7 - The Legal Systems of the World

8/10/2019 7 - The Legal Systems of the World

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INTRODUCTION TO LAW | THE LEGAL SYSTEMS OF THE WORLD | AUF SOL 2014 Page 1 | Bantay

THE WORLDS LEGAL SYSTEMS

A. THE LEGAL SYSTEMS OF THE WORLD : classified intotwo:

BASED ON CERTAINETHNIC, CULTURAL

GROUPS OF PEOPLE

THOS BASED ON RELIGION

Chronological order:Egyptian, Mesopotamian,Hebrew, Chinese, Hindu,Greek, Roman, Celtic, Slavic,Germanic, Japanese, and

Anglo-American.

Composed primarily of theCatholic (Papal) legal system(or Canon law), and theMohammedan legal system.

GONE: Egyptian andMesopotamian.

REMAIN: Anglo-American,Roman, Hindu (by toleranceunder another dominant

political system), Chinese (ofthe oldest).

Catholic or Canon law systemstill exists as the law for themembers of the universalRoman Catholic Church.

Mohammedan system not

only governs the spiritual lifeof its members but has beenincorporated by many Islamicstates into their official legalsystem.

(1) EGYPTIAN LEGAL SYSTEM : from the emergence of thislegal system till its disappearance during the reign ofCleopatra, Egypt had been, throughout, a kingdom, inwhich the MONARCH was constitutionally the solesupreme ruler.

o He ruled according to law; but he was its autocraticspokesman.

o In theory of law, every yard of land belonged to him,every man belonged to him, alive or dead, for nonecould even be buried without the kings assent.

o All law and all justice proceeded from him.o MODERN WAY OF DESCRIBING: the prerogative

for exercising the judicial, administrative andlegislative functions was vested in the monarch.

o CENTRAL ROYAL COURT: the king and hissupreme judges administered justice as the focusof government.

COMPOSITION: 30 supreme judges,presided over by the Kings chief justice.

Merged: chief justice signified the kingschief minister.

o PROVINCIAL COURTS: presided over byadministrative officials, under the Central Court.

o KING: in theory, the sole legislator. Earliest human lawgiver in Egyptian tradition:

Menes (Mna) 3200 BC. Greatest: Harmhab 1100 BC.

o TREATY: one of the earliest recorded treaty wasentered into between the Egyptian King Ramses IIwith the Hittite King Hattushilish III 1272 BC.

It provided for mutual assistance not only incase of external attack but also in the caseof internal revolutions, and even went so faras to provide for the extradition of politicaloffenders.

Its provisions about extradition reveal the

arrival of the Egyptians at the practical use ofsome of the standard concepts of modern jurisprudence.

o The Egyptian legal system began to be inderminedin the 18 th century before Christ by civil war then bconquests of invaders from Assyria, Persia, andGreece.

Finally, the Roman Caezars arrived to strikethe final blow to Egypts politicalindependence.

Roman law and governmentsupplanted its native institutions.

(2) MESOPOTAMIAN LEGAL SYSTEM (Euphrates and

Tigris): emerged in history by perhaps 4000 years beforeChrist.

o Lost its radical independence under the Persiansabout 500 years before Christ, and disappearedunder the Greeks, about 100 years before Christ.

o Its civilization was centered about BABYLON in thesouthern portion known as Chaldea and in Assyriain the north.

o KING: foundation of justice, receiving the law fromDIVINE guidance.

o KING HAMMURABI: his deputized administration of justice passed from the hands of the royal priest-class, in the temples, to a body of ROYAL SECUAR

JUDGES, sitting commonly at the great gate andmarket place of the city.

o MESOPOTAMIAN SYSTEM: the king was thelawgiver, who was believed to have received all thelaws of his people from a deity.

SHAMASH (sun-god): god of Law; whosechildren were Justice and Right.

SUMERIAN URUKAGINA OF LAGASH: thefirst historically known Mesopotamianlawgiver who reigned in the first quarter ofthe third millennium.

GUDEA THE JUST: another lawgiverwho lived some three centuries later.

o SUMERIANS: non-Semitic people; one of theearliest peoples occupying Babylonia.

1 feet square clay tablet: the oldest code-text in the world yet discovered.

CODE OF HAMMURABI : contains some three hundredsections.

- The earliest known national code in the world.


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within given territories Hebrew languagebecame only a secondary one for the Jews.

The Talmud was critically studied andtranslated into the various nationallanguages.

o Strictly, as a system of law, it ended with theSECOND STAGE, AD 100, at the replacement ofJewish law in Palestine by Roman rule.

After that it became mainly local custom,

chiefly in ceremonial and moral ruleso The Hebrews attributed all their laws to some first

DIVINE LAWGIVER.

SCROLL OF THE LAW / TORAH / PRECEPTS OF MOSES :the Ark of the Law is the most important treasure in theSanctuary because it contains the Jew s most preciouspossession: the Torah.

(4) CHINESE LEGAL SYSTEM : unique distinction it is theonly old one that has survived continuously to date (more

than 4000 years).o The Chinese are the worlds greatest pacifists: they

have never gone out to seek by conquest a singleacre outside of their native territory.

o PATRIOTICALLY EXCLUSIVE, and have neverwillingly admitted strangers into their native land.

They were entirely contented withthemselves, their ancestors, with theirhistory, and with their place in the world.

o The sturdy survival of the Chinese as a people isdue to their STRONG CLAN and FAMILYSTRUCTURE and their consequent conservatism.

CONFUCIUS : his philosophy covers the whole range ofpersonal morality and practical politics.

- His philosophy rests on a passionate yet rationalrespect for those conventions which the experience ofthe part has verified.

- FILIAL PIETY is the root of all good conduct.o The skillful carrying out of the wishes of our

forefathers.

GEORGE PADEOUXs explanati on: china has believed in theexistence of a natural order of things, or law of Nature,including all parts of the universe and adjusting themharmoniously with one another.

- This order of Nature was not made; it exists and is itsown reason for existence.

- This natural law does not yield precedence to positivelaw, i.e. , laws representing human experience andwisdom.

o Positive law ought to confine itself to translatingthe natural law into written formula.

a. If translation is correct: the written law isgood and binding.

b. If translation is incorrect, the written law isnot binding.

- A Chinese will regard as binding a rule promulgated tothe edicts from on High and he will deem himself freeto disregard it if he finds it in disaccord with the naturallaw.

- CONFUCIAN POLITICAL PHILOSOPHY: agovernment of men, not law.

o The Chinese philosophy of government is that agood ruler makes a happy people.

o It relies on the wisdom and discretion of the rulerrather than on the text of laws.

LEGISTS (400-200 BC): repudiated entirely the doctrine of agovernment of men, in favor of the doctrine of a government oflaws.

- Effectively practiced by able statement during the Chinaand the Hand dynasties.

- The Confucian principle, congenial as it is to the racial

Chinese nature, was soon once more enthroned inChinese government, and firmly maintained that placeduring the next two thousand years.

o Another notable consequence of the Confucianphilosophy (or Chinese character) is thatCONCILIATION and MUTUAL ADJUSTMENT arelooked upon as ideal elements of justice.

o Related to this is another marked feature of Chineslegal system the subordinate part played by theletter of the law, and the legislation as such.

The ruler should frame the laws to voice thevast sentiments and wants of the people not to impose his personal will upon anunwilling people; else there can be NOCONTENTMENT.

CHOW LI / REGULATIONS OF CHOW : the earliest codewhose text is not extant (1100 BC).

- Said to have been composed by Tan, Duke of Chow,brother of the founder of the Chow dynasty.

- This was secretly preserved even though it was soughtto be extirpated by the great Burning of the Books in212 BC.

o This was a holocaust, decreed by an erratic ruler,who forbade all invocation of the constitutedcustoms of the past and thus aimed to free hisown notions of government from all conservativecriticism.

o After the Burning of the Books, many vicissitudes ofcodification ensued:


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a. TANG DYNASTY: issued a code of some500 articles.

b. The Tartar emperor TIMUR (grandson ofKublai Khan): promulgated a code of 2500articles.

o The great Tartar leader, KUBLAI KHAN, proclaimedthat the doctrine of Confucius was a law destinedto govern all generations and all should conformstrictly to its divine be hests for the states laws

are constant and invariable, and must be obeyed asthe rule of conduct for all. Most radical innovation: introduction of an

ALPHABET, especially constructed on hisorder by a Tibetan scholar, to supplant themultifarious Chinese ideographs.

MING DYNASTY (1400 AD): the minister Young Lo framed anew general code, and on this code was founded that of thenext Manchu dynasty, the Tsing, some two centuries later.

- This TA TSING LU LI or CODE OF TSING became lawabout 1650 AD, and endured until the revolution of AD

1912.- This work consists of:1) A code proper, called LU: the text of which never

changes.o 450 Lu sections.o Fixed constitution.

2) The annual edicts and judicial decisions, calledLI: interpreted the Lu, made them flexible, andadapted them to progress much like thefunction of equity alongside the Common Law.

o 2000 Li sections.o Annual modifications.

(5) HINDU LEGAL SYSTEM : the Turks and the Mongols 1,brought Mohammedan law, lived in jeweled magnificence,and developed in India the arts of architecture, sculptureand plaining the products of luxury and taste.

o The justice of these Mohammedan emperors wasdone in the HALL OF AUDIENCE in their superbpalaces of the Audience Room known as theWESTMINSTER HALL of Delhi.

o The MOGUL JUSTICE, though corrupt in someperiods and places, was efficiently dispensedunder many of their rulers.

The Emperor Salim had a chain and bellattached to his own room in the palace, sothat all who would appeal could reach himrunning the gauntlet of the palace officials.

o The ENGLISH race, last to enter India, broughtunity, liberty, and honest administration.

But the English law in India is mainlyPUBLIC LAW, preserving in private lawthe various NATIVE CUSTOMS.

1 Indo-Aryans, Persians, Greeks, Turks, Mongols, English.

o Of those six races of immigrants, the first, theIndo-Aryans, or Hindus, some 3000 years ago inorigin, are the only race that developed a nativesystem of law.

HINDU SYSTEM : gave rise to two braches BUDDHISM andBRAHMANISM (also called Hinduism), each of which is bothreligion and law.

- BUDDHISM : simply means ENLIGHTENMENT.o Founded by GAUTAMA BUDDHA.o Buddhas basic teaching is the compet of

NIRVANA: means roughly the peace of mind andsoul that comes to man after he has overcomethree cravings: those for RICHES, SENSUALENJOYMENT and IMMORTALITY.

o Edicts of KING ASOKA / Constantine ofMagadha: 30 40 edicts promulgated engravedon stone.

Short tracts, expounding and propagatinghis system of moral law, or DHAMMA,founded on the preaching of some twocenturies earlier.

DHAMMA: meant RIGHTEOUSNESS,GOOD FORM, DUTY and it came toinclude the meaning LAW.

o It was eradicated and has virtually disappearedfrom India, its ori ginal home has spread overthe entire east coast of Asia.

- BRAHMANISM or HINDUISM : it developed into what iscertainly the most complicated theology known tomankind.

o It holds that one supreme being, BRAHMA, existsin several forms or manifestations and is theuniversal spirit which pervades everything.

o LAWS OF MANU: the typical law-book of theBrahman-Hindu system.

It was a Brahman compilation which was,in point of relative progress of Hindu

jurisprudence, a recent production. Founded on the principle of caste.

o BRAHMAN-HINDU RULE OF CASTE : caste isthe inner citadel of Hinduism.

The device breaking up Indians into fixedcategories.

Every Hindu is born into a caste and hiscaste determines his religious, social,economic, and domestic life from thecradle to the grave.

No man may ever leave his caste, exceptto be expelled.

It is impossible to progress from caste tocaste.

UNTOUCHABLES : below the fourth caste/ outside of caste. CHARACTERISTIC: marriage between

caste is forbidden. This rule is of coursewhat enables caste to survive unshaken.

o Up to the 19 th century, India was a congeries ofhundreds of principalities, in each one ruledindependently a MAHARAJAH.


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o Socrates was the EXPOUNDER of the great art ofCROSS-EXAMINATION as a mode of extractingtruth; an art which the philosophers, in moderntimes, have misguidedly abandoned to the lawyers.

MINOS : the first Greek law-giver from the island of Crete.

- Minos, in Greek mythology, received his laws fromZeus, and later plays the part of one of the three judges

of souls in Hades.

DRACON : appointed an extraordinary legislator andempowered to codify an rectify the existing law.

- Revealed to the Athenians how harsh their laws were,and his name became proverbial for a severe lawgiver.

- An Athenian orator won credit for his epigram thatDra cons laws were written not in ink but in blood.

o This idea arose from the fact that certain smalloffenses, such as stealing cabbage, werepunished by death.

- BROADER VIEW: he drew careful distinctions betweenmurder and various kinds of accidental or justifiablemanslaughter.

SOLON : typifies the thorough democratizaition of Atenian lawand justice.

- He was solicited to undertake the work of reform.- He was elected ARCHON (regent) with extraordinary

legislative powers.- One of his first acts was to repeal all the legislation of

Dracon, except the laws relating to man slaughter.- Every citizen is required to take an oath that he wouldobey these laws; and it was ordered that the laws wereto remain in force for a hundred of years.

o The truth seems to be that though the Greeks had asystem of justice, it can hardly be said that they hada system of law.

They constructed no codes. They reported no reasoned decisions. They wrote no doctrinal treaties. Their one juridical contribution, the popular

jury-courts, took a form most susceptible tocaprice, and essentially incompatible withany science of law.

o Alexanders vast empire left surviving it nopermanent monument of Greek law.

(7) ROMAN LEGAL SYSTEM (ROMAN LAW) : refers to theentire legal order of the Roman state.

o Roman law embraces public law, sacred law,private law and customary law.

o Roman law is taken in a more restricted sense asthe mature or developed system.

In this sense, Roman law means the privatelaw governing private rights, interests, andtransactions, excluding the public law ofRome.

It is in this sense that Roman law is alsoknown as CIVIL LAW.

The development of Roman law can be divided into threeperiods, namely:

A. ARCHAIC PERIOD / period of infancy: from thefounding of Rome to the Twelve Tables (451 BC).

o Law was closely connected with religion.o In origin, it proceeded from the divine will.o Law then was found o received, not made, by

men.o ACTUAL CONTENT: the rules consisted of

customs and traditions assured stability.o LAW IS UNWRITTED: permitted its adaptation to

the changing conditions of Roman society,according to the ideas of its custodian.

At the same time, such leeway ininterpretation opened the door to abusesand injustices.

The LEGES REGIAE were confinedlargely to public administration.

o IUS QUIRITIUM (quasi-religious regulations):combined forces of religion and tradition:

1) IUS PUBLICUM: Roman constitution.2) IUS SACRUM or IUS DIVINUM: i.e.

pertaining to sacred rites.3) IUS PRIVATUM: rules affecting private

rights.o For a long time, knowledge of the law pertained

exclusively to the SACERDOTES PUBLICI (statepriests), particularly to the pontiffs.

In this capacity, they were known asCUSTODES LEGIS.

o Religion and morals played a great part inshaping Roman law:

1) FAS / that of religion: mandates of divineorigin.

They were of a higher plane andhad a greater range than merelyhuman law.

2) BONI MORES / that or morals: rules thatflowed from good morals and usages.

Provided that basis of the system ofRoman Equity.

3) JUS / that of custom and tradition: theproper law.

Consisted of rules made binding bycustom and tradition. Fashioned byhuman society itself.

Written or enacted rules consistedchiefly of the LEGEL REGIAE, orlaws laid down by the kings.

Provided the core around which theRoman legal system developed.

B. REPUBLICAN PERIOD / period of Youth: from theTwelve Tables to the founding of the Empire (451-30BC).


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o Marked by a very high level of legal creativity.o EARLIER PART: the ius civile of Rome was

dominant.o LATER: forced the development and infusion of a

new element into Roman law.o IUS GENTIUM : with many subjects peoples

under the rule of Rome, an entirely new set ofrules had to be fashioned to govern theirrelationships, not with Romans but also amongthe different peoples.

o In the latter stage of this period, the ius civile wasbroadened to embrace many fundamental legalprinciples common to the legal systems of thenations under Rome.

o SOURCES OF LAW:1) CUSTOMS AND TRADITIONS.2) INTERPRETATION thereof ( responsa ) by

the pontifices.3) ENACTMENT of the assemblies.

o 452 BC: DECEMVIRI LEGIBUS SCRIBUNDIS conferred with exclusive and supreme powerin the State.

Chief purpose was to compile a completecode of laws.

They drew up a code of laws, approved by

the senate and by the comitia centuriata ,then published on ten tables of wood. The ten tables of the decemvirs plus thse

later two constituted the TWELVETABLES.

With the adoption of the Twelve Tables,the basic elements or principles of JUSCIVILE came to be written.

o Key principles under the TWELVE TABLES:1) The familia or household as the key

institution: its welfare and continuity wasthe responsibility of the head and heenjoyed manus with respect to the entirehousehold.

2) Marriage was an institution for the

perpetuation of the familia : must be a civilmarriage, i.e. , according to jus civile .

3) Civil law marriage gave the husbandmanus over the wife and the childrensubject to the patria potestas .

4) Where no children were born to themarriage, children were introduced into thefamilia through adoptio .

5) The aggregate of rights exercised by thepaterfamilias constituted the patrimonuim :included administration of the sacra ,powers over the members of the familia,dominion over things belonging to thehousehold.

6) Upon the death of the paterfamilias, thoseunder power become sui juris , andsucceeded to the patrmonium as suiheredes .

o SOURCES OF LAW at the middle and lateRepublic stage:

1) LEGES: enactment of the ComitaCentruiata (one of the assemblies of thewhole Roman people).

2) PLEBISCITA: enactments of the ConciliumPlebis (the assembly of the plebians).

3) SENATUS CONSULTA: enactments of the

Senate, which had acquired the force oflaw by custom and usage.

4) EDICT: enactment of the Praetor (the chiefmagistrate).

o Jus civile applied only to Roman citizens so tomeet demands for justice of the Itlaiancommunities, the office of PRAETORPERREGRINUS was established.

He was an arbitrator. Three classes of disputes went before

him:i. Those involving Romans and

foreigners.ii. Those involving foreigners of

different communities.iii. Those involving foreigners of the

same community but residing inRome.

When the Praetor issued his ErictumPeregrinum , along the same lines as theEdictum Urbandum , he embodied in itthose principles of law and modes ofprocedure which were common to theseveral communities.

In the provinces, a similar developmenttook place.

Common elements and principleswere abstracted from the rulesobtaining in the severalcommunities and were embodied ina provincial edict ( EdictumProvinciale ).

o Jus gentium came to be applied to the wholebody of supplementary law thus developed.Elements:

1) The common law of the Italiancommunities.

2) The common law of the provincialcommunities.

o These two systems were at first totally separate

and distinct both in origin and application but thesuperior features of the jus gentium came to berecognized.

Slowly, the principles of jus gentium cameto be absorbed in the jus civile .

o Whenever the technicalities, rigidities and otherdefects of the jus civile could lead to unjustresults, the equitable principles of jus gentiumreadily came to hand.

Soon, even Roman citizens themselvesbegan invoking jus gentium to meet casesfor which jus civile provided no remedy orwas otherwise defective.

It came to be referred to as jus aequum oraequitas .

o In time, a large part of the jus gentium came tobe absorbed in jus civile through Edict. When theedict became perpetual, the jus gentiumembodied in it became a constituent of theRoman law.

o Thus, jus civile in its extended or general sensehad two distinguishable and essentialcomponents:

1) Those rules derived from the old jus civile .2) Those derived from the jus gentium .

o Jus civile was more easily purged of its archaic,


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rigid and cumber some features and jus gentium came to be regarded, not as general positive law,but as reflecting the universal principles inherentin the nature of man.

Hence, jus gentium came to be identifiedwith jus natural .

Through imperial legislation and juristicinterpretation, Roman Law was graduallypurged of the technical and cumbrousdoctrines of the jus civile and assimilatedmore and more the jus gentium .

o NATURAL EQUITY: equity came to be divorcedfrom Law, and equitable rules were distinct fromlegal rules.

o Being founded on natural justice and the dictatesof reason, Equity was made to serve twofunctions:

1) It was a standard for evaluating positivelaw, exposing its limitations and defects.

2) It provided a system of supplementary justice, by providing remedies where thelaw was deficient, harsh or unjust.

The emphasis on general principles as a basis for resolving

specific legal problems led to the development of generalconcepts and precepts which gave Roman law in its periodof maturity the character of a scientific or universal code.These are seen in their definitions and maxims:

a. POMPONIUS: no one should be enriched throughanothers disadvantage or injury.

b. POMPONIUS: what is ours cannot be transferredto another without an act of our own.

c. ULPIAN: no one can transfer a greater right that hehimself possesses.

d. ULPIAN: they are not defrauded who know andconsent.

e. PAULUS: he is free from blame who known butcannot prevent.

They laid down the foundations for jurisprudence in theirperception of the relations between law and morality. Law isfounded upon morality, but the two are distinct.

Through the concept of ratio legis or ratio juris , theydeveloped equitable rules of interpretation.

a. In case of conflict, the spirit prevails over the letterof the law.

b. Where a law is susceptible of variousinterpretations, that interpretation will be preferredwhich will occasion the least injury.

c. Where a law leads to an unjust result, it must beinterpreted with reference to rules of a similarcharacter.

d. Rules of restrictive and extensive interpretation toattain just results.

Through indirect legislation via jus respodendi , and throughtheir influence on the legislation of the emperors, theydeveloped many general precepts and principles of law.

C. CLASSICAL PERIOD / maturity period and Old Age:from the founding of Empire to the death of Justinian (30

BC 565 AD).o SOURCES OF LAW:

a. Imperial constitutions: in the form ofrescripts and edicts.

b. Responsa prudentium , pursuant to lex deresponsis prudentum , or the law ofcitations.

c. Codes promulgated by imperial authority.o Three classes of Codes produced:

1) Pre-Justianian Codes of the East.2) The Roman Codes of the West.3) The Justinian Code.

o Among the Codes in the East which precededJustinians were:

a. Codex Gregorianus.b. Codex Hermogenianus.c. Codex Theodosianus.

Framed by authority of the emperorTheodosius and enacted as law.

THEODOSIAN CODE : had great importance:

1) Because it is a fruitful source of the legislation ofearly Christian emperors.

2) Because it was made the basis for the codification ofRoman law by the German conqueror following thefall of Rome.

o Following the fall of Rome, the German kingsordered the compilation of Roman laws for thebenefit of their Roman subjects:

1) Edictum Theodorici 2) Lex Romana Visigothorum or the

Brevarium Alaricianum3) Lex Romana Burgundionum

o The law of the Empire at the time of Justinian hadtwo parts:

1) Jus vetus (old law): consisted of leges,

senatus consulta, and writings of juristsespecially those with jus respondendi .2) Jus novum (new law): consisted of the

constitutions of the emperors.o Thereafter, Justinian commissioned several

works which became part of the Corpus JurisCivilis, as follows:

1) CODEX CONSTITUTIONEM: codificationof all imperial enactments into 10 bookswith repeal of all ordinance excluded.

Revised Codex: collection ofimperial ordinances or constittiones

2) DIGEST (pandects): collection of excerptsfrom the works on classical Roman law by39 jurists.

3) INSTITUTES OF JUSTINIAN: officialelementary textbook on Roman law forstudents in law, based chiefly on theInstitutes of Gaius.

4) NOVELLAE CONSTITUTIONES POSTCODICEM: new imperial ordinances orstatutes issued after the revised Codexdealing with various subjects and alteringthe law on many points.


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IRNERIUS : this role was to exalt the pure science of thenewly resurrected Roman texts.

- He and his immediate successors, known asGLOSSATORS, descanted on these texts withglosses or explanations.

- The glossators who followed him were the so-calledFOUR DOCTORS: Bulgarus, Maritnus, Jacobus andHugo.

AZZO : he was called in his day master of the masters oflaw.

- He was so authoritative that the popular phrase ran:you prepare, the jurists robe youll never wear.

ACCURSIUS : last and most famous of the glossators.

- Whose gloss supplanted those of all his

predecessors and even the text of Justinian.- Of his gloss it was said: the law is what is containedin the gloss.

o PRACTICIANS or COMMENTATORS: a newtype of jurist destined to apply this pure scienceto the legal practice of the day.

They gave opinions on law-classes andwrote independent treatises.

These men now for the first time appliedthe ancient principles of the Roman textsto the Germanic and feudal customs.

Roman law began to be transformed intoItalian law.

They were also called BARTOLIST, afterthe greatest of them BARTOLUS.

A city statute provided that no one should sell wine at retailand a certain dealer used to sell to a customer as cask ortwo casks or a barrel of wine, and then the buyers tookdelivery in flask and jugs of various sized.

ISSUE: WON that dealer violated the city statute. NO.

RATIO: a barrel is gross measure. Hence, a person sellingby the barrel is not selling at retail. The fact that this partymeasured it out to his customers in retail quantities isimmaterial, for the statute speaks only of the sale.

They had a large and lucrative practice ingiving opinions.

o Meanwhile, by the third century after Irnerius, Italysstar of leadership in Roman law was waning and

the primacy in Roman legal scholarship passed toFrance (1500), to Holland (1700s) and to Germany(1800s).

CUJAS : new and improved methods of research andexposition had been devised, and he was their greaterexponent.

HUGO GROTIUS : learned in Roman law, though he left hisimperishable mark on international law.

- His work on the Law of War and Peace was placed onthe Index Expurgatorius by the pope, yet it became theBible of lawyers.

ROBERT POTHIER : was a professor at Orleans, but alsoserved for 50 years on the bench.

- During the last 12 years of his life, this extraordinaryman wrote a comprehensive series of 26 separatetreatises, covering the whole civil law.

o The codification of the civil law of France was theachievement of the REVOLUTION.

o After four years of legislative labor, the Civil Codewas proclaimed on03/21/1804 under the title, CodeCivil de Francais .

The title of the Code Civil was changed toCode Napoleon in 1807.

The present title is simple Code Civil.

CODE CIVIL : a model of representative political method.

- The entire bench and bar of France took part: scores ofprofessional meetings were held, hundreds of reportswere filled; the drafts were debated in successivestages in various legislative bodies.

- The printed proceedings on the codes fill 40 volumes.- NAPOLEON (32) dominated the debates on the draft of

the code in the Council of State and prepared himself orthe occasion by reading law-books.

- It is a neatly arranged, systematic work. It has a veryshort preliminary title, which is the remains on an entirebook of 6 titles embodying doctrinal opinions orphilosophical assertions in the original draft.

o Finally, the code purported to be a completestatement of the civil law and was to abrogateentirely all the pre-existing legal systems.


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o There are two standard commentaries(commentarios ) on the civil code, possibly of equalvalue:

1) MANRESA: a justice of the SC and amember of the Code Commission, haspublished 12 edition with the collaboration ofvarious lawyers.

2) SCEAVOLAs Civil Code is an even moreextensive commentary.

o

Roman private law, as modified by national or localfamily customs or land customs and by modernlegislations, survived in substiantially all theEuropean countries which formed part either of theancient or of the medieval Roman Empire.

(8) CELTIC LEGAL SYSTEM :o Falls into three periods:

1) Period of political independence: to JuliusCaezars conquest of Gaul and Britain.

FIRST ROMAN INVASION: Celtsreligion then in vogue was the religionof the DRUIDS, whose influencepervaded every department of the

government, and by its power overthe minds of the people, supplied theimperfection of laws.

DRUIDISM : acknowledged agod that delighted inbloodshed; it taught of theimmortality of the soul, andinculcated the contempt ofdanger and death.

The druids decide almost alldisputes, both public andprivate.

BREHONS (Druid jurists in Ireland):

the repositories of the customary law. Their judgments were enforced

by their own magic powers. DESTRUCTION OF THE DRUIDICAL

SYSTEM: the Romans found no otherway of securing their conquests overany of the Celtic nations than byexterminating them.

2) Period of the surviving branches of the Celticlegal system: the Welsh and the Irish.

Of these two branches, the Irish wasthe earliest recorded and most fullydeveloped.

Came CHRISTIANITY and theformulation of the written rules of law,through the efforts of ST. PATHRICwho came to Ireland about 430 AD.

THE WELSH CODE : was first written down long beforeJustinians books were revived in Italy, and it seems purelyCeltic from beginning to end.

- Not written down until 500 years later than St. Pathricsday in Ireland.

3) Final dissolution of these two. The Welsh was the first to end. These two branches of the Celtic

system, after a gradual decline,perished within a century of eachother.

In both cases, the end came byforce of conquest.

(9) SLAVIC LEGAL SYSTEM : the four principal Slavicnations that stand out most individually and compactly inlegal history are the Russian, the Serb, the Bohemian (orCzech) and the Polish.

o The legal evolution of Russia falls into four stages:1) The establishment beginning in the 9 t

century of a ruling class of independentprinces possessing all the land andcontrolling the people on the land.

2) The submergence of the country, in the 13 t

century, by the Mongol conquerors whoseinfluence gave a new direction togovernment.

3) The emergence, in the 16 th century, of theabsolute rule of the Moscow tsars and thefinal enserfment of the mass people.

4) The passing of the old older and theestablishment of communism in 1917.

o Tolstoys definition of the first three stages: rulesestablished by men, who have control of organizedpower and which are enforced against therecalcitrant by the lash, prison and even murder.

YOROSLAV, the JUST : first traditional lawgiver.

- This CODE OF YOROSLAV was called Russian Truth,and it was really drafted or inspired by the Greekecclesiastics, for the information of the church courts.

- It was modeled on the Roman-Greek law-books ofConstantinople; and the Greek church had already forthree centuries been modifying the native Slav customsin family and property relations.

o KREMLIN: the vast fortress-city and palace.

From a window in the corner of the ThroneBroom a rope hung down, with a basket atthe end, and each the prince might draw upthe basket and read the petitions ofgrievance from his subjects.

Even as late of the day of Peter the Great, itwas still a popular custom to go to theCathedral of the Archangels.

o TITLE OF TSAR: first assumed by Ivan IV (theTerrible) and his strong character served to fix on


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Russia until the modern times the principle ofpersonal absolutism.

o TSAR ALEXIS: a constructive mind. Ther e had been a DUMA, or kings privy

council, which functioned also as a SC. He was succeeded by PETER THE GREAT.

o PETER THE GREAT: the administration of justicewas largely done in the local peasants courts, byunlearned magistrates, on the basis of custom and

morality. Most pressing internal problem: thecodification of the ever-increasing mass ofdecrees, regulations, and local codes whichhad accumulated in the wide Russianterritories.

No finished code or compilation evermatured.

EMPEROR NICHOLAS : a real legal system arrived for Russiaunder him.

- He was inspired by MICHAEL SPERANSKI who endedas one of the greatest legislative geniuses of thecentury.

o It was his ambition to create a complete legalsystem for Russia and he triumphed.

- He authorized SPERANSKI to assemble a commissionof jurists.

- After six years: SVOD ZAKONOL / collection of laws.

o 1936 CONSTITUTION: three most essential factsabout it:

1) It is designed to guarantee the socialisteconomy: citizens are duty-bound to

safeguard public socialist property. They can own anything except a

factory or shop or farm on which hewould hire other people to work forhim.

He owns his house and all hispersonal belongings.

The socialization is applied only towhat are called the BASIC MEANSOF PRODUCTION.

2) The SUPREME COUNCIL not only is thelegislative authority but is also supreme inexecutive and judicial matters, because itappoints the cabinet and the SC.

There is a Supreme Court and aMinistry of Justice but theadministration of justice presents adark picture.

Many people considered dangerousto the state never saw a court orprison; they were seized, examined,and sentenced in secret by the secretpolice organization.

3) CIVIL CODE OF SOVIET RUSSIA: the onlycivil code in the world which forms had beenlargely emptied of contents, a circumstancethat testified to the small importance ofproperty (only 435 sections).

o Break-up of the Soviet empire and of the SovietUnion itself: socialist law was abandoned and freeenterprise was gradually restored.

(10) GERMANIC LEGAL SYSTEM :o

Falls into FOUR STAGES:a. The PREHISTORIC PERIOD OF VIKINGS:the sea-rovers of the North and the Goths.

b. LONG PERIOD OF GOTH migration: endedwith the formation of the great Germanicempire under Charlemagne.

c. FUSION OF RACES and later by thelocalization of the law.

d. PERIOD OF TRANSFORMATION BYROMAN AND PAPAL LAW.

o Germanic justice, as it emerges into history, ispurely SECULAR.

There was a god or two: THOR (god of Law

and Order) and FORSETE (god of justice).o But the justice of the whole tribe, as in primitive

Greece and Rome, was DEMOCRATIC. The settlements of disputes between clans,

was done at the assembly of the people, the AL-TING, where all the free men, armed,meet periodically, by a lunar calendar.

The assembly, or TING, took place in theHILL OF LAWS.

The parties to a dispute having dulysummoned their opponents, pleaded theircause before the assembly.

LAW SPEAKERS (NYAL or SNORRI):

famed for their knowledge of the technicalprocedure and of the tribal traditions,propounded a decision; and the assemblywould approve or disapprove the proposalsof law-speakers.

The Goths of the east had been makingbooty-excursions into Roman regions: theyintermarried with the original RomanizedCelts, absorbing or absorbed into Romancivilization.

They displaced Roman rule,establishing their own political system,and preserving their own legaltraditions.

By the time of Charlemagne (800 AD),Western Europe was one Germanicempire.

o FRANKS / freemen: the tribes of Germans whosucceeded in establishing themselves in Gaul,adopted a system of laws known as the LEXSALICA or CODE OF THE SALIC FRANKS .


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It is the first of a series of a dozen suchGermanic tribal codes officially compiled byroyal order.

o The difference between the ROMAN and SALIClaws: attitude toward individual rights and towardsslavery.

The Roman laws were designed for the goodof the state as a whole, while the laws of theTEUTONS gave great attention to securing

justice for the individual. Even slaves were to some extentconsidered, for they were permitted to live intheir own houses and only a portion of theirearning or produce went to their masters.

o The Code, or Edict, of the LOMABRDS was thenearest of kin to that of the Saxons: the post-modern idea of a trust has been traced to a peculiarexpedient first seen in Lombard Law.

o SPAIN: the laws of the two peoples, Goths andRomans, were amalgated in a single compilation,the FORUM JUDICUM (FUERO JUZGO).

CHARLEMAGNE : master of the Germanic world a greatorganizer and civilizer, instituting the first official system ofwritten education for his people in their new life, revising theearlier codes of the various peoples under him, and adaptingthe old democratic popular assembly to the difficult role of acouncil or parliament in what was not a royal autocracy.

- CAPITULARIES: one of Charlemagnes firstparliamentary decrees, established a system of sendinghis person envoys on circuit to inspect the course of

justice (AJUSTITIAS FACIENDAS).o This method of his served later to develop the

Anglican institution of trial by jury.- His temporary empire has soon broke up into hundreds

of fragments: each feudal lord had the power of justice;the powers differed only in degree the high (had thepower to impose the death penalty), the middle, and thelaw.

o Each region administered, developed andrecorded its own local laws and customsindependently, in local codes.

-

o FOURTH PERIOD: the Germanic systemdisappears by transfusion into another and newone.

What happened was that, alongside of it, fortree centuries past or more, there had beengrowing up three other legal systems: theMARITIM LAW, the UNIVERSAL CHURCHLAW, and the UNIVERSAL ROMAN LAW all of them independent of any race orterritory.

Last two: most extensive and influential.

EMPEROR MAXIMILLIAN : established the Imperial Chamberof Justice, as a central court of appeal, and provided that one-half of its sixteen judges should always be leaned doctors ofthe new Roman law.


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JAPANESE LEGAL SYSTEM : Japan had for at least athousand years been a MILITARY STATE.

- In practice, if not in theory, the army had always beenthe state itself a totalitarian state obsessed by whatit conceived as a divine and imperial mission to conquerEast Asia.

- Fol lowing its unconditional surrender to the Allies mightin 1945, Japan has been placed under the supervisionof an administrative commission set up by the Allies withthe end in view; among others, of democratizing Japan.

o The Emperor has been allowed to remain SYMBOLIC HEAD OF THE NATION.

JUSHICHI KEMPO or SEVENTEEN MAXIMS : of the royalprince-regent Umayado, afterwards known as Shotoku Taishi(or, Prince of Saintly Morals) for his leadership in Buddhism,and as Togoto, mimi (or, Master Prince of the Law) for hisleadership in justice.

- First constructive pronouncement of law (604AD).- Like the Ten Commandments of the Hebrews, are

essentially not rules of law, but a short code of politicaland social morality Politically they foreshadowed theconsolidation of the new territories under a single royalpower.

- Socially, they represented the adoption ofConfucianism.

1) FIRST PERIOD : growth of great feudal families and theimplacable quarrels between them.

o Civil war was virtually continuous.o The rule of the intellectuals at the palace in the

capital was finally shattered by the growingpower of the rich military BARONS.

o NATIONAL SOVEREIGNTY left in the personof the EMPEROR of Kyoto, the western capital.

o COMPLETE POLITICAL POWER vested inthe REGENCY, based on military feudal tenure.

2) SECOND PERIOD:o MINAMOTO YORITOMO: caused himself to be

named Military Regent (SHOGUN). Created the MONJUSHO, or Office of

Inquiry and Decision, essentially a court of justice.

o HOJO YASUTOKI: succeeded Yoritomo. Ordained that the first 15 days of each

month be given up to justice. A suitor struck a bell and his petition wasat once attended to.

JO YEI SHIKIMOKU or ORDINACE OF THE PERIOD JO YEI :a political code promulgated in 1232 AD.

- First laws promulgated in the Japanese syllabic writing.- 50 paragraphs.- Contained the embryo of a new legal growth.

- MAIN PURPOSE: to regulate the new military-feudalregime; and it contained few rules touching privaterights.

3) THIRD PERIOD :o REGENT TOKUGAWA IYEYASU: the nation

reached a permanent state of politicalequilibrium, economic prosperity and social quiet.

Provided within its own extensive domainsa model of administration for the fiefs ofthe greater semi-independent barons.

Three centuries: enjoyed complete peace,internal and external.

TOKUGAWA SUPREME COURT OF YEDO : given federal jurisdiction for suits between parties from different provinces.

- Certain confirmatory jurisdiction was reserved for deathsentences imposed on a vassal in the barons court forpolitical offenses.

- Barons often consulted the Tokugawa Court with a viewto uniformity of law.

4) FOURTH PERIOD : when the long internationalseclusion of Japan was broken.

o Commodore Perry came with his AMERICANFLEET and demanded rights of trading.

o Other nations followed.o Japanese gladly conceded to the foreign nations

the power and duty of extra-territoriality i.e. jurisdiction over the foreign nationals, as the priceof refusing general rights of settlement

throughout the land.o Meanwhile, powerful semi-dependent barons

seized the opportunity to rebel, denouncing theRegency for its subservience to the foreignnations.

Two great families or clans, theSATSUMAS and CHOSHUS, which hadlong been rivals of the Tokugawa,combined to establish a new order.

They abolished the Shogunate, andresurrected the emperor as the supremeembodiment of power.

MUTSIHITO : the new emperor who just ascended to thethrone in 1868.

- He became known as MEIJI .- He was reinstated to authority and signed a Charter oath.

o This event was the great Meiji Restoration acardinal event in history.

- 1889: written constitution.- COUNT ITO: ranks as Japans greatest stateman of the


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NEW RIGHTS NEW REMEDIES NEWPROCEDURES

EQUITY OFREDEMPTION:enables aborrower to retainthe propertywhich was thesecurity for theloan, even wherethere was adefault under thestrict terms of themortgage deed.

INJUNCTION: toprevent a partyfrom acting inbreach of hislegal obligations.

DECREE OFSPECIFICPERFORMANCE:used to order aparty to carry outhis side of thecontract.

RECTIFICATION,TO RESCIND.

SUBPOENA: toorder a witness toattend to havethem examinedand cross-examined orally,to require relevantdocuments to beproduced to insiston relevantquestions beinganswers.

SANCTION:CONTEMPT ofcourt.

- Another classification:

EXCLUSIVE CONCURRENT AUXILIARY

Equity recognizedactions, as intrusts andmortgages, wherethe Common Lawwould provide noremedy.

Equity would addto the remediesprovided by theCommon Law, asby theintroduction of the

jurisdiction andthe decree of thespecific

performance.

Equity employeda more flexibleprocedure thanthe Common law.

Emphasized the ways in which Equity can be seen to berelated to, but different from Common Law.

- MAXIMS OF EQUITY: being based in its origins onfairness and natural justice:

(1) He who comes to Equity must come with cleanhands.

(2) Equity will not suffer a wrong to be withoutremedy.

(3) Delay defeats Equity.(4) Equity looks to the intent rather than to the form.

- OPPOSITION: the Common Law courts were very jealous of the growing influence and popularity of theirgreat rival, and a struggle often bitter was carried onbetween them for over two hundred years.

o Court of Chancery triumphed in the reign ofJAMES I when the king upheld the power ofchancery to prevent by injunction theenforcement of a judgment obtained in aCommon Law court.

SUPREME COURT OF JUDICATURE ACTS (1873-1875)reorganized the existing court structures completely, and in theprocess, formally brought together the Common Law courtsand the Courts of Chancery.

- COMMON LAW (3) + COURTS OF CHANCERY (1) +PROBATE (1)

- Placed on a statutory basis the old rule that whereCommon Law and Equity conflict, Equity shall prevail.

- At the same time, it gave power to all the courts toadminister the principles of Common Law and Equityand to grant the remedies of both, as circumstances in acase demanded.

- By bringing the two systems together administratively,and allowing the High Court judge to exercise theprinciples, procedures and remedies of Common Lawand Equity in a single case in the one court, it seemedto many people that the two systems had merged.

- Consolidated in the SUPREME COURT ACT 1981 .- CRIMINAL APPEAL ACT : established the Court of

Criminal Appeal to provide for the first time a generalright of appeal for persons convicted and sentenced in

indictable criminal cases.o The Court of Criminal Appeal became the Courtof Appeal (Criminal Division) by the Criminal

Appeal Act of 1966.- ADMINISTRATION OF JUSTICCE ACT OF 1960 : this

Act enabled an appeal in a case of general publicimportance to be taken to the House of Lords if thedivisional court grants a certificate to that effect andleave is obtained from the divisional court or the appealcommittee of the House of Lords.

- ADMINISTRATION JUSTICE ACT OF 1970 : created aFamily Division of the High Court and amended the

jurisdiction of the Queens Bench and ChanceryDivisions redistributing the functions of the formerProbate Divorce and Admiralty Division.

KING JOHN THE CHARTER of 1215 : contained the provision:No fr eeman shall be taken and imprisoned or disseized orexiled or in any way destroyed, nor shall we go upon him norsend upon him except by the lawful judgment of his peers andby the law of the land.

- This provision was seized upon in the 1600s during astruggle against the crown, chiefly by that legal giant SirEDWARD COKE , as result of which the Charter towhich the term MAGNA CARTA is now applied.

o A symbol of civil liberties.o He was Attorney-General of England from 1594

to 1606, Chief Justice of the Common Pleas from1606 to 1613, and Lord Chief Justice of the KingsBench from 1613 to 1616.

o His statements are a point of departure for theCommon Law from the seventeenth century on.

o He created for later generations not only themyth of Magna Carta but the myth of theCommon Law as a complete system loc ked inthe breasts of the judges, who by a mystical butnot specified process declare the law without


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making it.o THE INSTITUTES.

- LITTLETONs ON TENURES : classified andexamined all forms of and holding, put logic and orderinto their complication and with particular zest noted thesubtleties and the difference in the relations involved.

o It is a technical book, unintelligible to persons notmembers of a highly trained profession, and onemay add that the members of that professionwere extremely proud of the unintelligibility oftheir language.

o GREAT NAMES IN THE LEGAL LITERATURE:

FRANCIS BACON : Lord Chancellor in 1618.

- He was great both as a jurist and as a philosopher.- He was a profound student of Roman Law, and he urged

Queen Elizabeth to codify English law, holding up to herthe illustrious example of Justinian who codified Romanlaws from infinite volumes and much repugnancy intoone competent and uniform corps of laws.

JOHN SELDEN : celebrated both as a lawyer and a statesman.

- He was a voluminous writer on many subjects. ln 1635,he published his MARE CLAUSUM , Among his other

- His Writings show a profound knowledge not only ofRoman Law but also of International Law.

MATTHEW HALE : one of the greatest and wisest judges eversat upon the English bench.

- Hale, while contending that neither the Canon Law northe Civil Law have any obligation as laws Within thekingdom save to the extent that they have beenreceived a nd admitted by us, yet acknowl edges theinfluence of the Civil Law in various courts of Englandother than the courts of Common Law.

o A rivalry between the Common Law and theRoman or Civil Law.

Nevertheless, the Common Law did notsuccumb; it asserted its supremacy in therealm of England. Why? The answer tothis is found mainly in two ideas:

1) National patriotism.2) Strong legal profession practicing a

unified common law.

17 th to 19 th CENTURY : witnessed the full flowering of theCommon Law and the beginning of its career as one of the

great world systems of law.

- The chief legal events of this period are:(1) Such epoch-making constitutional developments

as the inauguration of the sovereignty ofParliament and its transformation into ademocratic body, the establishment of thedoctrines of the supremacy of the law,independence of the judiciary and inviolability ofcivil liberties and the development of the famouswrit of habeas corpus ;

(2) The incorporation of the Law Merchant into theCommon Law;

(3) The establishment of stare decisis as a definiterule;

(4) The appearance of law reports;(5) The reorganization of the judicial systern;(6) Procedural developments;(7) The organization of the law practitioners into a

dual system;(8) The appearance of other great legal figures who

exercised a gr at influence in the development ofthe Common Law;

(9) The cosmopolitanization and expansion of thissystem; and

(10) The beginning of the codification movement.- This period saw the establishment of the sovereignty of

Parliament vis--vis the crown, with the House ofCommons emerging as the dominant institution of thenation.

o The sovereignty of Parliament had as itsnecessary corollary the subordination of the kingand the removal of his interference with theordinary law of the land as administered by thecommon-law courts.

o Only parliament might now alter existing law byits process of amendment.

o WHOLE DOCTRINE OF THE SUPREMACY OFLAW or THE RULE OF LAW.

WRIT OF HABEAS CORPUS : began to be used as we nowknow it, to determine the validity of an arrest by personsclaiming to act by public authority and it thus became, as it hasever since been, the chief means of protecting personal libertythe highest remedy in law as Selden said, for any man that isimprisoned.

o DOCTRINE OF STARE DECISIS : supposed tobe the basis upon which-the whole elaborate

structure of the Common Law has been built.

WILLIAM MURRAY : the founder of the Commercial Law ofEngland.

WILLIAM BLACKSTONE : Mansfields protg.


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- The full lectures were published a four-volume treatisecalled Commentaries on the Laws of England, th e lastgreat landmark of the Common Law and perhaps themost celebrated legal textbook ever written.

o English commerce had become cosmopolitan.B. COMMON LAW IN THE UNITED STATES :

o 1774: a Continental Congress, as representatives

of the people of the colonies, declared theirindependence from England.

o When colonies renounced their allegiance to theBritish government and passed into states, thelaw became the fundamental jurisprudence of thestates so far as it was adapted to their conditions.

EXCEPTION: State of Louisiana.

BLACKSTONE COMMENTARIES : became a sort of gospelupon the law for all American judges, and law students.

- No other law book ever occupied an equal place in therespect and veneration of thousands of law readers onthis side of the Atlantic.

JOHN MARSHALL : CH of the US SC from 1801 to 1835.

- He was the first to proclaim the DOCTRINE OFJUDICIAL SUPREMACY which raised the U.S.Supreme Court from weakness to strength, from publiccontempt to awe.

JOSEPH STOREY : Marshalls contem porary.

- He was a prolific writer of textbooks.- He wrote on the American Constitution, on Bailments,

on Agency, on Equity Jurisdiction and on Conflict ofLaws.

- On the last subject, he really created a new terminology.- ln many of them he deliberately -- sometimes

necessarily relied as much on civilians as on CommonLaw sources.

JAMES KENT : lectures as Commentaries on American Law.

OLIVER WENDELL HOLMES : most eminent of modernfederal judges.

- He was the great liberal on the bench, usually in theminority, but of vast authority even among those whomost vigorously opposed his views.

- The most influential American book on legal history orphilosophy is the COMMON LAW by Oliver WendellHolmes, whose theories and constructions wereextensively accepted in England as well as in the UnitedStates.

CATHOLIC (PAPAL) LEGAL SYSTEM AND THE CANONLAW

- The popes had begun to acquire a temporal authorityunder Pepin le Bref and Charlemagne, from thedonations of territory made by those princes, and theywere now gradually extending spiritual jurisdiction overall the Christian kingdoms.

- Fixed their chief attention on spiritual concerns.

POPE NICHOLAS I (589 AD) : proclaimed to the whole worldhis paramount judgment in appeal from the sentences of allspiritual judicatories; his power of assembling councils of theChurch, and of regulating it by the canons of those councils;the right of exercising his authority by legates in all the

kingdoms of Europe, and the control of the Pope over allprinces and governors.

- From the time that Otho the Great (A.D. 961) receivedthe Imperial crown from the Pope, the Emperors wereconsidered as the TEMPORAL, the Popes as theSPIRITUAL, heads of Christendom, as though theChristians of all states and countries were included inone grand republic.

INNOCENT III : established the powers of the Popedom on asettled basis, a positive acknowledgment of the papalsupremacy, or the right principalitier et finaliter to confer theimperial crown.

DECRETUM OF GRATIAN : creator of Canon law and anindependent system.

- Where the legislation and decisions of the Popes, afteraccumulating for seven centuries in thousands ofseparate decrees, rescripts, bulls, and council-resolutions, were first systematically digested.

- By an obscure monk, named Gratian, at the Universityof Bologna.- Became the manual of theology.- HIS AIM: to produce a work in which all real or apparent

contradictions between customs and regulations invogue in the Church should be removed or explained.

o This he secured by exclusion and by comments,called the dicta Gratiani, sayings of Gratian.

- Divided into three parts:(1) DICTINCTIONES : treats of the sources of canon

law councils and the mode of their convention the


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authority of decretals, the election of the Romanpontiff the election and consecration of bishops,the papal prerogative, papal legates, theordination of the clergy, clerical celibacy andkindred topic.

(2) THIRTY-SIX SECTIONS OR CAUSAE :discusses different questions of procedure, suchas the ordination and trial of bishops and thelower clergy excommunication, simony clericaland church property, marriage, heresy, magicand penance.

(3) DEVOTED TO THE SACRAMENTS OF THEEUCHARIST AND BAPTISM AND THECONSECRATION OF CHURCHES .

- Canon law now began to be taught in the newly arisenuniversities, (alongside of the Roman law of Justinian;and the degree of J .U.D. ( juris utriusque doctor ) cameinto use as signifying a master who had compassedboth branches of law.

JOHANNES ANDREAE : one of the most eminent.

- So well-beloved in Bologna that when the University byan ordinance forbade any member of the University tobecome godfather to any family of Bologna citizens, itmade a special exception in favor of Andreae and all hisdescendants forever.

POPE INNOCENT III (1198 AD) : in his time, Roman churchclaimed and possessed supreme temporal political power overthe entire Christian world. Rome was once more the mistressof Europe, and kings were its vassals.

- Its clergy were immune from the criminal justice of thestate.

- Its legislation covered the whole of human existencefrom the cradle to the grave; it was upheld by penaltiesthat neither the proudest monarch nor the humblestpeasant could escape; and it was administered by asupreme world-judge responsible to no earthly superiorfor his action.

CANON LAW : it is embodied in a series of collectionscontaining enactments of councils and papal descretals,beginning with the collection of Gratian in the twelfth centuryand ending with the decretals of John XXII in the fourteenthcentury.

- The canon law became the legal buttress of the papaltheocracy and remained the ruling code till theReformation.

- The science of canon law looks back to Gratian as itsfather; and Bologna was the chief center for its study.

- Although works on the subjects were produced in otherlands, Italy through her universities, was far in the lead

in the fifteenth century.- The conception of a distinct and superior diving law

existed from the beginning.o The formulation of a written code followed the

meeting of Christian synods and their regulations.o As the jurisdiction of the hierarchy and the

institution of the medieval papacy weredeveloped, this legislation came to include civilobligations and all civil penalties except the deathpenalty.

o The Church encroached more and more upon the jurisdiction of the civil court.

- The canon law attempted the task of legislating in detailfor all phases of human life clerical, ecclesiastical,social, domestic from the cradle to the grave by thesacramental decision of the priesthood.

o It invaded the realm of the common law andthreatened to completely set it aside.

o The Church had not only its own code and itsspecifically religious penalties, but also its ownprisons.

- SANCTONS: to the devilish principle of ecclesiasticalcompulsion, declaring that physical force is to be usedto coerce ecclesiastical dissidents.

o It justified wars against the enemies of religionand the persecution of heretics.

- The temporal jurisdiction of the papal courts was in timeabolished by the various national legislatures.

- By the close of the 19 th century, the huge mass of papalchurch-law stood in the need of a thorough restatement.

CODEX JURIS CONONICI : this work is not a compilation, buta genuine codification.

- Its text is in lucid latin -- the only near-universallanguage.

- It was not long after the Second World War that therewas a very strong feeling both in scholarly circles andespecially amongst pastors of souls, that there was aneed to bring the 1917 Code up to date and to adapt itto the changed circumstances of the world.

- On January 25, 1983, Pope John Paul II promulgatedthe present Code of Canon Law as it has been compiledand reviewed to have the force of laws for the wholeLatin Church.

MOHAMMEDAN LEGAL SYSTEM : based on a militantreligion Islam founded about 600 AD by MOHAMMED (orMahomet), the best mind of his age.

- ISLAM: meaning submission to one God. o Aspired to be a comprehensive system of human

life and social order religion, morality, politics,and law, all founded on revelation.


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- CENTRAL THOUGHT: there is no God but the trueGod and Mahomet is his prophet.

- Mahomet's entire early propaganda was one ofpersuasion; but after his arrival in Medina he preachedthe sword not only for defense but for the spread of thefaith.

o His cry was: War against infidels -- Con versionor death.

- SOURCES OF ISLAMIC LAW:

(1) The KORAN or the word of God, written down byMohammed.(2) The SAYINGS and CONDUCT of Mohammed, as

preserved in tradition.(3) The TREATIES OF JURISTS, elaborately

developing from those fundamentals the legalrules applicable to all the affairs of life.

KORAN : where the legal system of Islam is founded on.

- It contains all the revelations of Mahomet.- The literal meaning of the word is the book which ought

to be read.

- There are one hundred and fourteen divisions orchapters.

- The book is somewhat shorter than the New Testamentand the contents are varied.

- There are civil laws and social provisions, and promisesregarding future reward and punishment.

- The law, or SHARIAH is a part of the religion, not aseparate thing.

o To the true Muslim, all other laws are buttemporary and human.

- ZAID IBN ALI : earliest legal treatise.

THE MAIN LEGAL TRADITIONS OF THE WORLD

Most Western comparativists distinguish three large groups oflegal systems CIVIL LAW, COMMON LAW and SOCIALISTLAW.

- But it should be pointed out immediately that thistrichotomous scheme of classification, though useful asa rough orientation, does not exhaust the rich variety oflaws one finds in the modern world.

o Especially in Asia and Africa, there are severallegal systems which, although in some waysconnected with one or more of the principalgroups, retain important elements of non-European origin.

I. CIVIL LAW TRADITION: traced back to the TWELVETABLES of the Republic of Rome in 5 th century BC.

o In its origins, it is the law of the city of Rome thelaw applied to a citizen (in Latin, civis ) of Romeas opposed to the law applied to a non-citizen.

o The expression civil law, in Latin ius civilis ,literally means the law of the citizens of Rome.

o In Roman Law, civil law or ius civile , primarilydesignated those parts of the Roman law whoseapplicability was restricted to citizens of Rome.

o The parts of Roman law which were alsoapplicable to foreigners were termed ius gentium

o VULGARIZED ROMAN LAW: quick growth of theGermanic influence.

o CORPUS IURIS CIVILIS : an articulation andreformulation of Roman Law.

o

At the end of the eleventh century the Universityof Bologna in Italy started teaching Roman law,more specifically the CORPUS JURIS CIVILIS .

This was at first a purely intellectualendeavor since

Roman law was no longer the lawanywhere in Western Europe.

This marked the beginning of what wouldlater be known as the resurgence ofRoman law.

It became the ius commune (the commonlaw) of continental Europe.

o TWO MAIN CIVIL LAW MODELS:

FRENCH CIVIL CODE 1804 GERMAN CIVIL CODE 1896

Influenced Latin countriesboth in Europe and in

America and former French,Spanish and Dutch coloniesin Africa, the Middle East and

Asia (the Philippines).

Influenced the Australian andSwiss Codes and manyEastern European countriesbefore Soviet occupation; alsoin Japan and Korea.

II. COMMON LAW TRADITION : the English Common Lawdeveloped independently and is a legal system of itsown, not based on Roman Canon Law.

o WILLIAM THE CONQUEROR: had earlierestablished royal courts at Westminster.

Their limited jurisdiction eventuallyexpanded easing out the local courts thenexisting.

The decisions of the royal courts becamethe law common to the whole kingdom, thecommon law.

o Creation of royal officials in the exercise ofauthority derived from the kin.

o SOURCE: previous court divisions. The main traditional source of the common

law is therefore not legislation but cases. When the common law evolved into an

unfair set of rigid and formal proceduralrules, the subjects petitioned the King.

With so many petitioners, the King createdthe Court of Chancery which could grant adiscretionary relief in equity to correct thecommon law.


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The decision of this court gave birth to abody of law called equity which is alsobased on previous decisions.

Petitioners were referred to theChancellor: these petitions were the resultof the inability, and to a limited extent, theunwillingness of the common law courts toentertain and give relief in every case, andthus meet all the requirements of justice.

o

The US imposed parts of the common law on itsentrusted territories such as the Philippines. The American impact upon the law of the

Philippines has been strong andapparently lasting.

III. THE SOCIALIST LAW TRADITION : FOCUS nowthe emphasis is on features related to extra-juridicalfactors, such as the socio-economic organization,political structure and ideology.

o Refers to legal systems of those states that havesocialized the means of production, expandedthe role of the state or state-affiliatedorganizations in all spheres of social life,

established a van -guard party, and adoptedMarxism as their official ideology.

o SOCIALIST LEGAL SYSTEM: core andperiphery.

o Break-up of the Soviet empire and the SovietUnion itself, the democratization of EasternEurope and the unification of Germany: socialistlaw is being abandoned by most of the countriesin which it formerly prevailed.

Raised the question whether it makessense to continue to divide the worldslegal systems into three major groups.

DISTINCTIONS BETWEEN CIVIL LAW AND COMMON LAW :

CIVIL LAW COUNTRIES COMMON LAW COUNTRIES

The primary source of law islegislation through codes andstatutes.

Cases are usually consideredthe primary source of law.

Legislation is general from itsinception and in its originalstatement. A legislativeprecept is a prescribedgeneral rule, one expressedas such in authoritative formby the lawmaking body whichis then applied to a particularcase.

Case law is made up of rulesinferred from decisions in pastcases. The movement is fromparticular to general.

Emphasis in deciding cases isgiven to general concepts,principles and doctrines oflaw. These concepts or

Case law which are rulesgathered from previousdecisions are applied todecide cases. The judge get

doctrines are cumulativewritings of law professors andlegal experts on what the lawis or should be afterconsidering statutory or codalprovisions which only gavebroad guidelines for thesolution of actual cases.These law professors andlegal experts play animportant role in defining thelaw.

most of the prestige, not thelaw professor.


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PHILIPPINE LEGAL SYSTEM

Divided into TEN PERIODS:

(1) Pre-Spanish period: before 1521.(2) The Spanish period: 1521 to 1898.(3) First Philippine Republic (Malolos): short-lived.(4) The American period: 1898 to 1941 (when George

Dewey defeated in Manila Bay the Spanish fleet under Admiral Montojo).

(5) Philippine Commonwealth: still under the US.(6) Second Philippine Republic (Japanese period):

Japanese occupation.(7) Third Philippine Republic: 1946 to Nov. 21, 1972.(8) Martial Law Period: Congress was abolished and

presidential decrees promulgate laws.(9) Provisional Government Period: Provisional

revolutionary period of President Aquino.(10) Fourth Philippine Republic: when the 1987 Constitution

was ratified to present.

PRE-SPANISH PERIOD :

- FOUR CLASSES:

NOBLES FREEMEN DEPENDENTS SLAVES

Consisting ofthe chiefsand theirfamilies,wieldedtremendousinfluence inthe barangay

and enjoyedrights thatwere notusuallyenjoyed bythe othermembers ofsociety.

And likewisedependentswho hadearned theirfreedom.

Those thatwere doingservice to thechief or thefreemen inpayment ofsome debt.

A dependentacquired hislow status insociety byinheritance, byfailing to payhis debt, bypurchase, orby committinga crime forwhich he wasdulysentenced.

Those thatwerecaptured inbattle,temporarilyheld by theconqueringcommunity.

NOTE: the lines drawn between the classes were not hard; anymember of the social classes could go up or down the socialladder depending upon the attendant circumstances.

- BARANGAY : unit of government (30 to 100 families).- DATU : chieftain rules the barangay.

o He had wide powers for he exercised all thefunctions of government.

o He was the executive, the legislator, and the judge.

o He was, naturally the supreme commander intimes of war.

- SOURCE OF LAW: early customs and practices of theinhabitants of these islands.

CUSTOMARY WRITTEN

Handed down orally fromgeneration to generation andconstituted the bulk of thelaws of the barangay.

Those that the chieftain andhis elders promulgated fromtime to time as necessityarose.

- WRITTEN LAWS:

MARAGTAS CODE : a corrupted Visayan word, means GreatCountry or Great People.

- It was promulgated by Datu Sumakwel of Panay about A.D. 1200.- Re: deliberate refusal to work, robbery, when one who

can support a family can get married more than once,and when a man runs away after having a child.

CODE OF KALANTIAW : written in the year 1433 AD byKalantiaw, the third Chief of Panay.

- Promulgated two centuries after Maragtas.- Transposition of the word Lakan meaning Great

Chief, and Tiaw, a proper name, meaning solon orwise man.

- Contains of 18 sugo or orders.

MUSLIM CODES : The Moslem influence in the juridicaldevelopment of the Philippines came from the Indonesiangroup by way of the Sulu Archipelago and the Basilan Island.

- In Mindanao and Palawan, the influence was contained.- FIVE PRINCIPAL SOURCES of the Moslem legal

norms:(1) KORAN: and the ethics growing out of its

interpretations.(2) SUNNA: traditions of Islam, which means theunwritten law; instructions of the prophetMohammed.

(3) KIYAS: the deductions based on decisions insimilar or analogous cases or situations.

(4) IDJMA: the general usages of the communitybased on the common consciousness regardlessof the written rules growing out of theinterpretations of the Koran and the sunna.

(5) HADITHS: opinions given by the prophet


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Mohammed.- FIKH : Mohammedan jurisprudence.- LUWARAN : laws of Maguindanao of Mindanao Moros.

o Means selection or selected. o Nobody seems to know when this code was

made.- CODE OF SULU : a guide for the proper execution of

the duties of office in accordance with the law and rulesof the state.

- When the Spaniards conquered the Philippines, they didnot succeed to subdue the Muslims so that their effortsto impose their legal system on them failed entirely.

SPANISH PERIOD : two kinds of laws which were enforced bypain in the Philippines during its colonial rule:

1) SPANISH LAWS : governs Spanish citizens which wereextended to the Philippines by means of royal decrees.

o Spain made applicable to the Philippines her ownlaws.

o Spain was Roman territory for six and a halfcenturies and it is indeed one of the most

important Roman colonies.o Spain became a VISIGOTHIC KINGDOM: they

reduced to written form the customary laws:

CODEX EURICI / CODE OF EURIC : was not intended to begeneral law for all the inhabitants of Visigothic Spain; rather, itwas meant to apply only to the conquerors .

- It was, in other words, personal, rather than territorial,law.

BREVARIUM OF ALARIC : Alaric II formed a commission ofVisigothic scholars with the mission of formulating a body oflaws for the conquered subjects, on the basis of known Romanlaw.

FUERO JUZGO : Castillian term for a general code of laws.

- It was the law for all Spain, binding both the conqueringGermans and the vanquished Hispano-Romans.

- It contained twelve books divided into fifty-four titlescomprising 559 laws, and presented the characteristicsof a general body of laws.

- Dealt, among other things, with judicial procedure,marriage, divorce, succession, matters pertaining toChurch, donations, debts and pledges, criminaloffenses, slaves, physicians, foreign merchants, judicialconduct in the administration of justice, heretics, Jews,etc.

FUERO REAL : consisted of four books divided into seventy-two titles containing five hundred fifty-five laws.

- It treated public law from both the spiritual and secularpoints of view.

- It also established rules for the regulation of domesticrelations, property rights, wills, descent, administration,etc.

- There are some provisions requiring generalobservance of the precepts of the established religionwhich emphasized the role of the church in the processto national unification.

- Primary law in some towns and only suppletory law inthose towns which had a special fuero.

LAS SIETE PARTIDAS : were taken largely from the Romanlaws, and were fundamental in the law of Spain and hercolonies.

- The compilation mentions the sources which enteredinto its formation; namely the natural and international

law concepts of Roman jurists, the canon law of theDecretum of Gratian, the digests and code of Justinian,the opinions of the glossators and decretists of Canonand Roman law, the law of Gothic-Spanish origin, andthe native laws or those of pure Spanish origin.

- They did not acquire the force of law; only in 1348- Heralded as the most wonderful production of the

Spanish jurists.o Here, they have been quoted by the SC

decisions.

LEYES DE TORO : treats of the sources of law, inheritance,succession, marriage, criminal law, civil procedure, criminalprocedure, persons and family relations, etc .

- Has a full binding authority and remained in force untilthe appearance of the modern codes.

NUEVA RECOPILACION : sought to incorporate and unify thediverse strands of the Fuero Real, the Partidas, the Ordinanceof Montalvo, the Laws of Toro and other laws.

- It also contained royal decrees and legislative

enactments up to the time of its preparation.- EXAMPLE: husband as administrator, conjugal assetsat the time of d issolution of the marriage.

NOVISIMA RECOPILACION : PROVISIONS: renewing leasefor one year if no notice to vacate had been given prior to theexpiry sate, prohibition of sublease, adoption.


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o 2) LAWS ENACTED IN SPAIN TO SPECIALLY GOVERN

THE COLONIES :-

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7 - The Legal Systems of the World

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