiture
(power). Ends in a stalemate
– the Concordat of Worms
(1122) of Henry V and Pope
Calixtus II
• Eventually, this PapalEmperor conflict will lead to
rise of nation states and will
also propel the revival of
Roman law
Development of the Civil Law
Tradition
• A new tradition, constructed over two
millennia out of chthonic (and talmudic)
traditions
• Civil law tradition has not been constant –
codification doesn’t develop directly from
the Roman Twelve Tables
Nature of the Civil Law Tradition
• What is the nature of the civil law tradition?
Nature of the Current Civil Law
Tradition
• Codes of law
• Large resident judiciaries (judges not out on
circuit)
• Investigative procedure (controlled by judge) –
judges establish facts
• Denial of judical law-making
• Prestige of law professors
• Custom/chthonic law very limited source of law
• How did we get to this?
Glenn on Roman Law
• Roman development of legal institutions was
gradual and limited
• Romans developed idea of law as learning, in
written form, subject to rigorous requirements of
reasoning
• Roman law widely admired; spread across Europe
though chthonic law prevailed over it during the
middle ages until Roman was was “rediscovered”
in the 11th century.
• Reception of Roman Law (esp. Germany, more
resistance in France)
Medieval Chthonic Law
• What was this law like?
Medieval Chthonic Law
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What was this law like?
Mostly unwritten
Not much law of obligations
Community-oriented property law and family law
Feudal – inequality, slavery, hierarchy
Seisin
Christian