European Legal History Final

European Legal History
ROMAN LAW
1) The Evolution of Roman Law
Periods of the history of Ancient Roman Law
1. Monarchy and Republic: Archaic Roman Law

2. Principate: Classical Law
3. Dominate: Post-Classical Law
Archaic Roman Law
Main characteristics:
 Strong connection between legal and religious spheres
 Development of the ius civile
 Important role played by praetor
 Important role played by jurists
 Importance of the formulary procedure
The Ius Civile

 Ius Civile: Civil law applied to Roman citizens
o Enforced by praetor urbanus.
Division of law into three layers/strata:

 1st stratum: Mos maiourum: moral and custom-based precepts: Customary law!
 2nd stratum: Law of the 12 Tables
 3rd stratum: Responsa- issued by jurists: Jurisprudence!
Division of the civil procedure into two stages:

 1st phase:
o In ure: In front of the praetor
 Praetor actively participated in the legal evaluation of the case
 Praetor exercised jurisdictional authority and took note of the claim and the defenses, decided
whether they fell under any of the cases provided for, and granted or denied the action.
 If the action was granted, the litigants passed to the next phase, before the judge
 2nd phase:
o Apud iudicem: In front of a judge (private citizen appointed as needed)
 Judge heard witnesses and lawyers, paid attention to facts and details, and issued a ruling
 Judge was confined to passively hearing the evidence and arguments before ruling in favor of
one party or the other
The Ius Gentium

 Ius Gentium: International law applied to non-Roman citizens and in cases of conflict between a
Roman citizen and a foreigner.
 Enforced by praetor peregrinus.

The Ius Honorarium
 Ius Honorarium/ Ius Praetorium: Edicts published by praetors each year before taking office.
o Edit: legal manifesto for their term in office
 Succeeding praetors adopted and adjusted these edits- thus developing the law and, essentially,
creating a complete legal system.
 Ius Honorarium did not replace Ius Civile
The Legis Actio Procedure

 Earliest form of civil procedure in Roman Law
 Legal complaints were processed according to 'legis actiones'

o Praetors' main task was to determine whether a claim was compatible with the legis actio
according to which it was to be heard
o Gradually, 'legis actiones' fell into disuse

The Formulary Procedure

 New formulary procedure which allowed the praetor to bypass the legis actiones
 Praetor wrote down on a formula the criteria according to which the judge was to rule after having
examined the evidence.
o Formula consisted of a description of a hypothesis whose ultimate substantiation was to
determine the defendant's conviction or acquittal
o Once the wording of the formula was established, it was recorded on tablets in an act called
the litis contestatio
 During the second phase of the trial the role of the private judge was to verify facts and give his
opinion (sententia)
o If the judge believed that the facts described in the formula were true, he was obligated to
convict the defendant
o If the judge did not consider the facts proven, he was obligated to acquit the defendant
o The judge was also obliged to respect the legal qualification of the facts made by the praetor
and the parties in the formula

The Role of Jurists
 Jurists: Patricians who were experts dedicated exclusively and professionally to the study of law and
to the rendering of legal counsel
 Main function:
o Analyze legal problems and issue opinions to citizens, orators, magistrates, and judges.
o Also formed part of the councils assisting the praetor and judge.
o Their opinion- responsa- was not binding but was assigned a great social and moral value
The Law of the XII Tables
 Established a formal distinction between law and religion

 Patricians and priests were forced to give up their monopoly over knowledge of the law
Classical Roman Law
 Development of Jurisprudence
 Importance of legal science
 Declination of the power of praetors
 Increase in the power of jurists
The new role of Jurists
 Emperor gave a delegation of jurists the ius respondendi:

o The authority to give responsa on behalf of the emperor
Classical Roman Jurisprudence
 Jurisprudence was considered the most important source of law during the Principate
 Perpetual Edict recognized that praetorial power had declined

 Emperor Carcalla granted Roman citizenship to all free citizens residing inside Rome
 Demand for jurists trained in Roman law increased
Key Figures:
 Papinianus
o Considered the greatest jurist of the classical era
o Author of the Quaestiones
 Gaius
o Author of the Institutiones
o His work inspired the structural basis of most of the civil codes written in the 18 th and 19th
centuries
 Ulpianus
o Issued a commentary on the Perpetual Edict
o Bridged the two systems of Roman law: The ius civile and the ius gentium
 Labeo
o Creative jurist who promoted new institutions
o His responsa and commentaries on the praetors’ edicts were extremely influential
 Julian
o Brilliant jurist
o Codified the Perpetual Edict under Emperor Hadrian’s orders
 Pomponius
o Key figure in the study of the ius civile
o Author of the Enchiridion
 Paulus
o Prestigious jurist who gained the title of prudentissimus
o Wrote commentaries on the ius civile and the Perpetual Edict
o Issued collections of questions and opinions, an introduction to law and various manuals for
imperial administration
Post-Classical Roman Law

 Shift to absolute rule through imperial decrees- royal legislation

 All sources of law fell under the emperor’s control
 Disappearance of the influence of jurisprudence
 Declination of the power of praetors
 Development of the Cognitio Extra Ordem Procedure
The Cognitio Procedure
 New form of litigation aside from the formulary procedure
 Judicial officials took over the administrative handling of the process

 In the cognitio system, the trial took place before a state-appointed magistrate, rather than a lay
judge. The process tended to be less adversarial than before, as the magistrate had sole control over
the case, and could admit whatever evidence he pleased.
o Bipartition of the formulary process ignored

o Role of the private judge ignored
 Fused the ius civile and the ius honorarium

 Compatible with the framework of the imperial bureaucracy
 Ability to appeal the verdict to a higher court, which hadn’t existed during Republican times
Justinian’s Codification Project
Emperor Justinian undertook the codification of the first major collection of laws and developed the Corpus
Iuris Civilis.
o Became the foremost historical source of law in Roman times.

o The collection included:

 The Digest
 The Institutiones
 The Codex
 The Novellae
The Digest
 Anthology of excerpts from classical Roman legal texts
o Contains the opinions of jurists

o Contains the legal regulae / solutions to over three million cases
o Justinian gave it the force of law in 533
o Saw its foundations on the Law of Citations
Law of Citations:
 Declared that only the writings of classical jurists Papinian, Paulus, Gaius, Ulpian and
Modestinus could be invoked before the courts
o If their opinions conflicted, the majority was to be respected
o If there was a tie, Papinian’s opinion would prevail
o If Papinian did not have an opinion, the judge should choose between the
others’ opinions
The Institutiones
o Textbook intended for students beginning their legal studies- an ‘introduction to law’
o Contains the most important principles of jurisprudence

o Divides law into three parts:
o Law governing persons and family
o Law applied to things
o Law applied to property, obligations, and inheritances
The Codex
o Contains fragments of laws enacted by the Roman emperors since Hadrian: Imperial Legislation
o Is divided into 12 books in honor of the Law of the XII Tables
o Deals with:
o Ecclesiastical law
o Sources of law
o Administrative law
o Private law
o Criminal law
o Tax law
The Novellae
 Private collection of new laws made by Justinian and his immediate successors
2) Property Law
1) The Classification of Things
In Roman times, ‘things’ were categorized and distinguished as such:
Divine objects Human objects
Res nuilus Res communes omnium

(Objects that didn’t belong to anyone) (Objects that belonged to everyone)
Res privatae Res publicae

(Things that belonged to individuals) (Things that were of public ownership)
Res corporales Res incorporales

(Corporeal things) (Incorporeal things)
Res mancipi Res nec mancipi

(Things that could be sold) (Things that couldn’t be sold)
Movable goods Immovable goods
2) Possession
Definitions:
 Legal possession: Factual detention of, as well as intention to keep, an object
 Natural possession: Factual detention of an object, without the intention of keeping it
Protection of possession
Interdicts
Interdictal procedure:
 Person whose possession over an object has been disturbed starts an interdict
 Praetor acts to restore/ maintain order
 Burden of proof lays on the non-possessor of the thing
* Praetor judges only on whether the possession of the claimant over an object has been
disturbed
* No judgement over the rightfulness of the claimant’s possession
* This results in a thief being able to claim protection of possession by an interdict:
* If X steals from S, and A steals from X, X can claim possessory protection against A
Interdicts based on their purpose:

 Interdicts to acquire possession- Interdict adipiscendi possessionis
 Interdicts to retain possession- Retindae
 Interdicts to recover possession- Recuperandae
Protection of possession of land and immovable goods:

 Interdict uti possidetis:
o Protected the person who possessed the good at the moment the interdict was issued
 UNLESS the possession had been acquired in bad faith
 If possession had been acquired in bad faith, the praetor forced it to hand over
to the counterparty, who would become the possessor of the thing.
 If X took a thing from S by force, and S took it back by force, X could not invoke
protection of possession by the interdict.
Protection of possession of movable goods:

 Interdict utrubi:
o Protected the party that had possessed the good in a non-defectuous manner for the longest
time a year before the issuing of the interdict
3) Ownership
 Ownership: The legal right to possess, use, and give away an object.
 Most powerful competence over an object
 Joint ownership: The right of two or more persons over the same thing.
Restrictions on Ownership
The right of an owner to dispose of their owned/ object thing was limited by:
 The rights of third parties
 The law
 Unwritten custom
 Rights of third parties:

o Property rights- usufruct
o Personal rights- contracts
 Limits established by law:

o A spouse could not, against his wife's will, alienate an estate that he had received as part of a
dowry, even if according to ius civile, he was the owner of the land
o A slave owner could not use his slaves arbitrarily for publicly accessible games with wild
animals
o It was prohibited to buy houses with the objective to tear them down and sell the construction
materials
o Limits of construction also restricted property rights (such as permissible height, minimum
distance between buildings)
 Unwritten rules:
o Misbehavior of an owner towards his slaves was not accepted
o Leaving good land waste for years in a row was not accepted
Protection of ownership
Rei vindicatio
Description:
o Action with which the owner of an object could claim it back from whoever had the object
Process:
 Plaintiff had to prove that he was the owner according to ius civile
 Archaic Law: Process took the form of a legis actio
 Classical Law:
o If the plaintiff is the owner of the object, the defendant must return the object
o If the defendant does not return the object, they must pay an amount equal to its worth
o If the plaintiff is not the owner of the object, the judge must dismiss the claim
o Second phase: apud iudicem:

o Plaintiff must prove that he is the owner according to ius civile
o Judge could create the opportunity for the defendant to return the good. If the
defendant took the opportunity, the claim was dismissed in the final ruling.
o If he did not, he was condemned to pay monetary compensation.
* Defendant could not be forced to return the good.

* If he kept the good and the good was a res mancipi, and instead chose to pay
monetary compensation, the defendant became the bonitary owner.
* If he kept the good and the good was a res nec mancipi, the defendant became the
owner on the payment of compensation.
Characteristics:
 When the disputed thing was a res mancipi delivered by traditio, providing proof was not possible
 With other types of delivery such as mancipatio, in ure cessio, traditio, proof of ownership wasn't
easy, as the plaintiff had to prove that the alienator had also been an owner according to ius civile
Actio publiciana
Description:
o Action through which the owner of a thing, who hadn’t obtained ownership according to ius civile,
could get the thing back
o Showed up in the context of a traditio of a res mancipi
Process:
 Bonitary owner could initiate the action and was only required to prove that he was on his way to
become owner according to ius civile through usucapio
 This action was also available to the plaintiffs who were already owners according to ius civile
 Proof required by the actio publiciana was much easier to deliver than that required by rei vindicatio

4) Acquiring/ Transferring Ownership and Possession
Ways to acquire/ transfer ownership/ possession:

o According to ius civile for Roman citizens:
o Mancipatio
o In ure cessio
o Usucapio
o According to ius gentium for non-citizens:

o Traditio
o Natural forms of acquisition
4.1) Mancipatio
Description:
o Old procedure used to transfer ownership of res mancipi: slaves, land, real estate, and cattle.
 The mancipatio gradually lost its role during the classical period due to its limited usefulness
Process:
 Owner of the object- mancipator- makes a declaration of acknowledgement that the object has
become the other person’s
 Must occur in the presence of 5 witnesses or more
Characteristics:
 Irreversible:
o Validity did not depend on the intentions or will of the parties
o If the father of a future bride transferred by manicipatio a piece of land to the future husband,
and the marriage was later cancelled, the father could not make use of the rei vindicatio to get
his lands back
Conditions:
o Manicipator was expected to give guarantees about the thing he was transferring.
o If a third party proved that the thing belonged to him and not the mancipator, the mancipator was
forced to give compensation to the alienee of the mancipatio with the actio auctoritatis.
o Mancipator could add to the statement of the alienee and give guarantees regarding the thing
transferred.
o Mancipator could also declare to keep some competences, such as a right of way, for himself.

4.2) In Ure Cessio
Description:
o Imaginary mock trial used to transfer ownership of res mancipi and res nec mancipi
Process:
 In court
 The owner-to-be appears before a magistrate of the Roman people (Praetor) and holding the property
in his hand, declares that the property belongs to him
 The Praetor interrogates the other party
 If the other party makes no counterclaim or remains silent, the Praetor adjudges the property to the
party who claimed it

Characteristics:
 A form of legis actio
 Did not depend on the underlying motives or intentions of the buyer
 No actio auctoritatis available to the acquiror
4.3) Usucapio
Description:
o Ownership acquired after undisturbed possession during a period of time by the ius civile
Process:
 One year of possession necessary to acquire movable goods
 Two years of possession necessary to acquire immovable goods
 Stolen goods: However long the holder had the possession of a stolen good, he could never become
the owner
Change in process: Post-Classical Times

 Movable goods: Term increased to 3 years of necessary uninterrupted possession
 Immovable goods: Term increased to 10 years if the possessor and the owner lived in the same city;
20 years if they didn't
Conditions
 Iusta causa- licit ground to convey ownership
 Bona fides- good faith by the acquirer
o If the acquirer knows that he is acquiring from a person who is not the owner, or from a
person who is not capacitated, prescription will not run
 Stolen goods: However long the holder had the possession of a stolen good, he could never become
the owner
4.4) Traditio
Description:
o Simple physical transfer of an object from hand to hand, for which there were no formal
requirements
Process:
o Market good- ownership transferred when object given from hand to hand
o Larger goods- transfer from hand to hand replaced by symbolic element
Characteristics:
 One could give factual control/ natural possession over a good to someone else:
o Receiver obtained factual detention of the good (detention); the material element or physical
control of possession (possessio naturalis) but not the possession recognized by law
(possessio civilis)
 This is what took place in contracts of lease (locatio-conductio), loan (commodatum)
or deposit (depositum)
 One could give factual control recognized and legal possession to someone else:
o Required that the process took place on the basis of a valid title (iusta causa): the contract of a
sale
o The buyer immediately acquired possession, but not yet full ownership
 One could give the other full dominium/ ownership over the object
o The receiver had the right to dispose of the thing according to his own plans
o The receiver also had the right to enjoy its fruits and use it according to his own discretion
o New owner was protected by law with all actions available to owners
 To determine which property rights were conveyed via traditio, it was necessary to look at the
intentions (animus) of the parties involved:
o If traditio was meant to convey both possession and ownership, it was necessary that both
parties intended to
4.5) Natural forms of acquiring ownership
 Occupatio: Acquisition of ownership of a good which is a res nulius (doesn’t belong to anyone)
 Thesauri inventio: Acquisition of ownership of a good found on a land

 Good found by a man on his own land- acquisition of ownership by the man
 Good found by a man on the land of another- acquisition of half of the good by the finder,
half of the good by the owner of the land
 Accessio: Acquisition of ownership of a good that has become attached to a good of which you are the
owner
 Specificatio: Acquisition of ownership over a new object created with someone else’s materials
 The owner who acquired the thing by specificatio had to compensate the owner of the
materials.
 He was also required to have acted in good faith, otherwise his action would be classed as
theft
 Fructus: Acquisition of goods created by other property

 Principle: When referring to natural or civil fruits, fruits belonged to the owner of the
property
 Case of usufruct: Usufructuary became the owner
 Exception: Slaves- the children of the slave mother became the property of the owner,
even if a third party had usufruct over the slave
 Confusio, conmixtio: Acquisition of ownership of an object created by a mix of two elements

 The two owners became the owners of the new mix, in proportion to their share
 Alluvio, insula in flumine nata
5) Servitudes
 Servitude: Proprietary right that involved the use of someone else’s property
Types of Servitudes:
 Praedial servitude: Servitude granting the right to use another person’s property
o Established on land or buildings
 Personal servitude: Servitude granting the rights over another’s property to a particular person
o Attached to the person of the right holder
5.1) Praedial Servitudes:

Praedial servitudes were normally established for economically sound reasons.
The owner of a parcel of land had to allow a certain use of his land by the right holder of the servitude (often
the owner of the adjacent piece of land).
 Servient land: Land under the servitude
 Dominant tenement: Land that benefitted from the servitude
Types of Praedial Servitudes

 Rustic praedial servitudes: Servitude established on a land with an agrarian purpose
 Urban praedial servitudes: Servitude established on a land to do with a building
Included:
 The right to have one’s wall supported by a neighbor’s
 The right to not have one’s view obstructed by a neighbor’s building
 The right to not have one’s natural light obstructed by a neighbor
 The right to impede a neighbor to build higher
 The right to discharge water

 The right to conduct one’s sewers
 The right to place beams in one’s neighbor’s wall
Process:
 Classical times:
Mancipatio or in ure cessio were needed to establish praedial servitudes
 Justinian/ Post-Classical times:

Traditio and a contractual agreement could be used to establish praedial servitudes
Conditions:
o Servitude right attached to the land and not to the person that had the servitude
o Servitude could give rights to successive owners across many generations
o Right holder could protect his servitude with a vindicatio servitutis.
o Right holder could renounce his right by in ure cessio or mancipatio
o When the servient and the dominant property were merged, the servitude came to an end
o When the servitude had not been used for two years, the servient property was liberated from the
servitude
o When one of the lands involved was destroyed, the servitude came to an end
5.2) Personal Servitudes
Personal servitudes were attached to the right holder and could be established on movable and immovable
goods. In principle, they were defined in time, with the maximum being the lifetime of the right holder.
Types of personal servitudes

 Usufruct: “The right to use and enjoy the things of another without impairing their substance
Enables the right holder to use, enjoy and extract fruits from the property
 Usus: Enables the right holder to use a property
 Habitatio: Enables the right holder to live inside a property
5.2.1) Usufruct
Process:
 Usufruct could be established by in ure cessio of the right
 Usufruct could be established by mancipatio or in ure cessio of the good
 Under Justinian, it became accepted that usufruct could be established by traditio
 Usufruct could be established for a fixed term

 Usufruct could be established for until the usufructuary died
Usufructuary Rights:
 Usufructuary was the detentor of the good
 Usufructuary had the right to keep the fruits of the object he had the servitude over
 Usufructuary became the owner of the fruits of the object
o Usufructuary could use the object he had the servitude over
o Usufructuary could rent the object he had the servitude over
 Usufructuary could sell his right of usufruct
o The acquiror of the right would lose it when the first usufructuary died/ the fixed term
expired
Usufruct End:
* Usufruct extinguishes when usufructuary dies
* Usufruct extinguishes when fixed term ends
* Usufruct extinguishes when usufruct and naked ownership were merged
* Usufruct extinguishes when the usufructuary didn’t make use of the right during 2 years (immovable
goods) and 1 year (movable goods)
* Usufruct extinguishes when the good perished or suffered substantial changes
Protection of usufruct:
Although the position of the usufructuary over the good was that of a detentor,
 The praetor granted possessory interdicts to protect usufruct.
 The usufructuary could also start a vindicatio usufructus
5.2.2) Usus
Usuary Rights:
* Usuary could use the property
* Usuary did not become the owner of the property/ good
* Usuary could not use the fruits the property/ good produced
* Usuary could not sell the usus
5.2.3) Habitatio
Habitant rights:
* Habitant could rent the property out
6) Contracts and Obligations
Contracts
 Contract: Agreement between two or more parties, who agree to be bound by the terms of the
agreement
Obligations
 Obligation: A bond of law by which we are reduced to the necessity of performing something for
someone in compliance with the laws of our state
o Obligatio: (Contains root lig)- Refers to the idea that someone or something is bound
 Concept of obligation usually includes a bilateral relationship

o One of the parties has a personal right to make a claim- creditor
o The other party has an obligation to perform- debtor
 The essence of obligations does not consist in that it makes some property or a servitude ours, but
that it binds another person to give, do, or perform something for us
Consensual Agreements
 Consensual Agreement: The idea that people can bind themselves and be brought before a court
merely by a matching of the will of the parties
o Rome's greatest legacy
1) Stipulatio
Description:
 Oral agreement/ contract
Process:
 By answering formally to a formal question, someone promises to perform something
 Stipulatio presupposed a question and an answer:
o The future creditor submitted to the future debtor a formal question- whether the debtor was
prepared to take on a certain performance.
o The debtor immediately promised to implement the performance.
o This immediately brought the contract into existence.
Conditions:
 It was essential that the verbs of the question and the answer matched.
 Both parties had to be physically present at the same spot.
 The answer had to follow immediately after the question.
 Only in very late post-classical times it became mandatory to write down the stipulatio.
Characteristics:
o Stipulatio was incredibly strict and abstract.
o From the moment the verbs of the question matched, parties were bound to perform regardless of
their true intentions.
o It was possible to include a condition into the stipulatio.
o It was possible to include the reason (causa) behind the stipulatio.
o In later times (not in archaic times), it protected the promisor against too harsh consequences.
o Classical times: When the promisor didn't comply, the creditor could claim performance via the actio ex
stipulatu.
 The judge had the ability to decide on the extent of the performance and calculate the
compensatory amount
 Other actions were:
 Condictio certae rei: The promisor could be forced to hand over something
 Condictio certae pecuniae: The promisor could be forced to hand over money
 Parties could also anticipate the amount they'd pay in case of non-compliance by including a
stipulatio poenae (the amount of the fine they'd pay in case they didn't comply) in the promise.
Example:
 Marcus: Do you, Lucius, solemnly promise to take care of my mother while I am away?
 Lucius: I do, solemnly promise to take care of your mother while you are away.
 Lucius: Do you, Marcus, solemnly promise to bring a load of Papyri from Egypt?
 Marcus: I do, solemnly promise to bring a load of Papyri from Egypt.
2) Contract of Sale- Emptio Ventitio
Description:
o Contract via which one party (vendor) agrees to sell an object to another party (purchaser)
Process:
o The two parties agree on an object of sale, as well as its price, and a contract automatically comes
into place
Conditions:
 Consensus between the purchaser and vendor over the object of the sale (merx) and the price
(pretium)
Conditions regarding the object:

o Object had to be individualized and specified
o Objects that were ‘extra commercium’ such as public buildings couldn’t be sold
o It was possible to sell objects that did not yet exist such as a fruit growing on a tree, and the
unborn child of a slave
Conditions regarding the price:

o Price had to be expressed in money
o Price had to be set freely by the parties

o Price had to be certain (ascertainable) and seriously intended
o Price did not have to be just
 Post-classical times: Vendor was given the possibility to annul the sale if he had sold
the object for less than half of its value
Conditions regarding consensus:

o There had to be matching intentions between the contracting parties
o If there was no consensus, the sale was null
o Error in negotio: In case there is no consent on the type of business the parties are
engaging in, there is no contract
o Error in corpore: In case there is no consent on the identity of the object (e.g. one party
thinks he is buying a certain slave while the other party thinks he is selling another
one), there is a mistake that invalidates the contract
o Error in substantia: In case there was a mistake as to the substance, if the purchaser
erred about the materials with which the thing was built
o Error in nomine: In case both parties have in mind the same object, but they call it by a
different name, there is still a valid contract
Transfer of ownership
 Contract of sale in itself did not transfer the ownership of the thing sold
 Transfer of ownership required a different action like a mancipatio, in ure cessio, or traditio
 Roman law establishes that:

o The contracting parties get a claim to performance- ius in persona
o The purchaser stands at the same level as other creditors
o If the vendor, instead of delivering to the purchaser, chooses to sell it to a third party, the
purchaser would only be able to get a compensation from the vendor

 In case of traditio: Payment of the price also required before ownership could be conveyed
 'When I sell something, it becomes the property of the recipient only if I have received the price or
have accepted security in respect thereof or the purchaser has been given credit without security'

 Romans knew the possibility to sell or buy on credit
o The purchaser acquired ownership immediately
Obligations of the Parties

 Two actions available to Roman citizens to protect the contract of sale: Actiones Bonae Fidae
(actions built on the requirement of good faith of the parties)
o Purchaser could ask the praetor to allow for an actio empti
o Vendor could ask the praetor to allow for an actio venditi

 Formula written by the praetor included a clause ex fide bona:
o Gave the judge the power to condemn the defendant to do everything as required by good
faith
o Allowed the judge to take into account local customs and habits, counterclaims deriving from
the same transaction, fraud by one of the parties, intimidation, or duress
 Problems arose when a third party turned out to be the owner of the object and vindicated the good
from the purchaser. The purchaser could:
o Actio Empti: Ask to condemn the vendor if he knew that he was selling a stolen good.
 If the vendor did not know he was selling a stolen good, the loss was assigned to the
purchaser.
o Ensure that the vendor would compensate him in case of eviction by the true owner with the
actio ex stipulatu.
 In case the object was a res mancipi, the mancipator was, under the mancipatio, liable
to protect the alienee against eviction.

Obligations of the Vendor

 Deliver the object in such a way that the purchaser obtained its undisturbed possession
 Actio Empti: If the object was not delivered to the purchaser, he could ask this from the praetor
 The vendor was not in obligation to make the purchaser the owner of the object
 The vendor could not be sued for latent defects
o Unless he had deliberately failed to disclose a defect known to him

o The case of slaves and animals was an exception- vendor must disclose all aspects
regarding the slave/ animal
Obligations of the Purchaser

 Pay the price to the vendor
 Obtain all the information regarding the object
 Take care of the object – custodia
 Vendor could only free himself from this liability if he was able to prove that the object was lost,
destroyed, or damaged through circumstances beyond his control.
 The risk is for the buyer!

 Once the purchaser has become the owner, he will suffer the risk of loss, destruction, or damage.
 Even if the purchaser has not yet become the owner, as soon as the contract has been established, the
risk of the property immediately attaches to the purchaser if there has been no fraud or negligence on
the vendor’s part
 Purchaser could enjoy the fruits of the good, re-sell the good, and profited when market prices rose
between contact and delivery, even if they had not yet become the owner.
3) Loans or Hires – Locatio Condictio
Description:
o Contract In which there is a locator/ lessor who lets out/ rents something to a conductor/ lessee
o Locatio conducti rei: The hire of a thing
 The lessor gets a thing such as an apartment, a slave, or a horse

Process:
o The locator or lessor placed the object at the disposal of the lessee during an amount of time in return
for a price defined in money
* Lessee is only the natural possessor of the property/ object
Obligations of the Parties
Obligations of the Lessor

 Place the object at the disposal of the lessee for the time specified in the contract.
 Provide the peaceful and undisturbed enjoyment of the object.
 Ensure that the object remained in good shape and that it was fit for the use for which it was
intended.
o The lessee could recover or subtract from the rent reasonable expenses he had incurred to
maintain the object
 Protect the lessee against eviction.
o If a third party claimed to be the true owner and evicted the lessee after a rei vindicatio, the
lessor had to pay compensation to the lessee.

 The risk of the loss of the object beyond the lessor's will lay with the lessor:
o He could no longer ask for payment of the rent.
o He no longer needed to pay compensation or continue to assure the enjoyment of the object.

Obligations of the Lessee
 Pay the rent at the specified times
 Use the object according to its intended use
 In case of farmland: cultivate it and keep it adequately maintained
 Return the object in good shape at the end of the turn
THE EARLY MIDDLE AGES

GERMANIC LAW
Historical Context – Germanic Tribes and Migration
 2nd Century BC: Germanic tribes of barbarians became the Romans' principal adversaries.
o Westward emigration of the Huns gradually displaced the Germanic tribes towards the
Roman Empire's borders
 476: The Fall of Rome

o Italian Peninsula had been sacked by the Visigoths, the Alani, Suebi, Vandals, and the Huns
o Odoacer, King of the Heruli, dealt the definitive blow and toppled the Roman Emperor
Romulus Agustulus in the West
o The Eastern portion of the Empire, ruled from Constantinople, was the one left standing
o Germanic tribes migrated into Great Britain and Western Europe. Their settlements became
fixed territories
Background/ Organization of the German Tribes
 Germanic peoples:
o Organized into tribes
o Tribes made up of groups of sippes: Extended family units made up of dozens or hundreds of
people united by a common ancestry and a chide

 Sense of belonging to a tribe was sharpened by the conflict between the Germanic peoples and the
Roman Empire.

 Franks, Goths, Alans and Burgundians had undergone a centuries-old acculturation process.
o Many of their leaders spoke Latin fluently
o Many of their leaders rose to ranks of prominence
o Many of their leaders married into the traditional Roman aristocracy
o Many of their leaders played a prominent role in imperial politics
o The Germanic element was framed within the military logic and needs of the Roman Empire
 The military gave shape to the Germanic identity
Main Features of Germanic Law
 No ‘system’ of Germanic law

 Unwritten customary law:
 Laws were grounded in custom
 Laws were seen as valid from the perspective of tradition and according to how similar cases had
been resolved
 Oral tradition and public nature
 Principle of legal personality
Germanic Courts and Procedure

 Resolution of disputes before the assembly (Mallus):
o The King or a delegate would chair the meeting- but did not rule or legally contribute to the
process
o A group of wise men- a jury- would propose a verdict
o Assembly would approve or reject the proposed verdict
o The King or a delegate would ensure the observance of the verdict
Main features of Germanic Procedure

 Origin of trial by jury
 Trials by ordeal or battle
 Oath helpers and sureties- Would contribute in favor of/ against the defendant/ plaintiff
 No professional jurists or legal teaching
 No ordinary appeal
 Adversarial procedure

Influence of Roman Law:
o Roman military governors were in charge of solving problems between the Germanic groups that
were incorporated into the Roman defense system on the militarized borderlands
o Justice in these borderlands was often conducted according to the rules of the ethnic groups
inhabiting them
o These rules were sometimes encapsulated in Roman military regulations such as the Pactus Legis
Salicae

 Pactus Legis Salicae:
o Contained the tariffs of fines and the penalties for delicts and crimes of all kinds
o Rules were based on Salian customary law
o Twist: Instead of allowing full vengeance, as had been traditional in most Germanic tribes,
the Pactus forced victims to renounce their right to avenge wrongdoing and to be content with
the compensation they received
o Was given normative force under the form of an imperial constitution
The Breviary of Alaric

 Breviary of Alaric: Code of Roman law with the intention of presenting the law in a logical order,
vested by the public authorities, and becoming the principal source of reference in court
o First part of the Breviary:

 Same books and titles as the Theodosian Code
 Added new legislation promulgated by Theodosius' successors and eliminated some
obsolete laws
o Second part of the Breviary:

 Contained excerpts of legal science
 Included extracts of writings by classical jurists such as Gaius or Papinianus
 Also contained interpretations to the legislative and jurisprudential texts

o Hispanic Peninsula: Breviary remained in force in the until at least 654
o France: Breviary used even after the victory of Clovis over Alaric
o Germany and England: Breviary remained the sole knowledge of Roman law until the
rediscovery of Justinian's texts

o The Breviary of Alaric promoted the spread of Roman juridical concepts and facilitated the
reception of Roman law centuries later
The Principle of Legal Personality: Judicium Parium

 Fundamental characteristic of law during the post-Rome era: Widespread application of the principle
of personality of law
o Personality of law: The application of one or another set of legal rules based on the litigant's
belonging to an ethnic group or nation
 Under this principle, everyone is to be judged in accordance with the legal rules
applied to the territory to which they belong

o This gave rise to problems, given that it was not always clear to which group someone
belonged, or what law applied when the parties belonged to different ethnic groups

o Edict of Euric was used to determine which legal system/ legal rules would be applied in
the case of conflict between two citizens of two different ethnic groups
The Liber Judiciorum

o Visigoth Kings decided to put an end to 'legal personality'

 Liber Judiciorum (654):
o New, single book of law for the entire kingdom- creating a uniform legal system
o Expression of the will to harmonize and integrate the legal landscape for the Iberian
Peninsula
o Aimed to be a synthesis of Germanic and Roman traditions of old and new, of royal
legislation and customary rules, and of civil and ecclesiastical elements
o Liber Judiciorum: What is Law?

o "Law is the image of the divine, the guide of religion, source of the disciplines, creator of what's
right, finder and modeler of good habits, government of the commonwealth, herald of justice, teacher
of life, soul of the entire body of the people.
Isidore of Seville: Etymologiae
o Law is either ‘naturale’, ‘civile’, or ‘gentium’
o Believed law had a higher purpose- to guide humans to Heaven, to create a better society, to stop
violence

 Ius Naturale
 Common to all nations
 Exists at the instigation of nature.
 Thought to be 'God's will'.
 Establishes marriage as the union between a man and a woman.

 Establishes the common possession of everything.
 Establishes the principle of liberty for all.

 Ius Gentium
 Used by nearly all nations.
 Deals with conflicts between nations- Public international law.
 Occupation of land
 Wars
 Captivity
 Truces
 Peace treaties
 Inviolability of ambassadors
 Establishes the prohibition of mixed marriages.
THE HEIRS OF ROME
1) Byzantium
o The Byzantine Empire was the true heir to ancient Rome
2) Islam
o The Arabs conquered the Middle East
o They kept their army in close quarters and separated from the civilian population
o This separation ensured that the administration of society was run as it had been under the
Romans
3) The Carolingian Empire - Charlemagne

o 8th-9th Centuries: “The Carolingian Age”
o A great number of peoples lived under a single monarch: Charlemagne
o 3.1) Law in the “Carolingian Age”

 Different legal systems co-existed within the Empire
 Capitularia/ Capitularies: Orders issued by Charlemagne containing legal precepts
applicable to all subjects in his territory
4) The Church
o Period of the great migrations: The Church remained the only stable organization
o It played a stabilizing and unifying role
o 4th-5th Centuries: The Church underwent a dramatic institutional transformation
o 4.1) Development of “Canon Law”

o The Church developed its own sources of law which addressed important parts of private
law
 The Old and New Testaments of the Bible were sources of inspiration for the
resolution of legal disputes
 Texts adopted by councils contained important legal precepts: canons
 Papal decretals were also very important in producing legal precepts. They
provided answers to questions submitted for the bishop of Rome.
o These sources of law were compiled and transmitted in various collections such as the
Collectio Dionysiana, the Collectio Hispana and the Collectio Hadriana
The Feudal System
o The feudal contract: Contract between a lord and a vassal

o Under the feudal contract, the lord had the duty to provide the fief for his vassal, to protect him, and
to do him justice in his court.
o In return, the lord had the right to demand the services attached to the fief (military, judicial,
administrative) and a right to various “incomes” known as feudal incidents.
 There must be an established feudal contract for a lord to be able to call on a vassal!
o If one of the King's vassals does not comply with the feudal contract, the King cannot call on
the vassal's vassals because there is no established feudal contract.
Summary: Law in the Early Middle Ages Until 1000
 Legislation: Capitularia
 Customary law grounded in tradition

 Administration of justice: Resolution of conflict before the Mallus (Germanic procedure)
 Jurisprudence: No jurists
 ‘Judicium parium’- legal personality
 Development of canon law
THE LATE MIDDLE AGES
Scholasticism
 The idea that truth could be found inside a set of texts of hallowed authority:
o The Bible
o Writings of the Church Fathers
o Corpus Iuris Civilis
o Writings of Aristotle
The School of Bologna’s Discovery of Roman Law
 1808: Town council of Bologna established a law school to train the city's future officials
 11th Century: A copy of Justinian's Digest was found in Bologna and Almafi
 Imerius: Italian jurist and glossator who helped recover Roman Law
o Re-discovered Justinian's Corpus Iuris Civilis (Intsitutiones, Digesta, Codex, Novellae)
o Re-constructed the codification project into:
 Digestum Vetus
 Digestum Novum
 Infortiatum
 Codex Books
 Volumen Parvum
o Corpus Iuris Civilis ended up containing 5 volumes:

 3 Digests
 4th Digest with the first 9 books of Codex
 5th Digest with the Institutiones, the last three books of the Codex, and the Novellae
 Added: Libri Feudorum: Private compilation from the 12th century containing
Lombard feudal law and excerpts from the orders of German Emperors
 Bologna became a model throughout Europe

o Universities were founded, which were composed of four departments: Theology, Roman
Law, Canon Law, and Medicine
 Legal Science: Glossators and Commentators

Glossators and commentators agreed on considering Roman law as a body of texts of universal value
that bore truth and reason
- Glossators: Lawyers who wrote glosses explaining texts

 Azo
 Hugolinus de Presbyteris
 Accursius: Glossa Ordinaria: Collection of glosses on the Bible
- Commentators: Lawyers who were concerned with applying law in practice and gave their
opinion
 Bartolus de Saxoferrato
 Baldus Deli Ubaldi
- Genres in which jurists published their research:

 Consilia: Jurists' expert opinion on legal questions
 Commentaries on the Corpus Iuris Civilis
 Treatises
CANON LAW
Canon Law: Ecclesiastical law
o Was continuously developed and transmitted throughout the Middle Ages
o Exerted significant influence outside the ecclesiastical domain:
- Administrative acts and commercial transactions could fall partially or entirely under the
jurisdiction of canon law
- Dealt with rules related to marriage, adultery, bigamy, kinship, divorce, annulments and
separations, and donations between spouses
- Also dealt with issues in the criminal sphere such as perjury, violence, theft, murder, and
rape
- Dealt with issues in property law related to purchases, contracts, guarantees, donations, and
wills
 Papal Decretals: Documents containing the Pope’s opinion with regards to specific cases
- Were the standard form of pontifical legislation during the Middle Ages.
- Stare Decisis: The Pope’s verdicts became the precedent for the judgement of future similar
cases.
- Within the Church, the Pope was the supreme legislator, judge, and administrator
 Decretales Gregorii IX/ Liber Extra: Systematic collection of decretals to be enacted as law
- Represents the effort to unify the law throughout the Church and place it under the Pope’s
control- centralization movement.
- Popes expected all ecclesiastical tribunes to apply this body of law.
- Liber Sextus was the sequel to the Liber Extra
- Constitutiones Clementinae followed the Liber Sextus
 Decretum Gratiani: Most foundational medieval canon law collection

- Made a selection between more than 1000 years of canon law texts
- Supported the centralization movement.
- Re-introduced legal science:
 Gratian conciliated contradictions between his selection of Church rules.
 Corpus Iuris Canonici: Compilation of a series of Canon Law texts:

- Decretum Gratiani
- Liber Extra
- Liber Sextus
- Constitutiones Clementinae
- Extravagantes
- Extravagantes Communes
 Legal science: Decretists and Decretalists

- Decretists: Lawyers who made commentaries on the Decretum Gratiani

- Decretalists: Lawyers who focused their scholarly attention to Papal Decretals and the Liber
Extra
 Sinibaldo de Fieschi
 Hernicus de Segusio
 Johannes Andreae
 William Durantis
The Ius Commune

Ius Commune: Refers to the scholarly study of Roman and Canon Law
 “Common law” based on Canon and Roman Law
* Ius Commune and Contract Law
Roman Law
When the medieval civilians began to study Justinian’s texts, they sought to bring the variety of Roman
contracts into a rational scheme.

o Stipulatio lost its position as a central institution of contract law – Glossators concluded that it
was a highly technical transaction which could only be entrusted to professional document-
writers such as notaries.

o ‘Pacta’ became the all-encompassing category of Roman contract law
 Pacta nuda: Naked pacts- Agreements based on consent alone
 Pacta vestita: Agreements that were enforceable- thought to contain every agreement that
was actionable
 Civilians ignored the text in the Digest that established that all agreements required
consent and concluded that consent did not create an obligation under the ius civile.
 At this level of legal theory, the civilians were not yet ready to take the step towards
consensualism.
Canon Law
o Iuramentum: Oath, which showed the Church's concern for promises, and which was subject to a lot of
scrutiny by canonists, including Gratian, who said that there should be no difference between speaking
under oath and normal speaking, or between lying and perjury.

o Huguccio combined several strands of earlier canonistic though to develop a new theory on the pacta
nuda:
o Even if a promise (nuda promitio) was not embedded within the solemnities of a stipulatio and
therefore could not be enforced according to Roman law, the promisor would commit a sin if he did
not fulfil his promise
 The justification was that God did not distinguish between simple promises and promises
under oath.
o Johannes Teutonicus, the author of the ordinary gloss to the Decretum Gratiani, went a step further and
declared that the promisee should have a claim in court.
o A few decades later, the Liber Extra, one of the most important official medieval collections of papal
decretals, stated that pacts, however naked, were to be observed.

 This principle represented a major risk to secular jurisdiction, given that it assigned to the ecclesiastical
jurisdiction unlimited responsibility over all kinds of promises.
o England: Constitutions of Clarendon said that jurisdiction over sworn promises to pay debts
belonged exclusively to the royal courts.
o France: Ordonnance de Villers-Cotterets made an end to ecclesiastical jurisdiction over all
disputes between lay persons, including contracts.

 The addition of an oath to a promise continued to be the key to open the doors of ecclesiastical tribunals
for lay parties who sought to enforce them
o Explicitly included in the Liber Sextus (Collection of papal decretals promulgated by Pope
Boniface VIII)

 It would be an exaggeration to say that the medieval canonists developed a sophisticated general law of
contract. Their focus was on unilateral promises, not consent.
 Ecclesiastical courts would only hear cases on promises with a formal element attached: the oath, and
not so much on bare agreements.
The Ius Proprium

Ius Proprium: Refers to the multitude of specific jurisdictions and laws existing across Europe, each with its
own dispositions and customs
 Customary law that is directly applicable in tribunals
Sources of Law in the Late Middle Ages
1) Legislation
 The ideal of legislation was very present in the Ius Commune

o Roman Law: Legislation promulgated by the monarch
 The monarch did not act as an authoritarian legislator who imposed his law from
above
 Legislation was often the result of complex negotiations through which subjects, via
various pressure groups, secured many of their aspirations, even when the texts stated
that laws were promulgated based on the monarch's sole authority
o Canon Law: Legislation promulgated by the Pope
 Strategic position of jurists and canonists in the chanceries and their role in the drafting and
negotiation of texts and laws facilitated the spread of Roman and canonical concepts

 Academic law: Key to providing new vigor to the creativity of legislation
o Little by little, the political and creative potential of law was comprehended
o Rediscovered the state as an abstract, public entity transcending dynastic and private
relationships
o The notion spread that it was the state's responsibility to maintain law and order and that the
monarch embodied this responsibility

 Legislation came to be seen as the most direct route to introduce changes to laws
o Customary law remained the most important source of precepts for a long time

 Early examples of the monarch as a conscious and confident legislator:
1. Frederick II- Liber Agustalis
 Frederick II:
 Viewed himself as the successor of Justinian
 Undertook the task of unifying laws in his Sicilian kingdom
 Liber Agustalis:
 Body of public and administrative law
 Was the subject of glossing activity both in the Kingdom of Naples and outside it

2. Alfonso X- Siete Partidas
 Siete Partidas:
 Represent the most important Spanish contribution to the history of legislation in
the world
 Most ambitious and complete project of its time aimed at expediting the spread of
learned law
 Stretched beyond the strictly legal sphere to include philosophical reflections by
classical thinkers such as Aristotle, theologians such as Aquinas, and biblical
texts- making it a veritable humanistic and doctrinal encyclopedia
 Its legal sources can be traced back to the ius commune, the Corpus Iuris Civilis,
the decretals, the texts of glossators and commentators, and the feudal sources of
the Libri Feudorum
2) The Administration of Justice

 Ordo Iudiciarus: New way of handling cases, developed by Canonists of the 12th and 13th
Centuries
o Based on the Cognitio Extra Ordiem Procedure
Basic features:
1) Due process
Rights:
o To be cited before court
o To be heard
o To know what one is accused of
o To know who one is accused by
o To know who the witnesses against one are
o To have the time for a proper preparation for the defense
o To be able to defend oneself, even with force
o Presumption of innocence- "Everyone is presumed innocent until proven guilty"
2) Elimination of non-rational elements such as ordeals

o Ordeals: Procedure via which the judge would rule based on signs he interpreted from
God
3) Introduction of written record-keeping

o Encompassed the suit, citation, response, jurisdictional issues, the litis contestation,
witness statements, sentence, appeals
o Documentary evidence also took a central position
o Guaranteed a rational and objective assessments of the facts and legal issues
o Made it possible to document the accused's or the defendant's necessary guarantees
had been observed, which was a principle to which the ecclesiastical courts assigned
great importance

4) Introduction of the right to appeal
o Possibility of appealing judgements before a hierarchically superior court and even
before the pope
5) Inquisitorial principle
o Allowed the judge to start the process before the need of a prior accusation
o Jurists claim that princes and judges have the duty to prosecute crime
o Canonists developed the idea with Christian purposes, for the well-being of the soul of
the criminal
o Introduction of torture into the process
6) Reinforcement of the judge’s procedural and evidentiary initiative

3) Customary Law
 Customary law served as the main source of private law during the Late Middle Ages
 Was initially characterized by the fact that it represented a genuine body of law
o It had a binding force and its violation generated liability
o Prescripts tended to be deeply rooted in traditional practices
o By nature very conservative
o Did undergo a gradual evolution- adapted to fit new social conditions
o Precepts would disappear if they were no longer compatible with newly prevalent ideas about
justice
 When in a legal procedure one appealed to a consuetudinary law precept grounded in custom, it was
imperative to demonstrate that the precept existed. Due to the non-written nature of customary law,
this proof was not always easy. One also had to prove that a precept was valid and in force, which
could be done by demonstrating its constant and repeated use, which was sometimes also hard.
 Techniques were therefore developed to legally certify the existence of a custom

o E.g., qualified witnesses versed in the law
o Formal request for another court to state whether it had ever applied the precept
 These methods had two effects: the gradual unification of law and the introduction of written records
into the process

 13th Century: Multiple private initiatives were undertaken to resolve the problems regarding
customary law
o Members of a given court decided to put the rules applied down in writing - "Customals"
o Later more systematic books appeared

 Some works contributed to a greater unification of customary law:
o Libre del Consolat de Mar
 Field of mercantile law

o The Rolls of Oleron
 Field of maritime law

o Grand Coutomier de Normandie

 One of the earliest drafts of ancient Norman law
 Remains a major source of private law on the islands of Jersey, Guernsey, Alderney and
Stark
 Famous for its jurisprudential rather than practical approach
 Clearly inspired by the Decretum Gratiani

o Coutumes de Beauvatists
 Prime example of a private initiative to record the law in a small area
 One of the most important and original contributions of the ius proprium for its
comprehensiveness and clarity

o The Sachsensplegel
 Marked the beginning of German jurisprudence
 Comprised of customary law from Saxony
 Had an enormous and enduring impact on Central Europe because of its capacity to link
customary rules and practices with wider theoretical and political reflections on the
origins and workings of legal custom
 Author had sound knowledge of canon law and was familiar with the Decretum Gratiani
and the papal decretals

 Growing systematization of these books containing and describing customary law revealed the
growing infiltration of the ius commune into the ius proprium
o Customary law gradually came to be laid down in writing
o Customary law was given increasingly scientific handling
o Due to the greater unification of customary law, the common core of shared precepts
expanded, and fragmentation decreased accordingly

4) Legal Science
 Decretists and Decretalists
 Glossators and Commentators
Commercial Law
Medieval Corporations
 Monasteries
 Dioceses
 Diocese of Rome

Origin of ‘Corporations’:
 12th/ 13th Centuries Canonists develop the idea of a 'corporation'
o Corporation: Organization acting as a single entity

Medieval Law of Corporations
 Assets of the Church could be alienated by its officials

o It has to be a 'corporate' decision: A decision of the whole body

 The debts incurred by the Church were not the debts of its officers
o The corporation responds for them

 12th Century:
o Power of representation
o Power to make claims in court
o Legal personality

 13th Century:
o The same legal vehicle of religious corporations was extended to universities
 Universities were considered corporations
 Power of representation
 Claims and defense in court
 Assets and debts
 17th Century:
o Application of the concept of corporation was extended to business
 Businesses were considered corporations
 Legal personality
 Powers of representation
 Assets and debts

 Claims and defense in court
 Limited liability of the officers
Lex Mercatoria
o Local courts were willing to uphold group-specific customs
o Otherwise, local law was implemented
o Still, transnational trade was facilitated by:
o Application of group-specific customs
o Brokers of all kinds
o Small network-effects
o Support by local legislators and courts
THE EARLY MODERN PERIOD
The Emergence of Humanism

 15th- 16th Century: Humanism / the Renaissance emerged in Italy
o Defined by a new conception of man and the world different from that of the medieval era
o "Rebirth" of interest in classical culture
Humanism: A Renaissance cultural movement which turned away from medieval scholasticism and revived
interest in ancient Greek and Roman thought
 Changed attitude towards antiquity
 Negative attitude towards the Middle Ages
 Scientific approach to Antiquity to reach the same intellectual level as in Antiquity
o "The more inauspicious the bygone times were due to the absence of genuine scholars, the
more we should be gratified by this age, during which, if we continue to do our best, there is
in my view no doubt whatsoever that the language of Rome and all the arts and sciences will
be restored to a fuller glory than in Rome itself"- Lorenzo Valla
Legal Humanism
Legal Humanism: Signifies the investigation of Roman law, using philological and historical methods, as
part of the historical study of antiquity
o Study of Greco-Roman antiquity as a model led to renewed efforts to uncover original texts from
the Greco-Roman era in Europe's libraries
o The Greek language was also rediscovered
o Humanists' techniques were also applied to the ius commune, Roman law in particular
 The Bible: Humanists considered it necessary to compare the translation with the original texts
o Humanist Lorenzo Valla proved that it was fake
 The work of glossators and commentators was censured

o Humanists rejected the glosses and commentaries on the Corpus Iuris Civilis
o Chief among the humanists' concerns was stylistic elegance
o Humanists, in contrast to glossators and commentators, preferred to examine each legal
institution in a coordinated and comprehensive manner
o They preferred the format of the treatise to publish the conclusions of their research. This
allowed them to address and systemize matters at their own discretion
 Humanists no longer considered Justinian's codes as texts of timeless and universal validity
o Humanist jurisprudence took a relative and critical approach to the Corpus Iuris Civilis, which
during the Middle Ages had been viewed as an absolute and universal authority
o They studied Justinian’s Codes as writings composed in a specific geographical and historical
context
o Their aspiration was to bring genuine Roman law to light without subsequent complements
 The fragments of classical Roman jurists featured in the Digest were highly valued by the humanists, but
they still abhorred the work of the compilers, who they accused of distorting the authentic texts of
classical Roman law
o In his work Antiribonianus, French jurist Francois Hotman reproached Tribonian, the Digest's
main author, for having drawn upon only 5% of the legal material available and having
contaminated the purity of the text with interpolations
o In his view, the final text of the Corpus Iuris Civilis contained too many contradictions and
repetitions, and the excerpts of the jurists were mixed together with no particular order
o He also couldn't understand why jurists of clear Roman origin did not appear in the Digest while
provincial jurists like Modestinus occupied positions of honour
o He concluded that Tribonian was a corrupt politician who, in exchange for large sums of money,
altered the texts of the ius civile based on individual requests
 The ius commune was approached as a work produced by a specific society in a specific context, but it
continued to be a model
 For humanists, Roman law would be a point of reference for the development of a body of jurisprudence
based on the ius proprium
 Renaissance jurisprudence also produced a review of content

o Humanists employed the historical-philological method and managed to mend the Roman legal
texts and return them to their original state
 Novellae could be read again in Greek
 The littera bononienis- Middle Ages version of the Corpus Iuris Civilis- would be
carefully compared to the littera florentina
o 1583: Denis Godefroy published a version of the Corpus Iuris Civilis that supplanted the littera
florentina which became the standard version for 300 years
The Historical- Philological Method

 Humanists managed to achieve an even greater refinement of legal concepts
o To clarify difficult or ambiguous terms they drew up a list of what ancient jurists had said about
the term in question. They then compared this list to the use of the term by poems and
grammarians, or with Greek terms. If the ambiguity remained, the problem was resolved by
appealing to the authority of Quintilian or Cicero
 This new historical-philological method differed from the scholastic method employed by the followers
of Bartolus de Saxoferrato (mos italicus)
o Andrea Aliciato, a scholar in France, began to apply the new method to legal instruction and
research
o The method became known as the mos gallicus- "elegant jurisprudence"
 Projects carried out by humanist jurists worthy of note for their relevance included the application of the
historical-philological method to the texts of canon law:
o Editions of the Bible in the three original languages of Latin, Hebrew, and Greek
o Scientific editions of patristic texts
o Scientific editions of old canonical collections

Important Humanists
 Guillaume Bude
 One of the finest Hellenists of his day
 Advised Francis I on cultural matters
 Jacques Cujas
 One of France's best-known legal humanists
 Main concern was the legal meaning of Roman law texts
 Made the effort to reconstruct the mentality, ideals, and values of the ancient Roman jurists
 Hugo Donellus
 Professor of law at various universities across Europe
 Devised an ideal system of law by looking into the Roman law texts in search of general
principles of law, and to logically derive a theoretical reconstruction of Roman law
 His efforts yielded his 28-volume Commentaria Iuris Civilis (Commentaries on Roman Private
Law)
 Thomas More
 One of France's highest ranking judicial and administrative officials
 Major contribution to legal science was his revision of the Digest to restore the original passages
in Greek
 Antonio de Nebrija
Canon Law in the Early Modern Age

 Humanistic study and the application of the historical-philological method had immediate consequences
for canon law:
1) Revealed that canon law had changed profoundly over time- Humanists saw these changes as
manifestations of the ecclesiastical and social context of a particular historical period which they
viewed from a distance
2) Humanistic study also showed that the Church had not always been the rigid and monolithic
structure the Papal Decretals portrayed
3) This discovery of not only chronological, but also regional differences, prior to the development
of the papal monarchy, also had a debilitating effect on the value attributed to the Corpus Iuris
Canonici
 Overall, the universality of canon law suffered a great blow during the Early Modern Age
The Ius Proprium in the Early Modern Age

 The loss of value of the Corpus Iuris Civilis and the Corpus Iuris Canonici had an impact on the
study of the ius proprium
 Legal humanism provided ius proprium with intellectual respectability, leading to a further study of
it in various facets:
o Legislation
o Justice
o Customary law
The School of Salamanca

The School of Salamanca: An intellectual movement by a group of theologians in sixteenth and seventeenth
century Spain and Portugal
 Teachings of the School of Salamanca:

o Field of political theory: Teachings about how a state should function
o The development of a doctrine of autonomous and international law
o Contributions to private law: General theory of contract law

o Arrival at a crucial legal concept: natural law

 Important individuals:
 Francisco de Vitoria
o Father of the School of Salamanca together with Francisco Suarez
o Introduced a new methodology for the study of theology- fusing the principles of the ius
commune with the Summa Theologica
 Established Thomas Aquinas’ Summa Theologica as the premier book for
theological education
 Summa Theologica provides profound reflections on the law and justice
 Francisco Suarez
o Father of the School of Salamanca together with Francisco de Vitoria
o Focused on international law, sovereignty, and the social pact
o Important in explaining our obedience to monarchs in relation to natural law: We must be
obedient to monarchs, but resistance is compulsory and legitimate if a monarch is not
acting in the interest of all
 Domingo de Soto
o Student of Francisco de Vitoria
o Wrote important commentaries and independent treaties and works on property law
 Luis de Molina
o Professor
o Argued, in his De Iustitis et Iure that legitimate power is derived from the citizenry as a
set of individuals with rights
 Leonardo Lessius
o Jesuit professor
o In his own De Iustitia et Iure, focused on issues related to financial, banking and
insurance law
Natural Law
 Natural law: Law which is created by God and is eternal and universal
 Two ways to ascertain the precepts of natural law:
o Divine revelation
o Human reason
 The belief that humans can know natural law through their intellect or reason
 The members of the School of Salamanca discovered a problem concerning the legitimacy of
property:
o Is property an institution of natural law?
 If so, can anyone acquire property? Is there individual property or only communal
property?

 Justification of the monarchy through natural law:
o A monarch may exercise his power and his subjects have the obligation to follow the
monarch's rules as long as the monarch is acting in the interest of the common good
o Law and political power exist only to serve the common good
o Kings therefore have an obligation to serve their people
o Kings stand above the law and custom, but they do not rise above natural law
 Justification of civil government through natural law:

o It is a principle of natural law that man forms political communities
o People come together to form a government which may not be overthrown
o Natural law creates a duty to follow the government
Sources of Law in the Early Modern Age
1) Legal Science
International Law and Natural Law

 Hugo Grotius: 16th-17th Century
o Humanist and a forerunner of the natural law movement
o Drew upon many theological, legal, and historical sources- would result in notable works on
the role of the state and the role of the law
o One of the founding fathers of international law-
 Defended the need to establish an international law system that transcends religious
and moral divisions in "On what is just in war and peace"
o Advocated for a greater independence of natural law from divine law
o Formulated the famous hypothesis that, even if God did not exist, the prescripts of natural
law would continue to be both knowable and applicable
o Posited the individual as the centerpiece of jurisprudence
o Believed that man is not only capable of discovering and knowing the principles of natural
law, but is also capacitated to deduce, from these principles, an ideal legal system

 Grotius' 'Introduction to Dutch Jurisprudence':
o One of the first and finest summaries of a national legal system within the ius commune
o A prime example of Roman-Dutch law
o Describes the substantive law of the province of Holland and systemizes it according to the
Roman classification of people, property, and obligations

 Thomas Hobbes - De Cive: 1624
o The state of nature consists of a struggle of man pitted against man
o Because man wants to stay alive and survive, he agrees through a social contract to form part
of a political community
o In order to keep the peace within this political community, it is necessary for the community
to submit itself to a supreme power which he termed the "Leviathan"

o This contractual thinking left a mark on European jurisprudence

 Samuel Pudenforf- On the Law of Nature and Nations: 1672
o Produced a synthesis of the thoughts of Grotius and Hobbes
o Agreed with Grotius on the belief that humans possessed all the qualities that make
community life possible
o Agreed with Hobbes that a strong civil government would be capable of maintaining the
order and security that natural law aimed towards
o This work was taken as a starting point for research on natural law by several enlightened
natural law theorists

In conclusion, jurisprudence during the modern era, compared to that of the Middle Ages, featured a trend
towards fragmentation.
2) Legislation
 Strengthening of centralized political power reinforced the monarch's legislating activity
o In principle, it was the monarch, and only the monarch, who enacted legislation
o Elimination of legislative competences of power competitors
o With the exception of England, representative institutions lacked legislative authorities

 The importance of customary law as a source of law would erode

 This process of centralization led to chanceries and other royal judicial structures coming to serve as
a counterweight to avoid legislative abuses by the monarch
o These superior courts of justice were charged with registering new laws, transmitting them,
and enforcing them among all the administrative authorities in their jurisdictions
o If they so decided, they could refuse to register a law
 Over time, legislative activity grew more orderly and acquired greater systematic coherence

 16th Century: A series of legal ordinances were established
o They sought to set down the terms for the regulation of multiple areas in a single text

o French Ordonnance de Villers-Cotterets:
· Provided for reform of the state’s administration
· Delimited ecclesiastical and secular jurisdictions
· Generalised inquisitorial prosecution in criminal law
· Regulated donations between the living
o 17th Century: Louis XIV and his finance minister undertook a legislative program to reform entire
areas of law and unify them across France
 Ordonnance Civile Sur la Reformation de la Justice: Unified and simplified civil procedural
law across France's Parlements

o Castille: Much greater legislative systematization was achieved
o This was a result of the landmark work of the Siete Partidas and a result of repeated entreaties
by the Cortes
o Nueva Recopilacion: Most important compilation, produced by Philip II
 Consisted of 4000 laws systematically organised into books with titles that grouped
the texts by subject
 Fundamental objective was to gather all current law into single volumes
 Represented a ground-breaking attempt to systemise national law
 The usefulness of the compilation method would prove undeniable

3) The Administration of Justice

 Objective of Kings in the Modern Era: Establish a complete, hierarchical and organized court system
o During the final centuries of the Middle Ages, contact with the Romano-canonical procedure
had already inspired monarchs to establish royal courts

 Strengthening of the system of Royal courts led to monarchs achieving control over the
administration of justice
o Local/ feudal courts would remain, but their power was wrested from them by the royal
courts
o Nonetheless, the coexistence of local and royal courts lingered until the 18th/19th centuries

 Royal justice was also reinforced by an erosion in the ecclesiastical courts' purviews and authority
o The jurisdictional aspirations of the Church were not fully applied
o Ecclesiastical courts came to have very little autonomy and power; now holding second place
after royal courts
4) Customary Law
 Remained the most important source of law until the end of the 18th Century. After this its relevance
eroded significantly
o Legislation was also an important source of law: Customary law no longer the only source of
law

 Attempt by monarchs to control customary law by putting customs into writing

 15th-16th Centuries: 350 customary law systems written up, along with 700 in the Netherlands:
o More legal certainty
o Proof of the existence of customary law before royal courts becomes more efficient
o Stopped the evolution of customary law
Scientific study of National Law

 The scientific study of Roman made people realize that Roman law is not timeless- led to the greater
study of customary law
 As the importance of legislation and administration of justice grew, authors undertook the task of
creating orderly collections of decisions in local and feudal courts and laws that were issued
 Natural law and its search for an ideal system rooted in rational principles was founded not only on
the principles of the ius commune, but also on national law

o Jean Domat's “Loix Civiles dans Leur Ordre Naturel” (The Civil Laws in their Natural Order)
drew upon both the ius commune and natural law to set forth a logical and rational system for the
structuring of French law from the precepts of natural law (identified as natural law principles)
o This book marked the beginning of a trend in which natural law would be studied only in so far
as it corresponded to natural rationality, which would be the basis on which Enlightenment
thought and a new codification movement would have to rest

THE BOURGEOIS PERIOD
The Beginning of the Bourgeois Period
 1789: The French Revolution marked the end of the Modern Age
 Bourgeois Period: Period spanning from the 18th to the 19th Century
 Economic Developments:
 Shift from agrarian to industrial economy due to:
 Industrial Revolution
 Agrarian surplus
 Capital and money
 Technological innovations
 Social Developments:
 Development of a new social class: the rich bourgeoisie
 Fall of the nobility and the clergy
 Surge of the proletariat
 Immigration to the cities
 Political Developments:
 The French Revolution:
 Collapse of absolute monarchy/ the ancien regime
 Elimination of the privileges of the clergy and nobility
 Eradication of feudalism
 Ideals of freedom, equality, and popular sovereignty
 Demand for the separation of power
 Laid the foundation for a modern state governed by the people
The Enlightenment: Philosophical, scientific, and artistic movement which sought to apply principles and
methods to all areas of knowledge.
Enlightenment advocates:
 Questioned and rejected of established institutions- the Ancien Regime, the Church
 Had limitless faith in human reason- Age of Reason
 Had limitless faith in man's goodness and rationality
 Believed that everything should be reformed to start with a clean slate free of history
 Believed that it was possible to gather and compile all human knowledge
o This resulted in Diderot and D'Alembert's Encyclopedie
Enlightened vs Natural Law Thinkers:
 Both enlightened and natural law thinkers adopted empirical observation and scientific reasoning
 Natural law thinkers believed that the principles of natural law would give way to the perfect legal
system
 Enlightened thinkers believed that reason would give way to the perfect legal system
Society and government according to Enlightenment Philosophers:
 Rejection of Europe’s feudal, superstitious, and traditional past and structure
 Social Contract Theory:

o Enlightenment thinkers advanced a set of ideas upholding popular sovereignty:
 Political power is nothing but the consequence of individuals’ cession of part of their
sovereignty to the state
 Power should never be placed in the hands of one individual
 Power must be distributed between several institutions to maintain political balance
 John Locke: Two Treatises of Government

o Limit on state power and protection of citizens’ rights
o Foundation of political power is the social contract
o Theory that the social contract is to protect the people from the power of the state
 Jean-Jacques Rousseau:
o Argued that the social contract is the basis of every political community
o Believed that direct democracy is the best model of political organization
o Every citizen ought to submit a ‘general will’
Law and the Enlightenment:

 Enlightenment thinkers concerned themselves with the law and the organization of the state
 Enlightenment thinkers believed that law and legislation was the instrument necessary to reform
society
 Application of Enlightened principles on the law:
 Liberty:
 Explicit fundamental rights
 Equality:
 No privileges for different classes
 Rejection of customary law
 Social Contract:
 Public law:
 Sovereignty by the people
 Criminal law:
 Cesare Beccaria: The government should never have the power to kill its
people
Enlightened Law Codes:
 Allgemeines Landrecht Four Die Preubischen Staaten (General laws for Prussian states)
o Enacted in 1794 by Frederick William II and remained in force until 1900
o Structure was inspired by the works of Samuel Pufendorf and Christian Wolff- shaped by
natural law doctrines
o Academic commentaries and judicial interpretation were banned
o All ambiguities were to be brought before the legislative commission

 Bavaria Codes
o Initiative of Maximilian III Joseph of Bavaria
 1751: Criminal law code
 1753: Process law code
 1756: Civil law code
o The influence in the division of subjects of natural law was clearly visible
o Based on the Institutiones (people, property, inheritances, obligations)
o The intention was not to suppress existing laws, rather provide a shared body of suppletive
law

 Allgemeines Burgerliches Gesetzbuch: Austrian General Civil Code

o 1753: Maria Theresa had ordered the drafting of new codes to unify in territories as diverse as
Austria, Tyrol, Bohemia, Silesia
o Customary law was suppressed as a source of law
o Inspired by principles of natural law and returned to the structure of the Institutiones
The French Civil Code

o Symbolized the revolutionary project of civil law
o Drafted by 4 French jurists, as well as Napoleon
 Content of the Civil Code

o Mix between traditional and revolutionary ideals
 Traditional ideals:
 Customary law of Paris
 Roman Law
 17th and 18th Century legislation
 Revolutionary ideals:
 Equality and liberty
 Social contract
 Separation of powers
 Structure of the Civil Code

 Structure based on Justinian’s Institutiones
 Introduction: Brief containing 6 articles
 1st book: Law pertaining to individuals, including marriage and custody law
 2nd book: Law pertaining to limited real rights and property
 3rd book: Law pertaining to the acquisition of property, as well as all other laws not included
in other books (succession, contracts, sale, and obligations)
 Clear, understandable language
 Characteristics of the Civil Code

 More Germanic influences than Roman influences
 Founded by creed of the Enlightenment:

o Influence of natural law: Autonomous principles of nature included, such as freedom
of religion
o Revolutionary ideals of freedom and equality
o Abolition of the feudal system and privileges of the clergy and nobility
o Profound reform on succession law
o New value placed on individual of contract
 Good balance between the legal achievements of the Ancien Regime and the contributions of
the Revolution, as well as Parisian customary law
 Avoids contradictions and allows for judicial interpretation
 Once the Civil Code came into effect, all other ancient laws, systems, customs, statutes,
regulations and Roman Law ceased to be in force
 Principle of equality had a great impact on the centralization of private law:
o Same private law applied throughout the whole of France and large parts of Europe
o Equality before the law, private property and freedom of contract became the 3 pillars
of the 19th- Century private law throughout Europe
Other Napoleonic Codes

o Civil procedure code
o Criminal code
o Maritime law code
o Code of commerce
Sources of Law in the Bourgeois Age
1) Jurisprudence
Legal Positivism: A school of jurisprudence who advocated that the only legitimate sources of law are
written rules, regulations and principles that have been enacted, adopted, or recognized by a governmental
entity or political institution.
 The Exegetic School

 New way of understanding jurisprudence born with the enactment of the Napoleonic codes
 Saw legislation as the sole source of law

 Courts and customary law no longer valid
 Comparative law and legal history also not important
 Legal science and commentaries have to limit themselves to the letter of the law
 No interest in the relation between law and society
 Supported the separation of powers:
 Legislative branch responsible for enacting laws
 Executive branch responsible for administering the country in accordance with those
laws
 Judiciary branch responsible for pronouncing the words of the law
 German Historical School / Pandectist School

 Germans opposed enlightenment thinking towards and within jurisprudence
 Savigny: “Law is the product of historical evolution”
 Believed that customary law and decisions on cases were also important sources of law
 Believed that law should be made for the people
 Romanists
 Believed German legal system should be based on Roman law
 Believed jurisprudence should react to social changes
 Built their system on the basis of Roman law texts rather than solely Roman
principles and axioms
 Rationally approached natural law
 Germanists
 Rejected Roman law and its legacy
 Supported the German people’s particular law
 Considered the Humanist official reception of Roman law as a national
disaster which deprived the German people from their own body of law
 Pandectism
 Pandects: Justinian’s Digest
 Pandectists: German university scholars who studied and taught Roman Law as a model of
conceptual jurisprudence, as codified in Justinian’s Digest
 Conceptual jurisprudence: Law is the product of old law passed down by generations,
not a consequence of science or faith
 Evolution of the Law:

 17th Century: Search for basic principles/ human laws in nature
 18th Century: Search for basic principles/ human laws with reason
 19th Century: Search for basic principles/ human laws by observing
historical evolution
o Pandectist School:
 Believed jurists, not legislators, were the interpreters of German spirit
 Sought to structure a system which could be applied in contemporary Germany
2) Pandectist Codification: The German Civil Code

 Pandectists believed that drafting a civil code would prove the central position of
jurists in the creation of a civil code
 Sought the unifying force of a unique code
 Sought to uphold the three pillars of a liberal society: equality, private property and
freedom of contract
 Bürgerliches Gesetzbuch (BGB): German book of civil law

 Represented a coherent, solid, and consistent system based on Roman law
 Importance of ‘bona fides’
 Divided into:
 General aspects
 Law of obligations
 Property law
 Family law
 Succession law
 Inspired the civil codes of Hungary, Austria, Poland, Greece, Peru, Brazil, Japan, and
China
2) Legislation
 Key role of legislation as a means of transforming society according to Enlightened

principles
 Must embody and express the people’s general will and set an end to the arbitrary nature of
customary law
 Establishment of fundamental rights guaranteed by law
3) Customary Law
 Abandonment of customary law

COMMON LAW
The Origins of English Common Law
The Anglo-Saxon Period: Early Middle Ages

o Early 5th Century: The Roman army withdrew its forces from England
 Germanic tribes of Anglons and Saxons landed in England
 Brought with them Germanic legal traditions
o 9th Century: England was invaded by Viking tribes (Danish and Norwegian)
 Danelaw: The set of rules and legal provisions that the leaders of both Danish and Norwegian
peoples agreed upon
o Late 9th Century: King Alfred of Wessex managed to impose his authority upon England and
established an effective and uniform territorial structure
 The kingdom was divided into counties/ shires
 A representative body made up of notables which boasted executive, legislative and judicial
functions managed each of the shires
 Shires were divided into hundreds, under the responsibility of the hundred man
 Hundreds were divided into tithings: Groups of 10 families under the responsibility of the
tithingman.
o All these assemblies, not necessarily hierarchically organized, led to the development of an equal
number of sets of customary laws.
 The English kings were still able to maintain a centralized government through their royal
officials (sheriffs)
The Norman Conquest

 1066: Battle of Hastings led to the conquest of England by William the Conqueror and his Norman
armies
o Reinforced feudalism: William distributed most of England's territories to his followers in
return for military and financial support.
 Feudalism was of special importance to private law, particularly in property
o Domesday Book: Comprehensive description and registration of every plot of land in
England commissioned by William to make efficient fiscal and feudal management possible

The Introduction of Royal Justice

The Normans introduced their own system of royal justice which paralleled the jurisdictional bodies linked
to the Anglo-Saxon division of the territory
 Organization of royal justice featured:

o Itinerant justices: Royal officials sent around the Kingdom with the task of administering
justice
o Appeals to the King himself, on occasion
o General Eyre: King sent his judges throughout England to ensure compliance with royal
legislation
 Individuals could also turn to the Cura Regis: a consultative body consisting of
experts and courtiers who assisted the King in the determination of general policies, to
search for justice.

 The Bench: A permanent court for judges, established at Westminster
o By the end of the 13th century a central royal justice body had been established at a fixed site

 Despite the development of a central judicial authority, individuals who sought justice continued to
encounter serious difficulties.
o It was not always possible for everyone involved in a case or travel to Westminster
o Therefore, an institutional initiative resuscitated the old itinerant justice system

o Criminal matters: Itinerant justices possessed original jurisdiction
 With a commission of gaol delivery, they judged cases of serious offenses that constituted
clear violations of the King's peace
 Commissions of oyer and terminer were given to judges to hear and resolve criminal cases
o Civil affairs: King Henry II decided that a jury of 12 citizens would be summoned to the royal court
 Nisis Prius System: Jurors were summoned to appear at the royal courts at Westminster

 The institution of the jury, which had deep Germanic roots, would be one of the pillars of common
law
o Grand jury: Composed of a large number of people and was limited to determining whether
or not there was sufficient evidence to proceed against the accused
o Petty jury: Composed of 12 people, with the role of hearing the evidence and determining a
verdict

 It was in the royal, central, and itinerant courts, with or without juries, where common law was
formed and developed
 As law that was the same throughout the entire kingdom, it was named "common" to distinguish it
from local customary law
o Customary law disappeared eventually as royal justice was more efficient in every way
The Central Courts of Common Law

The Development of Central Courts
 Exchequer of Pleas
 Oldest common law court
 Initially dealt with fiscal matters
 16th Century: Jurisdiction was extended to civil cases
 12th Century: Establishment of ‘The Bench’

 Operated without the King’s presence
 Divided into:
 Common Bench: Court of Common Pleas

 Handled most civil matters
 Forged medieval common law
 King’s Bench
 Heard cases in which the monarch had an interest
 Was of limited significance due to the system of itinerant justices and the existence of
the Court of Common Pleas
 Bill Procedure: King’s Bench was able to emit a bill to initiate processes against
people already in prison
The Abolition of Common Law Courts
 End of 17th Century: 3 courts operating in London, and their purviews overlapped
o Although they employed different procedures, they virtually heard the same cases

 1873: Judicature Act:
o Introduced to abolish the three central courts and transfer their competencies to a single Higher
Court
 1875: Supreme Court of Judicature:

o Came to function as a Court of Appeal and a High Court of Justice
Writs
 Writ: A sealed letter issued in the name of the King which ordered an individual (such as the sheriff
or the defendant) to do something in favor of the plaintiff
o “No writ, no right”
o Became the standard instrument for litigation
 Remedy: The manner in which a right is enforced by the court when someone is harmed
o The character and extent of relief to which a successful claimant is entitled
o A matter of right: whether the claimant sufficiently proves his/her case
o Remedy granted to plaintiffs for civil wrongs was the payment of a sum of money
 Functioning of the Writ System:

 Dominated by procedural formalities
 As in classical Roman law, one could only sue if there existed a specific remedy for the
situation in question
 There was no notion of law or right outside the different legal remedies, or of a procedure
separate from the remedies themselves
 Principle of remedies precede rights: The remedy incorporated the right and the procedure
o "Where there is a remedy, there is a right"
 Plaintiff: The party who initiates legal action

 Defendant: The party against who action is brought
 1258: It was established that the Chancery could only issue already existing writs
Common Law in the Modern Age

Equity
Early Modern Age: Development of ‘Equity’ by the Court of Chancery
 Equity: Body of law that addresses the concerns that fall outside the jurisdiction of common law
 A set of maxims that reign over all law which allows courts to use their discretion and apply
justice in accordance with natural law
Equitable Principles
 Enforcement of the intentions of the parties
 Equitable remedies: there must be a remedy is wrong is done
 An equitable remedy will not be granted to a claimant who has not acted fairly
 A claimant cannot wait too long before making a claim because this may prejudice the other party
Equitable Remedies
 Equitable remedy: A more flexible remedy via which the plaintiff asks the court to compel the
defendant to perform a certain act or refrain from a certain act
o Injunction
o Decree of specific performance
Equitable Rights
Equity recognized new rights which were unknown to common law
 Law of Trusts:
 Arrangement made by crusaders for their land whilst they were on crusades
 Custom whereby landowners would transfer their property to a trusted friend on the
understanding that it would be used for the crusader’s family if he did not return
 Still relevant today in taxation, shared ownership of property etc.
Conflict between Common Law and Equity

The development of ethics as a system of rules led to conflict between common law and equity:
 In some cases, equity directly challenged common law
 1816: James I established that equity should always prevail over common law
The development of Equity

As equity hardened and developed into a system with clear rules, it became as inflexible as common law
 19th Century: Urgent need for reform of the whole legal system
o Too many courts with overlapping jurisdictions
o Obtaining justice was expensive and slow
o Inadequate appeals system
Fusion of Common Law and Equity

 Supreme Court of Judicature Act of 1873 and 1875: Creation of a single court structure which
merged the separate court systems of equity and common law
 The procedure became regulated by the rules of the Supreme Court rather than being left to
individual courts
Sources of Common Law
1) Lawmaking
 Binding Precedent:
o Judges were bound to respect a preceding decision
 Stare Decisis:
o Judges were to rule exactly according to precedent
2) Legal Science- Jurisprudence
Common law is characterized as “judge-made law”

 Medieval and early modern jurisprudence was based upon practical cases: compilations of writs,
formulas, collections of cases
 Tractatus de Legibus et Consuetudinibus Regni Angliae: Treatise on the Laws and Customs of the
Kingdom of England
o Ranulf of Glanvill, Chief Justiciar
o Landmark compilation of writs featuring a brief description of their corresponding
procedures
o Became the fundamental cornerstone of common law jurisprudence
o Shows the writ's central position in the English legal system

 De Legibus et Consuetudinibus Angliae: On the Laws and Customs of England
o Henry of Bracton, judge at one of the royal courts
o Great stress upon writs
o Only addressed common law
o Introduced some commentaries clearly inspired by canon law and Roman law

 Introduction to real property law
o Thomas Littleton
o Directed at future lawyers

 De Laudibus Legum Angliae: Commendation of the Laws of England
o Very influential account on the Crown of England
o Compared English common law with the law in France and concluding that English common
law was superior

 There was a lack of systematic works on common law, and this corresponded to the way future
lawyers were trained
o Universities such as Oxford and Cambridge taught Roman law
o Students did not undertake academic training
o Legal eductaion was highly practical

o 19th Century: Collegiate system evolved
o Reports on cases were produced for their practical analysis in class
o Students served in moot courts to acquire practice
o The observation of court proceedings at Westminster Hall was a basic component of legal
education

 16th Century: Some legists gradually adopted a more doctrinal approach to common law
o Turned to doctrine to further the systematization of common law

 The Institutes of the Law of England
o Edward Coke
o Extensive introduction to common law

 A Commentary upon Littleton
o Stood as the leading reference work on property law until the 20th century

 An Introduction to Criminal Law
o Matthew Hale
o Still cited in English and American courts

 History of the Common Law and the History of the Pleas of the Crown
o Matthew Hale

 Commentaries on the Laws of England
o William Blackstone
o First successful attempt to systemize the entire common law within the scope of a single book
o Fit with the ideals of the Enlightenment
o Systematization and structure was derived from Justinian's Institutiones
o Reliance on natural law as an overall legal theory- proved that the principles of common law
embodied the principles of natural justice

 Jeremy Bentham
o Rejected natural law theories in favor of the utilitarianism movement
o Sought to develop an ideal system based on a principle of utility
o Criticized the formalism of common law, its division into courts with overlapping
competencies, and the dualism between common law and equity
Common Law vs Civil Law
Similarities:
 During the Early Middle Ages, the legal sources of common law were similar to those in Europe
 During the Middle Ages, there was royal legislation, just as in Europe
 Common law principle of stare decisis was developed by canonists: their approach to papal decretals
 Equity was inspired by the Romano-Canonical procedure: Ordo Iudiciarus
 Roman and Canon law was taught at Oxford and Cambridge
 Natural law thinkers such as Blackstone influenced Common Law
Differences:
 Writ system
 Common law placed a limit on royal absolute power
 Common law not codified

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European Legal History

1) The Evolution of Roman Law

Periods of the history of Ancient Roman Law

1. Monarchy and Republic: Archaic Roman Law

Archaic Roman Law

The Ius Civile

Division of law into three layers/strata:

Division of the civil procedure into two stages:

The Ius Gentium

 Ius Honorarium did not replace Ius Civile

The Legis Actio Procedure

 Legal complaints were processed according to 'legis actiones'

The Formulary Procedure

The Law of the XII Tables

 Established a formal distinction between law and religion

Classical Roman Law

The new role of Jurists

 Emperor gave a delegation of jurists the ius respondendi:

Classical Roman Jurisprudence

 Perpetual Edict recognized that praetorial power had declined

Post-Classical Roman Law

 Shift to absolute rule through imperial decrees- royal legislation

The Cognitio Procedure

 New form of litigation aside from the formulary procedure

 Judicial officials took over the administrative handling of the process

o Bipartition of the formulary process ignored

 Fused the ius civile and the ius honorarium

Justinian’s Codification Project

o Became the foremost historical source of law in Roman times.

o The collection included:

 Anthology of excerpts from classical Roman legal texts

o Contains the opinions of jurists

o Contains the most important principles of jurisprudence

1) The Classification of Things

In Roman times, ‘things’ were categorized and distinguished as such:

Divine objects Human objects

Res nuilus Res communes omnium

Res privatae Res publicae

Res corporales Res incorporales

Res mancipi Res nec mancipi

Movable goods Immovable goods

Interdicts based on their purpose:

 Interdicts to recover possession- Recuperandae

Protection of possession of land and immovable goods:

Protection of possession of movable goods:

 Rights of third parties:

o Personal rights- contracts

 Limits established by law:

o Second phase: apud iudicem:

* Defendant could not be forced to return the good.

4) Acquiring/ Transferring Ownership and Possession

Ways to acquire/ transfer ownership/ possession:

o According to ius gentium for non-citizens:

4.2) In Ure Cessio

Change in process: Post-Classical Times

4.5) Natural forms of acquiring ownership

 Thesauri inventio: Acquisition of ownership of a good found on a land

 Fructus: Acquisition of goods created by other property

 Confusio, conmixtio: Acquisition of ownership of an object created by a mix of two elements