Blanca Petermeijer

Marie-Lena

European Legal History

Final Exam Notes

A. ROMAN LAW

1. Archaic Roman Law (8th century BC - 3rd century BC)

a) Chronology of the Roman Empire (from 753 to 5th - 6th century)
- Regal Period (from 8th cen. BC - 509 BC)
- Republic:
a) early Republic (509 BC - 264 BC) -> the Archaic Period ends (264 BC)
b) late Republic (264 BC - 27 BC) -> Classic Roman period starts (264 BC until 284 AD)
- Empire
a) Principate (27 BC - 284 AD) -> Post-Classical Period starts after 284 AD - end.
b) Dominate (284 AD - 5th/6th Century AD)

b) The Formation of Rome:

• According to legend -> Rome was formed in 753 BC on seven small hills in Tiber.. legend of
Romulus and Remus
• people ‘creating’ Rome: Latins, Sabines, and Etruscans
• Latins: Indo-European origin
- possessed most of the land & had high ranks -> provided Rome with its language, culture
& religion
- were organized in family clans (gentes) -> paterfamilia was the head of the clan (society
very patriarchal and paterfamilia was the ‘owner’ of the family, which included his wife,
children and his livestock).
- paterfamilias:
a) head of clan
b) also acted as patron (Schutzherr) -> patronus for numerous groups of voluntary
subordinates (clientes)
c) the only one with legal capacity -> wife and children depended on him legally:
alieni iuris (‘another the right of another’)
d) slaves were equivalent to lifestock
e) very agricultural society -> basis of wealth was land
- form of government of Latins was based on elective monarchy
- ruler had supreme power -> political, military and religious

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c) The Regal Period (from 8th cen. BC - 509 BC)
• Etruscan power grew due to their geographic position (Tuscany) & they took power of the
monarchy
• in 509 BC the “patricians” (landowning nobility of Latin descent) rebelled against Etruscans and
established the Republic.
• the patricians used the revolution to cut society and establish new social order:
a) those that had land: patricians
b) those that didn’t: plebeians

• The law before the Republic:

- law and religion: no clear distinction -> the King had the full power
- focus on customary law: mos maiorum -> “the habits of the elderly people”, meaning that
the law was based on tradition and what was learned by elders
- rural society: paterfamilias (control & power!)

• So, at this point it (509 BC, establishment of Republic) changes from Regal Period -> Republic

d) The Early Republic (509 BC - 264 BC)

• was formed when patricians rebelled (509 BC)
• Monarchies with rex (kings) were stigmatized -> became one of most enduring taboos
• new constitutional order -> main concern: prevent excessive concentration of power
• new Roman Empire was a republic, but not a democracy -> everyone was allowed to vote but not
everyone’s vote had the same value.

e) The Political Structure of the Early Republic:

1) The Senate
• Senate could not make legislation -> could only suggest legislation, which would then be
voted for at the popular assembly
• the Senates were only patricians, no plebeian
• once in power, Senate remains in power for the rest of his life
• gathered patres (head of paterfamilias) which, however, lacked power and faculty.
2) Popular Assemblies
• from formation (509 BC) to 367 BC: organized by centuries and by tribes.
always assured there were more of the upper class -> charged with choosing magistrates
and voting upon proposal of law
• after 367 BC popular assembly of plebeian to elect plebeian tribune -> giving rights to the
plebeians: they could propose legislations
3) Magistrates
• consul (two consuls, patrician origin!) -> one-year period and mutual veto power. most
prestigious magistrate, he wielded imperium (higher executive power)
• censor
• praetor
• aediles
• quaestor
4) Priests (pontefices) -> important role in developing and applying the law until 3 BC.

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f) The Social Structure of the Early Republic:
• there were two social classes: the patricians and the plebeians -> pyramid: patricians on top..
smaller of the two classes but much more power (i.e.: like elite)
• first centuries of the early republic marked by demands of plebeians to get more power (originally
excluded from all public positions!)
• more rights for the plebeians developed:
- 471 BC: laws for plebeians
- 451 BC: XII Tables (The twelve Tables)
- 367 BC: access to magistrates
- 287 BC: laws for all population (there were no lows only for plebeians or only for
patricians)

• how did the rights of the plebeians increase?

- via specific commitment -> concessions were granted providing plebeians access to a
magistracy, or new posts were created (such as plebeians tribute)
- plebeians in popular assembly (Plebeian Curiate Assembly):
a) elected the plebeian tribunes in the magistrate
b) passed legislation
- through these commitments, the Law of the Twelve Tables was passed:
a) Roman’s first legal code
b) this law put legal directives down in writing for all to see -> established basic
procedural rights for all Roman citizens as against one another .

• by the 3rd century BC, the plebeians and the patricians were almost equal.
• remained an agricultural society
• “conquest” of other italic peoples -> e.g.: Macedonia, Greece..
• The Archaic Period ends in 264 BC: Rome’s clashes with Carthage, the other great power in the
West Mediterranean

g) Law in the Early Republic - Archaic Law:

• Fas (divine law - laws of a religious character) and ius (law)
- Fas: in order to maintain good relationship to gods: society assured that all human
behaviour was in accord to the concept of fas. (behaviour contrary to fas was called nefas..
i.e.: if it brings down hardship on society as a whole because the relationship to gods was
disturbed)
a) rigidly ritualistic nature of fas -> prescribed rituals had to be complied with in
order to obtain the supernatural result desired
b) furthermore: required exact compliance with the procedure
- Ius: law governing relationship between citizens -> again, mos maiorium: i.e.: customs of
the elders. Although it was believed that all acts and behaviours had a connection with the
divine and the supernatural, the key difference is that ius essentially governed relationships
between individuals, without affecting the society (civitas) as a whole.
• distinction between law and religion
• emancipation from the influence of religion
• Formalistic / ritualistic (i.e.: contains specific words/gestures)

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 - legal effects didn’t proceed from the tension or the consent of the parties, but instead form
proper execution of the corresponding rituals
- same in civil procedure: a mistake (e.g.: mispronouncing the prescribed phases in the legis
actio) -> would invalidate action.
- form and protocol would always retain considerable importance in Roman Law (even in
later stages of development)
- examples:
a) process law
b) stipulatio (contract)
c) mancipatio (property -> only way to convey ownership, slaves or cattle)

• In the beginning of the republic, Priests were responsible for many legal roles -> therefore, lack of
distinction between law and religion.
Later on, also close relationship between ius and fas -> both are the exclusive competence of the
same priestly college: that of the pontiffs (i.e.: Pontiffs controlled the law).
Thus, role of Priests very high:
- they were guardians of the social structure
- they were responsible for preserving and transmitting law
- they were responsible for explaining interpreting, and applying: > casuistry (case law)
a) How did it work?
citizens submitted their legal questions and consultations to the pontiff issued
brief and precise response -> responsa (question and answer).
b) This method (with peculiar ‘oracle-like’ character) would remain for a long time
(even after the religious sphere of influence).

• This is a very important development of Archaic Roman Law: Human Laws and religious norms
are for the first time separate: SEPARATION between SACRED and JUDICIAL

• Customary law: plebeians were still disadvantaged due to history of patricians control
- But: Law of Twelve Tables (451 BC) -> The plebeians demanded the codification and
subsequent publication of the ius.
a) condenses all the secular heritage of pontifical law into a general law known and
applied to patricians and plebeians alike.
b) The entire ius would be open to public access -> twelve bronze tables hanging on
the walls of the Forum (not possible to reconstruct today; lost in fire in 380 BC).
c) we know, however: most of the stipulations (Abmachungen) involved private and
procedural law.. some sacred, criminal and public law.
d) Law of Twelve Tables would acquire mythical status: recited long after the text
was available.
e) The first legislation: law is no longer only oral.

• The legal role/authority of the Pontiffs (Priests):

- did not suddenly relinquish -> maintained their roles as privileged legal advisors and
retained control over the development of the ius..
- they were still turned to for responsa

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 - only they knew the law’s provisions and it’s many exceptions, the models and forms for
acts and actions.. and the method and the style.
- would not be until 3rd century BC that the Pontiffs gradually lost influence

• Archaic period played a decisive role in the development of law in the Classic period: ius civile!
- many of the specific elements of archaic law would subsist the heart of Roman law in all its
later developments
- reason: old law was not repealed and replaced by new law (clashes with Roman sensibility,
characterized by deep respect for tradition) -> new elements were only gradually
superimposed over old ones
a) e.g.: stipulatio and mancipatio rituals were continued although new contract
forms were introduced and accepted.

• BUT: remember -> most important lasting achievement of this era: SEPARATION between
SACRED and JUDICIAL -> ius became independent of fas (marks gradual establishment of law as
a secular order).

2. Classic Roman Law

a) The Late Republic (264 BC - 27 BC)
• expansion of Rome’s area of influence -> Southern & Western Europe, North Africa, Middle East
and Egypt
• initially agricultural society -> now economy cased on large-scale trade and massive financial
operations
• distinction between plebeians and patricians gone -> now, new distinction between proletariat and
the aristocracy (made up of senatorial class and richest of the plebeians)
• power continues to emanate from Senate -> a purely aristocratic institution composed of patricians
serving for life and plebeians who had risen to become consuls, or their descendants.
• but: republican political structure no longer responded well to the new needs of the developing
society: after 1st century BC -> almost permanent civil war.. after several attempts to take power
by others, Octavian took over in 27 BC.

b) Roman Society in the Late Republic:

• Economy: trade, commerce, industry, finance, slavery..
• closer contact to greek culture -> philosophy, rhetoric & logic (thus, also influencing law a little)..
increases intellectual capacity of the Romans
• Hellenic (Greek) influence on Roman law:
- limited -> essence of Roman Law remained!
- but: no coincidence that science & systematic study of law began in 2nd century BC ->
after the conquest of Macedonia and Greece
- but: typically Roman Pragmatism was not sacrificed

c) The Law in the Late Republic: Classic Roman Law

• ius gentium
- literally means ‘law of the peoples’
- law created and developed by the Romans & in accordance to Roman categories -> used to
settle disputes with foreigners (non-Romans)

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 - not international law in the way we understand it today (didn’t govern relations between
nations, but instead it was a separate law for non-Romans)
- ius gentium contained system of private law based on general views of justice & fairness.
For that reason -> succeeding jurists often called it natural law -> ius naturale (but: natural
law did not develop to the same extent as in modern Europe)
- the aim of the ius gentium: the Romans wanted that people aspire to receive roman
citizenship: only granted to the elite foreigners or conquered citizens

• ius civile
- during the 3rd century, the influence of the pontiffs in the application and development of
the law decreased. The iuris prudentes (Rechtswissenschaft) inherited function, method
and style from the priests -> continued to formulate responsa
- as a result (since responsa was continued) apart from the Twelve tables -> ius civile
remained eminently casuistic.
- ius civile: could only be applied to people enjoying Roman citizenship
- ius civile featured 3 layers:
a) oldest and most archaic layer -> made up of moral and custom-based precepts..
mos maiorum (teachings of elders)
b) second layer -> Law of the Twelve Tables
c) third layer -> responsa issued by experts (see below)
- ius civile stood in contrast to ius praetorium -> although ius praetorium had the essential
Roman Law core (important: ius praetorium can also be called ius honorarium because
the magistracies were known as honores!)

• How responsa changed: now Lay jurists in charge

- used to be carried out by pontiffs -> however now, individual lay jurists (high ranked and
high skilled jurists) take over the role from the Priests.
- job of the lay jurists: due to little and quite imprecise legislation, the lay jurists consulted
and guided civilians that had questions about the law -> in the responsa, their opinions did
not have binding force -> but their opinion was assigned great social and moral value

• Not much legislation in private law -> remains relatively similar to Archaic Roman law
Roman Law had to do mainly public law and criminal law. Exception -> lex Aquilia:
- addressed specific difficulties without systematically governing a field.
- had 3 different chapters concerning themselves with laws on murder (‘wrongful killing’) or
damage to slaves and four-footed herd animals.
- but: some loopholes: ‘wrongful killing’ -> difficult to decide what killing is wrongful and
what isn’t..
- plus, problems: the laws only outline the value in terms of different market prices. the
money does not consider the fruits the owner can have (i.e.: the money the owner can make
through the slave)
- conclusion: law is not yet well formulated: incomplete and poorly drafted legislation

• praetor (a magistrate who exercised iurisdictio, i.e.: who administrated justice)

- during the Republic the figure of the praetor became very central

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 - the one with the responsibility of judicial proceedings.. would deal with people and consult
them on the judges
- praetor was a politician with limited skills (no legal expert!) and no civil servants to rule.
- yet, despite this, in charge of all legal proceedings
- he was the second most prestigious member of magistrate (after consul) -> he wielded
imperium (i.e.: higher executive power)
- appointed to one-year terms (like consul)
- at first only one praetor, but over time (due to increase of population because of foreigners)
more praetors.. the first time a second praetor was appointed was in 3rd century BC:
a) one of the praetors would be praetor urbanus -> handled administration of
justice between Roman citizens
b) the other: praetor peregrinus -> responsible for justice between foreigners, and
between foreigners & Romans.
- but: they did not operate as a single body -> over time there were several praetors, but
without forming a collegium with veto right.. there were many, which possibly contradicted
each other, but they never vetoed each other.
- Claiming rights:
a) in Rome you could not claim rights you think you have. The Praetor would
decide which remedies are available to the citizens -> establishing this on a case-
by-case basis (often not objective and fair..). Thus, the Praetor decides whether
the individual receives access to justice or not.

• Process Law - the Roman civil law procedure general features:

- consisted of two stages:
a) first stage, called in iure, took place before the praetor
b) second stage, apud iudex (‘before the the judge’)

- praetor was magistrate of the republic and iudex was a private citizen (who did not occupy
any honorary post). This is how it worked:
a) during the in iure the praetor, processed the suit in a legally established manner:
took notes of the claim of the defenses, verified if they fell under any of the cases
provided for, and granted or denied the actio.
- if he denied actio -> process ended
- if he granted actio -> passed onto the judge.
b) during the apud iudicem (which was before the judge) -> the judge would hear
witnesses and lawyers, learn about the facts and then (without departing from the
strict ruling of the praetor), issue his ruling.
c) Important: the praetor would act in complete independence -> no one questions
his judgements! only he allows or denies citizens access to justice.

- the praetors role in this civil procedure: he would participate actively (along with the
parties), while the judge would passively hear the evidence and arguments before him
before issuing his ruling.
- in iure took place in a part of the Forum of in a basilica near to it -> there were specific
rituals/set-ups that needed to be followed (e.g.: ) -> those were the symbols of imperium

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 (higher executive power) such as sitting on a folding and portable ivory stool (curule
chair).
- apud iudicem -> held in the Forum or basilica itself.. but: no symbols of imperium, since
the judge (a common citizen) lacked this power.
- since both the praetor and the judge were not necessarily experts in law (the praetors were
experienced politicians who may have wanted to move up to the position of the consuls
and the judges were ordinary citizens with no legal training) -> they were always advised
by a group of jurists:
- jurists formed part of the consilia assisting the praetor and the judge in proceedings

- The Passivity of the system:

a) parties were responsible for every step in the proceedings -> there was no
Ministry of Justice
b) The parties themselves are responsible for presenting proof and witness.

• Ritualistic procedure the praetors needed to stick to:

- inherited the rigid and solemn civil process from the pontiffs.
- legal complaints were to be processed according to a limited number of remedies called
legis actiones -> what couldn’t be formulated within these legis actiones lacked legal
protection, thus the praetor was forced to deny justice.
a) what exactly was the legis actiones?
- the procedure put in place for a Roman citizen to bring about a form of
litigation (Prozess/Rechtsstreit) or civil procedure.
- the legis actiones was the start of law procedures -> process per formulas
developed (firstly only for non-Romans)
- legis actio was basically the template of the process that had to be met in
order for a claim to reach the court.
- very, very formal: the smallest mispronouncements or mistakes lead to an
invalid case
- so main task of praetor: to determine whether claim was compatible with the legis actio

• Process per formulas (formula = script, i.e.: ordinary procedure per formulas)
- influx of foreigners increased discretionary capacity of the praetor peregrinus.
- also for foreigners: process per formulas (formulary procedure) -> allowed praetor to
bypass the legis actiones and decide whether to allow or reject an action (means: more
autonomy - Unabhängigkeit because he no longer had to stick to the template of legis
actiones to decide whether the case can be brought to court or not)
- eventually the legis actio fell into disuse -> at the end of the republic even Roman citizens
came to use process per formulas.. meaning: now suits subject to ius civile (not only ius
gentium) were made using this new procedure.. process per formula takes over legis
actiones

- How did it work?

a) Praetor, after analyzing the case, condensed and noted down on a formula the
instructions to the case (jurists helped in drafting an exact formula).

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 b) these instructions were binding upon the judge -> criteria to which he must rule
after having examined the evidence (different for roman citizens, where praetor
participates actively along with the parties)
c) formal procedure -> but more flexible and responsive to the changes in legal and
economic conditions compared to legis actiones.
d) Once the wording of the formula were determined (usually with agreement of the
parties) -> it was recorded on tablets in an act called litis contestatio
e) Once litis contestatio was finished -> object of dispute could not be changed and
no further process on the same claim could be started.
- Formula to how justice was administered:
a) it was a kind of guide for the trial phase (apud iudicem) -> authorized access to
trial at the same time the phase before the praetor (in iure) was completed.
b) in essence: the formula was a type of hypothesis whose ultimate goal was to
either determine the defendant’s conviction or acquittal (Freispruch).
- What the formulas included -> structure remained invariable!!
a) designation of the judge
b) description of the essential legal elements of the claim
c) instructions for the judge -> “if the afore stated turns out to be, then convict. if
not, acquit.”
- The judge: the apud iudicem stage
a) his role was limited to verifying facts and giving his opinion
b) this means: if he felt that the facts in the formula were true, he was obligated to
convict the defendant.. if he felt that the facts were not proven or turned out to be
speaking for the defendant, he was obligated to acquit the defendant.
c) he was obligated to respect the legal qualifications of the facts made by the
praetor and the parties in the formula
- exactly for this reason, the exact wording of the formula was crucial
d) there was no possibility of appealing the judge’s decision -> there was no
hierarchical structure in which the superior could correct the errors of his
subordinates.
We can see that this only develops in the Empire -> were there is a hierarchially
structured judicial bureaucracy.

• Ius praetorium
- success related to the fact that praetors and other members of magistrate (consuls,
censors..) had a special authority known as ius edicendi -> capactity to issue edicts of
obligatory compliance
- so, every year, upon taking possessions of his office, the praetor would publish an edictum
in which he announced remedies or classes of claims he would be entertaining -> kind of
like a legal manifestation of his term in office.
- technically: valid for the period in which praetor was in term (1 year) and each praetor was
free to completely rewrite these edicts.. but usually: repeated the majority of the content
established by predecessors.
- amendments or innovations were suggested by lawyers -> based on changes in society/
economy during the previous year.
- ius praetorium -> set of precepts contained in the edicts (=‘the law of the praetors’)

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 - thanks to these adoptions -> core of praetorian actions had been remained, but other parts
were adjusted.. wise balance between tradition and innovation!!
- this is why the law developed so extraordinarily in these centuries under the praetors.
- important: ius praetorium did not replace ius civile -> but rather overlapped/supplemented
it (the basic nucleus of archaic law was not changed by the praetors -> there was a lot of
respect for the ius civile).

• Enforcement of the laws:

- execution of the judgement made -> primarily the responsibility of the parties:
a) no effective enforcement by the Roman authorities -> if debtor failed to comply
with the decision, the creditor could physically seize him and take him before the
praetor
b) debtor will only be released from creditor’s hands by complying with the
judgement
c) Roman society: if defendant had no assets and couldn’t pay -> his friends would
usually take care of the payment.

• Role of the lawyers (iuris prudentes)

- never received payment for their work (considered beneath their dignity)
- refused to work as lawyers or advocates.. and also didn’t work as judges either -> instead,
their primary function was to issue expert opinion to citizens, to orators, to magistrates and
judges.
- they had capacity as advisors
- drafted documents and deeds for acts of sale, contracts and wills

• during this period, Roman jurisprudence reached its peak -> Labeo (43 BC - 20 AD) was the most
important figure of this time.. faithful to republican tradition

d) Legal certainty during the Late Republic:

- Praetorian edicts -> announced remedies or classes of claims he would be entertaining
- they were clear: every time the term of a praetor ends (after 1 year)
- But still: casuistic (case-by-case)

e) The Empire: The Principate (27BC - 284 AD)

• Octavian took power in 27 BC -> following his great-uncle Julius Caesar (killed 44 BC)
- called “Augustus”
- managed to cause entire Republican order to revolve around him: a regime of which he
was the restorer.
- took constant care to avoid being called King (still a taboo) -> stated to ‘be the first among
his equals’ -> presided over Senate (to which he belonged, so like a ‘leader’ of the Senate).
- formally: Republic still had no emperor as an institutionalized position (originally emperor
only meant commander in chief)
- managed to hold sway over Rome’s social and political life -> exceptional charisma and
representative of the majesty of the Roman people
- he secured power within the republic by assuming strategic positions within it (e.g.: tribune
of plebs -> the only magistrate with legislative initiative)

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 - tribune of the plebs could summon the senate, make legislation and preside over
popular assembly.. and veto actions of consuls and other magistrates
- also secured power by taking on the job of the consul or other key positions.. furthermore:
he associated himself with the Senate and shared powers & honors with it.
- Augustus is the Princeps Senatus -> President over the senate

• So, how did Octavius change Rome from a Republic into an Empire?
1) Octavius had charismatic leadership and extraordinary political attributes
- therefore: very popular
2) The solid relationships he made
- strategic positions: tribune of the plebs (allowing him to summon senate, make
legislation & etc..), consul, associated himself with the Senate, etc.
3) He established a stunning period of peace and stability in Rome

• The development of the Empire:

- continued to spread after death of Octavius -> incorporating territories such as England,
Romania, etc..
- long era of peace and relative stability: the Pax Romana

• Pax Romana
- Pax Romana was the long period of relative peace and minimal expansion by military force
in the 1st and 2nd centuries AD.
- there were many decades of civil war, so the country was exhausted of war.
- Fiscus:
- the emperor was allowed to keep part of the taxes for himself.
- the Fiscus was like the private wallet/treasury of the Emperor. If the new Emperor
came to power (elective monarchy) -> then he would take over the fiscus of the
previous Emperor.

- Civil service and bureaucracy

- Princeps inter pares (‘first among equals’):
- Stellung im römischen Staatsgefüge zu beschreiben
- The Senate was princeps inter pares -> initially only means that he is allowed to
speak first in a debate.. but essentially it means that he is the leader of his ‘fellow
citizens’ (a little ironic because, essentially, emperors had power of life and death
over the Romans).
- Still refrain from idea of ‘king’ -> which is why this is introduced.

- Republican institutions remain.

- The peak of classical jurisprudence -> Emperors became the most talented jurists:
- first by the concession (Zulassung) of ius respondendi
- then by appointing themselves to senior positions in the imperial administration.
- beginning of 3rd century: period of profound institutional crisis -> sometimes bordering
anarchy.. the response of the Roman rulers was to look at the army.
- economic crisis and borders of Rome were also defensive.

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 - eventually, a certain decline -> then the post-classical era of Roman law starts (Rule of the
Dominate).

f) Law under the Principate

• Legislation:
- during Principate -> republican institutions did endure, but emperor took on some of the
functions.
- no major changes in terms of legal sources
- different types of legislations continued to exist -> Emperor does not make great use of his
legislative power.. So, not much new legislation in private law

• Jurisprudence:
- ius respondi
- emperor could be asked for his views on legal matters -> in theory, his response
was not binding.. but in practice his prestige and charismatic authority were so
great no judge dared to contradict his opinion.
- since Emperor eventually had no time to reply in person -> he delegated the task to
a small group of highly renowned jurists, to whom the conceded (erwähren) the ius
respondendi -> i.e.: the authority to give responsa based on emperor’s authority
while retaining their status as normal jurists.
- through transmission and combination of the Emperor’s charisma and personal
authority -> skillful handling of ius respondi allowed Emperors to augment both
their prestige and that of their jurists as they discreetly controlled the development
of law.
- by second half of 2nd century -> most famous and prestigious jurists joined
imperial consilium permanently -> thus, ius respondendi became unnecessary.

- rescripta
- bureaucratic administration would be responsible for responding to countless
queries submitted to the Emperor
- rescripta -> the consultation (Beratung) that was dealt with on the Emperors
behalf.
- in rescripta the answers were written down on the same document submitted by
those making the requests.
- rescripta lacked legal validity -> but still followed in most cases (prestige of the
people behind it!)

- importance of the jurisprudence:

- iuris prudentia (Rechtswissenschaft/jurisprudence) was considered the most
important source of law -> more important than legislation, custum-based rights or
the administration of justice.

• the Praetor:
- Under Principate, formulas continue to be written by Praetors
- but: the ius honorarium had reached a point of refinement and breadth that the changes
introduced by the praetors became fewer and less necessary with each passing year.

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 - there is a major change in the role of the Praetor: in 138 AD the Edictum Perpetuum is
published -> the Perpetual Edict stated that Praetors were no longer able to change the
program.
- This demonstrates that Praetors ceased to be those driving the evolution of law.

• Roman Citizen rights:

- in 212 Roman citizenship was granted to all free subjects in the Empire -> therefore,
increased demand for capable jurists trained in Roman law
- why? to increase the Fiscus (the personal treasury of the Emperors) -> the more citizens,
the more taxes are payed!

• Labeo -> one of the first great figures in the classical period (classical period = peak of Roman
law).. he was fully dedicated to his career as a legal scholar.
- however, faithful to the republican tradition -> uneasy under regime of Augustus.
- his collection of responsa and commentaries on the Praetor’s Edict were very influential!

g) Principate: Legal Science

• Legal certainty
- Casuistry
a) Romans would not extract rules from cases, but instead use cases as a form of
guidance for future cases (case law) -> casuistry
b) This does not mean that solutions were not sophisticated -> in fact, very
sophisticated!
- Beginning of systematization
a) Institutiones by Gauius
b) There is already a division between public law and private law.
c) Obligations: contract and tort (an extra-contractual obligation)
d) Summaries of law: Mucius Scaevola and Ad Sabinum by Massurius Sabinus (a
synthesis of the ius civile)

• There is legal science, however, not yet very sophisticated. Generally lacked abstract formailities

• The 5 most important jurists

1) Gaius:
- served as a professor of law in an Eastern province
- author of the Institutiones -> manual for students: an introduction to law (written
about 160 AD).. chosen as textbook for schools in Berytus & Constantinople
- Institutiones enjoyed great success & acclaim -> perhaps because it anticipated
post-classical style
- remained almost fully intact & free of manipulation by the Justinian compilers.
- divisions in the book (deviated from previous systems)
1) personae -> people (civil law)
2) res -> property, things (property law).. divided into property, obligations
and inheritances
3) actiones -> actions (civil procedural law)
- structural basis for the civil codes in the 18th and 19th century!

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 2) Papinian
- greatest jurist of classical era.
- probably born in Syria -> killed in conflict between Caracalla and his brother to
succeed ruler
- most important works: Quaestiones libri and Responsa -> consisting of specific
cases and featuring critiques of the views of ancient jurists, imperial decrees and
high-ranking officials in the administration.
- one of the outstanding figures in the history of jurisprudence
- Law of Citation: qualifying him the first among jurists.

3) Ulpian
- served as an advisor in the imperial legal secretariat headed by Papinian
- high political position under Alexander Severus
- killed during an uprising of the praetorian guard in 228
- commentary on Ad Sabinum by Masurius Sabinus (about ius civilie) and a
commentary on the Perpetual Edict -> thus, Ulpian bridged the two Systems of
roman law: ius civile and ius honorarium.
- consulted many other commentaries -> gathering opinions of jurists.. therefore
very important for the Justinian compilers.

4) Paulus
- career of Paulus similar to Ulpian -> worked under the orders of Papinian and
succeeded Ulpian when he was killed
- like Ulpian: also wrote commentaries of ius civile and the Perpetual Edict
- also collection of questions and opinions, introductions to law, etc..
- had many followers & his work achieved great prestige -> received honorific title
granted by Emperor.

5) Modestinus
- know very little about his life -> no important commentaries

*Note: later (Law under the Dominate), Lex citandi (which was enacted by Theodosius in 426 AD) sets forth that only the writings of
these five jurists could carry weight in the courts of the Roman Empire.*

• Julian and Pomponius:

- Julian codified the Praetor’s Edicts and many important works (his Digesta was the most
important)
- Pomponius wrote an introduction to law (Enchiridion) -> explained how the ius civile had
been born, grown and developed into its present form.. we owe a lot of knowledge of the
ius civile to Pomponius.

• Legal literature in Classic period is not notable for their logical or systematical structures..

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3. Post-Classical Roman Law 284 BC - 5th/6th Century
a) The Dominate (284 – 6th Century) - The institutional framework:
• after crisis of 3rd century -> Emperors Diocletian and Constantine -> managed to gain power and
hold it firmly for a long period
• realized that they must limit the power of the army to stabilize the government -> therefore,
removed generals from key executive positions and made a body of civil servants in each
government branch.
• from Princeps to Dominus
- from “first citizen” to “ lord over all”
- while a Priceps is a person who is influenced by others, the Dominus has absolute power
over everyone (period of absolute monarchy!)
- this institutional shift is very important for the development of law -> everything is under
the Emperor’s power.
- a number of ceremonies carried out to exalt the position of the Emperor (e.g.: replacing old
salutio) -> illustrates infinite distance between the emperor and his subjects.. he is viewed
as of almost sacred nature.

• Constantinople -> division between Eastern Empire & Western Empire becomes more
pronounced.. center of power shifts towards Constantinople (Rome looses its status as political
center).
• Centralized State:
- anonymous but extremely effective bureaucracy -> came to be called the Dominate
- Religion:
- before 3rd century, Romans have little interest in Religion (no active religious
concepts) -> however, in the 3rd century, when there is a political struggle, the
Emperor purposely tries to enforce religious beliefs
- this would allow all Romans to stick together & identify each other through a
common belief and common morals -> there are many different ethnic
backgrounds so he uses religion to streamline all the people.
- So, the Empire becomes Christianized -> Bishop of Rome very important figure
- Emperor becomes a important role of worship -> like a messenger of god.
- Citizen rights:

• Despite problems with political power -> territorial integrity kept in tact at the beginning of the
Dominate. Then: 5th century Germanic and Asia barbarian tribes search for new territories and in
476 the last Western Emperor was toppled.
• Eastern part of Empire survived -> during 5th century period of peace and relative prosperity.
• Theodosius I -> officially declared Christianity the be the Emperor’s sole and official religion.
• Many centuries after the fall of the Empire -> Europe had no form of bureaucracy and the first
modern state that develops will be the Late Medieval Church. It courts would turn to the old
Roman cognitio in the form of the so-called Romano-canonical procedure (with some adjustments,
this is the civil procedure we know today)

- 15 -
b) Law under the Dominate
• Emperor is the sole source of law -> the only controller/power of the legislation, judicial control
(administration of justice), and legal science
• Legislation:
- emperor starts legislating the law: constitutiones imperiales
- Through christianization -> especially influences private law:
a) governing people and families softens compared to harsh archaic family regime
b) legal status of slaves and women improves
c) Christianity intensified moral tendency -> spread in the classical ius.
- also: contract, property and law influenced through the Emperor’e legislation
- this greatly contrasts to archaic and classic law, where there is barely no legislation.

• Praetor:
- change in his function -> he loses his importance: becomes a simple politician

• Administration of justice: Cognitio procedure:

- new form of litigation (Prozess/Rechtsstreit) along with process per formulas -> the
cognitio extra ordinem.
- process rose in provinces before spreading to Rome
- this, again, is very different to what we saw in the republic and in the first centuries of
Roman Empire
- gives the Emperor a lot more legal power -> the Emperor himself functions to serve
juridicial justice!
a) One stage -> this means, that all phases of the process were taken over by judicial
officials, who were responsible for all administrative handling.
Therefore: removed figure of private judge and therefore also removed bipartition
of the process.
b) Appeal: previously appeal was not possible -> now, when decided by the
Emperor, appeal is possible:
- it was natural for party that had lost its case to wish to appeal to emperor,
who regularly allowed this
- heard parties -> then consulted with his consilium -> and then ruled via
decretum (decree) or issued a rescriptum in which he delegated his power
to a judge to rule in his name.
c) Public authority -> judge is a civil servant now (this was not the case under the
republic, usually an ordinary citizen)
- more apt for application to the new law of imperial creation -> fused the ius civile and ius
honorarium.
- important characteristic: no need to rely on a specific remedy -> thus, more generic way
to solicit justice!
- eventually, the ‘extraordinary’ procedure (Cognitio procedure) replaced the per formula
process
- after the Dominate period -> Early Middle Ages 500 - 1000

- 16 -
 • Jurisprudence (Legal Science)
- ius prudentia (legal science) -> almost disappears. Because:
a) Emperor has become the mainspring of law and the centralization of the sources
of the law (lex citandi).. together with bureaucracy -> limits creativity.
b) during Dominate legal literature was entirely dependent on what was produced
during classical Era.

- vulgarism -> tendency to suppress everything that seems too complex or useless for
judicial use.
- only in some schools of law (located in the Eastern part of the Empire) -> jurisprudence is
still cultivated.. some important summaries and commentaries.
- Problems:
a) availability (copies go rotten on the papyrus. also, all are handwritten -> takes a
lot of time and expensive)
b) uncertainty (hand-copied texts of law make the quality worse -> may include
mistakes or not include all information)
c) conflicting opinions among the judges
- The solution: Lex citandi (Law of citation)
a) hh
b)

• growing importance of bureaucracy:

- undermines the role of the classical jurists
- ventures into areas beyond the old ius -> administrative, tax and criminal law.. a
distinction between private law and public law becomes very significant!
- cognitio more compatible with framework of imperial bureaucracy:
a) officers did not administer justice in their own name (rather, on behalf of
Emperor)
b) parties that lost could then appeal to the emperor -> ruled via decretum or
rescriptum
c) all was written -> more control and review possible.

c) Codification
• Because of the problems mentioned above (availability, uncertainty & conflicting opinions),
Theodosis enacted the Lex citandi in 426 AD -> set forth that only the writings of the five most
outstanding jurists (Papinian, Gaius, Ulpian, Paulus and Modestinus) could carry weight in the
courts. However, did not solve problems..
- Lex citandi: if there was a conflict between these jurists -> majority view would prevail
- in the event of an even number on both sides -> the view of Papinianus would be applied
- if Papinianus expressed no opinion -> judge would then be free to use his own judgement.

• Why Lex citandi was not successful -> some writings too difficult to find and system of numerical
majority was nor devoid of arbitrariness.

- 17 -
• Emperor Justinian then ordered the codification project in the first half of the 6th century
- codification project had the purpose of solving the problems (they were not really solved
through the Lex citandi) and restoring the glory of the Empire
- the codification project consists of a collection of texts collectively referred to as Corpus
iuris civilis (or corpus iuris).
- Corpus iuris civilis = Digest, Institutiones, Codex and Novellae.
- these four books collectively became the sole source of law -> forbidding
reference to any other texts or scripts.
- codification was the attempt to take control of the legal system

• Justinian’s invasions:
- in 5th century Germanic and Asian barbarian tribes search for new territories and in 476
Western Empire ended.
- But: Eastern Empire experiences period of prosperity in 5th century -> Constantinople
becomes the “new Rome”
- Justinian recaptures Rome and the rest of Italy -> he was therefore largely successful in his
endeavor of restoring the Roman glory
- But, Justinian knew that renovated Empire didn’t only need military success, but also solid
foundations that only law can provide.. therefore codification and legislation project!

• The process of the codification project:

- small commissions of jurists carried out a careful selection of texts and rules based on the
writings of the most renowned jurisconsults of the past centuries as well as laws from the
Roman imperial period.
- no new legislation (thus, called compilers, textual ‘stackers’) -> evolution has therefore
stopped. Thus, post-classical law is a step backwards in sophistication

• Institutiones
- brief textbook intended for students as an introduction to law -> studied in all the Empire’s
law schools
- why? because contained the most important principles of jurisprudence and because
Justinian granted it the force of law
- source of inspiration: ‘Institutiones’ by Gaius -> the structural arrangement of the book by
Gaius would be copied in Justinian’s Institutiones

• Digesta
- means ‘all containing’ -> it was an anthology of excerpts from classical Roman legal texts
- the compilers of the Digest read over two thousand scrolls & volumes containing 3 mio
cases
- only about 5% of the writings at their disposal was chosen -> remaining 95% lost
- Digesta divided into 50 books featuring fragments of writings from 39 jurists (1st century
BC to 3rd century AD)
- some fragments were altered and reworked -> alterations known as “interpolations”
- this is where Lex citandi is implied -> law isn’t explicitly stated, but implied
Vast majority of the fragments in the Digest came from the 5 jurists..
- Stands out from among the other 3 books -> illustration of Rome’s genius and originality

- 18 -
 • Codex
- fragments of laws enacted by the Roman emperors as of Hadrian (117-138)
- in 4th and 5th centuries -> imperial legislation primary source of law.. so, huge mass of
laws.. previous, similar initiatives (e.g.: Codex Theodosianus) used to help decide which
should still continue to be valuable.
- As a tribute to Law of Twelve Tables -> new Codex divided into 12 books dealing with
ecclesiastical law, sources of law, administrative law, private law, criminal law, tax law.
- with the Codex Justinian’s project came to an end -> Novellae only for laws that were
passed after 534. Only for laws which Justinian and his immediate successors passed.

• prohibition of further comments or additional interpretations (if excerpt was found to be vague, ask
emperor) -> exemplifies how the emperor presented himself as the sole source of law. expresses
monarch’s ideological and political agenda.
• application of new codes at first impossible -> West of Empire fell to Scandinavian warriors
(Lombards) and did not take root in Eastern part of Empire either.
- linguistic problem: Digest was almost entirely written in Latin, but Greek was dominant
language
- additionally, transcripts too expensive -> thus out of reach for many
- Empire very vast -> difficult for law practitioners to spread & use it.
- therefore: failed to replace customary law!

• Rediscovery of Digest in 11th century -> triggered new way of understanding law..
Digest condenses 10 centuries of the richest and most original jurisprudence to have ever existed!

4. Roman Property Law

a) Property - dominum
• uti -> the right to use your property
• frui -> the right to make money with your property (i.e.: rent out your property). the “fruits” of
your property are yours to use.
• abuti -> the right to consume/make use of your property (i.e.: you’re allowed to sell your property,
you’re allowed to eat your apple, etc..)
• But, there are limits on property:
- for example: killing a slave
- urbanistic regulations
- social restrictions

b) Possession - Possessio
• definition of possession: a factual detention of a good recognized by law.
• factual detention lawful detention (i.e.: you can possess something but not have the right to
possess it -> an apple thief has factual, not lawful, detention)
- i.e.: possession detention (i.e.: you can own something but not possess it and vice versa)
- corpore et animo -> the intention to keep an object for yourself

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 • so, the definition of possession: a) factual detention of an object recognized by law
! ! ! ! ! b) intention of keeping the object

• There are limits on property -> Dominum does not give the right to do whatever you want.
(Dominum = master/lord)

• ownership vs. possession

- if you possess something, you don’t necessarily have the ownership rights
- the difference between ownership and possession is the legal aspect: possession does not
give you rights to a good.

• protection of possession:
- police function -> Praetors function as police, issuing verdicts.
- The Praetor would return the item to its initial possessor
- possession can lead to ownership:
a) traditio
b) occupatio
c) Usucaptio

b) Obtaining Ownership
• How to obtain ownership:
- For Roman citizens only:
a) Manipatio
b) In iure cessio
- For foreigners
a) Traditio
b) Usucapio
c) other forms

• Mancipatio:
- started in the archaic period until the dominate -> ancient form of obtaining ownership and
used for things that are res mancipables (= land, slaves, cattle.. i.e.: everything that was
agricultural)
- clear ritual (i.e.: certain words and gestures):
a) 5 witnesses (Roman adults)
b) the 6th person holds the scale and the future owner must add bronze piece to the
scale and say certain words
c) the object of transaction must be present

- if this is followed, the mancipatio allows a change of ownership (i.e.: in order to become
owner of something, this must be followed)
- once this has taken place, it cannot be undone unless another mancipatio is carried out. It is
an abstract transaction; only the physical transaction matters.
- other applications of the mancipatio:
a) Manus maritalis -> for marriages

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 b) E- mancipatio -> transferring other property. e.g.: children. When a father wants
to ‘free’ his children of his power, he would transfer his power to them via the E-
mancipatio. (Think: ‘emancipation’)

• In iure cessio:
- legal proceudre that takes place in front of the Praetor
- the new/future owner would claim that an object is his property.. and the person
transferring the property (i.e.: original owner would not reject this claim).
- same goods as mancipatio: agricultural goods (land, slaves, cattle)

• Traditio:
- used to transfer any kind of property
- simple procedure: simple hand over -> factual control over the object
- Legal effect of this:
a) detention (this depends on the intention of the owner (animus). animus depends
on causa (= any proceeding in a court)
b) possession
c) ownership

- If a roman citizen wants to sell a cow, but does this via the traditio, then the new ‘owner’
only has possession, but not ownership.
- However, if they are both non-Romans, the new owner actually has ownership.
- Bottle of wine (non-agricultural) -> ownership.

• Usucapio:
- Prescription: under ius civile ownership is obtained by the undisturbed possession during a
determined period:
a) 2 years for land
b) 1 year for movable goods
- Conditions:
a) terms
b) possession
c) stolen items can never become owned by another
d) validity of title (is it a sale/an inheritance?)
e) Bona fides -> done in good faith, without deceit

c) Protecting Ownership
• Rei Vindicatio -> The action of a non-possessing owner against a possessing non-owner to claim
the return of goods
- The plaintiff (claimant) must prove ownership
- this is very difficult to do -> Antecessors: previous owner proves that he has sold it to this
owner.
- this is the proof of ownership under ius civile

• Possession Interdicts -> initial owner goes to Praetor and asks for interdict (untersagen/verbieten)
- but, this protects possession and NOT ownership

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 • Actio Publicana -> for possessors without ownership.
- Possessor must prove that he would have become owner if possession hadn’t been
disturbed
- Valid title
- Bona Fides

5. Roman Law of Contracts

a) Overview of Contracts
• Law of obligations:
- Law of contracts
- Law of delicts

• Roman Law of Property: The mortgage (Pfand) can be passed on to the new owner
Roman Law of obligations: Relative to the particular person who did the damage

• Law of obligations:
- consists on the right to claim on the one side -> and on the duty to perform on the other
side
- creditor (person who has the right) and debtor (person who has the duty)

- Three duties exist:

- Dare -> duty to give
- facere -> duty to do
- praestare -> duty to perform

a) These must be determinable (one must grasp the terms of the contract)
b) These must not be against regulation or public order
c) These must be possible (e.g.: contract cannot be based on buying a
unicorn)
d) These must be under condition (Roman law of contracts allows people to
establish a condition -> if the condition is fulfilled, contract comes into
being.. if not, contract is null and void)

- The contract comes into being as form now in Roman Contract Law. Ex nunc
The contract comes into being as from then in Modern Contract Law. Ex tunc

- remedies -> an action which can be submitted to the Praetor, who then decides whether or
not he allows access to justice. There are 13 different kinds of actions/remedies which we
associate with the law of contract. Of these 13, we will take a closer look at 3:
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 a) stipulatio
b) contract of Sale (Emptio – Venditio)
c) contract of hire (conductio)

b) Stipulatio
• a verbal contract (only proof can be in writing, the contract is always verbal) -> question and
answer form
- there has to be a correspondence in the verb in the question and the verb in the answer
- e.g.: “Wilt thou solemnly promise?” – “I will solemnly promise”
- In Archaic law (later this division is no longer important), Roman citizens had to say
“spondare” in order to allow the contract to come into being.
- this correspondence of the verb was binding for all non-Romans (ius gentium) and after
Archaic law binding for all.

• How to prove a stipulatio has taken place?

- witnesses (but witnesses are not required!)
- written/document prove (also not required!)

• Unilateral obligation:
- How do you make the stipulatio mutual? The question has to be phrased in a way that
always allows for a binding answer.

• Formality:
- like in iure cessio or legis actio -> a lot of value is put on pronunciation, and the use of
exact words.
- law based on tradition and rituals.

• Contents of a stipulatio:
- the object of the contract was free to be anything
- it can overlap with other contracts -> contract of sale ‘in’ stipulatio.. meaning you can also
sell things via the stipulatio.
- it is strict law -> causa.
- Available for agreements that could not be matched into individualized contracts.

c) Contract of Sale (Emptio – Venditio)

• Conditions:
- Consensus (consent)
- Merx (the thing)
- Pretium (price)

• Merx:
- the object has to be individualized or specific -> no genus (family/type)
a) Unaccepted examples:
- “I want all the grain grown on your field”

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 - “I want the slave called Maximus”

b) Accepted examples:
- I want to buy 1000 kilos of grain (use stipulatio for this)
- I want 5000 slaves (use stipulatio for this)

- objects of sale -> It has to be possible/logic (e.g.: no unicorn)

a) you cannot sell a free man into slavery -> but a free man can sell himself into
slavery (Quid free man)

• Pretium
- the price must be in money -> no trading (stipulatio)
- Pretium certum – The price is ascertainable (feststellbar)
- Pretium verum – The ‘true price’; the price sold is the intended price by both parties
- Pretium iustum – The just price
a) The Romans did not care for this principle until Justinian
b) Justinian (6th century) -> land could not be sold below half the market price ->
Laesio enormis

• Consensus
- Complete consensus as to the price and the object is necessary
a)If there is a disagreement as to the name, not the object – sale is fine
b)If the seller sells gold and the buyer thought it was silver – sale is fine

• Consensus: Circumstances for a invalid sale:

- Error in negotio – one party thinks it is a sale; the other a hire -> incompatibility between
the wills of the two parties.
- Error in corpore – one party think Field A; the other Field B -> error of the object in mind

• Consensus: Circumstances for an valid sale:

- Error in nomine – the object is certain but the name is disputed -> name does not matter as
long as parties have same property in mind
- Error in substantia – one party buys wine from another, but the quality is poor (sour) -> if
there is an error/fault in the substance of the object
a) However: if it is vinegar instead of wine, then it is invalid.. error in corpore

c) Contract of Sale (Emptio – Venditio) - Transfer of property:

• Three moments exist in the transfer of property:
1) Moment of Sale
- when the contract is made

2) Moment of the transfer of the property

- when the mancipatio or in iure.. etc.. is conducted

3) Moment of payment

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 - When the money is given from buyer to seller

• Obligations of the buyer:

- Payment
- to bear risk -> from the moment the contract comes into being, the buyer has the risk (the
object sold is immediately at his risk, even if the object is not yet delivered!)
a) Once a contract has been made, if value decreases, the price stays the same
b) If the value increases, the buyer profits and pays the same price (this means that if
land increases value, same price if payed. If the slave dies, same price still has to
be payed).. the vendor is not responsible once the contract is made and therefore
does not suffer anything!

• Obligations of the seller:

- delivery of the object (must not personally do so, but must make sure the property is
transferred)
- must act in good faith (bona fides)
- Liable for eviction (Räumung/Ausweisung) -> Mancipatio, traditio, etc..
- Liable for effects:
a) only if with dolus (if done on purpose)
b) if conditions guarantee was made
c) under Justinian: general liability for defects

e) Contract of hire (conductio)

• Three types of hire:
- hire of objects
- hire of work
- hire of services

• Three conditions
- Consensus
- Merx
- Pretium

* Note: exactly the same as above must be followed for the conditions -> merx, consensus, pretium. *

• Obligations of the conductor (lessee)

- Payment
- Use things according to their purpose
- Liability for damages or perishment

• Obligations of the locator (lessor)

- must make the object available
- Must protect the lessee from eviction
a) if a thief steals it, the lessor must get it back (not the lessee)

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B. THE EARLY MIDDLE AGES (500 - 1000)

1. Migration and Germanic Law

a) Germanic Invasions
• Already at the beginning of the 2nd century BC -> germanic tribes of barbarians became Romans’
principal enemies
• westward emigration of Huns (tribe of horsemen from Asian steppes) -> forces German tribes
towards Roman Empire’s borders.. especially the western part of the Empire
• The Goths (from modern-day Sweden) -> divided into two groups: Visigoths and Ostrogoths,
occupied much of the Iberian peninsula (especially Visigoths)
• also Italian peninsula is marked by Germanic invasions -> until, ultimately, the Roman Emperor in
the West falls (476 AD)
• Byzantine Empire = Eastern Roman Empire (survives longer than West!)
- 2 centers: Ravenna & Constantinople
- however: loss of the Western territories means a loss of some important cities such as
Rome..
- defeated Ostrogoths with imperial army sent by Justinian
- but: in 568 the Lombards took over the peninsula -> defeat Justinian’s army

• over course of 6th century -> Franks, established in France and southern Belgium -> became
prominent power in western Europe.
- Frankish kings (first Merovingian and then Carolingian) -> ruled over many different
ethnic origins (Visigoths, Burgundians, Franks, etc..)
- each of these continued to apply own law -> principle of the personality of law.
• Summary:
- Western empire falls first -> out of this, Byzantine empire forms
- a lot of pressure of Germanic and Asian tribes -> spreading in Europe & invading
- Lombards take over Eastern Roman peninsula in 568
- Franks establish as prominent power in western Europe -> a lot of different ethnic
backgrounds under their rule.

b) Germanic Law
• unwritten customary law -> based on tradition and based on what the elders passed on
- no legislation
- no statute law
- all oral tradition (unwritten!)

• There was no such thing as a common law of the Germans: there were many Germanic laws,
however all very different (some common features, but each group of Germanic peoples had their
own law)

• Germanic dimensions of leadership:

- groups of clans (clans called sippe) -> group people untied by a common ancestry and
chief
- several clans constituted a tribe (affairs within a sippe were resolved by its chief, things
affecting entire tribe -> assembly)

-1-
 - therefore -> an abstract, autonomous notion of public authority did not exist
- general/overall leadership was usually temporary: in the event of war, the tribes would
select a leader (although they adapted the Roman word rex, it was not really a king, but
rather a ‘guide’ or a ‘leader’).
- for great invasions, they grouped into smaller entities (what we refer to as Visigoths,
Franks, Saxons, etc..) -> their chiefs were those that the tribe had selected
- standing warrior nobility: formed by those that accompanied the selected leaders.
- personal, temporary and elective nature of Germanic leadership -> typically Germanic
trait.

• The results of this social/political structure:

- all brought their own law -> each group was governed in accordance to it own nature
- similarities shared between them make them into a kind of family of kindred legal
traditions
- law was valid because it was traditional -> passed down orally and in public!
- lack of personal responsibility -> e.g.: parents were responsible for their children’s crimes,
wives for crimes of their husbands, villages for that of individual inhabitants..
- Germanic conception of community ownership and joint ownership
a) e.g.: children of irresponsible parents could be taken by clan’s council and given
to other family -> unthinkable in Roman law
b) generally, much property was to be commonly held (in Roman law: community
property was viewed as a temporary situation: usually all divided into portions).
c) Germanic tribes: communal wood -> division not permitted!

c) Personal application of the law

• personal application of law -> not territorial application
- principle of personality of the law: application of one or another set of legal rules based on
the litigant’s belonging to one national or ethnic group.
- this concept was already widely spread in Roman law -> ius civilie vs. ius gentium. People
were judged according to their own norms and custom.. but: when Roman citizenship was
granted to all in 212, this changed (this was exceptional for Antiquity!)
- so, essentially -> Germanic tribes restored law the way it was traditionally defined.

• Contact between Germanic tribes and Romans:

- although Germanic tribes wielded their military & political power over the territories they
took -> still minorities!
- therefore, they did not seek to impose their own norms and customs on people that very
much valued their ways..
- thus, in the centuries that followed the fall of Rome: in the same territory, a number of
different peoples, with each its own legal customs and laws

• principle of personal application particularly important in private law (including criminal law, tax
obligations, etc..)
• but: also ongoing problems -> when it is not clear what group someone belongs to and what
happens if there are disputes between parties belonging to different ethnic origins.

-2-
• The leges romanorum:
- most books containing Justinian’s compilations were lost -> although still different
fragments of imperial laws and collections of legal rules.. the complete Digest vanished
- Thus: German monarchs saw the problem of lack of legal security and stability within
their new territories (same problems which the legal system suffered during the last phase
of the Empire)
- solution: by taking some Roman tradition and the remainders of imperial legislation, the
Burgundian and Visigoth Kings ordered drafting of a specific legislation for the Roman
people in 5th and early 6th century -> result: the legislation called leges Romanorum
- this had political reasons: stability and prevent uncertainty -> thus, strengthening the
country.

• The Lex Romana Visigothorum (Breviary of Alaric)

- in year 506 Alaric II (King of the Visigoths) promulgated this -> it was like the
codification process, since it drafted a set of legal rules for the Roman population that
were under the Visigothic rule (didn’t apply to the Visigoths)
- Thus, we sill have a separate law for the Germanic and the Roman population.
- Characteristics of he Breviary:
a) not well-structured code -> chaotic collection of texts
b) yet, all sources Roman (excerpts of imperial legislation and collections of
opinions from classical jurists)

- this had mainly a political objective -> the Visigoths suffered military pressure by the
Franks (who were led by Clovis).
a) Note: Clovis was the King of the Franks are strategically very clever
b) he converted to Catholicism in 498 to appeal to the Roman citizens under his rule.
This was a purely political move -> he wanted to create common faith to establish
unity!
c) the Germanic tribes on the other hand, were Arian (also Christian but the Arian
variant of Christianity).

- Religion:
a) doctrine of the Arians was soon declared heretical (ketzerisch) -> but many
Germanic people clung to it.. perhaps as a separate sign of identity from the
Romans
b) Clovis -> becomes Catholic in 498.. he wanted to bring the Germanic and Roman
populations together in the higher unity of common faith
c) result of this: support and collaboration from the Catholic Roman subjects in the
neighboring Visigothic kingdom (their ruling elite was still Arian).. Alaric tried to
win over the Romans by a compilation of the Roman law by which they were
governed -> Lex Romana Visigothorum.

- yet, this was not enough -> Visigothic territory fell was defeated & under domination of
the Franks.. within the Visigothic kingdom that remained, Breviary would remain in force.

-3-
 - but despite these limitations -> Breviary very successful: in many parts of Europe it
would remain the sole source of knowledge of Roman law until the rediscovery of
Justinian’s texts in 1070.
- The Breviary spread Roman juridical concepts -> it facilitated the reception of Roman law
centuries later.

• The Lex Romana Burgunionum

- also promulgated in the early 6th century -> for Roman population in the Burgundian
Empire.
- The highly Romanized king Gundobad -> ordered drafting of two collections of laws:
1) The Lex Gundobada or Lex Burgundionum -> for Burgundian subjects
2) The Lex Romana Burgunionum -> for Roman subjects

- structured and organized in the same way -> contents were adapted to respective legal
traditions of these people
- unlike Lex Romana Visigothorum -> did not aim to be a code or supersede (ersetzten)
other prescipts.. the aim was to provide general responses for frequent legal questions.
- But: Franks defeat Burgundians and Lex Romana Visigothorum supersedes the Lex
Romana Burgunionum.

• Edictum Theodorici
- third piece of Germanic legislation based on Roman sources
- but: applied not only to the Roman subjects, but also to the ruling Ostrogothic population
- composed ca 500 -> remained in force until 554 (Byzantine imperial troops destroyed
Ostrogothic kingdom)

* Conclusion to the 3 Germanic legislations based on Roman law:

- all based on Roman law, but vulgarized format
- not very systematic, but they cover: criminal law and procedural law (mainly) and some private law

d) Leges barbarorum
• along with legislation aimed at those of Roman origin -> also legislation for people of their own
Germanic ethnicity: called leges barbarorum
• not based on previous legislative of jurisprudential tradition (did not exist!) -> aim was to put oral
tradition into writing
• Lex Burgundionum and Lex Visigothorum were drafted -> these coexisted with the legislation for
the Roman subjects
• most important of these: Lex salica (Law of the Franks) -> first recordings of this legislation date
back to time of Clovis.. expanded over the centuries
- it is like a catalogue of fines one has to pay for offenses
- such finds found throughout all of Germanic law

• So, the Leges nationum Germanicarum (leges barbarorum) consist of:

- Lex Visigothorum (654)
- Lex Burgundionum (501)
- Lex Salica (ca. 510)

-4-
e) Roman influences
• the beginning of legislation -> law is no longer entirely oral in Germanic tribes
• and: Germanic tribal leadership evolves -> the Germanics recognize the level of sophistication and
Germanic tribal leaders slowly develop into Kings: yet, Kings are still ‘personal’, not territorial
(meaning: King of the Francs instead of King of France)
• i.e.: Kings are not supreme rulers like emperors: patriarchal, consensual
• so essentially -> the lesson: the law that is applied in the majority of the cases if customary law (of
which we have limited knowledge) -> i.e.: a big ocean of customary law with a couple of small
islands of Roman law.

f) Germanic courts and procedure

• disputes were resolved at public assemblies in which the community gathered -> idea of a jurist or
legislation very foreign to the tribes:
- at a public assembly: king and his representative did not rule or legally contribute
- he was a silent figure -> responsible for maintaining order.. he would chair the meeting
- case was represented -> no interference by authority
- there was usually a small jury, who proposed a verdict to a case and the president (the
King), who then submitted it to the assembly
- the assembly would decided on a sentence -> i.e.: approve or reject the verdict
- King would ensure this verdict is observed

• there was no professional jurist or anyone with legal teaching

• criteria used: when case could not easily be solved using customary law -> parties could resolve to
so-called ordeals:
- duets
- or tests (e.g.: who can keep his hand longer in boiling water, brutal tests to see who is
guilty)

• practice of ‘blood revenge’ was a deeply rooted Germanic conception of justice -> there was an
obligation to avenge (rächen) a murder or serious offense.. thus, a lot of violence between clans!
• similar: Wergeld -> clans were entitled to claim damages from other clans in cases of murder or
other offenses

• Origin of trial by jury -> that is a distinctly Germanic figure

• No ordinary appeal (save for extraordinary challenges in the king’s courts)

• lack of public authority -> this becomes especially evident in judicial tasks: e.g.: any member of
the community was authorized to assault of kill the convict of a murder.. or any creditor was
allowed to directly seize a debtor’s assets.

2. An Age without Jurists

a) Islam
• Muslims are very dynamic and expansive -> conquer the Middle East and parts of Europe

-5-
 • In the Battle of Portier, the Franks stop Islamic advance -> yet, the Muslims have gained control of
Western Europe and parts of the Roman Empire
• The have a culture of very high learning -> many Islamic centers of learning -> this comes into
contact with Roman scripts and has a great amount of impact on the Roman law.
(just like the Greek influence on Roman law)
• It is a culture of civilization
• likewise, Muslim architecture is influenced by Romans
• but, Islamic army defeated by Charlemagne (see below)

b) Charlemagne and the new Latin empire

• new Empire in the West -> lead by Charlemagne:
- became King of the Franks in 768
- King of Italy in 774
- and from 800 the first Emperor in Western Europe since the collapse of the Western Roman
Empire (Charlemagne considers himself the successor of the Roman Emperors)
- expanded Frankish territory and founded the Carolingian Empire

• in his Empire we find great military power, educational system, etc.. -> Carolingian Renaissance
• the Franks were a tribe which expanded greatly -> conquered territory around Paris (which used to
be Roman) and also took territory from a lot of other Germanic tribes.
• They won the battle against the Islamic army -> since Charlemagne was the leader of the battle
against the Muslims, he took control over the Franks and the entire territory in the 8th century after
the battle.
• Charlemagne and the Church:
- The bishop of Rome originally had an alliance/a connection with the Byzantine Empire ->
but he found that they cannot provide enough protection against the Germanic tribes
- Thus, the Pope builds an alliance with Charlemagne (the Pope did not have an army, so
essentially Charlemagne saves Rome and the Pope form other Germanic tribes)
- through this alliance with Charlemagne, the Pope manages to politically control a part of
Italy.
- The church acts as a backbone of the political authority of Charlemagne -> the
relationship with the Byzantine empire thus suffers under his new alliance with the Franks

c) Church, culture and law

• Roman culture remained superior in may areas to the Germanic culture
• and, different legal systems leads to utterly fragmented Europe
• however: one thing in common -> religion
- Roman culture very connected with Christianity (Catholicism)
- for a while, barbarians clung to the Arian variant of Christianity.. however, gradually
converted to Catholic faith.
- thus, a very strong unifying factor between Germanics and Romans

• later -> Cnut the Great: the Vikings are christianized

-6-
d) Unity: Capitularies and Canon Law
• Roman legal culture extremely sophisticated and this is realized by the Germanics -> Franks,
Goths, and other Germanic nations start putting their oral precepts and customs into writing (in
Latin) and the fact that they promulgated laws for their Roman subjects also shows this.
• circulation of Isidore of Seville’s Etymologiae embodies the appeal of the Roman and Christian
heritage of early modern medieval Europe (Etymologiae -> brief compendium about the science
and culture of age, including Roman learning)
• along with respect for the sophistication of Roman culture and law and religion (Catholic) -> two
other elements bolstered unity:
- emerging royal legislation
- canon law (law of the Church)

• Royal legislation
- capitularium was an order issued by the king containing legal precepts applicable to all
subjects in his territory.
- Carolingian capitularium best known and most relevant -> but other kingdoms undertook
similar initiatives.
- it was a series of legislative or administrative acts
- Charlemagne, first emperor of the Carolingian dynasty, ordered such a capitularium.
- Called capitularium because divided into sections called capitula

• Canon Law
- Church remained the only stable organization in the West
- Bishops were called to serve positions of political power and even occupy military and
diplomatic posts for the protection of invasions
a) Leo the Great -> oversaw the defense of Rome from the Huns and Vandals
b) Gregory the Great -> saved the Eternal City from the Lombards

- Church played stabilizing and unifying role:

a) e.g.: Theodosius (dominate Empire) -> recognized Catholicism as the official
religion in Edict of Thessalonica
b) e.g.: Constantine -> tolerated & encouraged Catholicism via the Edict of Milan

- 4th and 5th century -> Church underwent institutional transformation -> evolved from a
more clandestine (secret) sect to a organization aspiring to become universal.
a) in order to answer theological questions -> first ecumenical councils set up
b) originally Roman emperor maintained high degree of control (e.g.: dealing with
conflicts between Arians and Catholics)
c) this would continue to be the case in Eastern Roman Empire -> but, in West
(where Empire had been lost) ->bishop of Rome assumes leadership of the
Church
d) Bishop of Rome therefore strong leadership since 5th & 6th century! (e.g.: Lea
the Great, Gregory the Great)

-7-
 - The bishop of Rome:
a) enormous significance to the universal church -> but, essentially, same specific
powers as other bishops in other cities (institutionally only 1 among 5)
b) but, bishop of Rome was the only one found in the West during the migration ->
and, along with that reason, very charismatic figures
c) thus, bishop of Rome elevates to unique position
d) Institutionally, bishop of Rome fell under the Emperor in Constantinople, but
relationship to Charlemagne out an end to this relationship of suppression.

- in 1054 -> religious rupture between the Latin Church in the west and the Orthodox
Christians in the East.. due to Bishop of Rome’s alliance with Charlemagne
- thus: Latin vs. Christian Europe forms
- other bishops then joined the Pope in playing high-level political roles in local and central
administrations

- Church develops own sources of law -> especially addressed important parts of private
law (marriage law). Sources of law:
a) Bible (old and new testament)
b) Councils and synods
- text adopted by councils contained important precepts, called “canons”
c) Church fathers
- some leading theologians were called ‘Fathers of the Church’
- e.g.: St. Augustine of Hippo
d) Papal letters termed ‘decretals’
- answers to questions submitted for the Bishop of Rome’s consideration.

- all this heterogenous material was compiled in various collections:

a) Collectio Dionysiana -> 6th cen.
b) Collectio Hispana -> 7th cen.
c) Collectio Hadriana -> 8th cen.

e) The Dark Middle Ages

• Iudicum parium
- difference criteria for judgement not only between Roman and Germanic citizens, but also
dependent on the class -> iudicum parium is the idea that one should be tried by their
peers.
- this means, for example, that a noble should be judged by a noble and a commoner should
be judged by a commoner
- Iudicum parium is the belief that you have the right to be judged by your people.
- privilegium fori -> jurisdictional privilege -> underlying the idea that one should be judged
by his/her peers.

• The feudal system:

- Feudalism organizes the state and public authority and personal relationships
a) personal relationship between vassal and lord

-8-
 - the lord offers protection by entering private agreements with vassals
- the vassals work for the lord -> providing them with goods from the lords
land.. in return they receive protection

- essentially, a successful military leader is the backbone of feudalism -> without military
expansion, feudalism does not work
- In order for feudalism to function -> unifying structures are needed! (e.g.: Charlemagne or
Ottonian Empire)
- The collapse of royal authority leads to decentralization -> thus, hundreds of autonomous
territories in one country over which the ruler has no power
a) controlled by local, regional lords
b) technically have to be loyal, but this is not followed
c) Otto I and Otto II -> here the system functions and there is no decentralization
because they are powerful military leaders
(but: after 12th century the power of the German Emperor diminishes, a lot of
territories can act as autonomous regions.. same case after Charlemagne dies)

- this is the consequence of feudalism -> disintegration due to absence of military power
- what does this mean for the law?
a) an enormous amount of different laws -> each autonomous state may have its
individual legal system
b) a lot of different tribunals, a lot of different courts -> nothing is written down and
against customary law takes over.
c) this customary law is territorially divided.. i.e.: may different customary laws
d) this leads to a great amount of legal systems

-9-
C. THE LATE MIDDLE AGES (500 - 1000)

1. The Renaissance of the 12th Century

a) Economical Changes
• In 9th century Earth experienced a sudden rise of temperatures -> lead to change in structure of
society
• Global warming, together with agricultural techniques led to:
- cultivated acreage increased (biennial rotation -> triennial cycles, soil could be tilled more
deeply through iron, etc..) -> thus, food production swelled
- this led to a massive increase in population
- also: fewer men needed to work on land so more trade activity and rise of banking and
finance activity
- more trade activity leads to specialization of labour -> thus, new inventions:
a) pay checks
b) insurance..

• yet, Latin and Christian Europe as still very much behind compared to Greco-Byzantine and Arab-
Islamic civilizations
• but, Europe made plans for expansion -> generally going well.
• Nevertheless, in 14th century economic prosperity comes to an end.. not enough food to sustain the
growing population and Europe’s state of malnutrition leads to the Bubonic Plague in the 14th
century
• Also: Hundred Years War between France and England has effects on Germany, Spain, Italy, etc..
• hunger and war leaves 1/4 of Europe’s population dead

b) Political institutions
• Empire of Charlemagne was divided amongst his three sons after his death -> after that, declined
rapidly (9th century)
• At the end of 10th century -> Otto I formed the Holy Roman Empire (won against the
Magyars!) what is today Germany was the Empire’s territorial core
- in 955 -> Battle in Lerchfeld: German King vs. Magyars -> the Magyars are defeated, which is a
huge relief to Western Europe
- Magyars:
- Magyars -> horseriders with bow and arrow did raids all over Europe
- Otto, king of the Germans (later crowned Emperor of the Holy Roman Empire after 10th
century) defeated them -> Ottonian dynasty
- why were the Magyars defeated? it was raining that day and the rain affected the efficacy
of the bows so it was easier to defeat them. Otto was later crowned emperor.

• Timeline:
- around 800 -> Charlemagne
- Middle of 9th century: end of the Carolingian Empire
- 10th century: begin of the Holy Roman Empire

• Until 13th century very strong (Otto I and Otto II) -> but then, decentralization. Germany now
consisted of fragmented mixtures of hundreds of autonomous territories.

- 10 -
 • In France -> exactly the opposite: around 10th century, the royal power in France was completely
fragmented.. powerful feudal lords reigned practically as sovereigns over their territory
• but, King gradually expanded his territory (only really power about Paris and around) -> thus
counteracting the centrifugal forces of feudal order
• Beginning of 16th century -> king of France effectively exercised his power all over French
territory.

c) The Church
• Roman nobility would fight over papal position during elections -> so, Emperor often intervened..
the results was that they could appoint popes with favorable interests
• thus, they placed their allies in ecclesiastical (kirchlich) positions
• opposition grew in 11th century -> people didn’t want Emperor to appoint Pope -> Gregorian
Reform:
- this ‘fight’ forces both sides to greatly refine their legal arguments
- in this clash the doctrine of the secular (nichtkirchlich/ königlich) and spiritual spheres was
advanced
- after series of dramatic events (e.g.: abolition of the oath of allegiance to the emperor), the
Concordant of Worms (1122) was reached -> did away with secular appointment of
ecclesiastical officials.
- thus, papacy’s authority grew greatly after this.
- but, reform not only about the end of secular appointing of ecclesiastical positions -> also
about moral integrity and independence of the clergy (the ‘inside’ reform)
- in 11th century, obligation of celibacy was imposed -> prevented transmission of
ecclesiastical posts from fathers to children.
- result of these changes:
a) structural reform of Church
b) reinforces Rome’s control over local churches -> stronger relationship

• Church expands -> Crusades and so forth to spread belief even more over Europe -> papacy
exercised leadership over Europe’s military, economic and demographic expansion.
wanted to integrate secular world in ecclesiastical framework -> expand religion!

d) The learned Law during the Late Middle Ages

• The rediscovery of Roman Law (1070):
- The rediscovery takes place by the Almafi coast -> the books of Roman codification are
rediscovered in the 11th century (Corpus ius civilis: Institutiones, Digest, Codex,
Novellae)
- Bologna, one of the most prosperous cities of northern Italy -> rise in commerce and trade
- this requires legal experts capable of writing up documents, providing council & litigation.
- University of Bologna forms around the 11th century -> at first, centered on teaching
liberal arts: trivium (grammar, rhetoric skills) and quadrivium (music, astronomy,
geometry) -> studium civilie
- Aim of university:
- educate city’s future officials
- teaching trivium to learn the art of drafting documents in proper chancery style.

- 11 -
- At the end of the 11th century (1070) -> appeared a copy of Justinian’s Digest in
Bologna
- the legend: apparently brief period in the 6th century in which Justinian’s law
books were applied in Italian Peninsula -> but the core disappeared in the 7th
century.
- So, in the middle of 11th century, copy of Digest in Almafi (1070) -> legend goes
that this copy was taken by Pisa in one of their wars (rivals!).. they didn’t know
how to read it/what it was worth -> called it Littera Pisana
- Florentines then took part of it and brought it to Florence -> Littera Florentina

- today, we know that this legend is chronologically impossible. Most recent research shows
that Littera Florentina is a manuscript from the time of Justinian himself (created rights in
Constantinople)
- Anyways, what is certain: at the turn of the 12th century a complete text of Justinian’s
compilations was available in Bologna -> Irenius (1055 -1130) the Littera Bononiensis
- Irenius:
- teacher at school educating law (the city of Bologna is experiencing great growth
and there is a demand for law)
- although the Roman books were discovered by then, Irenius’ Littera Bononiensis
was not based on the Littera Pisiana because he only had limited access to these
- by the 12th century, Justinian’s compositions were in Almafi -> but, the people did
not know how to read it and - essentially - what it really was. It took 1 generation
to understand Justinian’s books.
- Irenius’ Littera Bononiensis:
a) composed of several loose manuscripts and parchments that turned up in
a gradual and piecemeal way
b) essentially, Irenius attempts to reconstruct Justinian’s codification
c) Although not quite the same, there are great similarities -> he fails to
distinguish neatly between the 4 books of Justinian. He distinguishes
between:
- Old Digest (Digestum vetus)
- New Digest (Digestum novum)
- and (for the texts that were discovered later) -> Infortiatum
d) it came to serve the standard edition of Roman Law during the Middle
Ages -> the legal Vulgata

- so, the Corpus Iuris civilis that we have at the 12th century:
- three Digests (Old, New, Infortiatum)
- first nine books of the Codex (i.e.: 1-9)
- and Volumen parvum -> which features Institutiones, the last 3 books of the Codex
and Novellae.
These five volumes make up the libri legales ( = the texts of Justinian
rediscovered in the 11th to 12th century)

- Due to Irenius’ reputation and the increase of Roman law, many student gather in Bologna
to study the codifications by Irenius (ca. in the 12th century)

- 12 -
 - University only taught Roman law (more specifically, Roman law and compilation of
Justinian)
- the trivium provided the grammatical instruments to understand & explain the texts
- fame & prestige of Bologna soon spread -> celebrated teachers and professors came to
study there and a lot of students.. Bologna became a model -> many European Universities
followed this model (composed of 4 departments: theology, Roman law, canon law,
medicine).

• Glossators:
- glossators is the term applies to jurists active from Irenius until 1263 -> later called
postglossators or commentators.. difference in the way they study and explain legal texts!
- glossators:
- initially, explaining text meant doing to literally -> clarify constructions and
evaluate various possible meanings
- most appropriate tool to do so was the glossa (gloss) -> notes in the margins of the
text
- little by little glosses went beyond explanations of the text -> links to other texts,
etc..
- glossators stuck very, very closely to the text -> text had the authority!
- teaching of law: divided into several areas:
a) institutiones
b) Codex
c) Pandectas
- Digestumm vetus
- Digestum novum
- Infortiarum

- method of classes by glossators:

- prolegere (reading of the text)
- scindere (identifying problems in the text)
- casum figurare (giving examples)
- dare causes (searching for the four Aristotelian causes)
- connotare (similar rules?)
- obiicere (possible arguments against)

- famous glossators: Azo and Placentinus -> Summa codicis (summaries of Roman law
which had a more literary form and formally a little more distanced from the text ->
extensive interpretations and summaries).
- Accursius -> consolidated entire collection of his predecessor’s glosses -> material of a
period from over 150 years.. so complete, so perfect: the gloss had reached its peak of
development
- Accursius’ glosses considered so perfect, that they became the ‘standard’ -> called glossa
ordinaria -> used as reference for study of law with Roman texts.

- 13 -
• Commentators
- transition between the two occurred naturally and gradually -> we make the distinction so
clear today because of the glossa ordinaria.. 1263 (some glosses almost considered
commentaries and vice versa)
- difference: commentators paid great attention to the application of law in practice and
published their research differently: not in margins, but extensive commentaries on a
specific subject.
- Great commentators: Cino da Pistoia (jurist & poet -> brought new ideas to Bologna)
- no longer produced glossae or summae -> but legal literature in whole range of formats:
1) consilia (jurists expert opinion on a legal question) -> commentators responded with
help of Roman texts.. changed and interpreted a lot
- positive part: adapt Roman law to contemporary needs
- negative part: created bodies of law that Roman jurists wouldn’t recognize.
2) second format: massive commentaries on the entire Corpus iuris civilis or parts of it
3) Treasies are third literary genre developed by commentators -> no longer same order
appearing in original Justinian texts, but more topic-wise

- commentators not only Roman law -> but also canon law!
- glossators and commentators agreed that Roman law was not suitable for a particular era,
but rather function as universal values that bore truth and reason.
- so, Roman law and canon law studied at university (doctor utrisque iuris) -> but still,
custom-based laws were applied at the courts

• Canon Law
- Roman law disappeared for 5 to 6 centuries (from about 500/600 to 1070), but canon law
continuously developed throughout Early Middle Ages -> all writings well preserved
- authenticity, however, was not always assured -> especially if from Carolingian or
Merovingian era (first M then C)
- Canon law texts needed to be compiled/codified because:
- canonical material went from generation to generation
- continuos production

- Gratian:
- little known -> apart from: he was a monk and lived near Bologna in 12th century
- author of the work that proves fundamental to the evolution of canon law: the
Decretum Gratiani -> finished in 1140.
- this included sources from both ancient and Earle Medieval Era -> canons of
councils and synods, patristic writings, elements of Roman law and Carolingian
capitualia.. and papal letters and pontifical law.
- did not always consult sources directly but made use of previous compilations
- originally called: Concordia discordantium canonum
- aim of the Decretum gratiani was to solve apparent contradictions
- together with Irenius’ Littera Bononiensis, the Decretum Gratiani becomes an
irrefutable reference work -> most important pieces of Late Medieval times.
- the Decretum Gratiani:
- places spiritual power above worldly power

- 14 -
 - clergy preeminence over “basic people”
- pope undisputed head of the church

- BUT: decretum gratiani never officially promulgated as ecclesiastical legislation

- within the church, the pope was legislator, supreme judge and supreme
administrator:
- case or issue could be submitted
- pope would make decision -> either in form of letter or decretal
- although this is technically only applied to the single case, papal letters
were used as a reference when Pope makes a decision -> therefore, pope
makes law though the papal letters
- “stare decisis” -> stand by decision/stick to decision

- Papal decretals:
- they had the force of law
- second half of 12th century -> need to compile all papal law and
jurisprudence.. initially, this was done by private initiatives, but after Pope
Innocent II -> pontiffs come to promote official compilations of them.
- like this -> popes guaranteed security of texts and authenticity of
compilations.. and content of the laws

- Decretals of Pope Gregory IX

- in 1234 -> Pope Gregory XI ordered a compiling collection of decretals to
be enacted as law
- titled Decretales Gregorii IX -> known as Liber extra (meaning, the book
of decretals outside the Decree of Gratian)
- Liber extra -> effort to unify the law throughout the Church and place it
under the Pope’s control
- before the Gregorian reform -> relations between Rome and local churches
not so tight.. significant differences in the law they applied
- but through the Liber extra -> all ecclesiastical tribunals apply same law.
- in 1298 Boniface VIII -> Liber sextus (popes continue to draft new
legislation -> a sequel to the five books of the Liber extra)
- Pope Clement V takes initiative to next official collection ->
Constitutiones clementinae (1317) -> Note: these collections did not
nullify previous works, but always only added to them.
- further official collections in 14th century to secure and homogeneous
religious decretals -> make them law.
- In 14th century -> all these (Decretum Gratiani, Liber Extra, Liber sextus,
Constitutiones clementine) are made in a single document, adding:
a) Extravagantes of Johannis XXII
b) Extravagantes commune of Sixtus IV

- these 6 -> put together in a single book, called Corpus iuris canonici.

- 15 -
So, all the Libri Legales we have:
1) Corpus ius canonici
- Decretum Gratiani
- Decretals:
a) Pope Gregory IX: Liber Extra
b) Boniface VIII: Liber sextus
c) Pope Clement V: Constitutiones clementinae (1317)
d) Extravagantes of Johannis XXII
e) Extravagantes commune of Sixtus IV

2) Corpus Iuris civilis

- three Digests (Old, New, Infortiatum)
- first nine books of the Codex (i.e.: 1-9)
- and Volumen parvum -> which features Institutiones, the last 3 books of the Codex and Novellae.

- Roman law texts were included in Gratiani’s Decretum -> he took for granted that people know which parts
are taken from Roman Law.
- Decretists vs decretialists:
- those who focus of Decretum Gratiani were called decretists -> active until middle 13th century
(glossators)
- those who focus on Liber Extra and other collections were called decretialists -> (commentators)

- Johannes Teutonicus:
- made the glossa orinaria of Gratian’s Dectretum -> but did not mark the end of the

e) Relationship between Ius Commune and Ius Proprium

• students frequently studied both Roman law and canon law together -> slowly, the two fields grow
together
• same methodology in both bodies of law.. and also same legal literature format
• eventually, the concepts and institutions typical of one of the two systems of law seeped into the
other -> thus, intense and fertile interaction between these two laws
• to refer to both canon law and common law -> ius commune
- with this, we mean a law that was common throughout Europe
- this does not mean that all Western European courts applied the same precepts of Roman
law and canon law -> in fact only canon law was actually applied.. and there were still
local differences in ecclesiastical courts despite pontifical law
- Roman law was essentially always only studied at university, but never applied at courts
- but, what is meant by common law: law that is common to all (i.e.: generally body of law
that is applied quite similarly)

• ius proprium -> “particular laws” or “own law”.. it refers to the multitude of specific
jurisdictions and laws existing in europe -> essentially, custom law.
- different in territorial and personal scope of application
- territorial: different bodies of law in every city, town or region

- 16 -
 - personal: iudicum parium (judgement by equals) -> principle of judgement by
people of same status
- ius proprium is directly applicable at the court -> ecclesiastical, feudal, seigniorial, etc..
courts (ius commune is not directly applicable -> used as a reference since it is considered
very cultivated)

• so, essentially -> ius commune is Roman and canon law which is usually not directly used in front
of the court (canon law can, but usually custom..)..
and ius proprium is customary law that is directly applicable in tribunals.

• The relationship between ius commune and ius propria:

- since ius propria is perceived as customary law -> did not receive level of sophistication
that ius commune did.
- ius commune was perceived as a model -> a distant ideal (but not applicable!)
- although it was not applicable with direct and immediate force -> Roman law was a
suppletive law to apply when specific provision was lacking the local law.
- so, to illustrate the relationship: the ius commune was like the sun in the solar system
because Roman law and canon law give warmth and light to the different small legal
systems which follow customary law (ius proprium)

• so, why did people study Roman law (and canon law) if they could not apply it at court? It is a
legal system that judges, lawyers or royal officials cannot even use..
- because it was so much more sophisticated -> depth of analysis and breadth of legal, social
and political context..
- ius proprium needed the ius commune as an inspiration (like the sun!)..

• soon, iura propria was influenced through canonists and Roman law jurists:
- Roman law was used when local laws did not offer solutions to a concrete case
- in southern Europe -> law shaped by remains of Roman law and all written law (e.g.: Lex
Romana Visigothrum, etc..) was, in fact, Roman law
a) therefore, Roman law was easily and more commonly accepted
b) collection of Justinian even briefly in force in Itlay
c) constant circulation of Roman texts during Middle Ages..

- in northern Europe -> process of adopting Roman law not so simple..

a) less contact with Roman texts during Early middle Ages
b) adherence to local precepts deeply rooted in Germanic mindset
c) result: autonomy of iura propria survived longer than in the South.
d) so, distinction between “countries with written law” and “countries with
customary law” develops -> south vs. north

• beginning of 12th century -> canon law functions as a precursor (Vorläufer) to the reception of
Roman law. In many regions, canon law was already applied in non-ecclesiastical courts
• additionally, ecclesiastical tribunals function like notaries today -> drafting of important
documents and certification of their authenticity (often only clergy could read & write)

- 17 -
 • clergies educated in canon law .> not only important position in ecclesiastical courts, but also in
the chancery of secular rules
• therefore, canon law was important for the introduction of Roman law
• How Roman law started infiltrating customary law:
- nobles, kings and so forth -> appreciated and valued the capabilities of jurists trained in ius
commune
- offered them lucrative career prospects -> royal chanceries and courts
- even though ius proprium continued to be applied -> jurists trained in ius commune had
high positions and thus concepts and techniques of Roman law effected customary
legislation, courts and so forth.

f) Legislation - Ius Commune and Ius Proprium

• Legislation dependent on the strength/stability of the state:
- importance of legislation (enacting laws) depends on degree to which a government has
advanced in establishing itself as a structure capable of exercising power
- e.g.: in feudal system -> legislation only possible when the ruler wielded power (so, when
there were no autonomous states ruled by too powerful lords) -> for example: Carolingian
period under Charlemagne: the king had enough power to promulgate capitularia (with
end of military expansion, legislative activity was over!)

• Legislation in the Late Middle Ages:

- through the introduction of Roman law and canon law -> revival of the idea that monarchs
are the supreme legislators
- Justinian is the perfect example (and other Roman emperors) -> all powerful in the
medieval Era..
- initially -> legislation very limited, often not going beyond old traditions and customs and
only addressed at part of the population
- example: we can see that monarchs do not always act as the only legislation force anymore
and influenced by the population who reinforce customary law.
a) there is participation of the population in the promulgation of laws
b) monarch was not an authoritative figure who imposed laws from above.. but
legislation was often the result of complex negotiations between subjects and the
state.
c) subjects negotiated via various pressure groups -> securing their aspirations were
enacted in laws
d) although legal texts stated that legislation was based on monarch’s sole authority,
this was often not the case anymore.

- since jurists and canonist occupied important positions in chanceries and in drafting texts
of laws -> spread of Roman and canonical concepts
- yet, customary law still remains the most important source of law for a long time.
- but little by little idea that legislation was the most direct route to introduce laws
emerged in medieval Europe.
- two examples of monarchs as legislators in Late Medieval Europe:
a) Frederik II -> liber Liber augustalis (Holy Roman Emperor and King of Sicily)
b) Alfonso X the Wise -> Siete Partidas (Leon and Castile)

- 18 -
• Roger II and Frederik II -> Normans of Sicily:
- Roger II was the grandson of the first Normans that arrived in Itlay -> Frederik II was
Roger’s grandson.
- Norman territory: blend of all cultures -> Jewish, Cristian, Greek, Islamic.. very prosperous
and wealthy (trade, economic activity, etc..)
- Roger II passed Assizes of Ariano (ca 1140)
- Frederik II was the Holy Roman Emperor, King of Jerusalem and King of Sicily
- Frederik II viewed himself as the successor of Justinian -> however, enemy of the pope:
since he was the most powerful ruler of the late Middle Ages, church felt intimidated.
- in his Sicilian kingdom -> promulgated legislation called liber augustalis (1231) -> a
collection that was a kind of body of public and administrative law
- based on:
1) old Norman laws because Normas had conquered the area long before ->
included what the area’s most aged elders had to say about the law
2) new laws promulgated by Frederik at the beginning of his reign
- structure and inspiration from compilations by Justinian -> we can see this is an early
example of the infiltration of Roman law into royal legislation
- he considers himself responsible to undertake initiatives and enact laws -> legislation is the
exception in the 13th century, however through Frederik this changes
- intention: shape the society!

• Alfonso X the Wise:

- Siete Partidas -> aimed to spread the learned law (i.e.: Roman law and canon law)
- features: seven books and goes beyond only law: includes philosophical reflections by
classic thinkers and theologians such as Thomas Aquinas.. as well as biblical texts
- this makes it a humanistic and doctrinal encyclopedia
- most important Spanish contribution to the history of legislation!
- the Code is based on ius commune (so, the Corpus iuris civilis, the decretals, texts of
glossators and commentators.. etc.) -> again, shows the influence of Roman law on
legislation
- written in Spanish (not Latin!)
- it is, essentially, a codification of legislation
- intention:
a) shape society according to his mindset
b) establish common heritage
c) stimulate tolerance

• ideal of legislation very present in the ius commune -> the pope or the monarch/emperor shall also
act as an legislator
a) in Roman law -> the emperor had the full legislative power: e.g.: Justinian
Roman law rediscovered state as an abstract, public entity transcending dynastic
and private relationships.
b) in Canon law: the pope had legislative power

• Church is the first real ‘state’ -> many kings copy the example of the pope: copy legislative actions.

- 19 -
g) The administration of justice - Ius Commune & Ius Proprium
• Fragmentation of central power leads to fragmentation in administration of justice:
- territorial diversity: jurisdiction coincided more or less with territories -> many different
legal systems
- personal application: principle of iudicum parium -> gives rise to many, many different
courts: ecclesiastical, rural, municipal, etc..

• after 12th century -> monarchs began to exercise tighter control over administration of justice.
instead of trying to impose upon functioning courts, they offer their own administration of justice
in addition to those that already exist.
• ius commune: together with idea of monarch/Pope as supreme legislator -> came the idea of
monarch/Pope as supreme judge. But this would only develop slowly.
• Since those who provided service in rural or municipal courts had no training -> learned via hands-
on-practice & applied customary law.
- but: growth of numbers of cases presented to the monarch
- therefore: necessary to make sure jurisdictional functions were specialized and
professional.. this was done through jurists trained in the ius commune.

• slowly, there is initiative to allow appeal to monarch or allow access to royal decisions in first
instance -> 13th and 14th century.
- In Castile the Tribunal de Corte is established which is a forerunner for Chanceries and
High courts.. allows to settle cases for which the King is needed.
- but: very slow development of royal justice next to existing tribunals

• Through exactly these court procedures (allowing access to royal justice) -> the Romano-
canological procedure is received
- litigation (Rechtsstreit/Prozess) that was institutionalized in ecclesiastical courts in Late
Middle Ages (after this, only Romano-Canological procedure used)
- direct inspiration from Roman civil procedure in Late Roman Empire along with canon
law.

• Roman procedural law:

- actually -> process cognitio was most commonly used and was must successful in the
hierarchical and bureaucratic administration of late Empire (Dominate).
- canonists adopt the cognitio in 12th and 13th century as new way of handling cases.. it was
more suited for the centralized organization of the church.
- Changes in Roman cognitio: (each is explained in detail below)
- abolishment of ordeals (e.g.: Feuerproben & co)
- everything is written in the procedure
- the introduction of appeal (made possible through the fact that it was written!)
- judge still has procedural and evidentiary (überzeugend) initiative (Inquisitory)

• problem with ordeals -> still widely employed during that era but an obstacle to construction of
centralized & rational jurisdiction.
It is the belief that god issues the sentence and judge only ‘reads it out’ -> essentially, irrational

- 20 -
 and, obviously, does not serve justice.. but -> positive sides: pre-established rules & always a
definite decision was reached (to which community gave its full consent!!)

• things like ordeals worked in primitive medieval courts -> but in ecclesiastical courts made up of
scholars of canon and Roman law.
- ecclesiastical tribunals eradicated practice of ordeals at beginning of 12th century -> royal
courts soon copied this.
- by 13th century -> practice as a whole was banned.

• important feature of R-C procedure: record-keeping ->

- important for things like citation, jurisdictional issues, response, etc..
- also allowed legal process to be divided into successive phases (possibility to bring new
evidence allegations or evidence was forbidden -> division between allegations, evidence,
decision)
- rational and objective assessment -> procedural fairness.
- But, most important: allowed parties to appeal judgements before hierarchially superior
court and even before the pope (logically, in trial by ordeal appeal was not possible: Gods
judgement was indisputable)

• Appealing to higher courts:

- first, this was only possible in ecclesiastical courts -> one could appeal from a lower court
all the way up to the pope (technically)
- due to geographical locations -> sometimes restrictions.. in that case: sending of
documents.
- we see: hierarchical judicial organization!

• Inquisitory (court is actively involved!)

- judge possessed the authority to initiate procedure ex officio and to investigate and verify
the truth about what really happened (no longer only aggrieved party has the power)
- reserved to criminal sphere!
- in civil sphere -> principle of party disposition (parties are free to dispose their claims..
and therefore control the course of the litigation -> before: )

• Influence of R-C Procedure:

- Kings copied all main features: development of hierarchical judicial organization, use of
jurists with university education, elimination of ordeals, introduction of records and
making appeal possible.
- traditional customary procedures either gave way -> or were influenced by these rules and
principles.
- R-C procedure would remain nearly the same -> until present say.

• Through R-C procedure in ecclesiastical courts -> royal courts gradually develop:
- the R-C procedure essential tool for monarchs to increase control on local courts and
particular jurisdictions -> thus, gradually streamlining administration of justice .. but
process of centralization would not be completed until 18th century.
- direct appeal to tribunal of King is called higher appeal (King becomes the judge)

- 21 -
 - Two stages for the royal courts:
1) “false judgement” -> at first, the royal court would only check whether cases where judged
correctly.. it was more of a control on the proper courts (so whether or not they provided justice)
in this case, he would merely demand the judge to rejudge the case (the king only oversees the
judge -> if the judgement is wrong, it goes against the law and the case is judged again from the
beginning)
2) the second pillar was not only to check whether the sentence was correct, but encompassed a full
review of the case -> with the possibility to resubmit evidence. The case is not only demanded a
rejudgement, but the entire case is taken to the King, who then acts as a judge.

h) Customary Law - Ius Commune & Ius Proprium

• Customary law would continue to be main source of private law until 18th century.
• Because customary law was never written down -> could adapt to the social surrounding (i.e.: if no
longer compatible, precepts would disappear).. but that does not mean that rules were not set, but
rather that the community’s collective memory could undergo changes.
• appealing to royal court on a precept grounded in custom:
- one had to prove that the law actually existed -> due to oral nature, often difficult
- could only be done by proving constant and repeated use of the law: thus, gradually,
techniques to certify the existence of a custom developed:
a) qualified witnesses versed in the law
b) formal request before another court to state whether this precept had been applied
before

• In the 14th century, the process of writing down started

- at first: private initiative -> however, badly organized and simple listing of the rules
a) e.g.: Grand Coutumier de Normandie -> customary law in the Normandy.. still
major source of law in some areas
b) e.g.: Sachsenspiegel -> 1220, compromised of customary law from the center of
Germany but which had an impact on Central Europe.

- later: public initiative to codify customary law -> once it is written down, it becomes
legislation.
a) Libro del Consolado del Mar -> first work containing maritime law and customs
of the Mediterranean.

• How this is influenced by ius commune and ius proprium:

- systematization of books containing customary laws show the growing infiltration of
Roman law and canon law.
- before 13th century -> officials in municipal courts were untrained without university
educations.
- after: most were trained in Roman law and canon law -> thus, with growing importance of
record-keeping, the officials (who were trained in R and C law) were influenced of private
codification initiatives with the record keeping -> thus, ius proprium and ius commune are
infiltrated into customary law (what is written down becomes legislation!)

• greater unification of customary law -> lead to decrease in fragmentation of kingdoms!

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g) Suretyship in the Late Middle Ages
• Magna Carta (1215)
- first legal document imposed on the King of England in the attempt to limit his power by
law
- it cannot be considered a constitution -> but forms part of constitutive documents as of
17th century
- it states the rights, the liberties of the people against the ruler
- originally drafted in Latin

• Suretyship
- Suretyship:
a) the surety gives the creditor the guarantee that if the debtor cannot pay, the
creditor can ask the surety to pay (also used if the debtor dies and children that
cannot pay inherit the debt: in this case the creditor can directly demand money
from the surety)
b) if the creditor demands money from the surety, the surety can get the property of
the debtor in return.

- The system in England (changed through the Magna Carta!) is different than in the
continent.
- In England: the Debtor must be sued first. If he cannot/does not pay, only then the surety
can be sued.
- most customary systems in Europe -> allow suing of principal debtor and the surety
equally.

- What was it like in Roman law? Can explain system of Magna Carta
a) Roman Law: the surety can be sued by the creditor if the principal did not fulfill
his obligations (so, like customary law)
-> but if the principal is present and easy to summon, he should be sued first (ca
13th century)
b) Post-classical Roman Law: creditors demand payment from sureties only if the
principal debtor is insolvent. The surety can then demand money from debtor
since he was given a recourse.

- In Canon Law -> if the debtor spends too much money while still owing money to the
creditor, he surety can be liberated from his obligation.
- So, why did the Magna Carta change the previous system in England?
a) for reasons of power
b) clearly, got inspiration from post-classical Roman law..

*Further Note to Power*

Ascending theory of power -> power comes from the people
Descending theory of power -> the power comes from above; from god.

- 23 -
2. Process Law (Due Process) in Rome
a) Ordo Iudiciarius
• Ordo iudiciarius = process law (called due Process in Middle Ages)
• Before Ordo iudiciarius -> process law was not rational at all
• There were 2 types of process law before the Ordo iudiciarius:
1) Compurgation: the accused swore to his own innocence together with a group of “oath
helpers”
2) Ordeals: “trial by tests” or “trial by dual” -> two parties would fight each other or hire
someone to fight to opponent. (This means: the one with more money had greated chances
of winning)

• Characteristics:
- Ordeals were public -> the public watched the trial or the tests that the parties had to
undertake
- there was always a final verdict (God had intervened and shown who is guilty)

• More rational process law was developed by the church and canon law:
- ecclesiastical tribunals were quite popular (local and feudal courts very biased and often
arbitrary) -> therefore, ecclesiastical courts also started judging civil law cases
- they prohibited the use of ordeals -> soon, Kings would copy this and ordeals would be
banned as a whole
- In order to gain control over the feudal and local courts, Kings copy the model of
ecclesiastical courts and form appeal courts (similar in concept to the ecclesiastical courts)

• basically, the ius proprium moves towards the ius commune (more people start applying canon and
civil law through the ecclesiastical courts)

• Characteristics of Ordo iudiciarius:

- due process (defendants must be able to defend themselves)
- written proceedings (no longer only oral)
- higher appeal (possible to appeal to pope -> since this was not always physically possible,
lower ecclesiastical courts would record the case and send it to Rome.. the concept of
higher appeal is soon copied by royal courts)
- prohibition or ordeals
- inquisitorial procedure ( = forschen -> the judges are no not only decision-makers, but can
take a closer look into things)

• process law is based on the Roman process law: cognitio procedure (basically we can say that the
Roman process law was used as a model -> this again, the ecclesiastical courts -> were used as a
model for the royal courts (courts of appeal)

• With this, one can see that rights for the individual develop -> e.g.: right to be heard, right to know
what you’re accused of, right to have time for preparation, etc..
These rights are established by natural law -> canonists would particularity “focus” on the natural
right of self defense (i.e.: the right to not be prosecuted without being able to defend yourself)

- 24 -
• inquisition -> used to be Christian religion also also used to prosecute cleanses within the cleagy
itself
- but: much earlier roots: 12th century in France
- Ne crimina impunita remaneant -> no crime shall go unpunished.. before this, there was no
investigation unless an accusation was made
- now, the church takes the case -> whether accused or not, there should be a trial which
leads to justice
- why? in the eyes of the Church there must be punishment if a crime is committed to save
the soul of a criminal. Therefore, all criminals must be investigated - it is the church’s
responsibility.
- the authority must take measures against all kinds of crimes.

- 25 -
C. THE EARLY MODERN AGE AND BOURGEOIS AGE

1. Modern History Outline (starts around 1500)

• When do Late Middle Ages end? around 1500.
- year 1453 -> fall of Constantinople, end of Hundred years war between France and
England, invention of Modern printing press
- year 1517 -> Marthin Luther brought religious unity in Europe to an end
- so, around this time -> great changes in Europe!

a) Economics
• period of conquistadors: discovery of America in 1492
• 15th century marked by attempts to find new trade routes to the Orient
• Europe goes to dominate the world.
• period of prosperity and growth after 16th century
- good weather -> finally recovered from Black plague
- demographic growth bolstered trade and industry -> great commercial cities in Italian
peninsula.. centers of trade, industry and finance.
- through discovery of oversees territories: exploitation and colonization followed. Spain and
Portugal virtual monopoly during 16th century
- Soon, England and France begin colonizing new territories.. other countries join too.
- This leads to war between the colonizing powers -> all are trying to maintain or dominate
the colonies

• so, soon period of prosperity comes to an end again..

b) Politics: Modern Age

• End of Hundred Year War -> France, England and Spain (due to conquests, mainly) would become
the main powers.. effective control over their territories!
• Italy: period of peace
• nation as an object of autonomous, quasi-religious worship was not a new concept:
- continued during the starting phases of the Early Modern Age
- although there was the desire to become a territorial state win which the King wielded
great power over his people -> but, still difficult for the state to establish itself as an
effective authority and an abstract object of respect (idea that the King was chosen, is all
powerful)

• slowly we see more centralization and powerful authority:

- in order for this to happen: feudal nobility, autonomous cities, and the Church (too
powerful!) had to be eliminated
- the application of gunpowder -> it was the latest military technology and small states could
not afford it.. only the states could: thus, countries unify and the states become more
central
- through this domestic competition was suppressed -> only the kings were able to possess
gunpowder and modern warfare tools..
 - nobles and bourgeois class unable to afford this -> loose political relevance. Also: feudal
nobility was replaced by professional bureaucrats.. through taxes, the state becomes a
bureaucratic power
- inspiration from hierarchical institutions of Roman law and Church

• with this increase in power of the king, we see many changes/developments in institutions:
- e.g.: appeal courts were developed and now only professional, learned jurists
- hierarchies in the court system really established
- feudal nobility decreased and thus, Kings could now really impose their will
- during this time, concept of “Absolute Monarchs” developed
- although, not really that “absolute” -> king depended on his people.. he had to
negotiate and continue strengthening and creating institutions to make sure he
remained in power

c) The Church and Religion

• 12th and 13th century papacy had laid foundations for a centralized and hierarchical Church -> the
first modern state
• There were measures to Reform the church in the pursuit of greater spirituality precision in the
belief. However, Renaissance-era successors did not follow this principle and further concentrated
power in Rome, attempting to make the church even richer and more influential.
• Martin Luther:
- Protestant Church is formed (1517)
- political support was often due to political reasons and not for religious reasons -> Catholic
church very rich and influential and there was a temptation to confiscate ecclesiastical
assets
- religious division in Europe -> religion becomes reason of many wars and divisions.
- nonetheless, by 1555 -> Protestantism firmly established in Europe

• end of religious unity -> great impact on field of Private Law

- Luther believed that the Church was based on canon law -> thus, largely based on tradition.
- but: religion should be based on the Holy Scriptures -> this also changes how the ius
commune was viewed and how the law as a whole was understood.
- yet, courts continued applying canonical precepts to matters such as marriage, wills, etc..

d) Science & culture

• in 15th century, the Renaissance (Humanism) emerged in Italy and later throughout Europe
• defined by a new concept of man and the world different from that of the medieval era.
- Renaissance means “rebirth” -> refers to the rebirth of the classical culture
- negative attitude towards Middle Ages -> change in attitude towards antiquity:
a) belief that everything that happened in the Middle Ages is “gothic”, “barbaric” ->
essentially, everything that had happened was view negativly (e.g.: Renaissance
artists consciously broke medieval artistic tradition, belief that the people in the
Middle Ages were guilty of manipulating the Roman language and the Roman
culture, etc..
b) Middle ages are: “a break in the glorious time in the past (Roman Empire) and a
new glorious time after the 15th and 16th century”
 c) Development in many areas; desire to be better than the Romans -> e.g.: Miguel
Angelo in art, but also advances in architecture.
d) belief that there was an absence of genuine scholars

• but, not entirely true: no “rebirth” of Antiquity because it, essentially, never ceased. Ongoing study
of Roman Law..
• But, since they felt that they belonged to a different world -> there were al lot of changes in the
period of the Renaissance.
- Scientific approach to Antiquity is a means to reach the same intellectual level as antiquity
a) idea is to become better than the Romans themselves
b) embrace Greco-Roman culture and sophistication and use to to develop

2. Jurisprudence in Modern History

a) Legal Humanism
• it was sought to study Antiquity in its own context (not in Medieval context) -> efforts to uncover
original texts, Greek language reintroduced, etc..
• Started with taking a closer look at the Bible:
- considered it necessary to compare the translation with the original texts
- found that “Donatio Constantiti” was false -> the Donation supposedly took place in the
4th century, however Lorenzo Valla proved that that was fake.. and he was even able to
date the period in which it may actually have been written: mid-8th century.

• How had medieval jurists viewed the Corpus Iuris Civilis? as giant enterprise by Justinian and
they are the dwarfs that received it but would use it to achieve big thing.. This changed in the
Renaissance.
• started censoring the work of glossators and commentators -> entirely rejected their work and
especially their use of Latin
- non-elegant use of Latin during the middle ages
- e.g.: said guerra instead of bellum (means war)

• Legal humanist would critic Accursius and Bartolus, because they manipulated the meaning of the
original text in such a way that it lost its meaning:
- the jurists of the Middle-Ages interpreted the law so it fits into their concept/idea. This of
course sometimes manipulated the meaning a little too much.
- they accused them of distorting the authentic work of the classical Roman texts

• started a critical study of Corpur iuris civilis -> but they did not consider Justinian’s codes and
texts are timeless and universal (studied them as writing for a specific time and place)
- considered the compilers work (Justinian’s compilers) as having distorted and lost too
much of the Roman law
- e.g.: Francios Hotman criticized the repetitions and contradictions within the Corpus iuris
civilis and detested the fact that only 5% of Roman law was actually in the digest
- Hotman believed that the author of the Digest was a corrupt politician (only including the
work of the 5 most famous jurists and leaving out other masterpieces) -> believed he
changed the texts of law for large sums of money.
• Great change in attitude: in Middle Ages the CIC was viewed as absolute and universal.. but the
Humanists took a critical approach to it. Nevertheless, would continue to be a model.
• Studied Roman law in its purest form (without Byzantine or Medieval additions or interpolations)
and would come to use the ius proprium as a model for their ideal body of jurisprudence.

• Contents of Roman Law:

- The Roman law texts were studied in their original context: managed to ‘mend’ Roman law
texts and returned them to their original form (before codifications, glosses and so forth)
- the Novellae would be read in Greek again
- the littera bononiensis (standard edition of CIC by Irenius) would be compared to the
littera florentina (when the texts were found!)
- Texts that were translated into Latin were carefully translated back into Greek again.
- in 1583, Denis Godfrey published a version of the Corpus iuris Civilis that came to
supplant the vulgate version based on the littera bononiensis (this would be standard
edition until replaced Mommsen in 19th century)
- humanists managed to achieve an even greater refinement of legal concepts -> clarified
difficult or ambiguous terms by drawing up a list of what ancient jurists had said about the
term compared to what poets or grammarians said (or compared it to Greek words)
a) e.g.: the worl mulier (woman) -> according to Gaius it only refered to single
women.. while Ulpian used it for both married and single women
b) Humanists solved this by comparing it to poets -> found out it was used for
women in general.

• On the other hand, scholar in Frances used new method to “uncover” Roman law.. distinguished
mos gallicus (French style from mos italicus (Italian style) -> this would soon spread over Europe
and although there were initial clashed between the two schools, there would eventually be a
fusion between this and the previously explained school.
• Humanists used format of treatise to publish the conclusions of their research -> allowed them to
address and systematize the matter in their own style rather than having to follow fixed order of
CIC (like the glossators had to do..)
• But, a lot of different legal literature due to the fact that there were very differing opinions towards
the texts..

• Contents of Canon Law:

- Historical-Philological method also applied on canon law:
a) Bible returned to it’s three original languages: Hebrew, Greek and Latin
b) furthermore: scientific editions of patristic texts such as those of St. Augustine.
- Found that the Decretum Gratiani (just like the littera bononiensis by Irenius) had suffered
many alteration
- They found that the application of historical-philological methods were possibly
undermining the power or the foundation of the state (as occurred with the Donation) ->
Rome coordinates the editorial activity.
- In 1582 a verified and official edition of Corpus iuris canonici appeared
 • these ‘revelations’ had lasting consequences for canon law -> showed that it had profoundly
changed over time.
a) Medieval Canonists had already detected these contradictions but considered them part of
the body of law and believed that contradictions were conceptually not possible.
b) Humanists also detected differences between Early medieval and Late medieval rules and
norms -> the ecclesiastical discipline during the Early Middle Ages was not what it was
after the Gregorian reform (had not always been the monolithic structure it was at the end
of the Middle Ages)
c) together with protestantism was a serious blow to the universality of canon law
(Protestantism important in -> now 1/2 the people no longer applying canon law)

• Thus, loss of value of both CIC’s -> this had an impact on the study of ius proprium. Suddenly
realized that if the CIC was representative of particular people at a particular time, then local,
contemporary law could also be of value to study.
• But, it wasn’t until the 18th century that local and national law was also studied at universities..

b) The School of Salamanca

• Renaissance in Spain -> Francisco de Vitoria established using Thomas Aquina’s Summa
Theologica as the textbook for theological education (this was revolutionary, the previous textbook
had been used for over 400 years)
- but not only a small revolution in theological education -> in legal education too.. includes
these topics:
a) De legibus (on the law)
b) De iustitia et iure (about law and justice)

- due to Aquina’s legal passages -> large commentaries about the law give way
- bring their extensive knowledge Roman, canon and local law to analysis in these
commentaries.. a new generation of thinkers is born
- new type of commentary was born - no longer follows the commentaries of CIC - but
rather that of Aquinas.
a) the text is absolute -> there is liberty for distance and commentators are able to
bring in elements from all different stages of legal history as they wish
b) like this, the different ideas of Roman Law and Canon Law fuse further

• Background of Spain -> ca. 15th to 16th century.. Spain is economically very powerful -> thus,
comes intellectual development.. generation of innovative and highly sophisticated lawyers.

• Francisco de Vitoria:
- Dominican friar
- never published anything -> notes taken by students in his lectures are important
- his figure is representative of what we call the School of Salamanca
a) it is, essentially, the Renaissance of thought in diverse intellectual areas
b) through the rise of Humanism and the rise of Protestantism, concepts of man, his
relation to god and the law were analyzed, commented and discussed during the
period of the School of Salamanca
• Thomas Aquinas:
- is the author of Summa TheologicaI -> he had access to traslations of Aristotle’ texts, thus
incorporating them into his Summa.

• Important names:
- Domingo de Soto
a) Student of Vitoria -> wrote important commentaries on the Summa and
independent treatises and works on property law

- Francisco Suarez:
a) father of the Salamanca School together with Vitoria
b) focuses on international law and sovereignty and the social pact.
c) 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.

- Luis de Molina:
a) professor
b) argued in his De iustitis et iure that legitimate power is derived from the citizenry
as a set of individuals with rights

- Leonardo Lessius
a) Jesuits professor
b) in his own De iustitia et iure -> focuses on issues related to financial, banking and
insurance law

• The School of Salamanca teachings:

- field of political theory -> much about how a state should function, etc.
- School of Salamanca has great influence on the development of a doctrine of autonomous
international law
- contributions to private law -> fundamental to the development of legal concepts such as
contract and property (general theory of contract law!)
- were engaged in novel and controversial issues: national borders, religion, civilizations,
etc..
- in these debates, they arrived at a crucial legal concept: natural law.

• Natural law:
- following Aquinas, belief that natural law was created by god -> eternal and universal
(common to all humanities)
- divine revelation along with human reason (i.e.: one is able to know natural law through
one’s intellect or reason)

• Private property:
- is property an institution of natural law?
 - if so, can anyone acquire property? is there individual property or only communal
property?
- The theologians of the Salamanca School offer solutions -> natural law has different layers
(i.e.: primary and secondary principles).. secondary principles can be added to (or
subtracted from) primary principles -> prim. principles are indisputable.. they are the core
of natural law.
this means that some aspects of natural law can be changed, while others can’t.
- Example by Vitoria: marriage and polygamy can both be part of natural law -> i.e.: there
are different principles (primary and secondary) and as long as they do not contradict
(polygamy does not contradict marriage!), one can add and subtract secondary principles
- Francisco Suarzes -> Human law can modify natural law simply by convenience.

• how do they explain the power of a king through natural law?

- a monarch may exercise his power and his subjects have the obligation to follow (as long
as the monarch is acting in the ‘common good’
- law and political power exist only to serve the common good
- kings stand, therefore, above the law and custom -> but, he does not rise above the natural
law since a king always has the obligation to serve his people.
- this is the concept of civil government:
a) people come together and once they are together and have formed a form of
government, this government may not be overthrown.
b) natural law duty to follow the government
c) the School of Salamanca has developed the first steps of the formation of a civil
government and used natural law to explain it.

• in the early Modern age, the school of thought that there must be a close relationship between
natural law and positive law in order for positive law to be ‘good’ or ‘true’ developed.

c) Usus modernus pandectarum

• project of jurists in the Netherlands and germany -> “the modern use of the Digest”.. they basically
incorporated humanistic subjects and methodologies into the traditional “Bartolist” approach to
law
- Bartolist meaning:
a) Bartolus -> belongs to school of commentator and postglossators
b) So the School of Bartolists were the Medieval annotations and additions to
Roman Law texts..

• Since non-bartolomism had spread throughout Europe, the Germans (in the Holy Roman Empire)
integrated the new historical-philological method into the old Bartolist school
• refers to a way of conceiving jurisprudence in the German territory in the early Modern Age.
• When the Reichskammergericht was formed in 15th century -> and with that, the application of
Roman Law (in cases when local law lacked provisions) started.
- Holy Roman Empire always already very connected with Roman Law
- Emperor considered himself direct successor of Justinian
- considered Roman Law naturally their own..
 • so, Roman Law acted as a subsidiary law (meaning, it was used when local law didn’t provide
justice of lacked as a whole).
• But, this application of Roman law would pose the constant challenge of adapting historic Roman
concepts to contemporary circumstances.
- The humanists positioned Roman Law as a legal system for particular people in a
particular time
- thus, in order to be able to solve problems with Roman law, quotes and excerpts were
reinterpreted outside their context (legal humanism!)
- the usus modernus padecatrum took from legal humanism the scientific advances of the
historical-philological method and applied it to solve the problem of applying Roman law
to current circumstances.

• this lead to greater interest in study of ius proprium -> many scientific editions of this to
understand and apply the legislative text.
• Samuel Stryck -> his usus modernus pandectarum would provide name for whole movement
• Also: first time the various laws of German tribes are written down in a codex.
• Fusion of humanism and neo-bartolism: authority of Roman law and legal science surrounding it
depends on its intrinsic quality
• SUMMARY: the usus modernus is essentially the preservation of Roman law texts (since they are
used as subsidiary law) while creating scientific editions of the text through the historical-
philological method to make sense of the concepts outside their context.

d) Grotius & natural law (Legal Science in Modern Era)

• Hugo Grotius: 16th - 17th century
- humanist and a forerunner of the natural law movement
- 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
- also one of the founding fathers of international law -> De iure belli ac paci libri tres
defends the need to establish an international law system that transcends religious and
moral division.

• Grotius’ Introduction to Dutch jurisprudence would become the first and finest summary of a
national legal system with the ius commune -> structure from Justinian’s Institutiones (like most
civil codes would do after that)

• “Even if we were to grant that there is no God” -> explanation as to why natural law could exist
even if there were no god.
- existence of natural law would no longer be explained through grounds outside the natural
law, but rather within it -> meaning: principles of law found their own place within natural
law.. and these principles are accessible through reason and empirical method
- The scientific revolution of the 17th century:
a) great discoveries lead to an era in which there was absolute confidence in reason
b) discovery of the galaxy (Galileo Galilee), people start to question god since there
is less need for revelation; religious wars give additional reasons to diminish the
importance of divine revelation.
 c) more fashionable to speak about scientific revelation & discoveries than about
religion.
d) deductive reasoning and empirical knowledge are used to explain the things that
are going on in the world (and not god or the bible)

- How the scientific revolution explains natural law:

a) nature is intelligible and reasonable (absolute belief in reason!)
b) it is believed that man does not have access or is not capable of knowing the
principles of natural law.. but through rationality and scientific-mathematical
method -> he can deduce principles to create a ideal legal system.
c) so, essentially, one should deduct which laws of natural law should become
human law

- Thus, the conclusion to ‘natural law without god’ -> Grotius wanted to define natural law
in terms of non-divine explanations.. and does so through explaining that the principles of
natural law and science can be understood through reason and the rational human mind.

• Modernism:
- humans see themselves as rational beings that understand more the world that is happening
around them (understand more of society then previous civilization)
- think that they have supassed antiquity - i.e.: that they are better than them (unlike
civilization of the middle century, which they considered barbaric and culture-less)
- Latin no longer language of the european elite 
- Rejection of auctoritates (compilation of other writings in Middle ages): true knowledge
comes from reason
- and the law of reason forms: the belief that one should deduce and reconstruct of complete
law system on the basis of few precepts of natural justice

• The consequence of the modernization - consequence of this new way of thinking:

- abstraction and empiricism distracted attention from Roman law -> more interest in
national law (there was no necessity to study and adapt Roman law -> they had developed
an own ideal of what positive law must be: based on natural law)
- thus, natural law is studied on a scientific level.
- Roman law is now only accepted as subsidiary law (e.g.: Germany)
- fusion of humanism and neo-bartolism in Germany: authority of roman law and
legal science surrounding it depends on its intrinsic (eigentlich, wesentlich) quality.

• SUMMARY to jurisprudence in Modern Era

- jurisprudence, when compared to that of the Middle Ages, was much more fragmented
- What developments/characteristics do we see?
1) Bartolist approach (which continued in a lot of universities -> attempting to fir
reality into Roman concepts)
2) The new historical-philological method (trying to scientifically take Roman law
out of its context to make sense of it in the current circumstances)
 3) the idea of reason and scientific explanations for natural law (turning to natural
law and the belief that reason can extract concepts of natural law to turn into
positive law -> turns away from Roman law)

e) Legislation in Modern Era

• Strengthening of centralizing political power -> more legislative activity (started in Late Middle
Ages and continues in Modern Era)
• only the monarch enacted legislation -> feudal lords and powerful cities were first forbidden
from promulgating general ordinances and then monarchs managed to extend their legislative
authority throughout their territories.. i.e.: elimination of legislative competences of power
competitors
• car ainsi nous plait-il -> “this is the law, because this is how I like it”
• representative institutions lacked the legislative authorities -> the only thig they could do is urge
the King to undertake a reform.. in general, representative institutions had very limited
legislative powers
• the only power that is able to counterweight the absolute power of the kings are chanceries and
other the royal judicial structures
- superior courts of justice (e.g.: in France) could register new laws and enforce them in all
administrative authorities in their jurisdiction
- they could also refuse to register legislation passed by the King (King could then choose to
insist that the law is enforced, but royal judicial structures could again refuse) -> the only
thing the King could do is to appear before the parlement and impose his decision..

• over time, due to king’s (nearly) absolute legislative power ->legislative activity grew greatly and
more coherent system
• there is a change from just recording cases, to actually using legislation to make decisions.
• e.g.: Ordonnance in France
- a number of different ordonnances -> e.g.: for commerce or criminal law
- unified and simplified the procedural laws across France’s different parlements -> improve
quality of legislation
- the procedural regulation would later be incorporated, fully intact, into Napoleon’s code in
1806 -> the ordinance used: Ordannance civile sur la reforma
- these Ordonnances started early in 16th century -> but in 18th century they would
continue, especially in matter of civil law.. some successful, but many not successful (e.g.:
testaments -> trying to resolve the differences between traditions orally transmitted wills
and written wills)
- great division between south and north of France: almost two separate legal systems (north
based on customary, south on Justinian code)

• e.g. 2: Spain
- taking into account vastness and constant growth of royal law -> compilations of it: most
famous -> Nueva Recopilacion in 16th century
- Spain uses legislation to impose a change in society
- by end of 18th century NP no longer on level of Austrian, French & Prussian codification,
therefore: new collection of previous laws (other countries were already inspired by new
principles..) -> called Recopilación de las Leyes de las de España (1805)
f) Administration of Justice in Modern Era
• objective of Kings in modern Era: establish complete, hierarchical and centralized court system
• during final centuries of Middle Ages -> contact with Romano-canonical procedure had inspired
monarchs to already establish royal courts (i.e.: courts of appeal)
• Coexistance of royal and local courts:
- this gave Kings control over the administration of justice!
- although feudal and local courts remained -> right to appeal other kinds of courts would
decrease their power.
- coexistence of royal and local courts would linger until 18th (in some countries even 19th)
century

• We can see that gradually hierarchy in courts evolves -> the royal court is above all and when an
appeal is made, one can move ‘up’ to the royal courts of justice. Concept of hierarchy.

• Development of ecclesiastical courts:

- in 13th century: very popular among those who sought justice and were fleeing the
ineffective and often biased secular courts (local or feudal courts)
- Church was considered the only stable state for many years
- BUT: with the development of royal courts -> secular judicial authority was represented as
very effective.. elimination of internal power competitors
- bad reputation of ecclesiastical courts would eventually lead to their decrease in
jurisdictional authority in 15th century.
- Also -> with religion being an important topic in modern era, many political debates about
the role the Church should play in political, economic, and social fields (& educational
fields.. until 18th century exclusively the clergy that ran schools and hospitals)
- since many wars about belief and political freedom -> religion became a matter of the
state.
- ecclesiastical courts now have little autonomy and little power -> they are put in second
place after royal courts.

g) Customary Law in Modern Era

• remains the most important source of the law until the end of the 18th century. It is necessary to
mention however that for today its importance has decrease radically after the 18th century.
• but, legislation now much more important than in the past, making customary law not the only
source of law anymore -> just the main source.
• Monarchs now attempting to control customary law as well -> put customs into writing.
• During 15th and 16th century -> some 350 customary law systems were written up:
- more legal certainty
- the proof of the existence of the customary law before royal courts becomes more efficient
- but, it stopped the evolution of customary law

• National law as the object of scientific study:

- through scientific study of Roman law and realization that it is not timeless -> lead people
to study their own customary law too
 - as importance of legislation and administration of justice grew -> authors undertook task of
creating orderly collections of decisions in local and feudal courts and laws that were
issued.

• Natural law wasn’t only rooted in principles of ius commune -> but also in national law. Studying
national law and how it corresponds with natural law would be the basis of the Enlightenment age.

3. The Bourgeois Age

a) Historical Evolution
• Bourgeois age = period spanning from 18th to 19th century.
• French Revolution (1789) as the end of the Early Modern Age
• The Early Modern Age Timeline:
- starts in ca 1500 -> end of the Late Middle Ages
- includes: Age of Revolutions, Renaissance period, Age of Discovery (around 15th
century)..
- Ends around French Revolution in 1789 (so, 18th century)

• so, essentially, the Bourgeois Age starts in the late 18th century.
• What is bourgeoisie?
- Social class -> it it like the middle class (so under nobility but still owns capital)

• Economic Developments in this Period:

- from an agrarian to an industrial economy -> how?
a) surplus of agricultural production
b) existence of sufficient capital
c) major technological advances

- surplus of agricultural production:

a) cultivates surface area expanded and new crops -> e.g.: potato and corn
b) furthermore: new technology to better exploit the natural resources
c) overseas territories also contributed -> more land, less exploited land, different
climates, etc..
England had colonies in North America, Spain in South America -> these had
great agrarian holdings and abundance of products.
d) Hunger was now over in Europe.
e) Furthermore: advances in medicine -> allowed even more population growth.
f) by 1900 the population had gone up to 400 million in Europe.

- major technological advances

a) industrial revolution: 170 to sometime between 1820 and 1840
b) steam engines, electricity, internal combustion engines, etc..
c) plus: increase in population provided cheap labor
d) what develops are mass markets in Europe.. and, furthermore, in the colonies
there is great demand for the manufactured products
e) communication: telegraph
f) transportation: railway development in the 19th century very rapid.
 - existence of sufficient capital
a) before 18th century -> movement of capital was very limited -> land was still the
main asset
b) this situation changed in 18th century when monetary economy was laid down
and accumulation of capital was essential for investments in large factories.
c) foundation of central banks very important -> Bank of England leading the way.

• Social Development:
- massive immigration into the cities
- clergy and nobility loose their influence as their essential wealth was land -> they are
economically undercut and superseded by the bourgeoisie
- bourgeoisie dictate the economic policies
- but: not only bourgeoisie -> also proletariat (those working in the factories -> miserable
living conditions in the cities)

• Politics
- questioning of the idea of traditional and absolute monarchy began -> people protested
against the privileges of the nobility and the clergy (and the entire feudal system)
- ideals of freedom, equality and popular sovereignty developed -> fundamental rights and
freedoms!!
- Demand separation of powers
- absolute monarchy begins to collapse:
a) concentration of central power accumulated over centuries
b) in other countries: it would relinquish over night (e.g.: France)

- In Prussia, Austria and Russia -> improved the military organizations

a) soldiers were no longer neglected (army was made up of their population) ->
regular food, pay and medical case
b) armies, thus, encouraged that government administration was capable of
collecting taxes, providing education and supplies (government had taken over
the medical attention and education that Church had previously been supplying)
c) this was crucial in ‘saving the monarchies’ -> still concentrated power in the
hands of the state.

- Despite all this, reform met resistance -> reforms undermined the interest of clergy and
nobility.. and also fortified the power of monarchs.
- A series of rebellion follows in colonies
a) in oversees territories -> e.g.: United States: War of Independence against
England, publishes Declaration of Independence in 1776
b) also many other oversee territories start rebellion -> want representation in the
parliament
c) Similar struggles for Spain -> cannot keep their territories in South America.
 - Radical revolution in France -> the French revolution (1789)
a) tensions in 18th century in France had long history -> social structure was unfair
(clergy, nobility and King living at expenses of the commoners)
b) Enlightenment principles question absolute monarchy and this inspires people.
c) increased tension: France is bankrupt from the wars and the people are
suppressed.. imposes higher taxes on the commoners
d) storming of the Bastille -> 1789 (Louis XVI beheaded in 1793)
e) revolution continues -> although monarchy overthrown, many problems remained
f) 1799 Napoleon ends the revolution -> so basically, started and ended with a
monarchy..

- this laid foundation for modern state governed by people -> fear in Europe of the ideas
spreading.. the monarchies are worried of their power.

- So, what are the enlightenment principles?

- Enlightenment -> movement of intellectuals who promoted the use of reason and
science. Questioned the social and political structure in Europe (absolute
monarchy)
- revolutionary ideas spread to commoners -> increased dissatisfaction with the
monarchies and the suppression of the commoners.
- All struggles around the world in the 18th century driven by enlightenment
principles:
a) much faith in Reason -> Age of Reason.. this changes the way we created
principles in law: we no longer look for principles in the nature, but
instead now, rational principles (human reason!)
b) belief that the world is intelligible -> they believe that the world can be
changed and is capable of thinking rationally
c) man has fate into own hands: optimism and progress
d) toleration, skepticism and science are the key to reform
e) Equality : All men are equally rational -> none should have more rights or
powers than another.
f) Liberality: man is fundamentally free -> against absolute monarchy and
against the institution of the Church s

• Church and Religion

- Church = no longer privileged position
- close alliance between throne and altar -> this is also why the Church was particularly
targeted.. but soon, relationship deteriorates
- 1/3 of the land in the hands of the Church -> when capital increases and land is no
longer the only way of obtaining wealth, Church is economically undercut by Bourgeoisie
- General movement to bring the Church under state control:
a) Church lost it’s dominant position in the creation & maintenance of schools and
hospitals
b) civil marriage was now accepted and regulated.. and further examples.
 - After French Revolution, freedom of belief became a fundamental human right ->
separation of Church and state represented the a basic political principle.. but clashes
between the two continued until 20th century.

b) The Law and Jurisprudence during the Enlightenment

• Enlightenment = philosophical, scientific and artistic movement which sought to apply rational
principles and methods to all areas of knowledge.
• God became less relevant
• Main difference in how natural law is seen: natural law thinkers vs enlightenment advocates
- natural law thinkers considered that natural law is a divine creation sustained by God
- Enlightened philosophers embraced deism -> but believed that creator left the world to its
own devices
- so, enlightened philosophers give God less ‘credit’.. either way, all come to the same
conclusion: answer must be rationally deduced from certain logical principles.

• Enlightenment advocates believed that everything should be reformed - top to bottom - in order to
start with a clean slate free of history.
• Enlightenment advocates also believed that it was possible to gather and compile all human
knowledge. They wanted to put the totality of their findings and their knowledge into one book.
This belief gave rise to: Encyclopedie of Diderot and d’Alembert (1750s-70s)

• The theory of “social contract”:

- favorite subjects of enlightened philosophers was law and the organization of the state
- considered - both Church and the monarchy - an arbitrary and chaotic jumble, a production
of Europe’s dark and feudal past and also the result of tradition (tradition was considered
utterly irrational because it didn’t follow a plan)
- so, in response to this -> enlightened philosophers formed the ‘social contract’
- states that popular sovereignty is the solution: meaning, people uphold the sovereignty and
every citizen was inherent to this.
- power does not come from God -> and it should never be placed into the hands of only one
person. Concentration of power would lead to abuses and to prevent this, the distribution of
power between several institutions must be made (they can maintain a political balance)
Essentially, this is the division of power: judicial, executive and legislative..
- The social contract includes:
a) Public law: sovereignty must be given to the people. No absolute power for the
leader.
b) Criminal Law: abolition of death penalty, corporal punishment and torture. They
want proportionality between offenses and sentences. Cesare Beccaria -> you
should never give the power to the government to such an extent that you would
allow them to kill you. Dei delitti e delle pene, published 1764.

• Limit state power and protect citizens’ rights -> John Locke Two Treatises of Government
- foundation of political power is the social contract in which men enter for the purpose of
bettering and enjoying their rights which everyone is naturally entitled to.
 - so his theory is that the social contract is for the people -> i.e.: the main aim is to protect
the people from the power of the state (and to do this, there must be division of power and
sovereignty to the people)

• Jean-Jacques Rousseau -> argues that the social contract is the basis of every political community.
direct democracy is the best model of political organization -> believes that every citizen ought to
submit a “general will”.

• With these demands for protection of the state and more rights, we can see the following:
a) customary law is out of fashion -> equality is not ensured through customary law, there
needs to be distinct rules and regulations to make sure that all citizens are equal and have
the same rights and obligations.
b) need for explicit fundamental rights -> liberty is something everyone is entitled to and in
order for that to happen there need to be clearly stated rights.

• so, legislation is the key to achieving this. it must embody and express the people’s general will
and set an end to the arbitrary nature of customary law. Privileges ad immunity for certain groups
was now over -> clergy and nobility had to be quashed.

• Codification Projects in Central Europe:

- idea that all law could be amassed in a single book
- along with this, determination to reform the law as a whole -> this would allow the form
the ‘new society’ which is rational, skeptic and has freedoms.
- Examples of complete codes:

1) Allgemeines Landrecht foür die preußischen Staaten (General laws for Prussian states)
- enacted 1794 by Frederik William II of Prussia and remained in force until 1900.
- all Prussian law -> both public and private. structured and shaped by natural law doctrines.
- academic commentaries banned.. and judicial interpretation too.
- all ambiguities were to be brought before the legislative commission.
- Frederik II ordered a publication of the draft version -> in order to gather commentaries from all
over Europe. He thus made sure everything was included.

2) Bavaria codes
- Criminal law code (1751)
- Process law code (1753)
- Civil law code (1756)
- in these -> natural law’s influence in the division of subjects clearly visible -> based on
Institutiones (people, property, inheritances, obligations)
- initiative of Maximilian III Joseph of Bavaria
- didn’t intend to suppress existing laws, but rather: provide a shared body of suppletive law.

3) most important: Austria’s Allgemeines Bürgerliches Gesetzbuch (General Civil Code, 1811)
- much clearer than Prussian -> customary law suppressed as a source of law.
- Maria Theresa ordered drafting of new codes in 1753 to unify in territories as diverse as Austria,
Tyrol, Bohemia, Silesia, etc..
 - Criminal Law code enacted in 1768
- part of civil law Code (Josephinisches Gesetzbuch) in 1786
- and -> procedural law code
- The Allgemeines Bürgerliches Gesetzbuch was inspired by principles of Natural law and returned
to structure of Institutiones

c) French History
• Romans established law in Gaul (region of Western Europe)
• West Roman empire collapse 476 AD -> but Roman culture & law did not lose its influence on
Germanic states -> especially visigoths and burgundians:
- Lex visigothurum + Lex romana Visigothorum (separate precepts addressed to sole Visigoth
subjects of population and another to sole Roman subjects of population)
- Lex burgundian (only for Burgundian population) + Lex romana Burgundian (Only for
Roman subjects) 
- Edictum Theorici -> applied to both roman and Germanic subjects -> written unlike oral
tradition
• These aspects contributed to survival of some roman law in south of France 

• In the North of France -> there are the Franks:

- DRIOT COTUMIER (Customary law)
- more oral tradition 
- customary law from Germanic origin, which is later crystalized into Lex salica 
- Some parts of the law still used the better developed and more refined roman law -> for
example: contract law -> here customary law was not sufficient. Roman law acted as
subsidiary law (meaning, it was used when customary law didn’t provide justice or lacked
as a whole).

• In the South of France:

- DROIT ÉCRIT -> written customary law influenced by Roman law, but with strong
Germanic influences 
- Renaissance roman law studies in Bologna (North of italy) immediately taken up by South
of France 
- corpus iurus was studied in briefly in two areas in the South -> gradual influence on the
North but didn’t displace strong Frankish customary law.

• 10th - 11th Century: Modern Era

- Capetians took over Carolingians
a) Frankish law broke up into small territories -> many different legal systems 

- Laws in northern france-> dependent on oral tradition 

a) cases involving breaches of customary law complicated->customary law had to
be proven valid -> hard with no written evidence ->legal uncertainty-> difficulty
in discovering contents of customary law 
 • Renaissance
- Charles VII commissioned all customary laws of the regions to be written down (mid 15th century)
-> strengthened the power of customary laws and helped their displacement/confusion with Roman
laws -> essential for French common customary law (also for royal courts of appeal -> proving a
customary law!)
- The writing of regional customary law portrayed substantial difference between various
laws -> lead to the need of a unitary private law in France 
- Customary law of Paris -> most influential throughout regions and used as a basis 
- Unity in customary law would mean more fair trials and less uncertainty 
- Jurists worked on a private law that was common throughout France:
- these jurists commenced to moderately accept aspect of roman law
- the jurists working for the King were interested in centralization of justice
in the royal courts -> they therefore based a lot on natural law in other to
allow unity.

d) Timeline to Code Civile

• 1804 -> Napoleonic Code.. designed to comprehensively deal with the core areas of private law
such as for dealing with business and negligence lawsuits and practices.
• systematic collection of laws

• Code civil de français directly related to the french revolution 

• French revolution: war of 7 years, and took place in the middle of the 18th century. -  Fraternité,
Legalité, Egaliité
• The king that had been ruling without the representative organs of its subjects, decided to convene
the etat’- Généraux- May 1789- in this etas, there where people from nobility, clergy and third
estate (rich bourgeois). The third estate is thus taking control of this representative institution, and
they demand major reforms within the French monarchy. Thus they changed the name of the stats
Généraux to the Assemblée Nationale June 1789. 
• There are major street riots, where the french population, discontent with the ruling of the
monarch, decided to invade the Bastille on the 14th of July 1789. 
• The declaration of men and the rights of the citizen: “ Déclaration des droits de L’homme et du
citoyen”  bill of rights that states in one list the fundamental rights of men. The other bill of rights
that came about in europe throughout the rest of the 18th century, and the 19th century based itself
mostly on the french declaration of men . 
• August 1789: the privileges of nobility, and clergy men were revoked/eliminated. 
• 1789: Properties of the Church confiscated/nationalised, and then later on sold. 
• 1791: A new constitution drafted where the englghtened ideas of the separation of powers put into
practice. In that time the constitution of the United states already existed, thus the french used the
US constitution as a base to formulate their own constitution.
• 1791: Intent of Louis XVI to flee the country
• 1792: Republic and new constitution 
• 1793: Decapitation of Louis Capet (King Louis XVI) 
• In the latter stage of 1793, feudalism was eliminated. (an institution that came to an end after 1000
years) 
• June 1793: Robespierre, Jacobins, Terreur
 • September 1793: New constitution, rights and fundamental liberties, including economic rights->
never enters into force. (this new constitution never voted, since french was under the oppressive
regime of Jacques Robespierre (Reign of Terror) 
• 1794: End of Reign of Terror: Robespierre decapitated: Symbolism: The instrument he used to kill
the traitors of his own country, ended up being the means as to which his own life was taken away. 
• 1794: Directoire 
• 1799: Napoleon

e) The French Law Codes:

• Louis XIV’s legislative projects-> wanted to unify law throughout whole of France. 
• Several unification projects under the Ancient Regime (the regime before the french revolution-
absolutist monarchy) 
• Important lawyers that shaped the ideas of a unifying civil code were: 
- Bourjoun: Lawyer specialised in the Paris codes 
- Domat: Suggested ideas of natural law and for the first time there is a single body of law for
all of France.
- Pothier: Greatest influence on French civil code -> books on both customary law of certain
regions and Roman law -> Produced small writing on the law of obligations sale, hire, gift…
His eloquent form of writing and full conceptual accuracy has long impact -> does not
believe in philosophical treatises, but rather very pragmatic and direct.

• Prior to the revolution:

- The law is extremely segmented (despite attempts to unify it). We can, again, divide between the
south and the North:
a) Droit Ecrit (South)
b) Droit Costumes (North)
- codification of laws just portrayed the high differences and lack of cohesiveness with
regards to laws and customs within both regions -> Louis XIV’s plans of unification were
therefore not really achieved.

- Main focus of jurisprudence prior to revolution -> unification of private law.

• After the revolution (1789):

- All institutions of ancient regime were rooted out:
- monarchy was abolished, and interlocking powers of nobility, king, clergy.. were also
revoked.
- The church was placed under the control of the state, and all its assets nationalized. 

- most pressing concern after revolution: draft a code to reform the law.
- belief that a single code of law would be the road to success -> they want to unify France and
achieve the ideal law which is applicable to all.
- what is important: the language -> laws easily comprehensible: no legal Jargon.

- In criminal law and criminal procedural law a lot of codes enacted between 1789 and 1799:
a) 1791 criminal law code -> which was replaced in 1795 due to a change of regime
b) This criminal law code aimed at being understood by all (language!) and applicable to all.
 - In civil law, less progress in making a code between 1789 and 1799:
a) a number of codes submitted -> however, first rejected because too complex, too long and
not revolutionary enough
b) second rejected because too short and too radical.
c) the third attempt of a civil code did not gain enough political support.

• The idea is to remove customary laws and make solid law foundation based on the principles of
reason and logic.
• Revolutionary legislation was too radical since it dealt with reforming existing laws (eliminating
customary law) and creating equal rights for every citizen. Since almost all was customary law
before, the attempt to remove customary law is too radical.
• Amidst the reign of terror, the national convention in 1793 changed many laws:
- inheritance law -> property equally divided between heirs 
- Patria potestas idea removed -> father no longer had the right to exercise power over
grown children 
- Matrimonial requirements, and parental consent reduced to minimum 
- Divorce acceptable- > marriage terminable contract which is justified by individual
freedom grants humans these rights. 

• The main aim of the post-revolution legislation and codes was to unify private law. However, this
was largely unsuccessful.

f) Napoleon rises to power: The code civile

• 1800: codification commission (four members) alongside Napoleon and Cambacérès when
Napoleon rises to power-> the commission is ordered to draft series of civil law bills
- total of 36 bills in one code submitted and denied by the legislative council -> bills thus
separated into 36 separated codes, and separately submitted for approval -> by 21 March
1804 all 36 bills passed, where the 36th bill placed all the previous bill into a sole
document called -> Code Civil des Français “French civil code”. 
- Symbolized the revolutionary project of civil law -> the reason for success of the
code in subsequent years due to the practical nature napoleon saw the codes. 
- contents of code:
- Many traditional elements: customary law of Paris
- Also: Roman law
- 17+18th century legislation
- only limited number of new rules (according to Enlightenment Principles)

- Once code civil was in force, all other ancient laws, systems, customs, statutes, regulations
and Roman law ceased to be in force

• Code Civile Structure:

- Introduction -> brief -> containing six articles
- 1st book: Law pertaining to individuals (including marriage and custody law)
 - 2nd book: Laws pertaining to limited real rights + property (general provisions with
regards to things)
- 3rd book: Laws pertaining to acquisition of property (all the remaining laws not included
in the other books fall into this category -> succession, contracts, sale, and obligations) 
- arrangement of the Code Civile was inspired by Institutiones -> but: with Enlightenment
twist: no procedural law included (intended to be placed in another code)

• Code Civile Characteristics:

- Has more Germanic influences then Roman influences -> unlike the German BGB, which was
influenced more by Roman Law, greatly because of pandects of the Historical school. 
- Founded by creed (Glauben) of Enlightenment:
- natural law greatly influenced over code -> autonomous principles of nature included such
as freedom of religious beliefs (this is revolutionary ideal)
- other revolutionary ideals of freedom and equality
- abolition of the feudal system and abolition of privileges to clergy and nobility.
- profound reform on succession law.
- we can see that new value is placed on individual freedom of contract -> ability to transfer
property is a mere consent.

- the principle of equality has a great impact on the centralization of private law: for the first time the
same private law is not only applied throughout the whole of France -> but also throughout large
parts of Europe.
Equality before the law, private property and freedom of contract become 3 pillars of the 19th-
century private law throughout Europe.

- good balance between the legal achievements of the Ancient Regime and the contributions of the
Revolution.. also: Paris customary law (a good fusion of all)

- Canon law also exerted some influences -> especially in regards to procedural law (not included in
Code civile but in Code de preocedure civile)

- Avoids contradictions -> leaves room for judicial interpretation -> quite inexact, and ambiguous in
order to make leeway for interpretations. 

• Code civil adopted in 1804 -> Napoleon’s Empire established -> Napoleon = emperor -> Code
civil became Napoleonic codes 

g)Other Napoleonic Codes:

Napoleon enacted other codes, besides the code civil:
- civil procedure code
- criminal code
- Maritime law
- Code of commerce 

• French civil codes -> influence over french territories inside and outside scope of country -> The
international influence and influence over two centuries throughout the world and Europe.
 • Other countries realized usefulness of codes -> Italy, spain and Netherlands civil codes inspired by
french:  
- Influenced by its rational nature and traditional elements and ideas -> balance of tradition
and novelty 
- Democratic language aggregated to popularity

h)Jurisprudence in the Bourgeois Age: Legal Positivism

Legal positivism: A school of jurisprudence who’s advocated believe only legitimate sources of law are those
written rules, regulations, and principles that have been expressly enacted, adopted, or recognized by a
governmental entity or political institution: including administrative, executive, legislative, and judicial
bodies.

i) The Exegetic School

• new way of understanding jurisprudence is born with enactment of Napoleonic codes
• Exegetic school saw legislation as the sole source of law -> legal positivism.
• This supports the separation of powers:
- Legislative branch: only one responsible for and authorized to enact laws
- Executive branch: govern and administer in accordance with those laws
- Judiciary branch: play no part in creation or interpretation of law -> judge: merely pronounce
words of law. 

• Legislation sole source of law:

• Case law and customary law not valid
• comparative law and legal history also not important.

• The school subject to huge criticism within countries influenced by french civil code

• main arguments:
• Scientific School: “Law is dynamic, and must take into account socio-economical aspects”
• other criticism: jurists free to present their conceptions of law in a systematic way without
constriction of the code civilie
• other sources of law should be referenced outside of the code civile.

• Main highlighted arguments: 

- After code promulgation one believed that the legislature could develop all norms that were
necessary to legislate society. If it is only the legislature that has the responsibility to create
the codes, no court or legal science is necessary to develop them. Therefore no leeway was
made to judges or any other legal member that is not the legislator to formulate new codes.
Thus the law was given (no input from social sciences or judges)-> deposited.
- Positivist approach lasted only one century due to huge criticism->thence population
believed that social sciences should be taken account as well, and that judges should refer to
the past, and to other countries that also dealt with similar cases to be referred to in order to
solve current cases. 
- Positivistic view still important till this date, however this extremist approach was important
in order to portray how difficult it is for one to find balance between ideals dictated by the
law, and ideals which an individual finds more suitable for justice to be attained. 
j) German historical school
German general reaction: against enlightenment thinking in jurisprudence -> especially with regards to Code
civil in France 
- Philosophers such as Goethe and Kant rejected enlightenment within jurisprudence. Why?
• Law should be the “spirit of the people” Volksgeist -> therefore, a product of organic evolution..
thus, customary laws and case laws (which were handed down and capture usage and manners) is
also an important source of law.
• The law-bearers are not legislators, but the people-> so the law should be made for the people.

- Division in the historical School:

a) Romanists
- believed German legal system should be based on Roman law
- now this seems to contradict their rejection of pure legislation in jurisprudence -> but, no:
Roman law was developed mainly by expert jurists and the jurisprudence of the Praetor
(egislation only played a minor role)
- Also: Germans had a lot of contact with the Roman law -> Holy Roman Empire
- Roman law was essentially an academic discipline -> which gave jurists a key position in
the Empire’s social and political structure.
- This is the way it should be -> jurisprudence should react to social changes.

b) Germanists
- rejection of Roman law and it’s legacy -> instead: supporters of the German people’s
particular law.
- consider the official reception of Roman law in 16th century (Renaissance) a national
disaster -> deprived people of their most authentic identity: their own body of law.

- Romanists built their system on basis of Roman legal texts and rationally approached natural lad -> just like
the enlightened jurists did.. the difference: they didn’t base their work on axioms or principles, but on the
Roman material itself.

k)Pandectism
• The Digest is also known as Pandects.
• Pandectists were German university scholars in early 19th century who studied and taught Roman
Law as a model of conceptual jurisprudence (passed down in generations) as codified in the
Digest of Justinian.
• conceptual jurisprudence = law is imposition is through man over man (passing down in
generations).. not: consequence of other sciences or metaphysical faith.

• Evolution of Law:
- 17th century- people were looking for basic principles/ human laws in nature 
- 18th century- people looking for basic principles/ human laws with reason (in natural law)
- 19th century- People looking for basic principles/ human laws by taking history into account
 
 • Legislation = inorganic +unscientific according to Savigny -> all law was the product of history->
followers should concentrate on historical development of the law 
• Pandectist School -> Savigny -> Viewed that jurist not legislator was interpreter of German spirit
->  structure it into system that could be applied in contemporary Germany

a) Pandectist Codification
• Pandectist: opposed codification
• Pandectist were, due to their proficient systematic methodology, ideal candidates for code drafting 
• saw participation in the drafting of civil code as proof of jurists centrals position in the creation of a
civil code -> instead of that of a concrete legislation.  
• Civil code formation in Germany: same factors that led to the french civil code formation:
• unifying force of a unique code
• three pillars of liberal society:
- equality (before the law)
- private property
- freedom of contract (egalité, Fraternité, Liberté)

• Timeline of events that led to Civil Code in Germany:

• Napoleon fall 1815, Germans formed German confederation (union of 38 states controlled by
Austria and Prussia)
• Austro-Prussian war -> Austria no longer in confederation
• Otto van Bismarck (Germany): unified passports and customs agencies and established single
Parliament (Reichtstag)
• Victory over france in Franco-Prussian war -> new nation state = German empire ->
• After 1873 -> law was passed granting Reichtstag to legislate law in all fields of private law.
• first draft of civil code: criticism- too technical, hard to understand
• second draft 1896 -> only some minmal changes.. the BGB came into force 1900’s  

Bürgerliches Gesetzbuch BGB

- Book of civil law -> organized very differently to Code Civile.
- unification of Germany 
- the civil law in Germany is made up of 5 parts:
- general Part
- law of Obligations
- Property Law
- Family Law
- Succession Law

- the BGB was a product of its time and the context in which it arose. It represented: Coherent, solid,
consistent system based on Roman law. 
- BGB also had huge international influences on states that formed Austro-Hungarian empire , Italy’s Codice
Civile 1942 and Brazil (1916).
- After WWII influence decreased, but aspects of it still influenced the civil codes of many countries around
the world 
D. COMMON LAW HISTORY

Nr. 1: The development of the Common Law

a) History: the development of Common Law
• compared to William, not all monarchs were interested in such work -> so, this role was gradually
delegated to commissioners called ‘itinerants’.
• each country would be visited 3 to 4 times a year and the justices (judges) could hold ‘Assizes’ or
‘sittings’ of the royal court.
• the justices would hear and decide serious crimes in the Assize Court of the country town, while local
sheriff (and later justices of peace) would deal with less serious offenses.
• During Henry II (1154-1189) this system became more formal and more regular -> he divided country
up into ‘circuits’ (areas for judges to visit).
• For hundreds of years, laws were enforced by this system of circuit judges from the King’s Bench.
Thus, Henry’s contributions were very important to the development of the English legal system!
• Assizes were not actually abolished until 1971.
• Henry was accused of ordering the death of his Archbishop of Canterbury, Thomas Becket (murdered
by four of Henry’s knights in Canterbury Cathedral) -> made Henry unpopular
• to avoid a rebellion -> Henry accepted the punishment of a public whipping, demonstrating that even
the Kings are not above the law!
• How the law became ‘common’:
- initially, when judges traveled the country: applied local customs to decide cases
- over time, however, as judges returned to Westminster & discussed the cases -> they began to
use the best customary rulings.
- these were applies universally -> leading to development of a law ‘common’ to the whole
country.
- eventually, King’s courts had achieved ascendancy (Einfluss/Übergewicht) over local courts.

• Separation of powers:
- originally no separation of powers of the State -> King exercised judicial, executive and
legislative powers.
- But as amount of judicial business increased -> common law courts became separated from
other machinery of central government.
- the common law gradually emerged as a system because of the doctrine of stare decisis
(standing by pervious decisions).. when judge decided a new problem in a case before him, this
decision would have to be followed in subsequent cases by judges as a legal rule.
- judicial precedence became binging on the courts, rather than just a helpful guidance.

b) Problems with Common Law

• “no writ, no right”
- in order to bring an action in the King’s courts -> person had to buy a writ from the
Chancellor’s office.
- The writ was a sealed letter issued in the name of the King. It ordered an individual, such as the
sheriff (lord of the manor) or the defendant to do something.
 - an action by the courts would only take place if there was an appropriate writ which covered
the facts of the case.
- principle: a common law right only existed if there was a procedure for enforcing it.
- bureaucracy (meaning: following certain procedures and in following regulations) gone mad:
there was no right without a writ.
- although various writs were developed over 6 centuries -> the growth of the number of writs,
and therefore the cases which could be brought to common law, was slow.
- by 13th century: about 50 existing writs (but many only minor factual variations of basic writ)
- attempt to solve this by passing the Statute of Westminster in 1285 -> but only limited effect.
- even if a writ was available which met the facts of the case (meaning, action can be brought
before the courts) -> procedure was too inflexible and formal.
- The plaintiff (claimant) could only plead one cause of action and a small error in the writ would
lead to the collapse of the case (thus, causing the plaintiff to start all over again.. with
consequent expenses and delay).

• the remedies a plaintiff could be awarded

- remedies = the manner in which a right is enforced by the court when someone is harmed. It is
the character and extent of relief to which a successful claimant is entitled.
- apart from actions for the recovery of land -> remedy granted to plaintiff for a civil wrong was
damages or payment of a sum of money.
- payment of money not always an adequate remedy -> for example: did not compel someone to
cease wrongful actions or fulfill obligation.

• common law was limited because it only recognized certain rights

- for e.g.: concept of trust. (trust = control the distribution of property (after death) -> inc.
mortgages).
- particular problems with mortgages: if the date of repayment of a loan has passed, the land
became property of the lender -> borrower was unable to get the land back even if he could
repay the outstanding loan. Thus, lenders were often deliberately absent so the money cannot be
repaid in time.

Nr. 2: Equity
a) The development of equity
• by 14th century -> common law had lost much of its flexibility since judges felt that they had to apply
the law the way their predecessors had done.
• abuses of the common law, expenses and delay
• law was narrow, rigid and dogged by technicalities.
• growing number of dissatisfied litigants (= parties, opponents) -> practice of petitioning to the King
grew, asking him to exercise his royal prerogative (Königsrecht) as the ‘fountain of justice’.
• at first: King heard petitions -> later, function was delegated to the Lord Chancellor (King’s principal
minister), who became known as ‘Keeper of the King’s Conscience’.
• 1474 -> Chancellor was issuing decrees in his own name and the Court of Chancery was created ->
separate from King and the common law courts.
• Court of Chancery developed the body of law called equity.
• equity = body of law that addresses concerns that fall outside the jurisdiction of common law. It is a set
of maxims that reign over all law -> allows courts to use their discretion and apply justice in accordance
with natural law.
• natural justice was not completely absent from common law systems -> but rigid rules of procedure
often prevented justice..
• how do proceedings in the Court of Chancery work?
- proceedings were started by a petition or bill filed by the plaintiff
 - there did not have to be a writ.
- at first: adjudicated simply by what the Chancellor considered was fair
- Chancellor could develop new rights and remedies as individual cases demanded -> justice was
quick and (relatively) cheap.
- Chancellor was not bound by rigid procedures of common law but could, for example, inquire
(request) the facts of a case or order documents to be produced to enforce legal rights.

• gradually: principles of equity emerged and equity became a separate branch of the law with own rules
& procedures.
• equity no longer only a application of natural justice to a case -> a separate branch.

b) Equitable principles
• initially there were few guidelines for Chancellors.. but slowly, judges developed a set of equitable
principles or maxims.
• these were applied by the Court of Chancery & are still relevant today.
• Examples:
- Equity looks on that as done which ought to be done: in other words, equity will enforce the
intention of the parties, rather than allowing something to founder because of a failure to
conform to rigid procedure.
- He who comes to equity must come with clean hands: accordingly, an equitable remedy will not
be granted to a claimant who has not acted fairly.
- Delay defeats equity: a claimant cannot wait too long before making a claim as this may
prejudice the other party.
- Equity will not suffer a wrong to be without a remedy: there must be a remedy if wrong is done
-> equitable remedies.

c) Equitable rights
• equity recognized new rights which were unknown to common law -> e.g.: law of trusts.
• law of trusts originated in the 13th century:
- arrangement made by crusaders for their land whilst they were on crusades
- A custom developed 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.
- however, because family had no legal interest in the property -> common law courts would not
remedy abuses by the transferee.
- Court of Equity intervened to remedy this.

• trust is still relevant today in ordering private lives: in taxation matters, the shared ownership of
property or in making provision for dependents. also in corporate or public interest, such as pension
funds and charities.

d) Equitable remedies
• new remedies developed through equity law which still exist today.
• an equitable remedy is the discretion of the court, which is why equitable principle are used (to make a
guideline for equity law).
 • a common law remedy is a matter of right: if the claimant sufficiently proves his/her case -> entitled to
damages.
• two of the equitable remedies which are still important today:
- injunction -> which is an order of the court compelling a person to perform an action or to
refrain from an action. E.g.: to demolish a building which has been erected in breach of a
promise not to build on land.
- a decree of specific performance which is an order compelling someone to perform their
obligations under a contract or trust.

Nr. 3: Conflict between Common Law and Equity

a) The conflict:
• as ethics began to develop as a system of rules -> conflict between common law and equity.
• in some cases, equity didn’t only add to/improve the common law, but directly challenged it.
• in 1615 -> these disputes peaked: so James I decided that equity should always prevail over common
law in the Earl of Oxford’s Case (1816).

Nr. 4: The Need to reform

a) Reform
• as equity hardened into a system with clear rules -> became as inflexible as common law.
• by 19th century: urgent need for reform of the whole legal system.
- too many courts with overlapping jurisdictions
- it was expensive and slow to obtain justice
- inadequate appeals system (equity)

b) The fusion of the administration of law and equity

• The Supreme Court of Judicature Act of 1873 and 1875 -> created single court structure and merged the
separate court systems of equity and the common law.
• for first time court procedure as a whole became regulated by the rules of the Supreme Court rather than
bing left to individual courts.

• now, all civil courts could grant both common and equitable remedies in same proceedings -> e.g.:
injunction to stop unlawful behaviour can be ordered in addition to compensation for damages or losses.

Nr. 5: Common Law Today

a) The meaning of Common Law today:
• The development of English law and the different meanings that have been attributed to the phrase
‘common law’ are summarized below:
• the distinction of civil law (in the sense that some other jurisdictions do not develop a binding body of
case law) -> see Unit 5.
• This diagram shows what common law contrasts with:
 • the meaning which has the most relevance today is that which distinguished the law made by judges
(case law) from that passed by the Parliament (legislation).
- case law is one of main sources of English law today -> together with legislation & EU law.
- in case law: cases are summarized by specialist journalists called court reporters in journals
known as law reports (available both as bound volumes & online).

b) Political objection to judges making the law:

• In days gone by, judges did make law -> however, in theory, judges no longer do so.
• Despite this, case law remains major source of law -> because modern English law has never been put
into statutory form and is still to be found in cases, some of which were decided many years ago.
• In addition, judges retain their role of interpreting legislation and the meanings attributed to that
legislation become part of the law.
• Judges (unlike Members of the Parliament) -> not democratically appointed. Instead, appointed by the
Lord Chancellor with the assistance of the Judicial Appointments Commission.
• arguably, this is contrary to basic principles of democracy -> because the legal rules which hold society
together are made by persons who have no democratic mandate and are therefore not accountable to the
electorate.
• Law should therefore not originate from judges, but from Parliament of EU.
• We can say that judges’ role as law-maker has not diminished -> but still influence over certain
developments of law.