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 influential?

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

• Eventually became international

• Commercial rules for business

• Customary Law Developed by Guilds and Merchant Organizations

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 Papal-Emperor 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

• 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