CWH Notes- Sem II

- Ishaan Pandey (GNLU’25)

[World History]
Legal history is the forms of action human beings buried; but those forms buried long time ago
still rule human beings.
Concept and meaning of Legal History
• Legal history is a systematic study of past legal systems
• Studies its origin and development
• Compares and contrast different legal systems of the world
LH among jurists of legal process
• Seen as the recording of the evolution of laws and the technical explanation of how these
laws have evolved with the view of better understanding the origins of various legal
concepts.
• Considered by some as a branch of Intellectual History.
LH as viewed by the 20th Century Historians
• LH to be seen in a more contextualized manner more in line with the thinking of social
historians.
• They have looked at legal institutions as complex systems of rules, players and symbols
and have seen these elements interact with society to change, adapt, resist or promote
certain aspects of civil society.
• Analysis of case histories
• Parameters used - social science inquiry; statistical methods; class distinctions among
litigants, petitioners and other players
• Gives a relatively complex view of law and society
Approaches to Legal History
Four types:
1. The unitary or isolationist approach
2. The holistic or the sociological approach
3. The technical Approach
4. Mixed Approach

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 1. The Unitary/Isolationist Approach
• Focus on the past societies, the legal rules, legal principles, legal standards and the changes
therein.
• By disregarding factors such as social, political and economic for the sole purpose of
understanding those past systems.
• influenced by legal positivism

2. The Holistic/Sociological Approach

• Inclusion of economic, religious, social political institutions of past societies.
• Adds to the first approach
• Should include both internal and external factors to a past legal system as a legal system
does not stand in isolation from external factors.
• rests on the idea that society is a whole and is not made of separate elements.
• Several sources of law of which sovereign is just one.

3. The Technical Approach

• legal history should limit itself to gather the legal problems and understand the legal
reasons why these solutions were chosen by past societies
• Proposes that the present society should adopt the solutions of the past in dealing with
similar problems
• to reach a sociological explanation of the past laws and relations to other aspects of the
social organization

4. The Mixed Approach

• Combines 1,2 and 3
• bases itself on the idea that the three approaches have positive elements, which are to be
accounted for

Reasons for studying legal history

1. clarify the present legal systems
2. help us solve legal problems of today because certain legal problems the present legal
systems face cannot be solved without reference to the past.
3. allows us to be sensitive to legal systems, as legal history reveals that different communities
have solved the same legal problems in quite different manner.

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Problems in the study of legal history
1. Boooooooooooooooooooooooooooooooooooooooring concepts (JK)
2. Insufficient data available to arrive at a provable conclusion
3. Highly speculative
4. Lack of sufficient and reliable evidence of past events. (fundamental problem)

The Concept of Legal System

I. A system implies that there are several elements put together to achieve a certain purpose.
II. A legal system is defined as a synergy of legal rules, legal principles, legal standards, legal
policies, legal structures, legal tradition, legal actors, legal extension and legal penetration
operating in a given geographical area.
III. The complexity of a legal system varies depending on the stage of development of a
country.
IV. may refer to the present or the past legal system.
V. The purpose of its creation – Sustaining power-based superstructures and systems; e.g.
slave-owning system, feudal regimes, communism, theocratic system etc.
VI. there are about two hundred legal systems in the world
Classification of Legal Systems
• No consensus on a proper criterion
• However, a large number of other criteria involved- race, geography, language, sources of
law, substance of law, ideology, legal technique and the system of conception of justice.
Zweigert and Kotz
• argue that it is not possible to classify legal systems into legal families merely by using a
single criterion.
• it is sound to devise a set of tests that go through all legal systems that are determined to
belong to the same family.
• Proposed the concept of legal style: the totality of features that flesh out a distinctive form
of legal systems.
• The five factors adopted by Zweigert and Kotz are the stylistic factors, which enable those
who study comparative legal tradition to identify the families of legal systems and to
attribute individual systems to them.
• Five Constituents of any Legal System Include:
1. Historical background and development
2. Predominant characteristics modes of thought in
legal matters (especially distinctive institutions)
3. The kind of legal sources it acknowledges
4. The way of handling the legal sources
5. Ideology

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Note: Refer Muradu Abdo for further reading on (2.) and (5.)
➢ Assert that there are eight modern legal systems: E.g. the Roman-istic, the Germanic, the
Anglo American, the Nordic, the Socialist, the Far Eastern, Islamic and the Hindu etc.
➢ Omits the African customary, Jewish law and the European Union law.
Rene David
• Proposed an alternative
• The classification of legal traditions should not be based on the similarity or dissimilarity
of any particular legal rules
• Two tests that should be used together:
1. legal concepts and techniques of employed
by the system
2. the system’s ideology
• By ‘legal concepts and techniques’, David means the
1. Vocabulary of the law,
2. The legal fictions employed by the system,
3. Hierarchy of sources of law, and
4. The methodology employed by legal actors within the system.

• David defines ‘legal ideology’ as the philosophical, political, and economic principles of
the society in which the legal system operates.
➢ Asserts that there are following legal systems: the Romano-Germanic, Socialist, the
Anglo-American, Muslim, Hindu, the Far Eastern, and the African and Malagasy.
David, like Zweigert and Kotz, is of the opinion that particular rules of substantive law are not
decisive for the classification of a legal system.
But all three agree that general principles of law, including those of substantive law, help to
determine the family of a given legal system.
However, it is difficult to classify the legal systems of Quebec, China, Louisiana, Scotland, South
Africa and Israel. They are classified as HYBRID LEGAL SYSTEMS. These are the products
of a mixture of two or more legal traditions.

Reasons for classification of legal systems

1. Technical: Makes the study more systematic by classifying and sub-classifying the major
legal traditions of the past and the present.
1.1 Classification of legal systems helps you to arrange the mass of legal systems in an
understandable order
1.2 Understand and assimilate the mass of detail

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 2. Authority: In the sense that those legal systems that are grouped together can borrow legal
materials from one another where there are gaps.

Legal Tradition
• refers to a set of deeply rooted and historically conditioned attitude of the majority of the
members of a given legal system towards the other elements of that legal system
• means the way laws are made, modified, interpreted and the way the legal actors and
structures function
• It is the abstract element of a legal system
• Three types of attitude towards a legal system:
1. Hostile
2. Neutral
3. Favorable
• When the attitude of the governed is hostile, the legal system will show instability; it will
have to be changed.
• When the attitude of the governed is supportive of the legal system, the system will show
continuity.
• When we say legal tradition, we are referring to the attitude of the majority members of a
given community; we are not referring to the entrenched attitudes of the minority
members.
• should be something deeply embedded in the system
• Presence of antiquity and continuity
Classification of Legal Tradition in terms of ‘Frequency of Change’
Three types:
1. Legal systems that exist for a relatively longer period of time- Known for
stability and backed by majority support. Minor adjustments with time.
2. Legal systems that undergo basic and frequent changes- Relates to legal
tradition with deep and revolutionary changes.
3. Legal systems which experience little or no change- Belongs to the domain of
the stagnant early legal traditions.
DO CIVIL AND COMMON LAW ON YOUR OWN (EASY PEASY LEMON SQUEEZY)
{Include Dicey’s conception of three classes of recipients of common law}
Legal Transplantation
• Also called legal borrowing, legal importation, legal reception and legal taking.
• Refers to the transfer of legal rules, legal principles and legal concepts from one or more
than one legal system to another legal system.

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 • Recipient System- Legal System borrowing laws (should be an existing one or a system
at its initial stage of development)
• Donor System- Legal System lending laws (may be existing/past)
• Legal borrowing can involve a single legal rule; it can be a massive borrowing.
• For instance, Ethiopia borrowed large quantity of laws in late 1950`s and 1960`s. At the
end of 19th century, Japan received large quantity of laws from Germany.
• Appreciating legal transplantation is important to conduct legal research, as it enables you
to trace the right material sources of the laws of a given country.
Reasons for Legal Transplantation
1. A recipient country may borrow laws since the laws are accessible in terms of language,
the laws are found out to be meritorious in terms of organizations, the laws were
transplanted to other systems and found out to be fruitful and the recipient country decided
to modernize its legal system.
2. As a result of migration or commercial intercourse.
3. Because important elites are attached to the legal system and education of the donor
country.
4. A country may be forced to accept the laws of other systems owing to war or conquest or
colonization or physiological pressure.
History of Legal Transplantation
From Greeks to Romans to Europe (France and Germany) --- Transplantation by France into Asian
and African Countries (colonization)
The same done by England
Eastern European countries received laws from the civil law countries. After the end of World War
Second, however, East European countries were forced to adopt socialist system of laws. Again
after 1980`s these countries went back to the civil law tradition owing to external pressures.
The Islamic legal system, as an idea, originated in the Middle East in the 7th AD., and then it was
taken to the coastal areas of Africa, Middle East and Asia. Now a kind of Islamic law belt is
created. The spread of the Islamic legal system has been attributed to a combination of the
following factors: migration and commerce.

Views on Legal Transplantation

Three main theories:
I. As propounded by Savigny
II. As propounded by Watson
III. As propounded by Kahn-Freund

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 I. Custom Theory
• Propounded by Savigny
• States that law and society have inherent connections
• Laws are found in the common consciousness of the people (Unique relationships)
• Manifested via the behaviors of individual members of that community
• Assumes that every community is legally self-sufficient; whenever a society faces a legal
problem, it can create legal rules of its own and from its own internal sources alone.
• If one attempts to take the laws of X community to Y community by way of legal
borrowing, those transferred laws will inevitably fail.
• If you know in advance that borrowed laws will fail, there is no reason to try it.

II. Legal Engineering

• Opposing theory
• Developed by Alan Watson
• Holds that there is no unique connection between law and society
• no community has ever been legally self-sufficient in the history of mankind
• views laws as intangible instruments to achieve certain goals.
• As laws are tools, they can be taken to any society and may be used with success.

III. Hybrid Theory

• Propounded by Kahn-Freund
• Attempts to strike a middle ground
• Also called the degree of transferability approach
• In some cases, legal transplantation can be easily achieved (commercial law, public law
and technology law in developing countries). However, in some (family law, inheritance
laws and land laws in developing countries), it is not desirable.
• It states that the contexts of the recipient country should be studied well before the
borrowing of laws is made.
Refer to Muradu Abdo for the Kahn-Freund v. Watson narrative on legal transplantation

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 [Ancient Legal Systems]
Three early legal systems:
1. The Babylonian Legal System
2. The Greek Legal System
3. The Roman Legal System

The Babylonian Legal System

➢ Also called the Mesopotamian Legal System
➢ Flourished Before Christ
➢ Euphrates and Tigris Valley (South of the present-day Iraq)
➢ Divided into three stages:
1. First Stage:
• Different kingdoms
• Raging conflict
• Great instability
• Legal system was characterized by diversity, brevity and
fragmentation

2. Second Stage:
• The advent of Hammurabi
• Wrote the first real law code in the history of humanity
• Code of Hammurabi
• Came into force in 1750 BC
• Retributive in nature (eye for an eye)
• No distinction between public law and private law, and
substantive law and procedural law (the code was not
systematically written)
• Expression of importance of rule of law
3. Third Stage:
• Phase of decline
• Little information
REFER TO HAMMURABI’S CODE AND MURADU ABDO FOR FURTHER
UNDERSTANDING OF THE BABYLONIAN LEGAL SYSTEM

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 The Greek Legal System
➢ The Greek Civilization reached its zenith during the 5th century BC
➢ Started declining in 4th century BC
➢ Collapsed in 2nd century BC
➢ Introduced the principles of Public Law
➢ Not much contribution in the realm of Private Law because of three factors:
1. No Empire unlike the Romans
2. Too much focus on philosophy and
abstract thinking rather than developing
rules for private conduct
3. Lack of legal structures for enforcing and
developing private law

➢ Disputes were settled on the principles of ethics and equity

➢ Operated on the assumption that law should not be monopolized by the few and that people
had to be allowed to participate in the making and implementation of the law
➢ No precedents

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 The Roman Legal System
The history of the Roman Empire can be divided into three distinct periods: The Period of Kings
(625-510 BC), Republican Rome (510-31 BC), and Imperial Rome (31 BC – AD 476).
➢ Legal developments divided into three phases:
1. From 8th BC to 2nd BC
2. From 2nd BC to 2nd AD
3. 2nd AD and beyond [Disintegration of the Roman Empire]

The First Phase

➢ Rome was still a city-state
➢ Laws were in the stage of formulation
➢ Lowest stage of organization and narrow coverage
➢ Codification took place the form of the XII Tables in 450 BC
➢ The XII Tables was developed in a response to popular demand; the lower class rebelled
demanding that the law had to be known in advance.
➢ 10 Member commission- 5 Patricians + 5 Plebeians.
➢ Added 10 chapters.
➢ A new Commission added two new chapters, totaling the full text to 12 chapters.
➢ The twelve chapters were then inscribed into twelve bronze tablets, and permanently
placed in the Roman Forum for the inspection of all the citizens.

The XII Tables

• promoted an eye-for-eye principle
• reflected the belief on the part of the Romans that law should be written in advance,
communicated to the governed and the law had to be left to the judges alone to apply and
interpret.
• it was rudimentary, in terms of arrangement, as the Code of Hammurabi
• advocated for the supreme authority of the father over his wife and children.
• Shift from God-made law to Human made law
• Secularization of the legal system was witnessed
Significance and Features of the XII Tables
• Earliest Roman code of seventy-six civil laws, which were set up in the Roman Forum on
twelve tables of bronze.
• eventually implemented throughout all seventeen administrative provinces of the Roman
Empire
• Established a procedural framework for the prompt and efficient adjudication of civil
disputes.

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 • preserved in the individual - and not the state - the primary responsibility for pursuing and
pressing civil claims and rights.
• The civil adjudicatory process was thus not a totalitarian one, in which the state followed
the concept of parent patria, but was founded on individual rights
• Self-redress was replaced by judicial redress, elevating the role of the state as the peaceful
arbiter of disputes among citizens to a degree far surpassing that of any prior civilization.
• Damages and injuries to persons and property were actionable under the Twelve Tables.
• Differentiated between intentional and accidental crimes
• The law assigned different degrees of punishment in accordance with classes.
➢ Lex Talionus:
▪ Prescribed remedy in most cases
▪ Provides for a retaliation in kind
▪ Usually, in cases of damage to property, compensation was made by either
replacing or repairing the thing injured.
▪ In limited circumstances, a victim was given the option of accepting monetary
damages.
▪ The procedural framework was primitive, incomplete, and cumbersome.
▪ The forms of action were inflexible and were characterized by pleading formulae
that had to be followed fastidiously.
▪ Significantly, there was no mechanism for equitable relief.
➢ Lex Aquilla
▪ The shortcomings of the Twelve Tables prompted its promulgation (circa 287
B.C.).
▪ Departed dramatically from the "eye for an eye" mentality of compensation
▪ Provided in most instances for awards of monetary compensation.
▪ Also provided for punitive damages ("will be double against one who denies
liability.")
▪ A parent's remedy for injury to his child gave rise to recovery for loss of earning
capacity and medical expenses
▪ A critical aspect of the Lex Aquilia was that it penalized only affirmative acts; a
mere failure to act was insufficient to trigger liability. Thus, for example, under the
original Lex Aquilia, an action could be brought only if death or injury resulted
from direct contact between the body of the wrongdoer and the thing. [Major
criticism]
▪ The law, in effect, thus only punished trespassers.
▪ Was later cured by the creation of actions which diminished the requirement of an
affirmative act.

SUPPLIMENT IT WITH THE DISCUSSION ON THE CLASSICAL JURISTS (Gaius and

Ulpian)

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 The Second Phase
➢ Formation of the Roman Empire
➢ Economic expansion
➢ Well-equipped military
The Law of Justinian
• It has been called the Corpus Juris Civilis, since the Middle Ages.
• Body of Civil Law
• Summary of the Roman Law in general
• The writing of the Corpus Juris Civilis expressed Justinian's obedience to his divine call to
rule Christendom (group of people or nations under a Christian set of morals and values)
after God's design.
• The chief body of Roman law- the centuries of opinions of the lay legal scholar
"jurisconsults"
• The diversity of views of these jurisconsults had led to rules of citation in which emperors
commanded judges to follow the preponderant opinion or ranked jurisconsults in order of
authority and commanded judges to follow the view of the highest authority on the
question.
• Emergence of the rule of precedents.
• However, the litigation process was unreliable and expensive
The Organs of the Roman Republic
After the revolution that overthrew Tarquinias Superbus as the Roman Monarch, the political
superstructure of Rome transformed into that of a republic. (The second republic after Athens in
the world).
To fill the leadership gap left by the involuntary departure of the king, the Roman elite selected
two consuls to govern the new republic.
Each consul was in power for one year and their authority was similar to that of a king.
The consuls, who were required to consult with senate on various matters, were vested with the
military, judicial, administrative, and religious powers of a king.
Both had the authority to veto each other’s actions.

1. The Senate
• Not a legislative body
• Was a committee comprised of influential Roman elites who issued
recommendations on legal practices
• It had considerable authority over matters of religion, foreign policy and public
finance

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 • As the embodiment of Rome, the senate also had the authority to manage and
control land, appoint and receive ambassadors on behalf of the republic, declare
war, appropriate public funds, aid its citizens in foreign lands, and select consuls.
• During national emergencies, the senate had the power to appoint a dictator whose
powers were not constrained by the law of the state. [Julius Caesar (1st Dictator of
Rome)]
• The Senate operated in accordance with religious restrictions.
• The senate could only convene for certain governmental meetings at selected
temples.
• Discussions pertaining to war were held in the Temple of Bellona
• Matters dealing with the new year had to be heard in the Temple of Jupiter Optimus
Maximus.
2. The Assembly
• Main legislative body of the Roman Empire
• Had very little power as compared to the Senate
• Was comprised of male Roman citizens serving in the army
• These men were mostly commoners from lower economic standings.
• Division of the members into five classes (Centuries) based on the amount of
wealth one had in forms of equipment he could afford
• The lower centuries, which were reserved for the landless and the poor had tens of
thousands of members while the higher centuries had two to three hundred
members.
• Despite their larger size, the lower centuries had little to no power.
• Most of the voting and decision making were done by the higher centuries.

Conflict of law between Patricians and Plebeians

The patricians were the ruling class of the early Roman Empire
All the other citizens of Rome were Plebeians.
In essence, Rome had two set of laws, those passed by the senate (Senatus Consulta) for the
patricians and those passed by the assembly (Tribuni Plebes) for the commoners.
Neither class honored the laws of the other.

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 The Licinian Legislation
- In the aftermath of the Twelve Tables, the strife between the plebeians and the patricians
continued.
- The plebeians demanded political power, land control legislation along with debt relief.
- When the nobles ignored their demands, the commoners, refused to serve in the military.
- The patricians agreed to meet the plebeians demands.
- The result was the Licinian Legislation of 367 B.C.E.
Features and Significance
• The new law limited land ownership and it allowed for one of the two consuls to be a
plebeian.
• A wave of new legislation provided for marriage between plebeians and patricians along
with equal protection of the laws for all free men.
• The term noble was no longer synonymous with patricians because many commoners had
accumulated great wealth.
• The peace and tranquility at home allowed Rome to center its attention on expansion.

[THAT’S ALL FOLKS]

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