LEGAL HISTORY

Block 2, Year 1
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WEEK 1: CODIFICATION AND NATURAL LAW

Summarizing:
• Lecture Notes (Week 1)
• Working Group/Tutorial (Week 1)
• Chapters of the History of European Codification – Lokin and Zwalve (Chapters I and II)

Codification
Even in the time of the Romans distinction made between written, ius ex scripto, and unwritten law, ius ex non scripto
• Unwritten law is older than written law
• Need for written law comes from the need for legal certainty

Definition
What does codification mean?
Latin
• Codex = book (especially law code)
• Facere = to make
Jeremy Bentham (1748-1832) coined the term of codification

Codification is written law, to which the government gives exclusive validity on account of its authority; this exclusivity makes the legal
record a complete one.

Three essential characteristics that need to be fulfilled for something to be called a codification:
1. A government that exerts authority over its subjects
o Government cannot be in exile; would not be able to exert authority
o Almost always a secular institution; church-based institutions possible
2. A written law
o Unwritten codification not possible
o Although every codification is an act of legislation, not all legislative activities are codifications
3. The completeness of that law, achieved through the authority of the government, which grants that law exclusive validity (no
other law applies in that same field)
o Formal exclusivity: codification may be formally complete as judge bases decision on codified law
o Material exclusivity: material completeness is impossible as legislator cannot foresee all situations, but a solution still
needs to be found by judge to decide on the situation

Interpretation
Interpretation; to give meaning to words (to construe)
How can recent or more ancient law be used to settle disputes in modern society?
• Answer: Interpretation by the judiciary
Examples:
• Local: Academic statute for PhD ceremonies states that they last exactly an hour → in reality 45 minutes
• Common law: A body is theoretically material and burning it is subjecting it to a process → judgement found that cremating a
body cannot be seen as subjecting materials to process
o Shows interpretation
• Nix v. Hedden US case
o Tax on imported vegetables
o Is a tomato a vegetable or a fruit?
Conclusion: all legislation needs to be interpreted, words always need meaning (no text can be without explanation)

Interpretation methods
a) Intrinsic
• Grammatical Interpretation: the meaning of the words in daily usage is taken into account

b) Extrinsic
• Systematic Interpretation: relating the rule to other rules in the system, and how it fits in
o Similar to analogy, where a rule that on the basis of its working and intention is not applicable to the case
that is being assessed, is still applied because the unregulated case looks like the case that is covered by
the rule.
• Statute-Historical Interpretation: determine what the legislator meant when the law was written
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• Legal-Historical Interpretation: look for the origin of the particular rule

• Teleological interpretation: purpose and objective of a rule are taken into account

✓ The necessity of interpretation

e.g. Dutch Law: art. 13 General Provisions
• ‘A judge who refuses to pass judgement under the pretext the law is silent, dark or incomplete may be prosecuted for
denial of justice’
Lex semper loquitur! = Law always speaks!

✓ Dangers of interpretation
The German Civil Code during the Nazi regime
• Did not change a single word of law, just interpreted it in a way to fit their ideas
• Gave judges the freedom to interpret the law in a Nazi way

Montesquieu: Trias Politica

Separation of powers
• Legislature
• Judiciary
• Executive

Tension between the powers

• Legislature <-> Judiciary
o When legislature makes law, but judges are given the power to interpret it, it may not always match what legislature
wanted, and therefore, cause tension.
• Executive <-> Judiciary
• Executive <-> Legislature

The Legislator
The legislator’s powers are limited as while they issue and draft the laws, they have no control over their future explanation. This was
troublesome for many legislators, who then provided their own authoritative explanation, which is called an authentic interpretation.
• However, even interpretative texts need interpretation resulting in the same dilemma as before.

Legislators have attempted to restrict the future explanation of their texts by judges in the following ways:
• Ban on interpretation
• Ban on commentaries e.g. Frederick of Prussia in 1749
• Authentic interpretation by legislator
• Referral to legislator (Référé législatif)

Nevertheless, the final word lies with the interpreter therefore deciding the content of the legal rule.
• Showcases that while codifying law may create some legal certainty, it is not guaranteed e.g. Plebs in Rome when the Law of
the 12 Tables was written but they still had no rules of explanation and resulted in them not knowing what to expect from the
written law.
The function of the codifier is limited, and their most important role is to authorize the code of law.

Three functions of a codification

a) Legal certainty
• Nulla poena sine previa lege poenali
• Art. 1 Dutch Penal Code: ‘an offence is only punishable by the power of a legal provision that precedes it’
b) Economic
• Cross-border trade and money transactions require uniform regulations
c) Political
• Codifying civil law tends to strengthen national unity, and therefore usually established during politically stormy times
e.g. France, Netherlands, Germany
• P. Scholten: ‘A new civil code only emerges out of political pressure’

Codification = restriction to legal development?

• While a codification is the fixing of a text, it does not necessarily mean law has become static or rigid. The law remains ‘living’
through interpretation, as when time passes, circumstances change developing new interpretations of the same old law.
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The Judge
It is extremely important to establish an authority that is the only authorized interpreter of the law: the government that grants the
legislation its authority, establishes the interpretative authority.
• This interpretative authority may be the judge
o Ius curia novit = the judge knows the law

As stated earlier, all text needs interpretation, but to explain every word of the judge would be too burdensome, and therefore due to
human nature to attach a certain meaning to a certain word from a young age (communis opinio), one does not need to do so.
• Judges cannot change the meanings of words arbitrarily and need to justify every meaning that deviates from the accepted
meaning.

In England, a judge cannot go beyond the conventional meaning of the words, whereas continental judges have more freedom of
interpretation. However, an English judge is not limited to any legal text as if the written law is inadequate, the English judge will place it
aside and apply common law.
• Uniformity in English law guaranteed through the stare decisis principle, where a judge is forced to keep his previous
verdicts/precedents.

Important role of judge: they decide what is the law

• The judge cannot be subject to any limitations due to the fundamental obligation to explain the codification and the
fundamental freedom of explanation

Natural Law
Natural law states that people have a number of natural, self-evident rights that derive their force from nature, and not a certain legal
document.

Declaration of Independence
4 July 1776 - Declaration of Independence
• God given rights
o ‘We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator, with
certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.’
• Self-evidence: flow from our nature
• However, slaves still used even by author Thomas Jefferson → clearly not all men are equal

Ius civile and ius naturale

Since classical Antiquity, there has been a belief that another legal order existed alongside and above the law created by man, natural
law.
• Roman jurist Gaius: The Roman doctrine of legal sources makes a distinction between the rules of specifically native origin (ius
civile) and the rules that have universal validity (ius gentium).
Ius naturale =/= ius gentium.

Positivism and natural law

Epicureanism (Epicurean)
341 - 270 BC (Ancient Greece)
As the natural state of man is war against all,
epicureanism connects the creation of law to
authority and does not recognize any other
law.
Formal concept of law
Answers the question of what should be
considered law with regard to the origin, the
authority, and not the content.
In regard to the content of its laws, the
government should only be led by the use,
utilitas. This utilitarianism meant that law
would be a means through which the
Stoicism (Stoa)
Founded by Zeno (333 - 262 BC)
Term law cannot only mean what a random
government authority prescribes but should
also be judged in terms of the level of
fairness of its contents.
Material concept of law
Measuring the standard of law would
happen within man himself, and based on
his natural innate, God-given reason, ratio,
he should be able to decipher what law is.
• Cicero: ‘Law is the natural ratio
itself.’
Resulted in the recognition of natural law,
where regardless of time, place and the
sanctioning of an authority, a set of rules
was valid due its rational content.
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greatest happiness of the greatest number

could be realized.

Ius gentium and ius naturale

A large part of the ius gentium did not need to be recorded in laws because due to their rationality they were valid and did not require
any special legal ratification.

Roman jurists had some trouble with the position of slavery, as it was contrary to natural law. This meant that ius gentium was not
always regarded as being part of the actual natural law = ius naturale.
• Ius naturale: what nature teaches us and what comes from beign human
• Ius gentium: self-evident rules

Figure showcasing the relationship between ius gentium and ius naturale

Natural law in the Middle Ages

In medieval times, natural law was not treated as a separate discipline, but rather taught in connection with canon (church) law.

Canon law considered natural law very important.

• Natural law was placed higher than customs and positive law because it was applicable everywhere at all times and brought
mankind to God.
Power of natural law allowed to set aside unreasonable or unfair man-made laws e.g. Justinian’s Statute allowing incest, bad customs,
ordeals

Hugo Grotius and natural law

The connection between canon and natural law was only broken down in the 17 th century, when Hugo Grotius became ‘the father of
natural law’ (pater iuris naturae) separating it into its own legal discipline.
• In his thesis, De iure belli ac pacis, ‘On the law of war and peace’ (1625) Grotius stated that even if there was no God, natural
law would still exist. He recognized the independence of natural law from the will of God.

Hugo Grotius also found that Roman law is reason written down (ratio scripta) and therefore, there is no conflict with natural law. Due to
this reasoning, he found that in Holland, foreign law (Roman law) could be applied as it held the qualities of natural law.

The Age of Reason

This time period stressed the power of reason and ratio.
The Enlightenment called for independent thinking and laid the foundations for numerous revolutions across the world. This was
especially true in France, where many philosophers realized that when testing the social and political reality of the 18th century against
the ideal of natural law, a lot could be improved.
• Natural law offers the authority to cast aside a ruler refusing to listen to reason, and in combination with the Enlightenment
sparked revolutions.
• The Enlightenment offered the motives and natural law offered the legal justification for a revolution.

Rousseau and the ‘contrat social’

Jean-Jacques Rousseau published the Contract Social, which contained his theory about the foundation of the relationship between the
governing authority and its subjects.
• He wondered why the minority could be bound to the will of the majority, which was fundamentally in contrast with the view at
the time, where laws were seen as dictates of the sovereign.
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• He questioned how an individual, while retaining their freedom, could be bound to lave whose content did not correspond to
his own individual will.

To answer this question, Rousseau defined the contrat social. The social contract was where individuals gave up their natural freedom
and gained civil freedom as individual will was brought under control of the general will, the volonté générale. Therefore, every generally
binding rule not based on the general will was void.
• Laws would express the general will of society
• Only natural laws and customs that expressed the general will of society would be valid

‘Vernunftrecht’
Constructs of natural law began to be created that were based purely on reason, and in Germany this approach was called
Vernunftrecht.
They did not look favorably on Roman law, attacking its validity stating that law needed to be created by themselves, meaning that each
country would create their own law
• Pufendorf, Thomasius, Wolff
• Taught about how the law should be, ius constituendum, not how it is, ius constitutum

Natural law and aspirations to codification

Natural law and codification created a problem, because if natural law comes from nature and is self-evident then it does not require
codification to be valid.

When the trend of codifying became dominant, natural law scholars wanted to attach their way of thinking to the written rules and
wanted to influence the codification and had to justify doing so:
• Montesquieu (1748); natural rights of each people according to its special circumstances, e.g. climate, language, religion
o Need to codify because there are local branches of natural law created by influencing factors
• Intellectual economy; read result of applying ratio in book, rather than start reasoning yourself
o Some people can think better than others; let them codify so others can just read and not think
o Thinking has to be done once when written down
• Cesare Beccaria, dei delitti e delle pene (1746)
o Penal point of view
o Sentenced without knowing what you had done wrong
o Need to have legislation in force and can only punish people after it came into force (lex praevia)

Natural law in attempted codifications

Attempted codifications; Prussian code, Dutch draft by Cras
Still in force; French civil code, Austrian code

To sum up
In the 19th century, there had been legal positivism, and a return to Epicureanism, the formal concept of law, but was abandoned as a
resurrection of the theory of natural law took place in the late 20th century after World War II.

Gustav Radbruch (1978-1949) was a German professor in Munich who taught his students that law is formally created (Epicureanism),
but after Nazi Germany changed his way of thinking.
• Radbruch’s formula: Where statutory law is incompatible with the requirements of justice to an intolerable degree or where
statutory law was obviously designed in a way that deliberately negates the equality that is the core of justice, statutory law
must be disregarded by a judge in favour of the justice principle.

Working Group
A Strange Story
Question 1
3 trials took place
1) Open and notorious cohabitation and adultery for Oades and Mrs. Oades 1
a. Can’t commit adultery with your own wife
2) Open and notorious cohabitation and adultery for Oades and Mrs. Oades 2
a. Found again that cannot commit adultery with your own wife
3) Bigamy
a. Law can’t be interpreted so broadly
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Question 2
Under Californian law the following legal problems could not be solved to everyone’s satisfaction
• Mr. Oades had one wife and then one day found their house burned with some human remains and assumed that his wife was
dead
• Then he moved to California and married another woman
• Due to this he was continuously in the act of bigamy, but he could not be convicted for it as a sub-section of the law said that if
the first wife had been missing for more than 5 years his next marriage was not illegal
• So, a very rare occasion took place; his wife was not actually dead but alive and therefore a situation not foreseen by the
legislature took place
• It allowed bigamy and there was no way of forcing the annulment of either marriage without the consent of one party creating a
loophole in the law

Question 3
Solutions legislator could use to avoid such a problem:
• Make an exception for the loophole: add a clause that if the wife is found alive then one of the marriages needs to be annulled
(within a certain lime limit)
• Allow for broader interpretation

Question 4
Provision that prevents a solution for the possibility of preventing bigamy
• Second subdivision of the 83rd section of the Civil Code
• Loophole; if wife was missing for more than 5 years

Question 5
Legislators cannot predict all situations and therefore law is sometimes worded in ways that it doesn't cover all situations
• Law needs to be interpreted in an extensive or restrictive manner
• In criminal law; restrictive manner
• Need to be able to know what you are doing is a crime
• Big argument between purpose and wording; purpose was to prevent bigamy but provision itself allows for a loophole
• Conflict of what is actually being said in the provision and the purpose
• Argument between grammatical and teleological interpretation

Question 6
Judges wanted to rule against; if took natural law approach could do so → deviation of morally acceptable behaviour
• Can’t do that because it goes against lex scripta → criminal law so restrictive interpretation
• Formalist law? The judge is following this approach

Further notes…
The story was invented with a purpose in mind; attack the new Civil Code of California
• Lawyers believed it to be true
• Even legal textbooks believed the case of Mr. Oades actually happened

One thing you can guarantee will be on the exam: what does codification mean?
3 elements of codification
• Written
• Issued by a body with authority → authoritative government
o Needs to have authority because they need to be able to enforce rules as well
o i.e. government in exile does not count as they cannot enforce or control
• Exclusivity; no other sources are allowed
o Formally complete
o Only the rules codified can be used to resolve conflicts
o Judge can only use the codified laws to decide in court
o Problem; legislator cannot foresee all situations and cannot resort to other sources of law → needs to interpret quite
broadly

Important for exam: interpretation methods

What is interpretation? (another possible exam question)
= give meaning to words
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Example: swimming pools

In early 1900s municipalities in Netherlands were eager to encourage a healthy lifestyle → so many swimming pools were built
• Certain rules need to be in place; i.e. clean the pool and make sure no hair clogs up etc.
• Certain rule for certain area; all women need to wear bathing caps
• But then the 60s arrived and men had long hair
• A male law student arrived at pool and would not wear cap
• Judge ruled in favour of municipality: teleological interpretation
• Word woman was seen as someone who had long hair, as the purpose of the law was to keep hair from clogging the drains in
the pool

Jeremy Bentham had an equivalent in the United States → David Dudley Field II (1805-1894)
• He wanted to codify law as well
• Field Code = product of David Dudley Field II
• 1848 Code of Civil Procedure introduced in state of New York
• Bill was vetoed and did not become law in New York
• The Field Code was copied and introduced in California
• That is where Mr. Oades story starts
• 1872: California adopted this Field Code
• 1873: Los Angeles Evening Express published ‘A Strange Story’
• (someone) Wanted to get rid of code → only way to do so is to show its flawed and to do so he invented the story of Mr. Oades

Oades case
Oades’ counsel used grammatical interpretation
Prosecution (DA - Mr. Cokeman) uses teleological interpretation
• The law must be construed according to its spirit and intent and the language where contrary thereto should be disregarded
Reverend sent to talk with Mr. Oades → symbolizes natural law
Dramatic result of this event: if the new civil code does not provide a solution you can look at common law
But the exclusivity of the code is then violated → so it’s not a code anymore
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WEEK 2: ROMAN LAW

Summarizing:
• Lecture Notes (Week 2)
• Working Group/Tutorial (Week 2)
• Chapters of the History of European Codification – Lokin and Zwalve (Chapter III)

Roman Law
Imperium and lex
Rome was founded in 753 BC by Romulus and Remus, and as they were twins with equal rights, the question arose which one would be
king (rex). Romulus and Remus asked the Gods by bird watching (auspicium) for help, and Romulus ended up becoming the first king of
Rome with imperium.
• Romulus derived his power (imperium) from the Gods
• The king had religious power, executive power (military power), judicial power and legislative power
o Imperium encompassed all these powers

Legislative power
• Edicts: The king was able to enact laws based on his imperium, and these laws were called edicts. Edicts were ordinances
(edicere = to ordain) and had binding power until the end of the king’s reign.
• Lex/leges popular assembly (comitia): Roman citizens voted on legislation based on the king’s proposals.
• In addition to these two co-existing sources of law, unwritten customary law was also part of the rules in Rome.

Additionally, the king set up an advisory board called senatusconsulta.

• The decision of this senate did not have the power of law, and members were chosen from patrician families.

The end of the Kingdom of Rome

In 509 BC Rome became a Republic after the rape of Lucretia, when Lucius Brutus chased the last king out of town and created the
position of the consul.
• Imperium remained one and indivisible, and would now be granted to two people who were elected annually by the public
assembly
• There was no division of tasks between the two consuls resulting in both obtaining full imperium (complete legislative,
executive and judicial power)
• This created an exceptional nature to the lawmaking of Rome: as both had complete imperium, they could overrule or undo
decisions the other person had taken: intercessio
• 2 types of laws existed alongside each other: edicta and leges, where lex took precedence over the edict. Lex also remained
valid until revoked by the comitia, showcasing its independence form imperium.

Patricians and Plebeians

The first era of the Republic is characterized by the social struggle between the patricians and plebeians, who were aggravated by the
lack of influence they had on Roman laws.
• The voting procedure in the public assembly only allowed for patricians to participate, and therefore left plebeians feeling as if
they had no say in the affairs of the state.

In 494 BC the two groups collided causing the plebeians to leave Rome and were persuaded to return by the creation of the tribuni
plebis, which was a plebeian tribune with veto power over proposed laws in the comitia, allowing for the plebeians to be able to
safeguard their interests.

Law of the 12 tables 451-450 BC

The power struggle developed resulting in the demand of a codified law by the plebeians.
• Only priests were knowledgeable in the legislation of Rome, and only patricians could become priests causing another strike.
• The concession was the Law of the XII Tables: lex duodecim tabularum, where the law was written down creating some degree
of legal certainty.
• However, the plebeians still had no knowledge on how this law was to be interpreted diminishing the degree of legal certainty
they provided.
o In Rome the system of law that developed around the interpretation of these Twelve Tables was called civil law, ius
civile.
• The secret of these rules on interpretation was ended when Gnaeus Flavius published a book on them.
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Establishment of the praetura 367 BC

After years of social struggle, the plebeians finally succeeded in guaranteeing that at least one of the consuls was to be a plebeian in the
future. However, as compensation patricians demanded the establishment of a new office, the praetura, which the holder, the praetor,
would have imperium and deal with the administration of justice.
• Imperium minor: praetor was peer to consuls, but office was inferior.
• While the praetor could initially only be a patrician, this exclusivity did not last long.

Lex Hortensia 286 BC

The final stage of equaling rights between the patricians and plebeians took place when the decisions made in the meetings of the plebs
no longer applied to them alone.
• The plebs were plebeians whose decisions, plebi scita, which had previously applied only to them now had the force of law and
were binding on the patricians.

Civil law and Praetorian law

The praetor, as mentioned, had imperium and therefore had the capability to create edicts that were binding for all Roman citizens for
the duration of his term, one year.
• No trial could take place without the intervention of the praetor, as the plaintiff needed permission to appear before a judge,
and furthermore, needed to make sure it was possible in regard to existing rights.

While in principle, praetorial edicts were in force for only one year, a custom soon emerged where the successor would adopt the edicts
of his predecessor without change, called the Traditional Edict, Edictum tralaticium, and as it would remain in force for the entire term of
office it was called the Perpetual Edict, Edictum Perpetuum.
• The praetor was bound by his own programme and claims not mentioned in the edict were not protected or were invalid. He
was not able to deviate and add provisions for a case that had already been dealt with.

Ius praetorium v. ius civile

The comparison between the two is similar to the comparison between imperium and lex, where ius civile knows no time limit and ius
praetorium is only valid for one year (in theory).
• D. 1,1,7,1 (Papinian): The praetorian law (ius praetorium) is that which the praetors introduced for the purpose of aiding,
supplementing, or correcting, the civil law (ius civile), for the public welfare; which is also designated honorary law (ius
honorarium), being so called after the honorary office of the praetors.
• The function of praetorian law is threefold: to support, supplement and improve civil law

Republic and Empire

In 44 BC, Rome saw the fall of their republic with the murder of Gaius Julius Caesar. He had been a consul, with indications that he
wanted more, and such a character as a king was strongly disliked by the Romans resulting in his death.

Octavian avenged his death, and after a civil war he won, became Emperor Gaius Julius Caesar Augustus, the most powerful man in the
republic.
• In 27 BC, which is regarded as the beginning of the imperial age, he combined the two most important offices: imperium and
veto.
• He awarded himself with the imperium of the pro-consul, imperium proconsulare, and the power of the public tribune, tribunicia
potestas, for life and held all key posts in the Roman Republic.
• He made no changes to the existing constitution, and for the Romans themselves the form of government stayed the same, it
could no longer be called a republic, resulting in the beginning of the Roman Empire.

As the Roman Empire had grown so big, the gatherings between plebs or the comitia did not take place anymore, and in response the
senate took over the role of these gatherings.
• Before the empire, the senate had only served as advice to the consul/emperor, but now had the power to create legislation,
senatorial decrees.

Emperors slowly encompassed all power of the state. Even the role of the praetor ended, when emperor Hadrianus asked Salvius
Julianus to draft a definitive version of the praetorian legislation, causing all legal development to come from the emperor.
• Disposition of the emperor: constitutions
o Edicta: rules issued by the emperors containing general legal norms laid down both for officials and for private
citizens
o Mandata: judicial and administrative rules or general instructions issued by the emperors to high functionaries of the
empire, to be employed by them in the exercising of their official functions
o Rescripta: written answers given by the emperor to queries from officials or to petitions from private individuals
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o Decreta: imperial enactments (decrees) issued by the emperors in the exercise of jurisdiction in civil and criminal
matters, both as final judgements and as interlocutory decisions during the proceedings

Imperial law and the law of jurists

In addition to the laws made by the emperors, the constitutions, another source of law, legal writings of jurists, also survived.
• Already during the republican era, it was custom to seek advice from private jurists, iurisconsulti, experts of Roman law before
starting proceeding before the praetor. These jurists would write opinions, responsa, on questions of law put to them.
• Emperor Augustus granted the responsa legal status, meaning they were to be binding upon the judge to whom it was read.
• As they grew in quantity, they acquired such authority that they were referred to as ius, law.

Around 300 AD two sources of law remained: leges (imperial law – constitutions) and ius (law of the jurists).

Old and new Rome

Development of the Empire
In 306 AD Constantine was named emperor, and in 313 AD issued the Edict of Milan, which ended the persecution of Christians. He
also inaugurated a new capital city, Constantinople in 330 AD, causing the Roman Empire to have two capitals, the old Rome in the
West and the new Rome in the East.

In 395 AD Emperor Theodosius I divided the empire between his two sons into the Eastern Roman Empire (Byzantine Empire) and the
Western Roman Empire.
• Nevertheless, the Roman Empire legally remained one and indivisible, while a factual division existed. In each capital, Rome
and Constantinople, each emperor had full and undivided imperium allowing the laws each issued to have force over the other
half of the empire as well.
Fall of the Western Empire 476 AD
Emperor Romulus Augustulus was disposed by German king Odoacer, and therefore the Western Empire did not exist anymore. While
the Eastern Empire did have a legal claim (de iure) on the Western Empire due to the undivided imperium, factually they had lost the
West (de facto).

Legal problems in the Eastern Empire

The sources of law the sources that had survived the developments were not very easy to know, as imperial law and a vast body of legal
writings was in force.
• Romans needed to find clarity as accessibility and legal certainty were serious threats to legal practice.
• Initially the decided to implement the lex posterior rule for constitutions. This meant that if there was a conflict between a newer
and older constitution, the newer one would take precedence.
• However, while a step in the right direction, it did not solve all problems: people didn't know all the existing constitutions, such
as really old ones people didn’t realize was still in force. This problem was simply not solved by lex posterior rule.
o Solution: people started to create books where the most important pieces of imperial legislation were summed up.
These cannot be seen as a codification, as they do not fulfill all criteria (not exhaustive).

Theodosius II (408 - 450)

While the problem with imperial law seemed to be solved, the other source of law still needed to be structured, the writings of legal
scholars. Theodosius attempted to solve this issue but found it too hard to codify and therefore created the citation rule.
• This meant the creation of imperial legislation that stated that only the 5 best scholars will be accepted
o Lex citandi (Law of Citations) 426 AD
▪ Gaius
▪ Paulus
▪ Ulpianus
▪ Modestinus
▪ Papinian
o Opinions by other jurists were only valid in as far as they were quoted by these 5 jurists, and furthermore if these 5
had differing opinions, the opinion of the majority counted, while if equally divided, the opinion of Papinian were to be
decisive.

Codex Theodosianus 438 AD

Theodosius also made a collection of imperial law from the years 300-438, which made it exclusive for that time period.
• Therefore, one could conclude that it fulfills all the elements of a codification: exhaustive enumeration of the imperial law of the
aforementioned period.
• Within this code, the lex posterior derogat lex priori rule applied as each constitution included derived its power from the
emperor that issued the rule.
 11

The Emperor Justinian (527-565)

Justinian became the Emperor in 527 AD and was determined to restore the Roman Empire to its old glory. Justinian’s ambition was to
lead the entire Roman Empire not only in law but also in fact, which also caused him to codify in Latin, the language of the Old Rome.
His agenda was the following:
1) Marry Theodora (not of noble descent, had to change legislation to do so)
2) Restore the empire by force and with laws (armis legisbusque)
a. By force: Succeeded in conquering western parts of the empire
b. By law: Codify Roman law

Justinian’s legislation consists of four parts and is called the Corpus Iuris Civilis
1) Codex Justinianus (Justinian’s Code) which entered into force on 16 April 529. In 534 an improved version appeared, the
Codex repetitae praelectionis, which replaced the first one on 29 December 534. It is divided into 12 books to honor the
memory of the law of the 12 tables.
• Justinian established a committee with the task of composing a Codex, and as it entered into force in 529 all
constitutions that were not included had to be considered as expired losing their force of law. This made Justinian’s
Code a codification.
• The lex posterior rule still applied within this code, and to aid in navigating it, constitutions were arranged in
chronological order.
• After the Digest and the Institutes were released the earlier Codex seemed to be outdated: a second revised edition
was composed.
o However, from a formal point of view, such action was unnecessary as even without the revision, the
Digest would have priority based on the lex posterior rule.

2) Digest or Pandects which were given the force of one constitution on 30 December 533 and contains parts of the writings of
the jurists.
• As the Digest came into force, the law of citations no longer existed. It was imperial legislation that encompassed all
legal writings and may be seen as the one of the most important legislations from Roman law.
• It fulfilled all the criteria of a codification, and has the same exclusive authority as the Codex, which means that they
are valid to the exclusion of all other texts.
• As the Digest was a single constitution and therefore all writings have the same date of effect the lex posterior rule is
not applicable within the Digest.
• Contradictions within the Digest were supposed to be nonexistent as it was the Emperor speaking, using the jurists’
words. However, if you did find conflicting rules, the judge would have to interpret them in a way so that they would
appear to be harmonized.
• As the Digest was the newest constitution, the lex posterior rule gave it precedence over all others.
• The committee composing the Digest had to be extremely careful in not including outdated laws that could
accidentally come back into force. To prevent such from happening, a ban on abbreviations was established
including that numbers were to be spelled out in full, banning the use of Roman numerals within the Digest.
Additionally, a second ban prohibited the addition of explanatory commentaries in the margins or between the lines.

3) Institutes or Elements which was a textbook for first-year law students based on the 350-year-old textbook by Gaius, which
was given force of law on 30 December 533.
• The textbook written by Tribonian, Theophilus and Dorotheus became a statute book codifiying the Institutes.

4) Novels, actually called Novellae post Codicem constutiones, which were the new imperial constitutions written in Greek after
the Code of 534.

The East-Roman (Byzantine) Empire

After the death of Justinian in 565 the Roman Empire began to shrink and did so until all that remained was a region around the eastern
basin of the Mediterranean Sea with the capital Constantinople as its real midpoint.
This remaining empire became to be called the Byzantine Empire, where Byzantine law was the Roman law of Justinian.
• The legislation of Justinian remained the codification for the Byzantine Empire in its original text for centuries, and was
supplemented by Novels in Greek from later emperors
• Greek translations appeared and replaced the Latin texts in daily legal practice, but did not have any formal legal power, which
meant that the Latin text remained valid.
• In the Basilica, a cleansing operation of legislation, Justinian’s legislation was reorganized into a different format but still stayed
in force.
o While the Basilica remained as the codification of the Byzantine Empire, in practice a summary called the Hexabiblos,
which was written in Greek, was consulted.
 12

Turkocracy and the Kingdom of Greece

The Byzantine Empire ended in 1453, when the Turks conquered the capital city and the last emperor died in battle. This era of
Turkocracy – the dominion of the Turks – lasted for almost 4 centuries, and generally let people in their territory to live according to their
laws.
• This meant the Basilica remained the official code of law, while in practice the Hexabiblos was still used.

In 1829 Greece gained its independence, and as a brand-new kingdom needed a codification, in 1835 King Otto stated that the
Hexabiblos would be the Civil Code. This meant that it became a codification with all the characteristics of one.
• It remained in force until the new code of law, which was introduced in 1946.

To sum up
The ultimate shape of Roman law that has passed down to us and which has served as the foundation of most European codification’s is
the legislation of Justinian.
• This can be showcased by the direct and uninterrupted period in which it was in force (in Greece), from 533 to 1946.

Working Group
Marbury v. Madison
Question 1
The main question of law that needed answering in this case, was whether the constitution took precedence over legislation. The Court
decided that it did.

Question 2
Marshall argues that there is no point of having a Constitution if legislation can simply override it, and would defeat the purpose of the
Constitution, which was to limit the power of being all in one branch. He derived his way of reasoning from the natural law system.

Question 3
Own national constitution containing a provision concerning judicial review e.g. Germany art. 93 Grundgesetz

Question 4
Positive arguments for judicial review
• Protection of constitutional rights
• Judges are not biased by elections: parliament lawmakers may be and therefore it is good that someone neutral reviews the
law
• Power taken away from legislature
Negative arguments for judicial review
• Subjective process: done by an extremely small group
• Judges are appointed for life and are really not held accountable
• Power of interpretation

Popov v. Hayashi
Question 5
How are these texts important to Popov v Hayashi?
• Texts are laws on property, which are similar situations to this baseball case
• 1st text (D.41,7,2, pr. and 1)
o Paulus holds that we can acquire property on the grounds of abandonment, which is also seen in this case → MLB
abandons baseball when it is thrown into arcade and then fans can acquire possession of it
o Proculus holds that abandonment does not exist basically i.e. property does not cease to belong to the owner until
someone else possesses it
▪ Not applicable in this case; abandonment existed
o Also said that Proculus is wrong, because Julianus said that property ceases to belong to the person when they
abandon it but that it doesn’t become the property of another unless someone possesses it
o This applicable: in this case baseball was seen as abandoned and would stay so if someone did
• 2nd text (Inst. 2,1,46)
o Intention: discussed with defining possession in this case
o Physical control and intent (professor Bernhardt and Brown)
o Important as intent was one of the decisive factors of also giving Popov legal possession
 13

• 3rd text (Inst. 2,1,47)

o Elaborates further on abandonment
• 4th text (D. 47,2,43,5)
o Not relevant as discusses stealing
o However, possible debate as Popov saw Hayashi stealing but with same logic as in this text it was argued that it
wasn’t stealing
• 5th text (D. 41,1,5,1)
o Initial harm does not result in possession, need capture
o Same conclusion made here as in Popov case that possession does not happen until you have full control and initially
grasping it for a bit does not count
• 6th text (Inst. 2,1,39)
o Half division: owner of soil and finder
o Same as in this case as both men got ownership

Question 6
Significance of Julian for the Praetor’s Edict
• Praetor’s edict: the rules set by the Praetor at the start of their term
• Should not be confused with statutes
• Edicts are based on imperium: only have power as long as the creator is in power (praetor - 1 year)
• Generally new praetor kept rules of old praetor (less effort)
• Statutes: have power until they are replaced by the legislator
• Emperor thought Praetor’s had too much power and asked Julian to create a version to make into constitution 135 AD

Question 7
The opinions of jurists become sources of law in Roman law when Emperor Augustus and his successors gave certain jurists a sort of
imperial approval to publicly give advice, and because of this such an opinion was binding upon the judge to whom it was read. The
opinions of jurists eventually became a source of law through the authority of the emperor.

Question 8
Rome’s legal history: who has had the power to produce statutes?
• Comitia
• Plebeians
• Senate
• Emperor

Question 9
They paid tribute to the Plebeian law of the 12 tables, which was made 451-450 BC.

Question 10
Justinian’s constitution was valid while Marcinian’s was not due to the fact that Justinian declared his constitution exclusive, while
Marcinian did not and therefore his did not fulfill the requirements of a codification.

Question 11
The Consuls threw Greek coins because the Novels were in Greek.

Question 12
Justinian was born in an area where Latin was spoken, and furthermore wanted to return the empire to the glory of Old Rome, where
Latin was spoken and therefore made it the official language.

Question 13
We encounter Codex Justinianus and Novels. There also are the Digesta or Pandectae and Institutiones.

Further notes…
Marbury v. Madison
• Extremely important for Trias Politica
• ‘The mouth of the law’ - Montesquieu
• Whole notion not entirely thought up by Montesquieu, but rather by Greek Polybius who studied the Roman Constitution after
the Romans conquered the Greeks
 14

• Found 3 distinct powers

o Consuls: commander in chief of the army and proposed bills for statues (initiated statutory legislation)
o Senate: guarded the treasury, provided funds to build army and gave advice on bills
o Comitia (Assembly of Roman People): representation of Roman people who appointed consuls and decided whether
bill would become statuary law
• Discovered that Rome was not a monarchy, aristocracy or democracy as neither power had all the power
• Concluded that Rome was so powerful because the Constitution did not allow one political power to be in control but rather
implemented checks and balances
• Inspiration for the US
o Executive (President)
o Legislature (Senate and House of Representatives)
o Judiciary

The Marbury v. Madison case was a game of chess at high level

• Answered the question although the Supreme Court did not have the competence to do so because Madison wanted to
expand the competences of the Supreme Court allowing them to review legislation
• Original jurisdiction: can hear and make decisions on cases
• Appellate jurisdiction: can revise and correct already made decisions
• Conflict in this case was that the Judiciary Act authorizes court to issue writs of mandamus, while the Constitution of the US
does not mention this competence
o A conflict did not necessarily exist: the Supreme Court could issue writs of mandamus, provided it does so only in
cases of appellate jurisdiction
o But seems as if Madison was looking for a way to address this
• Used reason to decide the case
• Based on natural law
o Use of logic, ratio, common sense
o No reference to legislation
o No reference to jurisprudence
o No reference to legal scholars or authoritative literature

Obiter Dicta: additional arguments that are not the basis of the decision and cannot be used as a precedent
Ratio decidendi: core arguments which are the basis of the decision and have the power to create precedent

Popov v. Hayashi
• Not a codified state because Roman law was used to solve the case
• Transference of ownership
o Donatio: give
o Derelictio + occupation: abandonment + picked up
• Res nullius: property of no one
• Equitable division
o Way to resolve competing claims that are equally strong
o Neither committed a wrong and so should not be penalized → both get the ball

• Sociological concept of law

o Weighing the interests of parties
o Application of the Roman law rules of treasure finding (emperor Hadrian)
o But: this rule hardly applies to the case at hand - the person who hides a treasure has no intention of losing
ownership, he wants to make sure that he remains the owner
o Rudolf von Jhering: don’t look at concepts but at interests
 15

WEEK 3: CODIFICATION IN ITALY

Summarizing:
• Lecture Notes (Week 3)
• Working Group/Tutorial (Week 3)
• Chapters of the History of European Codification – Lokin and Zwalve (Chapter IV)

Codification in Italy
Justinian’s codification in Italy
554 AD: Justinian made announcement that he sent a copy of the Corpus Iuris Civilis (his codification) to Italy, as it was now back under
Roman control. He sent the following components of his legislation:
• Digest
• Institutes
• Revised Codex
• Novels
Italy is the only Western European country where Justinian's legislation was introduced by law.

During the Middle Ages after the arrival of the Lombard’s, the presence of Roman law diminished in the Italian territories and between
the 6th and 11th century only the Codex and Novels were known to some extent.
• While the Institutes were known, their use was rare, as they were meant for teaching, which at the time did not take place in
Italy. Nothing is mentioned of what happened to the Digests during this time.

This disappearance of Roman law, applicable in Italy, can be partially explained by the change in the territoriality principle to the
personality principle when determining the applicable law.

International law and common law

Territoriality principle vs. Personality principle
The Roman Empire used the territoriality principle to determine which law applied, meaning that all inhabitants of their territory gained
Roman citizenship and Roman law was applicable.
VERSUS
In Germanic tribes the personality principle determined which law applied. This meant the applicable law was the law of origin/tribe,
meaning that Roman people in Italy continued to live according to Roman law, but based on personality principle.
• Types of laws in force during this time
o Lombard’s: codification of Lombardian law for the Lombardian, Edictum Rothari 643
▪ Exclusive: no other law applicable to Lombardian
▪ Written
▪ Comes from appropriate authority: the government
o Italian Romans: Corpus Iuris Civilis
o Romans of French origin (Visigoths who believe themselves to be Roman): Lex Romana Visigothorum
o Visigoths (Visigoths who do not believe themselves to be Roman): Lex Barbara Visigothorum
o Franks: Lex Salica

Problems with personality principle

Due to the personality principle, situations arose where different types of laws were applicable, and difficulties arose.
• Raised problems in regard in situations such as intermarriage and persons of mixed descent
• Professiones iuris: declarations of applicable law
o People started making declarations which law applied to them in which situations, and such cherry-picking lead to the
downfall of the personality principle.

The personality principle was once again replaced with the territoriality principle with the emergence of local customary law, which is
unwritten law.
• Traditionally, two conditions needed to be met: diuturnus usus and opinio iuris + necessatis
o Custom had to be in place for a long time (rule of thumb: 10 years) and regarded as legally binding by the general
opinion.
• Customary law is embodied in the rulings of judges, as they determine if a custom fulfills these components

Downsides of customary law

• During this emergence of local customary laws, Italy lacked central authority causing Italy to fall apart into territories, where the
law differed from region to region.
• This caused difficulties when travelling: which law to apply?
 16

• The content of customary law, as it is unwritten, can sometimes be hard to determine

o Did not have to be this way: could be written down
▪ Write down the most important rules of customary law, but nevertheless this doesn’t make them valid, the
fulfilling of the two components does
▪ Turbe, meeting of experts showcasing rule exists

Feudalism, lending and feudal law

Feudalism
The common man lived in fear of his life from not being able to protect their land or themselves properly: he lacked the actual power to
protect himself and furthermore, lacked legal protection from authorities.
• The only way to secure protection was entry into vassalage, where lord gave protection in return for goods such as money and
labour.
• The lord had to swear an oath of allegiance to the neighboring patron to follow them into war, this cycle goes on and can be
seen below.
o Vassals → Knights → Nobility → King
• The above subinfeudation broke the local areas to be under the control of lords furthering the separation of customary rules
into regions.
The vast spreading of vassalage in Western Europe (especially in France and Italy) was the result of the little legal certainty citizens were
provided. Furthermore, feudality occurs everywhere in the world as a result of the failing or lack of central authority.
• The introduction of feudalism contributed a great deal to the fragmentation of the state structure in the Middle Ages, especially
in Italy.

Feudal law
The obligations and their character between the lord and the vassal were determined by the agreement they made at the time of the
inauguration of the fief, which is an estate of land held on condition of feudal service.
• Legal effects of a fief could be determined by the custom in place where the fief was issued, and the vassal receiving the fief
depended on them providing the services he owed to his lord.

Renovatio imperii
Resistance of a fundamental nature began to build up against the legal fragmentation in the beginning of the 9th century.
• Through the recovery of the empire (renovatio imperii), as a result of the coronation of Charlemagne in 800, unity became a
possibility.
• During this time, judges had to compensate for gaps in customary law with Roman law thus allowing Roman law to become ius
commune in Italy even before the actions of Irnerius.

Roman law and its glossators

Irnerius and Bologna
The revival of Roman law is much accreditable to Irnerius. He was the first person to teach Roman law in a long time, after its
disappearance in the Middle Ages.
• In the 10th century, people in Italy found the Digest again, then called the Codex Florentinus, which was then read and taught.
• This began the acceptance of Roman private law in Italy, where Irnerius’s education played an important role in it’s reception
o Education by Irnerius became a success: a special vocational training, which focused solely on the Corpus Iuris
Civilis
o Lead to the foundation of the oldest Western European University in 1088 in Bologna
▪ Authentica Habita by Frederick Barbarossa I set out rules, privileges and rights of universities

School of Glossators: what the education in Corpus Iuris Civilis meant

Glossa: annotation in the margin of the text
• The center of the text was the Digest, and glossa’s were simple explanations of hard words
• This lead to the teachers of Roman law to be called glossators
• They carried out pioneering work which would be extremely valuable for future generations: they made the Corpus Iuris Civilis
intelligible

These glosses were not limited to purely grammatical explanations, they could also include references to other locations within the
Corpus Iuris. As the glosses system began to swamp the text of the Corpus Iuris itself, questions arose about their specific relationship.
• The glosses legitimized the text of the Corpus Iuris as ius commune
• However, the glosses did not have legal power, the Corpus Iuris itself did
 17

Through certain glosses, certain arguments and regulations within the Corpus Iuris, were no longer valid in modern times. The
glossators were able to indicate these regulations no longer had the power of the law by leaving the text unglossed.
• The glossators made clear which sections of the Corpus Iuris were still valid, showcasing a remarkable phenomenon, where
the interpreter, the glossators, put themselves above the law.

Glossa Ordinaria
Accursius made a critical selection from the glosses one the complete Corpus Iuris and created a standard gloss. It was a collection of
all the best glossas from all universities containing almost 100 000 comments and remarks.
• Quidquid non agnoscit glossa, nec agnoscit curia: whatever the gloss (the Glossa Ordinaria) does not know, the judge does
not know either)
o This meant judges would not acknowledge texts that remained unglossed causing the focus to now turn to the gloss,
rather than the text itself.
o For Roman law to be used it had to be glossed: proved reception/acceptance

The glossators neglected to include the Corpus Iuris in daily legal

practice, which had serious consequences as new sources of law outside of the Corpus Iuris formed.
• They completely ignored the existence of feudal and canon law

Statutes and commentators

Azo and the Summa
In addition to the creation of the standard gloss, cohesion between the glosses was also created by systematic legal handbooks.
• A number of professors wrote down original summaries (summae) of the Corpus Iuris which later became a separate literary
genre.
These professors were also called the post-glossators, where Bartolus de Saxoferrato played a big role.
• Bartolus decided it would be good to take all the law on one subject, i.e. law of property, and put it in one book and create
commentaries.

This resulted in the creation of mos italicus, which was the Italian way of interpretation of Roman law.
• Mode of interpretation of roman law: interpreted in a free and liberal/purposive/practical way
• Looked for the principle of the law rather than the historical background
Nemo iurista nisi bartolista: no one is a lawyer, unless he is a Bartolist
• Had to follow the Italian way to solve legal problems

Bartolus also introduced international private law

• Conflict of law: which legal system provides applicable law? (necessary to decide in order to start proceedings!)
• Italian situation: varying statutes per city
• Bartolus provided a solution through the code of Justinian: ‘All peoples…’
o Roman private law used as International private law -> ‘all peoples’ → applicable to all
• To reach this conclusion Bartolus used mos italicus, showcasing its reach

Canon law
Canon law encompasses the rules of the Catholic Church, which were universal and therefore valid regardless of nationality, social
position or race.
• For a medieval man it was self-evident that the standards of the Holy Scripture were just as relevant as those in the Corpus
Iuris Civilis or in customary law.
 18

The medieval doctrine of sources of law can be displayed as follows:

The term canon law encompasses all rules of ecclesiastical law that was not revealed by God but was made by humans.
Canon law could be found in the following places:
• Decretals: letters of the pope that formulate ecclesiastical law, ‘starting from St. Peter’
• Ecclesiastical (ecumenical) councils: meetings of bishops
• Writings of Church Fathers, e.g. St. Augustine

The Pope and the Emperor

Charlemagne was crowned emperor by the Pope in 800 AD, which implied a certain hierarchy. This upset the emperor and created a
further conflict of supremacy between the two posts.
• This conflict heightened when the issue of who had the power to create bishops arose
• Bishops had a lot of power, and therefore being able to place who you wanted in those positions was extremely beneficial.
In 1075 the Pope in his belief that as the bishop is a religious post, he should have the power, created Dictatus Papae, in which the
absolute supremacy of the Pope was proclaimed.
• Stressed the fact that the Pope was higher than emperor, and that he had the power to create bishops
The struggle between the two further escalated in the humiliation of Emperor Henry IV.
• The emperor excommunicated and after vassals began revolting had to beg the Pope to let him back in the church. This
further showcased the supremacy of the Pope over the emperor.

Decretum Gratiani
The church made no effort to write down the different rules of canon law, which resulted in several private collections, one of which was
the Decretum Gratiani in 1140, which Gratian (a monk) it’s publisher, called the Concordia discordantium canonum.
• It served as an important tool for the struggle between the Pope and the emperor, where both sides ensured they had the
necessary legal support.
• The Decretum Gratiani was in favour of the Pope being above the emperor comprising the rules of canon law
o Aim: harmonize apparent contradictions in texts by means of interpretation → concordia: harmony
○ Comparable to rediscovery of the Digesta
○ Decretum also contains Gratian’s commentary

Corpus Iuris Canonici

The Corpus Iuris Canonici began with the Decretum, which to each following part was added on.The Corpus Iuris Canonici has 5 parts
and was the code of law for the Roman Catholic Church until 1918.
1) Decretum (1140)
• Gratian’s collection of canon law
• While Gratian's Decretum was not codification, as it lacked exclusivity, it was highly authoritative. This meant that
while legally not equal to a codification, in reality its authority was close to one.
2) Liber extra (1234)
• Compilation of papal decretals, which was ordered by Pope Gregory IX and constitutes a codification.
3) Liber sextus (1298)
 19

• Compilation of new papal decretals, ordered by Pope Bonifacius VIII, and constitutes a codification.
4) Clementines (1317)
• Compilation of decretals by Clement V and is not a codification due to the lack of exclusivity.
5) Extravagantes (end of 15th century)
• Two privately compiled collections of materials that are not to be found in the existing collections: not a codification

The conflict between the Pope and emperor probably drove the development of Roman law and canon law. Resulted in the writing down
and studying of both.
● Ecclesia vivit lege romana: the church lives according to roman law
● Roman church accepted validity of Roman private law

Influence of canon law on secular law

Canon law also had influence on secular law and brought about changes in customary and Roman law.
• E.g. before canon law only Roman citizens were able to make wills, which German citizens were capable of: this state of affairs
changed in the hands of the church in such a way that the Germanic tribes were now able to make wills as well
Additionally, customary law often had ancient and irrational rules such as trials by ordeal and battle, where canon law stepped in as it
could always defeat strange customary law.
• People preferred to go to canonist courts, as they would not have to go through trial by ordeal or battle.
Canon law also filled in for other areas of law, such as the law of contracts.
• James 5:12, Matthew 5:37: Rule of written divine law, which resulted in the introduction of enforceability in agreements

In most European countries’ canon law took precedence over Roman law. Additionally, people agreed that customary law took
precedence over Roman law.
• Canon law also had to comment on what conditions customary law needed to fulfill to be considered valid
o Longa consuetudo: long-term custom
o Consensus utentium: consent of the users

Canon law introduced the rule that a bad custom does not make a law: reason prevails over a bad custom, which emphasized the
importance of natural law. This development was extremely important for the acceptance of Roman law.
• Canon law helped get customary law out of the way for Roman law to prevail

Revolution, restroration and codification

While Italy was politically very divided, there was one unifying force: the applicability of Roman law everywhere in Italy as the ius
commune.
• Roman law was the common subsidiary law that was applicable when the local statues and customary law did not contain any
deviating lex specialis

Cesare Beccaria
The Enlightenment in the legal field characterized as intense dislike for Roman law, and in Italy such movement was led by Cesare
Beccaria.
• Dei delitti e delle pene: Crimes and Punishments
o He develops the principle of legality, and states that there can be no punishment without an existing law
o Through this development the need for a codification is implicitly expressed, and served as one of the most important
catalysts to creating a codification in the 18th century
• Additionally, he criticized the ability of judges to interpret law as they were not legislators

Napoleon and Italy: Napoleon did not appreciate legal diversity and therefore, from 1804 onwards the Code civil applied everywhere on
the Italian peninsula
• While 1815 brought an end to Napoleonic order in Italy, the code remained in force in most Italian states

Italy was finally unified in 1861, and was followed by a new Italian civil code, the Codice Civile del Regno d’Italia, in 1865
• Showcases the great political meaning given to the phenomenon of codification
• Remained in force until 1942 when Italy got a new civil code that is still effective today

To sum up
The creation of a new civil code in Italy began in 1916, but as fascism gained ground a new committee was formed in 1925.
• Fascism greatly influenced this codification resulting in the new civil code to be flawed by regulations that reflected the
corporative view of the state, but also the racism that was part of Italian fascism.
 20

• After the liberation of Italy, these influences were removed from the civil code, after which it has been a technically excellent
code remaining connected to its French and German roots.

Working Group
Cornelius van Bijnkershoek
Question 1
In this case 3 different legal sources are at odds:
• Ordinances
• Customary law
• Statutes
As they are all primary sources of law, one should not take precedence over another.
• Customary law ended up outweighing the other two sources of law because based on Roman law and the lex posterior rule, if
there is a conflict, one had to see what the latest expression of the will of the people was and use that.

Question 2
Democracy: people have the power to create legislation (customary law and comitia) → Julianus
Monarchy: monarch has all power to create legislation → Constantine
• Trying to get more legislative power: leges de imperio

Question 3
Customary law cannot exist if there is codification and customary law cannot be codified (can change, be abandoned). One of the
criteria for codification is exclusivity, if customary law can be used then it is not exclusive and so not a proper codification.

Rota Fiorentina 1780

Question 4
The judge uses three texts from the Digest to base his decision, which were all very detailed and factual, from which he derived a
general rule.
• Prime example of the method of mos italicus
1 text: If harm is caused as a result of lawful action the lex aquilia does not apply
st

• In the case of boxing if you harm your opponent you are not liable because it was allowed, and the risks were known.
2nd text: By placing oneself in a dangerous situation you are to blame for the damage that comes to you as a result of this
• If you sit down to get a haircut in a place that is dangerous/where balls are being kicked etc.
3rd text: Cannot introduce something onto the premises of someone else: if it causes damage you are liable
• E.g. if smoke is being discharged to the property above and is damaging that property
• However, if that action happened before a property was obtained/built/renovated then they are not liable for the damage
because the possible damage was known

Question 5
1st text: Both are legal actions (boxing vs. ball game), however in boxing both parties give consent to the damage and in this case one
party did not.
2nd text: Both concern ball games and damage as a result thereof and both involve someone placing themselves or their property in a
dangerous situation where damage can occur with the knowledge thereof.
3rd text: Both involve damage to property. However, one involves a new action and the other involves an action that has been going on
for a while.

Question 6
Who is liable for the damage to property when it involves a legal action?
• The owners of the house because they knew about the regular ball game and the risk that came with having a house on the
square. Furthermore, they were aware of the risk the ball game could cause to renovations taking place at that time.

Question 7
Interests that clash in this case
• Public interest of village vs. private interest of Fabronis
• The judge sides with the players/village

Question 8
It doesn’t not exactly correspond, but the basic idea is similar.
• 6:162 more specific and detailed
 21

• One addition to 6:162 in comparison to Roman law: another criterion, not only dolus + culpa but also generally accepted
principles
• More likely to be found liable under 6:162 than Roman law

Further notes…
Primary sources of law
• Legislation passed by the sovereign: mostly passed in the form of ordinances
• Legislation passed by the cities: called statutes and valid only within the city
• Customary law
o Diuturnus usus: custom in use for a long time
o Opinio iuris: regarded as legally binding
o Had to prove customary law exists, which could be done in 3 ways
▪ Homologation: Local governments could commit customs to writing and use it as a source of law. However,
these texts would not qualify as codifications, as they lacked exclusivity.
▪ A gathering of experts, a turbe, could be used to prove the existence of a customary rule, as they were
expected to know existing rules.
▪ Cite a series of judicial decisions, but the question remained how many decisions were needed to offer proof
of the rule.

Ius commune: used as subsidiary law (when there is no available primary law) and had 3 sources
• Roman law
• Feudal law
• Canon law

Position of judges in Europe

Netherlands: judges bound by provisions, but not by other or even higher judges
• Secrecy of deliberations: Necessary in a codified system
o Judges talk with same mouth
o Decision based on rule of law: if dissenting opinion published removes illusion of judges talking with same mouth and
idea of only one right answer
England: judges bound by precedents and capability to issue dissenting opinions
• If no precedence exists, judge may issue a new one

Van Bijnkershoek: in this case a merchant insured his shipment, but also his imaginary profit. However, due to the principle of indemnity,
you should not be able to better off it the risk actually takes places than if it does not.

Rota Fiorentina: there was no available primary law resulting in the use of Roman law
• If most of the top scholars of Roman law agree on an interpretation that interpretation has force of law
• Present notion of tortious act derived from Roman law
o Lex aquilia plebiscite (286 BC)
o Requirements: Unlawful act and intent (dolus) or at least fault (culpa)
• Try to maximize effect of roman law: modernize it e.g. the interpretation of slave to include employee
o Mos italicus: Italian way
▪ Have a text that is very factual and derive general principle/abstract rules from it
• In this case judge made effort to give motives for decision, which was abnormal as on most of the continent the judges did not
explain decisions.
 22

WEEK 4: CODIFICATION IN FRANCE

Summarizing:
• Lecture Notes (Week 4)
• Working Group/Tutorial (Week 4)
• Chapters of the History of European Codification – Lokin and Zwalve (Chapter V)

Codification in France
Emperor and King
The Western Roman Empire fell in 476 AD, but not much changed in the legal situation of what is now called France. The effects of the
change were initially not noticeable due to the personality principle, where people living on the same territory lived by different laws.
• Visigoth King Alaric II ordered two kinds of laws to be recorded
o The Lex Romana Visigothorum (Breviarium Alarici) for the Roman population (published in 506 AD)
▪ This contained the official interpretation of a regulation that had been elevated to a text of law, meaning that
the interpretation had as much authority as the text itself. Had the characteristics we normally attribute to a
codification, as King Alaric emphasized in its publication order that no one was allowed to submit any texts
to the judge that were not included in the Breviarium.
o Lex Barbara Visigothorum for his Germanic population
• King Alaric did not survive his legislative creation for long: was killed in battle by King Clovis of the Franks in 507
o Visigoth territory was reduced to Spain
• However, the Breviarium survived and remained in force to Clovis’s Roman subjects. Furthermore, it was not pushed aside by
Justinian’s legislation until the middle of the 12th century.

During the 300 years between Clovis and Charlemagne, the personality principle was gradually replaced by the territoriality principle,
where the regions had different laws resulting even in the fragmentation in the application of Roman law.

Charlemagne was crowned the Roman Emperor by the Pope in 800.

• In the Roman tradition imperium was one and indivisible, but Charlemagne did not feel extremely Roman, and the only reason
the empire was not divided was due to the death of his 2 sons.
• However, this only delayed the division, when after the death of Louis the Pious, the Treaty of Verdun took place in 843.
o This resulted in the division of the empire in three, where the title of emperor fell on Lothar, who inherited the middle
strip of the empire.

The King as emperor in his kingdom

French kings had reservations Roman law, as the French king did not inherit the title of emperor, which raised questions about who was
the higher authority: the king or the emperor?
• To limit the power of Roman law in France, King Philip Augustus convinced the Pope to ban the teaching of Roman law at the
papal university in Paris. This strengthened the position of customary law. Nevertheless, the effect of the prohibition was
weakened by the establishment of new papal universities where this prohibition was not in force.

The subject of the French king and his independence from the emperor was a subject of a lot of controversy in the Middle Ages.
Ironically, Roman law provided an answer to this question.
• The Liber Extra contained a gloss which stated that de facto the King does not recognize a superior, but de jure is subject to
the Roman Empire.
• A 13th century jurist Jean de Blanot also concluded that the King of France is ‘princeps’ in his own kingdom because in worldly
matters he recognizes no superior
• Furthermore in 1213 the pope said that the King of France does not recognize anyone above him other than the pope: the
reason why the King of France goes to the Pope to legitimize his child, while a count has to go to the King of France

Importance of being ‘princeps’

• Crime of lese majesty (crime of high treason) is not only applicable to Emperor, but also to King
• What pleases the ruler has the force of law: ordinances have binding power
• The ruler is not bound by laws: can create laws but is not bound by them

French kings had preferred customary law, which resulted in little to none legal uniformity within France:
• Southern France was Romanized and used written law (pay de droit écrit)
• Northern France: kings more successful, focused on customary law (pays de droit coutumier)
○ Trick: Southern France uses Roman law because that is its custom
 23

Kings made active use of their ability to create ordinances, one of which is the Ordinance of Montilz-les-Tours in 1454, which contained
the prescription to record customary law. This eventually led to the desire for a written recording of customs.
• Coutume de Paris in 1510, revised in 1580: consisted of the recording of customs in force in Paris by Du Moulin, which
became a subsidiary source of law, ius commune, which could be used if local customary law did not provide a solution.
• This was not a codification, was there to provide clarity on customary law.

The Parliaments (court of law)

French kings in the pursuit of absolute power were hindered by the independent actions of the courts of law, the parlements.
• When professional jurists educated in canon and Roman law took office, the King grew suspicious.
• King Philip III prohibited the Parlement of Paris from relying on Roman law when customary law was available in 1277,
showcasing the hostile attitude towards Roman law. Paris became a forbidden city for Roman law, as the education and now
use of Roman law by the parlement had been banned.

The parliaments did not limit themselves to their judicial task: they also held part of the king’s legislative power.
• They could issue generally binding regulations in the form of arrêts de règlement.

Furthermore, every parliament was sovereign in its own jurisdiction, meaning their decisions could not be appealed to an even higher
authority. This caused further legal diversity and a power struggle between the king and the parliament.

‘Mos Gallicus’ versus ‘Mos Italicus’

The authority of Roman law as an applicable law was undermined by the French mode of study known as mos gallicus, which was a way
to interpret Roman law.
• They were not trying to interpret the provisions to fit into modern times, rather for the meaning it had in the past.
• This makes mos galllicus a historical method, while mos italicus is a judicial approach.

The French consistently criticized the Italians for their way of interpretation: what the Ancient Romans discussed was something very
different to what the modern Italians discussed in their texts.
• Jacques Cujas additionally criticized the gloss as it didn’t focus on the Digest itself but rather the modern explanation.

In conclusion, the authority of Roman law was undermined by the historical interpretation of mos gallicus and furthermore, distrusted by
the French king and parliaments who considered it a threat to their authority.

Legal unity and legal diversity

As the parliaments adhered to traditions and customs of the region, they were not in favour of the unification of the law. It would affect
the reason for their separate existence. In this instance, this was opposition to the king, who would benefit from unification of law as a
way to strengthen his absolute power.
• However, the French king did not want to achieve unity through Roman law but my means of his own legislation

King Louis XIV made an attempt to codify but with resistance from parliaments did not fully succeed
• His attempts had partial exclusivity and therefore differed from the recordings of customary law, as his ordinances created
legal unity in the areas they covered.

Customary law in France and opinions on it changed during the Age of Enlightenment
• Voltaire: if you travel through France, you switch legal sources more often than you switch horses
o Called for the unification of law
o Did not believe customary law was rational and saw the injustices legal fragmentation was causing
• Montesquieu: customary law reflects the diversity of the peoples that constitute France and are a necessary result
o He concluded that one should forget about the unification of customs, as its disadvantages would outweigh the
advantages

Revolution
Attempts to create a codification of civil law gained momentum through the French revolution
King Louis XVI’s was struggling financially and to avoid bankruptcy, announced a new land tax.
● He needed the acceptance of the Estates of the Realm: the Estate General
● In 1789 meeting of the 3 estates, the clergy, nobility and citizenry, took place
○ Cahiers de doléances: books of grievances, which each region created before the meeting took place
● When they met up, there was a big row how votes should be counted
● Division of votes: by head or by estate?
○ Clergy and nobility represented each by 300 deputies, citizenry increased to 600
 24

● Third estate i.e. citizenry decided to hold a separate meeting after finding the doors of the meeting hall closed on them
○ Tennis Court Oath: participants would not part before a constitution was drawn up (20th June 1789)
○ Marks the creation of a national assembly

The French Revolution followed and is generally seen to have begun on the 14th July 1789
● Citizens of Paris stormed Bastille, a prison, where the king had put people under arrest
● Seen as symbol of tyranny by the king
● Revolution became more and more aggressive: initially began with deliberations but now start taking arms

Led to the Declaration of the Rights of Man and of the Citizen in August 1789, which contained natural, inalienable and sacred rights:
natural law
Rousseau's influence:
• art. 3 → principle of sovereignty
o Sovereignty lies with people: resides essentially in the nation. No body, no individual can exert authority which does
not emanate expressly from it.
• art. 6 → law is the expression of general will. Every citizen has a right to participate personally, or through his representative, in
its foundation.
o Social contract
Beccaria’s influence:
• art. 8 → the law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer
punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offence
o Nulla poena principle
Montesquieu’s influence:
• art. 16 → a society in which the observance of the law is not assured, nor the separation of powers defined has no
constitution at all

Revolution timeline
Flight to Varennes in June 1791
• King tried to flee country and to get to Prussia and use their troops to take over again: failed and imprisoned in his palace
14 September 1791: first Constitution
• France became a constitutional monarchy, as they did not want to dispose of the king if he agreed to the Constitution
• The Declaration became the preamble of the 1791 Constitution
10 August 1792: King used right of veto too often
• This resulted in the suspension of his function and marks the factual end of the constitutional monarchy.
26 September 1792: King deposed
• Announcement of first French republic
The reign of terror: Maximilian Robespierre
• Robespierre wanted to purge France from all corrupt elements to start a new and pure society, which resulted in the
massacres of thousands of people.
• This reign finally ended when Robespierre himself was taken down.

Revolutionary stages
1. From absolute to constitutional monarchy (5th May 1789 - 1st October 1791)
2. From monarchy to republic (1st October 1791 - 24th June 1793)
3. From reign of terror to directory (24th June 1793 - 22nd August 1795)
4. From directory to consulate (22nd August 1795 - 13th December 1799)
5. From consulate to empire (13th December 1799 - 18th May 1804)

Preparation of Civil Code: sad story of Jean-Jacques-Régis de Cambacérès

1st draft (1793): 719 articles
● Jacobines considered it too traditional
2nd draft (1794): 297 articles
● Robespierre guillotined: too revolutionary
3rd draft (1796): 1104 articles
• Draft was never adopted, as the process was interrupted by Napoleon’s coup d’état in 1799
Cambacérès was always trying to catch up with the current political attitudes and always as he finished a draft, these attitudes shifted.

Napoleon’s civil code

This civil code was mainly drafted by Jean Etienne-Marie Portalis, who was influenced by the works of:
 25

● Pothier = Roman law

○ Most influential on the civil code because most unified
○ Law of obligations mainly based on this
● Bourjon = customary law
○ Used to fill in gaps left by Roman law
● Domat = natural law
○ Helped establish logic of new civil code
○ Was popular during age of reason
● Civil code also included some revolutionary and ordinance law, where the former especially influenced the law of persons,
such as the inclusion of divorce, and the latter aided in filling gaps where no other rule existed.
Additionally, Napoleon changed draft himself on 2 points: divorce and adoption. He was married and did not have kids, and therefore
wanted the option of being able to obtain an heir and successor.

This civil code was finished and passed in 1804 and was called the Code civil.
• An exclusivity clause is an essential characteristic of a codification but was not included without discussion.
• While it was clear that the Code civil would cancel out the legal power of similar provisions in older sources of law, debate
arose whether including an exclusivity clause was necessary.
o Cambacérès argued that with the application of the lex posterior rule, one does not need to include an exclusivity
clause
o Still raises the question on rules not covered by the Code civil, and therefore an article of abolition was included,
which stated that ‘From the days these laws are in force, the Roman laws, ordinances, general or local ‘coutumes’,
statutes, regulations no longer have general or special legal power in cases that are the subject of the
aforementioned laws that the current code consist of.’
Therefore, this civil code qualifies as a codification, and was in force in France for a long period of time.

Coronation of Napoleon
He crowned himself emperor, as saw the power struggle that had followed the Charlemagne coronation, and therefore did not let Pope
crown him.
• Furthermore, ordered the Pope to come to Paris, who was present at the crowning making it clear that the Pope was not
above the emperor.
• During this time Napoleon also changed the name of the Code civil, to Napoleon’s code mimicking past Roman emperors.
• This empire ended in 1814 in the downfall of Napoleon, resulting in the changing to the name of the civil code back to its
original one while retaining its legal status.

The extension of the Code civil

The French Civil Code has been extremely influential all around the world, where many regions introduced it as their code of law. This is
especially seen in areas which were under French rule.
• Netherlands: French civil code used until 1838
• Belgium + Luxembourg: still use
• German countries: used their versions of the French civil code until 1900
• Switzerland: used it until 1912
• Colonies of Africa: code was exported to French colonies
• Even Italy had code in use for a small period of time
• The colonies in Spain and Americas have been influenced
o Quebec + Louisiana

To sum up
In 1945, a committee of 12 people was formed to replace the existing code with a new one as earlier attempts at reform had failed.

Working Group
Du Moulin
Question 1
Du Moulin was so concerned with the Custom of Paris because as it was the capital city, more customs existed as more issues arose.
Furthermore, he disliked Roman law.
 26

Question 2
Du Moulin wanted the Custom of Paris to be used by everyone if the customary law in an area could not provide a solution. When this
happened now, judges would turn to Roman law and instead Du Moulin wanted the Custom of Paris to take this role. He wanted the
Customs of Paris to replace Roman law as a subsidiary source of law.

Question 3
Lex si umquam refers to the money given by a patron to his freedmen, while this case is about two brothers. Mos gallicus interprets
based on historical meaning, meaning it would not be applicable in this case.

Question 4
The communis opinio doctorum means the common opinion of the educated, which dictated the interpretation of Roman law. The text
itself does not have authority but rather the professors’ interpretation does. This served as a perfect defense against the users of mos
gallicus, as the professors were seen as more important.

Question 5
In the past when making arrêt de règlement, judges wore red gowns making a decision that is not only binding in this case but also all
the other inhabitants of that area. (Generally Binding Regulation)
Modern courts should not do this because:
• Montesquieu: trias politica
o French courts shouldn't make laws but interpret them, as legislative power is reserved for the legislator
• France has a civil code now, which is exclusive, and therefore no other sources of law outside of the code is allowed. An arrêt
de règlement would be another source of law and break this exclusivity.

Question 6
The French kings were able to issue ordinances because they were the highest authority and princeps in own country. This mean they
were equal to emperor, which was found in Roman law providing the basis for the French king.

Question 7
In 1750 this rule was based on ordinances, in 1650 this rule was based on a Generally Binding Regulation (arrêt de règlement), and in
1550 on Roman Law. In 1850 this rule was implemented into the French Code Civil.

De la Tour d’Auvergne
Question 1
Different interpretations of family
Natural family
• By blood
• He was a bastard child
Legal family
• Was ‘adopted’ by a family → was a bastard child → took their name

Question 2
Distinction between application and interpretation is non-existent: law needs to be interpreted to be applied.

Question 3a
The family law section of the code as family is defined there.
• ‘Like it is recognized in births, deaths, and marriages’

Question 3b
Systematic interpretation is usually followed when looking at other legal provisions.

Question 4
Judge said the definition of family is clear and therefore does not need to be interpreted (not true, if something is clear it has been
interpreted).

Further notes…
Interpretation of Roman law
Italian way: mos italicus
• More liberal approach to interpretation of roman law → objective to extract as many rules from roman law as possible to solve
problems
 27

• Took very factual texts and created a legal principle

French way: mos gallicus
• More restrictive approach: concerned with finding the historical meaning i.e. what Romans intended

Treaty of Verdun (843 AD)

Empire split up between three brothers, which lead to conflict
• Louis the German became emperor by taking it from his brother Lothair I: Holy Roman Empire (East/Germany)
• Charles the Bald: West (France)

French king tried to get rid of Roman law and promoted customary law as much as possible. The question arose whether the king of
France was inferior to the emperor.
• Sovereignty of King ironically based on writings of scholars of Roman law: ‘The King of France does not recognize a superior in
profane matters’ → King is ‘princeps’ in his own country
o When Roman law was useful to the king, he used it.

Sources of law in France

• Customary law (local): a lot of customs, every little village has its own custom.
• Ordinances (all over France)
• Roman law (subsidiary source)
o King did not like roman law: it was used in the south of France → called it customary law as he did not want to
promote Roman law
Customary law diversifies, while Roman law unifies.

Glossators
• ‘Opened the text’
• Explained Roman law
• Accursius: created standard gloss

Post-glossators
• Commentators
• Would select a particular topic and write a commentary based on all legislation of that topic: creating a book about i.e. property
law

Bartolus: created private international law

De la Tour d’Auvergne
Summary of the facts of the case
• Two families: legal and natural family of De la Tour
• Hearts of soldiers need to be returned to families
• Heart assigned to legal family, which made noble family (blood family) upset as La Tour was a famous soldier

Arrêt de règlement did not survive the revolution and were abolished.
• Instead, judges needed to go to the legislative body to interpret the law and the legislator was the only one who could create
laws.
• This was called authentic interpretation because it was done by the same body that issued the regulation.
o Process is called référé législatif
• However, this process did not last long as immense amounts of cases were sent to the legislator, which was too big of a
burden to bear in addition to their normal legislative duty.
o They ended up having to send the referrals to the executive.
o Sometimes took more than 30 years before they decided on the interpretation.
 28

WEEK 5: CODIFICATION IN THE GERMAN COUNTRIES

Summarizing:
• Lecture Notes (Week 5)
• Working Group/Tutorial (Week 5)
• Chapters of the History of European Codification – Lokin and Zwalve (Chapter VI)

Codification in the German countries

The Western Roman and Eastern Roman emperors
Many Germanic tribes settled within areas of the Roman Empire, where the kings of these tribes signed treaties with the Roman
Emperor recognizing his imperium and simultaneously giving them the power to rule over their own tribesmen.
● Application of the personality principle: the tribes kept their own customs and habits

Especially in the Western Roman Empire, mass migrations of Germanic tribes took place resulting in the eventual disappearance of
Roman law. Surprisingly Roman law experienced a victorious comeback and is called the reception of Roman law ‘Sacrum Imperium
Romanum’.
● Return of Roman law began with Charlemagne, who was crowned Emperor of the Roman Empire by the Pope in 800 AD
● Charlemagne attempted to improve legal unity within his empire, and ordered the recording of all customs
○ Multiple versions appeared for different customs, but none were exhaustive and could not be considered
codifications.
At the Treaty of Verdun in 843 AD the empire was divided into three.

Roman emperor and Roman law

Holy Roman Empire of the German Nation since 887 AD after the deposition of Charles the Fat
● No longer hereditary succession: title of King and Emperor was given to somebody who was elected

Election of the king was a privilege of 7 so-called ‘Electors’ (Kurfürsten)

Golden Bull 1356 AD process formalized
● 3 clerical electors
○ The archbishop of Mainz
○ The archbishop of Trier
○ The archbishop of Cologne
● 4 secular electors
○ The King of Bohemia
○ The Margrave of Branden-burg
○ Count Palatine of the Rhine
○ Duke of Saxony
They held a lot of power, everyone sought protection from them: feudal system.

Two stage procedure for becoming emperor

● Be crowned in the city of Aachen as ‘King of the Romans
● Be crowned in Rome as ‘Emperor of the Romans’ by the Pope
○ Power battle between pope and emperor

Medieval notion of ‘two powers/swords’

The Bible: Lord says there are 2 swords, which Pope Gelasius I interpreted as meaning that the emperor must bow to will of the pope in
religious matters.
● 2 powers = ‘holy authority of bishops’ and ‘royal power’
● Independent in their own spheres of operation yet work together in harmony.

Investiture controversy/contest/battle
Roman Catholic doctrine of two swords to protect the Christian constitution
1) Royal – Emperor/King
2) Ecclesiastical – Pope
Who distributed the royal sword? → Was royal ruler inferior to pope, or not?
● Who could “invest” bishops, Pope (ecclesiastical sword) or Emperor/King (royal sword)?
○ i.e. grant bishops their power

Non-ecclesiastical role of bishops in the Middle Ages

Balancing power
● Counterbalance for the secular vassals of a lord
 29

● Picked someone who would always support him and vote for him/his son in the next election
Pope and Roman Emperor both wanted to have this power
● Only the church possesses staff that had the appropriate education, experience and knowledge to hold high executive
positions
● Importance of selecting the future bishops → they provided the government apparatus

1075 AD: Pope Gregorius VII

The Dictates of the Pope, Dictatus Papae
II. That the Roman pontiff alone can with right be called universal;
III. That he alone can depose or reinstate bishops;
VIII. That he alone may use the imperial insignia;
XII. That it may be permitted to him to depose emperors;
XIII. That he may be permitted to transfer bishops if need be;
XXII That the Roman church has never erred; nor will it err to all eternity, the Scripture bearing witness
Purpose: to make clear that he was head of Church and above the emperor.

Walk to Canossa (Henry IV)

Henry appointed himself, disobeyed Pope so he excommunicated him (exclude from Christianity) in 1077
● Pope wanted Henry to acknowledge that he decided matters in regard to investiture
● Henry ended up having to beg for the Pope to let him back in, in the snow

The Habsburgers as Roman emperors

Since 1438, the ‘King of the Romans’ was always from the House of Habsburg or House of Austria.
● Not really hereditary, but ended up being that way because of the elections
● Habsburgs embodied tactic of marry and inherit, which allowed them to add many regions to their possession, which otherwise
would have only been possible through wars.
After the Rome was sacked with troops, the process to becoming emperor changed. Now, once the electors chose a Roman King, one
single coronation would take place in Frankfurt-upon-Main, which was performed by the Archbishop-Elector of Mainz.

The Habsburgs attempted to centralize the administration of justice in 1495 and did so through the creation of an Imperial Chamber
Court (Reichskammergericht).
● Had to apply common law (Roman law), which was a subsidiary source of law at the time to fall back on (primary laws were
from local government and local customary law)
● If not common law, then customary law would have to be used
○ Problem: hard to prove, varies from region to region
● Judges happy to apply Roman law over customary law (was taught Roman private law in school → familiar with ius commune)
● Usus modernus pandactarum
○ Obliged to take a modern approach to Roman law
○ Comparable to the Italian approach (mos italicus)
○ But: No infringement on a privileged lower court by the imperial court

But: Emperor could sell privileges which minimized influence/jurisdiction of Imperial Court
● Privilegium de non appellando: Privilege of not to be appealed
○ Exemption from the jurisdiction of the imperial court in matters of appeal
● Privilegium de non evocando: Privilege blocking the imperial court to seize jurisdiction of lower courts
These privileges resulted in the failure of this attempt and did nothing to change the status of Roman law as ius commune in the German
Empire.

Most attempts by emperors to unify legislation failed, and if a successful legislation was implemented, it lacked exclusivity. Such an
example can be found in Charles V homologation order of customary laws.
However, in 1532 a somewhat successful attempt to centralize and introduce a criminal code took place.
1532 criminal code: Constitutio Criminalis Carolina
While the code brought unity in regard to criminal law, it lacked exclusivity.
● No clause of exclusivity, but aclausula salvatoria, which states that this legislation can never be seen as a codification.
● In the end, the codification could not come from a German Emperor, but from someone with a more local influence.

In 1555 the abdication of Charles V took place, who had been an extremely important Habsburg, taking over large areas for the Empire
through marriage.
 30

The allgemeine lanrecht für die preussischen staaten (ALR)

Kingdom of Prussia was not a unified state: separated into regions that had its own native law. In addition, Roman law had subsidiary
power and was applied everywhere.
● Roman law had special status in German countries: law of the Empire

Frederik II of Prussia was opposed to this subsidiary source and wanted a to codify law that would take place of Roman law.
Had a lot of power over his region (Prussia), so had local influence
Enlightened despot: He was influenced by the philosophical thinking (ratio)
● Influenced by natural law school of thought
● School of Vernunftrecht came to be big in German territory
● Better to create private law by using your brain, instead of using common law that is old
Inspired by Montesquieu
● Wanted to minimize the role of judges as well
● Thought subsidiary set of rules left too much space for judges to interpret legislation

Samuel von Cocceji introduced new subsidiary set of rules that focused more on natural law instead of Roman law → codified (but not
according to our terms, only theirs)
● Draft in 1749
● Cannot be a codification because it’s only a subsidiary law, not primary, meaning there is no exclusivity

Frederik II still thought there’s too much room for interpretation → asked Carl Gottlieb Schwarz (now Suarez) to try
● Had same assignment as Cocceji and blamed Cocceji’s failure on including too little natural law, and too much Roman law
● Suarez had aimed for a codification with maximum legal completeness, which resulted in an extremely lengthy document.
● Draft in 1791
Became the Allgemeines Landrecht für die Preussischen Staaten (ALR) 1794
● Subsidiary legal validity
● Code of law was in force in the Prussian region in regard to private law until the introduction of the BGB in 1900
● Meant as an additional source of law

The allgemeine bürgeliche geseetzbuch (ABGB)

A similar series of events also took place in Austria, where Maria Theresa (1717-1780) also looked for possibilities to meld her Empire
together. She realized that codification was one of these possibilities and showcases that already from the beginning that the intended
legislation would be exclusive.
● 1753 gave order to codify, and while had some successes did not reach the intended goal
● 1790 second order to codify
● 1801 new commission was made
○ Franz Aloys von Zeiller (1753-1828) lead this new committee and is seen as the spiritual father of the ABGB

The Austrian Civil Code was completed and entered into force in 1811
● Includes article stating the following: When a case cannot be solved applying the words or the natural reason of a statute,
similar cases dealt with in the legislation need to be taken into account as well as reasoning used in other similar statues. When
the case remains doubtful, the case will have to be decided, all circumstances taken into careful consideration, on natural
principles of law
Is the ABGB a codification?
● Yes: even though the codification includes clause about applying natural law it fulfills criteria of a codification because it gives
the judge a possibility to make use of other resources, but because it is explicitly mentioned and allowed, it is still exclusive.

The ABGB is still in force in Austria and is of European significance: it was the code of law for a large part of Central Europe.

The end of the Holy Roman Empire of the German nation

The Holy Roman Empire existed until 1806 and following this Francis I declared himself the Emperor of Austria where he proclaimed the
ABGB in 1811 and gave it exclusive force.

The fight for a national German codification

After the departure of the French as a result of the Battle of Leipzig in 1813, the call for greater German unity sounded. As in many
cases earlier, a codification of civil law that would apply in all German countries presented itself, for which several different proposals
were made.

AFJ Thibaut (1772-1840): wrote about the necessity of a common civil code for Germany in 1814. However, this codification was never
reached due to the non-existent political unity that was required to ensure its creation.
 31

F.C. von Savigny (1779-1861) blocked the introduction of common civil code in the period after Napoleon. He believed that the German
countries are not yet ready for a common civil code, and furthermore felt that only a code that registers organically grown law is allowed,
a code should never impose law.
● Codification at this moment would block the organic growth of the law
● Compared private law to a plant: law grows with society like plants grow from water
● Simple society has simple rules
○ Later, society will grow, and law will grow alongside it
○ Legal experts will get involved and bring development of law further
However, Savigny was not opposed to a codification in general, rather the timing as he felt it was too early.
● Very critical of the French civil code, and the Prussian code as well
Von Savigny’s Historical School
● 1st stage: study the historical development of law
○ We should study the historical development of the law (to see how it will progress, look at the past)
■ Roman law
● 2nd stage: establish the system and the leading principles: the frame that supports the individual provisions
○ Wanted to find the leading principles hidden in the Roman sources especially the Digest

Thibaut vs. Von Savigny

Thibaut
● The legislator should initiate the common German civil code
Von Savigny
● Legal science should lead the way
● Wrote 2 standard works to achieve his objectives:
1) History of Roman law in the middle ages
2) System of contemporary Roman law
● Historical school or Pandectists (Pandectae = Digest)

Unification ‘Durch Eisen und Blut’

The general codification of civil law that eventually applied in Germany would have never happened without the German Unification.
● 1848 the Year of Revolutions
o Theodor Mommsen (1817-1903) belonged to the German Forty-Eighters and wanted Germany to become and
unified state

Otto von Bismarck (1815-1898): ‘Eisen und Blut’

The Iron Chancellor: different wars lead to Bismarck obtaining more power and territory
1866 ‘Sibling war’ Austria v Prussia
● Prussia overtook Austria as the most powerful German speaking state
● The North German Confederation created
1870-1871 Franco- Prussian war
● Ems Telegram: lured France to war
● Resulted into a unified state

Now that Germany existed as an unified state, the possibility of a codification arose again and seemed a more realistic opportunity.

State unity and legal unity

While Bismarck had achieved political unity of the German state under Prussian leadership, 3 distinct legal areas still existed: Prussian
general land law, Code civil and Roman law.
● Reichstag passed a law allowing the codification of civil law in 1873, which success can be attributed to Eduard Lasker.
● The law was named after him, Lex Lasker, and was the first step towards legal unity and resulted in the commission of a
general codification.

Bernhard Windscheid (1817-1892) took part in the commission in charge of the redaction of the German civil code.
Criticisms of the BGB
● The BGB is too dogmatic, it’s a little Windscheid: what’s not found in Windscheid’s work is also missing in the BGB
Actually, a codification of the Roman Private Law
● Also, local Germanic law, customary law and natural way thinking
1stJanuary 1900 BGB took effect
● Took away all legal diversity that was in Germany and is still in force today.
 32

Germany is not the first country to apply the BGB, Japan (1898) was as they saw the draft for the BGB and took it, while the Germans
wanted to wait until January 1st 1900.

Begriffsjurisprudenz against interessenjurisprudenz

Rudolf von Jhering (1818-1892) criticized the Historical school, as he felt that the law is not about legal concepts but about legal
interests.
• Historical school focused too much about system and logic
o Lose sight of the fact you have to adjudicate the case where two people both have an interest
o Said it’s not the way that the lawyers should think, they should look at the interest before reaching a conclusion
• Founder of societal conception of law

Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung
• Three times has Rome dictated laws to the world
o The first time, when the Roman people was still in its full strength, to unify a state
o The second time when his people had already perished, to a unity of church
o The third time, as a result of the reception of the Roman law, in the middle ages, to a unity of law

Codication and ideology

The BGB withstood attacks directed at its existence, including the School of Free Law and the Nazi regime.

The School of Free Law (Freirechtschule)

Casus omissus: a legal issue or situation not governed by any provision
Kantorowicz: what to do with blank spots in BGB?
• There will be cases that do not fall anywhere within the BGB
• Solution: ‘judge-king’
o Judge as king: not bound by provisions in the codification (Germany never took this step)
In actual cases of casus omissus, one can interpret provisions to fit those situations.

German Law and the Nazis

In 1920, Hitler proclaimed the twenty-five theses of the national socialist program at the Hofbräuhaus.
• Point 19: we demand that Roman law, which serves a materialist world order will be substituted by a German common law
o This however, was not achieved
BGB was still in force throughout the war and Nazi regime
• The judges were still able to Nazify German law through reinterpretation
• Interpreted it with Nazi ideals and this could especially be seen with general clauses
o Good faith
o Good manners
o Abuse of law
o Important reason
While showcased the horrific sides of interpretation, the law itself did not need any fixing after, just required German judges to stop
interpreting it in that way.

After the Second World War, a socialist code of law in the GDR, the ZGB, came into force in 1976 but did not last long after the political
union of Germany in 1990.

To sum up
Reception of Roman law may have generally been felt the greatest in German countries because of the weak imperial powers resulting
in the absence of a strong imperial justice system and lack of influential imperial jurists.

Many early attempts of codification failed due to their aim of material completeness, which is impossible.

In its years of existence, the BGB has inspired many other codes of law, such as the already mentioned Japan, and also the Greek civil
code and countries such Brazil and Peru.
 33

Working Group
The Nuremberg Trials
Question 1
The nulla poena sine lege principle was a legal obstacle that blocked the conviction of their clients, according to the advocates of the
Nazis, which meant no retroactive punishment should be possible.
• This principle of criminal law can be associated with Cesare Beccaria, who is the creator of the principle of legality.

Question 2
How they circumvented the nulla poena sine lege principle:
1st argument
• Not a limitation of sovereignty, but rather in general a principle of justice
• ‘In general’: not a fundamental principle, and therefore can deviate from it if necessary
• Used natural law rather than any provision to get around the principle of legality
2nd argument
• Should know that he is doing wrong: in defiance of treaties and assurances

4 steps (important for exam)

1) General treaty for the renunciation of war (Kellogg-Briand Pact): binding on Germany
2) Any nation resorting to war as an instrument of national policy breaks the pact → such a war is illegal in international law
3) Not merely illegal but criminal: construction which the Tribunal placed on the Kellogg-Briand Pact
4) Crimes against international law committed by men
a. Must have known about the treaties: high up in government
b. Must have known they were acting in defiance of international law when in complete deliberation they carried out
their designs of invasion and aggression
c. Moral choice possible: natural law argument

Question 3
The following provision in international law codify the nulla poena principle:
• Art. 7 ECHR
• Art. 11(2) Universal Declaration of Human Rights

Question 4
I would expect the English and American judges to overrule the objections raised by the defense more easily than the French judges
because they are common law systems, in which judge has more power allowing them to create ‘laws’/set precedents. Furthermore,
they are not bound by codification/strict legal rules.

Question 5
Article 7 ECHR can be considered a reaction to the Nuremberg trial to a great extent:
• Art. 7(2) excludes crimes that are ‘criminal according to the general principles of law recognized by civilized nations’ from the
nulla poena sine lege principle
o Excluding the argument made by the defense in the Nuremberg trials: justifies the precedent set in the Nuremberg
trials
• Civilized nations’ very vague terminology: what counts as a civilized nation?

Wall shooters case

Question 6
Conflicts between this reservation of the Bundestag and the decisions of the constitutional and Berlin court
• Bundestag referenced art. 7(2) ECHR: Germany did not wish to recognize this exception
• In a way used the idea behind art. 7(2) ECHR to convict Krenz
• Constitutional court made argument that by weighing nulla poena sine lege and human rights (to life), human rights wins:
exceptional circumstances
o Principle of legal certainty (enacted law) be weighed against substantive justice (synonym for natural law) → if legal
certainty unbearably unjust then substantive justice overrules

Question 7
His appeal was denied as it was not in breach of art. 7(1) → applicants’ acts constituted offences defined with sufficient accessibility and
foreseeability in GDR law, and furthermore, applicants’ acts also constituted offences defined with sufficient accessibility and
foreseeability by the rules of international law on the protection of human rights.
• 4 steps
 34

o International law was part of the GDR

o The GDR had not ratified the ECHR
o Yet: the ECHR was a codification of existing international law, so ratification was not necessary
o Any provision conflicting with hierarchical higher international law is to be considered null and void

Cantonal Court of Berlin

Question 8
Content of applicable legal provision of Rent Protection Act
Landlord can request termination of contract when:
Objective: behaviour
● Behaviour is such that it cannot be expected from the landlord to continue the agreement
Subjective: guilt
● Causes substantial nuisance towards the landlord

Question 9
Level of protection
● Nuisance towards landlord vs. behave as a good lessee should
● ‘Good lessee’ in Dutch provision is very subjective, and therefore German should theoretically provide better protection

Question 10
Umdeutung
● Links housing community with ethnic community
● Equates behaviour with personal characteristics
● Behaviour (objective) turned into personal characteristics (subjective)
● Guilt: By not having inner preparedness to form ‘house community’ → guilty according to §2 Rent Protection Act
● Court not only competent, but required to interpret §2 Rent Protection Act
● Creates obligation for landlord to ensure formation of house community by invoking right to evict
● By being Jewish causing a nuisance to the landlord → prevents the formation of a ‘house community’ → integral part of
German ethnic community

Question 11
He uses the teleological method by looking at the purpose of the provision, which is to maintain the ethnic community through the
housing community.

Question 12
The legislator would have wished to achieve the protection of tenants.

Question 13
The judge puts the Nazi agenda societal purpose first, which includes the segregation of Jewish people and creation of pure German
people.

Further notes…
Nuremberg Trials
● Bernays: Saw two problems and developed solutions to them
● Is it possible to punish them for crimes that are not punishable according to national law?
● Does conspiracy constitute a crime in international law?
● Belonged to organization and can convict them for that? → Is membership of organization enough to convict?
● Turns criminal law around: guilty until prove that you are innocent
● Americans were eager to establish precedent
● But now worried it could be used against them: American Service-Members’ Protection Act
 35

WEEK 6: CODIFICATION IN THE NETHERLANDS AND INSTEAD OF CODIFICATION

Summarizing:
• Lecture Notes (Week 6)
• Working Group/Tutorial (Week 6)
• Chapters of the History of European Codification – Lokin and Zwalve (Chapter VII and VIII)

Codification in the Netherlands

Burgundy and The Low Countries
The Netherlands did not have a unified state for a long time, rather was a collection of 7 sovereign provinces/states.

The Magna Carta of the Low Countries was a pact concluded in 1477, which gave each state provincial autonomy. This meant the
particular customary laws of each separate province would be respected, which guaranteed individual identity of those provinces in
regard to private law.
• States placed under a single authority, but all retained own legal identity

Charles V (1500 – 1558) felt the need to clarify the legal status of his possessions of the Low Countries. Therefore in 1548, he issued an
imperial decree providing that all his possessions in the Low Countries would be joined together as one unit called the Burgundian
Kreits.
They would form a special administrative unit within the Holy Roman Empire, but enjoy de facto independence from it
• Nos pays d’en bas: our lands down there
o Origin of the name of the Netherlands

Additionally, Charles V wanted to unify private law within the Burgundian Kreits. This process he already began in 1531, when he issued
a homologation order for the Low Countries.
• Issued a homologation order, asking them to send written versions of local customary law
• Wanted to unify it in some points: adjust and streamline local rules
• Make them reach the standards he believed were just and fair
• However, it still remained customary law as one cannot codify customary law, as it is established and changed through use
and general acceptance as legally binding
• The Northern parts were not very happy with this, while the Southern parts were more willing to comply.
o This homologation order was seen as a threat to their autonomous position and the North did not want one
government.
Charles V decided to abdicate in 1555, as he grew tired of conflict and was not successful in everything he had done.

The Republic of the United Netherlands

Philips II (1527 - 1598) was not popular in the Netherlands as he wanted to complete the dream of a Habsburg reign: strengthen the
unification and centralization of the Burgundian Kreits.
• Local regents started to question his interference, and while had accepted him as heir of Charles V, he disregarded the
privileges negotiated with the local regents.
• The provinces felt that their autonomy, their customs and their privileges were threatened by the increasingly oppressive
government in Brussels
• Additionally, they wanted to end Habsburg rule due to their consistent meddling with their religion and taxes: an important part
of Philips II regime was his Catholic religion, which coincided with the spread of Protestantism and Calvinism in the
Netherlands
• This gave rise to a revolutionary situation in the Netherlands

The revolt began in 1568 where William of Orange-Nassau was named placeholder (Stadtholder) during the revolution for the role that
the Habsburg had occupied. This was followed by the Eighty Years’ War.
• Union of Utrecht 1579
o A defence pact between the Burgundian provinces promising each other that when one province (that signed)
attacked other provinces (that signed) will help.
o However, did not state that the Habsburg rule had ended, and Habsburg still remained the sovereign.
• Placaet van Verlatinghe (Act of Abjuration) 1581
o This act did indeed end Habsburg’s rule stating that they do not accept Phillips II as ruler of those states anymore,
but would accept him as King of Spain
 36

This consequently required them to find a new sovereign. While they asked leaders in Europe, such as the French and English royal
families, no one was up for task.
• Francken’s argument: sovereign power lay with the people and was declared by the States of Holland meaning supreme
authority lay with the states as the popular assembly of each individual province
The Republic recognized multiple sovereigns: each State had their own.

While the Republic consisted of seven sovereign states, in its external relations it acted as a single entity, which it was able to do through
establishing common bodies.
• States General: common assembly of the provinces
o Unanimous voting
o Defense and foreign affairs
• Council of State: day to day administration of the Republic
o Exercised power on behalf of the States General
o Had to submit a budget estimate to States General

Codification now seemed impossible due to the great extent of diversity in law between the provinces but also within the provinces.
• Local customary law: primary source
• Roman law: subsidiary source
o Amount of Roman law applied varied from region to region
These huge differences between areas resulted in the conclusion that a codification was simply not possible. The only possibility would
have been codifications at regional level, which as mentioned was also too diverse in law too be possible.

Revolution, Restoration and Codification

After the 80 years’ war, the system of the united provinces was generally accepted by all sovereigns in Europe beginning its golden age.
This age did not last long, as the Republic went into decline pretty fast afterwards in the 18 th century.

During these times Joan Derk van der Capellen tot den Pol (1741 - 1784) wrote a democratic manifesto stating that the sovereignty
should be with the people. This aroused the Dutch nation, and Capellen tot den Pol may be called the father of the Dutch Revolution.
• Initially this drove out the Stadtholder, but in 1787 the Prussian King invaded the Netherlands and returned Stadtholder back to
Orange-Nassau (William V) simultaneously sending the patriots to prison.
• This result showcased the following factors
o The revolution had not been nationwide
o It would be essential to break from old policy, meaning a unified state rather than autonomous provinces
o Furthermore, a revolution cannot be won by rebels alone, but also requires foreign support
• Foreign support was sought from France, who delivered when French troops crossed the river Lek in 1795 causing the Dutch
stadtholder to flee to England

After some chaos following the departure of the stadtholder, the Unitarians, who were advocates of the abolition of provincial certainty,
seized power and the Netherlands became a unitary State known as the Batavian Republic in 1798. This opened up the possibility for
codification.
• The federalist policy of the old republic was abolished and replaced by a unitary constitution, which included a provision
outlining the creation of a codification.

A commission was set up to tackle this task in 1798 and the private law committee was headed by Hendrik Constantijn Cras (1739 -
1820).
• He drew inspiration from natural law and consequently immediately fell into the trap of material completeness.
• Some members of this committee wanted to get rid of customary law forever, insisting upon an exclusivity clause, while Cras
and majority decided to leave room for customary law.
o This codification would be a primary source of law and customary law would be a subsidiary source of law.
o This however, makes it not exclusive and therefore not a codification.

Napoleon intervened and created the Kingdom of the Netherlands and appointed his brother Louis Napoleon to rule the Batavian
Republic.
● Louis Napoleon King of Holland 1806 – 1810 was a good king and liked by the Dutch people.
● Napoleon had wanted to implement the Code civil in the Netherlands and Louis argued against this wanting to take it as a
starting point and make adjustments to fit the Netherlands.
○ Code civil with Dutch elements built in was in effect in the Netherlands between 1809-1811 but resulted in Louis’s
exile as he had disobeyed Napoleon.
○ Napoleon them implemented the Code civil in the Netherlands (1811 - 1838)
 37

After the fall of Napoleon, the stadtholder that had fled to England, returned and took power as King William I in 1813. While the
Netherlands did have a codification, the King wanted it to have its own national codification and appointed a commission charged with
the task of drawing up one.

Joan Melchior Kemper (1776 - 1824) was a member of this commission and created a draft for Dutch codification in 1816.
• After the Congress of Vienna in 1815, Belgium and Luxembourg had also become part of the Netherlands
o They felt that the draft by Kemper was too Dutch, resulting in the creation of a new one in 1820.
o However, during the vote on the second draft, it became apparent that it was also not liked. The parliaments of
Belgium and Luxembourg voted against every article.
After the rejection of the second draft, the parliament decided to act as codifier itself. A whole new code was produced and Pierre
Thomas Nicolai (1768 - 1836) played an important role.
• They created new draft with even more influence from code civil, which was completed 1829.
• In 1830 Belgium decided to gain independence, which led to a delay in the implementation of the codification.
William I took 8 years to accept Belgium leaving and therefore the Dutch Civil Code (OBW) came into force in 1838 and remained in
force until 1992.

Codification and Recodification

The civil code (OBW) that was in force between 1838 - 1992 was heavily based on the Code civil so that Belgium would have accepted
it but ended up to only be in force for the Netherlands. Therefore, it comes as no surprise that attempts to replace this code were
already made in the 19th century.

Eduard Maurits Meijers (1880 - 1954) was given the assignment of recodification. After the Second World War people wanted a fresh
start and upheld a political dream to redo society.
• Meijers further states that codification can never prevent the emergence of judge-made law as a development of the times
• His codification took effect in 1992 and is called the Burgerlijk Wetboek (BW)

Instead of codification
Common law and civil law
Two major legal systems characterized substantive private law in Western cultural circles: the law of Rome and the law of England
• Civil law and common law
Continental Europe was dominated by the Corpus Iuris Civilis, while England developed its law through customs expressed in the
judgments of judges
• As England was under the control of the Romans at one point, it raises the question why did England not codify? Furthermore,
Scotland who was not occupied by the Romans, took a lot of influence from it
o In England there was no need for a system, as they had already succeeded at an early moment (1100-1200) to
establish one system of English private law consisting of customary law
▪ Customary law applied to the whole of England and not just local areas

The development of England’s private law system

William the Conqueror invaded England in 1066 and declared everyone should live according to their own law furthering fragmentation.
At this time, the influence of Roman law seemed inevitable, but did not happen due to the power of the King, which was greater on the
island than in continental Europe.

Centralization of justice
The reign of Henry II (1154 – 1189) was crucial in the development of English law, when he called for the centralization of justice. He did
so by creating the ‘Justices in Eyre’ which were royal courts that travelled the country solving cases.
• This system formed an essential characteristic of the English judiciary system until it was abolished in 1971.
These courts became very popular and important to legal development due to the following factors:
• The writ as a document that served to start a legal procedure
o Writ: someone ask the King permission to start trial in royal court for a certain matter, which they would be awarded
with claim if the defendant shows up in the royal court
o If you had a legal problem and a writ was previously written for a similar problem, you could use that
o New situation required a new writ: usually the King would grant it
o Led to the royal courts taking over from the local courts
• Royal judge
• Jury
Furthermore, the popularity of royal courts over local courts was due to local customary law often being ancient and irrational e.g. trial
by ordeal/battle.
 38

The centralization was also taken a step further by the Magna Carta in 1215. The 1215 Magna Carta can be seen as constitution and
stated that certain claims would be addressed by Royal Court in a fixed place.
• 3 royal courts
o Court of Common Pleas: decided common/everyday issues
o Court of Exchequer: taxation matters
o Court of King's Bench: penal matters (King/Queen vs. citizen)
• Royal courts moved to Westminster Hall and were courts of first instance
All jurisdiction was concentrated in one place, which allowed for the developed of legal unity in England.
The feudal roots of common law
Subinfeudation: King → Baron → Knight → Peasant
• Every piece of land in England inserted into this feudal system making the King/Queen owner of all land.
• In contract, in the rest of Europe there was land that was not part of feudal system, which caused further fragmentation of the
law.

As the ultimate lord of the land was the King, all disputes involving land would go to the royal courts, which helped establish its influence.
Still within these royal courts it was hard to decide which law to apply as many customary rules existed.
• The judges were knowledgeable in canon law and were also well-versed in Christian natural law and therefore assigned limited
value to customs.
• The royal courts then created their own customary law, which gradually completely supplanted the others.

Henry Bracton ended up being the most important author that made use of these verdicts when he published ‘On the Laws and
Customs of England’ in 1255.
• In his book he clarified legislation, statutes, and judicial decisions, customs. It showcased the development of England to a
system of judicial decisions, and why the centralization of case law was so important.

Common law and equity

In 1258 in the Provisions of Oxford, the Parliament banned the King from writing new writs meaning that one could only get a writ if it
was similar to past cases.
• This was a step in the wrong direction for the development of private law and royal courts and eventually led to the existence of
fourth royal court

Lord Chancellor (secretary of justice) wanted to allow people to bring new cases to court: created court of Chancery
• Could use equity to ask for claim to be heard in new court
• Created new remedies
o Specific performance: The possibility of demanding performance rather than just get compensation
▪ If wanted compensation: take common law route
▪ If wanted performance: take equitable route
o Receipt of payment
▪ A receipt of payment was the only accepted way to prove in common law court that you had payed
something → found that inequitable
▪ When forgot to ask for receipt of payment you could prove in another way e.g. a witness in these equity
courts

Criticism: ‘Equity is just as long as the Chancellor’s foot’

• The case law of the Lord Chancellor was very subjective as it depended upon the opinion of a random chancellor

What is the relationship between equity and common law?

‘Equity does not seek to overrule the common law but only to prevent a party from enforcing a common law right where it would be
unconscionable to do so in the particular case.’
• Can only change the common law system in certain unconscionable situations: equity was a way of keeping common law ‘in
check’
• Similar to the role of ius praetorium
• Both not introduced in order to compete with the alternative source of law (common law, ius civile), but in order to
complement, support and correct

The Earl of Oxford’s case in 1615 also delves into the hierarchy between equity and common law
1. Equity follows common law
2. But: in a conflict equity prevails
 39

The need for legal reform

The procedures in place in the Court of Chancery were further criticized by Dickens’ as a ‘bleak house’.
• He compared it to a fog due to its vague and unclear procedures, and also highlighted the length, which sometimes lead to
money running out before a decision is reached

Jeremy Bentham coined the idea of codification and wanted to create one in England based on utilitarianism. He felt that a codification
would be the most amount of good for the most amount of people. However, this sentiment was not shared by the English people,
especially William Blackstone.

Blackstone v. Bentham
Blackstone was positive of common law and was against a codification, comparing it to an old castle fitted out for the modern inhabitant.
Bentham on the other hand felt negatively of common law, comparing it to teaching your dog to follow the rules where you punish the
dog for doing something wrong before it even knows it’s done something wrong.
• Bentham shared similar ideas to David Dudley Field, while Blackstone shared similar ideas with Edmund Burke.
While Bentham was not able to codify English law, he still highlighted the shortcomings of common law and people began to see the
need for legal reform.
• Nobody knew what the rules were until someone brought a case forward and then the decision became the rule: getting
punished for something after judge determines behaviour is not allowed
• Goes against the principle of legal certainty
• Also had procedural problems with common law

The Judicature Act in 1876 brought along changes to the legal organization in England as an attempt to organize the chaos. This act is
a representation of Blackstone’s view of renewing common law rather than codifying.

In this act, the same court was established for common law and equity, the High Court of Justice.
• But: Common law and equity remain separate sources of law
• Court of first instance: would apply both sources at the same time if asked by the parties
• Court of Appeal: Court of second instance
• The Supreme Court of the UK
o Replaced house of lords July 30, 2009
o Final instance court
This act simplified the judicial system and introduced uniform procedural law.

Common law and statutory law

There is legislation in the UK, but that legislation is not a codification.
• Specific areas of private law dealt with in specific statutes e.g. rules of sale in the Sale of Goods Act
Alongside this law co-exists common law and equity.
What is the relationship between the various sources of private law?
The statutes presuppose common law and equity, which arises the question whether a judge may test an Act against common law. This
was answered in Dr. Bonham’s case (1610).
• Edward Coke (1552 - 1634) believed that in this case the statute was void as it went against a general principle of law, no one
can be judge in their own case and would have supported for common law to become a tool of judicial review.
• Decision: Statutory law takes precedence over common law, meaning a judge may not test an Act against common law
o Reason: statutes go through parliament → sovereignty of parliament → England can only be ruled by parliament
• The same conclusion was made in the Marbury v. Madison case in the US, where statutes can be tested by the Constitution
o Coke’s views on this case are extremely similar to the system of constitutional review in the USA

Interpretation and construction of statutes

In the English approach, a distinction is made between interpretation and construction.
• Interpretation = normal linguistic process where a meaning is linked to a word
• Construction = process by which unclear or ambiguous provisions in law are given clear meaning

This distinction already showcases the English way of interpreting statutes. Common law judges interpret statutes very strictly and
narrowly using the grammatical approach, which is the only interpretation method they are allowed to use.
• England does not have a codification and is therefore not restricted by only having the rules in the codification, which explains
the popularity of grammatical interpretation in England

Lord Denning (1899 - 1999) was an extremely controversial judge in England, who advocated for the European approach to
interpretation, but did not succeed.
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• The House of the Lords saw such interpretation as taking over the legislative function, which was reserved for the Parliament.
Furthermore, when legislation does not fit a case then judges can fall back on common law.

The European approach differs from the English one quite drastically. Instead of only having grammatical interpretation to use as their
tool, they have more liberal ways of interpreting, such as teleological interpretation.
• This is due to that fact that in continental Europe, most countries are codified and have no other law to fall back on in case of a
casus omissus.

‘Law reporting’
Law reporting is the act of publishing law reports, which contain existing common law rules. Numerous amounts of private individuals
took iniative in the matter and kept publishing reports until the creation of the Incorporated Council of Law reporting for England and
Wales in 1865.
• While not a government body, it is under the surveillance of the legal profession and can be seen as a semi-official collection of
law.
• The publication of a semi-official collection of law reports has important consequences for the doctrine of jurisprudence
allowing for the doctrine of stare decisis to flourish.
• This law reporting began with Yearbooks in the early establishment of the royal courts, which were compilations of their
decisions.

‘Stare decisis’
Stare decisis is the legal principle by which judges are obliged to obey precedent established in earlier decisions.

The declaratory theory of judicial decisions states that the judge does not create the law but finds it and a judicial decision is evidence of
the common law.

In the past a string of decisions was evidence of the common law, also called the custom of the court, and therefore reference had to be
made to more than one decision. This meant there was no stare decisis, which only was more recently decided by English judges.
• English judges decide to be ruled by precedence (stare decisis) in 1898 in the London Street Tramways case, meaning it was
bound by its earlier decision.
• In 1944 the Court of Appeal did the same
• House of Lords does not have to follow their own decisions

How is precedent created?

Ratio decidendi: the rationale for the decision (precedent)
Obiter dicta: statements said by the way (not precedent)

The Anglo-American Law

The ‘English’ view on law: The life of the law has not been logic, it has been experience’ (Oliver Wendell Holmes)

Common law has made its mark on significant part of the world outside Europe, which was driven by Britain’s intense number of
colonies. However, English common law has developed in the US completely independently.
• After 1776 English statutes and precedents were not binding on American judges, but nevertheless, the relationship between
the two is so extensive it can be referred to with one term, Anglo-American law.

To sum up
The amount of Roman law needed in a society has everything to do with the capabilities of a country to develop their own private law. As
England was fully capable of creating its own, the influence Roman law had on its private law system is seemingly non-existent to its
effect in continental Europe.
• As these two completely different systems developed, their differences heightened and can even be seen in the English and
continental European approach to interpretation of statutes.

Working Group
Lieuwes v. State of Friesland
Question 1
Connection between Lex Rhodia de iactu and the question of law in this case
Similarities
● Involves the loss of one for the common good
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Differences
● Private situation vs. State action
● At sea vs. on land

Question 2
Accursian gloss: THE Gloss
● Explained Roman Law and was used at all universities
● Ius commune based off this: the gloss used rather than the Roman law itself

Question 3
Quidquid non agnoscit glossa, non agnoscit curia: what the gloss does not recognize, the court does not recognize
● Some parts of the Corpus Iuris have no remarks: these parts were seen as not relevant and therefore, court did not recognize
their validity i.e. the Greek parts as they did not know how to translate them

Question 4
Bartolus is associated with mos italicus
● Tied his own solutions to the authority of Roman law by interpreting roman law very loosely

Question 5
Private international law was created by Bartolus by interpreting the use of ‘all peoples’ in one of the constitutions of the Corpus Iuris
Civilis.

Question 6
Systematic interpretation

Question 7
Reasoning by analogy

Question 8
Mos italicus almost always uses the systematic interpretation method.

Question 9
The Corpus Iuris Civilis generally only contained fact-based rules and old situations that no longer existed and would mean it could only
be used for those specific situations. This drove the need to derive general principles from it, which couldn’t be done by other methods
of interpretation than systematic interpretation.

Question 10
Law at that time would consist of a combination of local customary law and local statutes as primary sources, while Roman law served
as a subsidiary source.
● The name Roman-Frisian law makes that clear: combination of local rules and Roman law (as a subsidiary source)

Question 11
The Court could use decisions for its writings from other European jurisdictions because:
● Much more international at that time
● All used Latin
● All used the gloss
● Lawyers taught pretty much the same thing
● No codification existed so could pull from different sources → includes decisions by courts

McBoyle v. United States

Question 12
The National Motor Vehicle Theft Act US Title 18 §408 was applied in this case.

Question 13
They interpreted this provision, the definition of motor vehicle, to include airplanes → ‘any other self-propelled vehicle not designed for
running on rails’
● Used grammatical interpretation: we know this as they defined word and dictionary use

Question 14
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The dissenting opinion felt that as the term ‘running’ is used and all the other motor vehicles listed run on land it was only meant to
include vehicles that travel on land, and therefore not include airplanes.
● Legislative history: would have been easy to include a flying vehicle (existed at the time the legislation was created)

Question 15
They agreed with the dissenting opinion that it should not include airplanes.

Question 16
Systematic interpretation
Legislative history: look at legislator and how legislation came about
Historical interpretation: refers to the origin of a rule of law in another legal system
Grammatical interpretation
Teleological interpretation

Further notes…
Lieuwes v. State of Friesland
Primary law: ordinance, city legislation, customary law → all equally important
Subsidiary sources of law: Roman law, canon law, feudal law → used when primary law does not offer a solution
● Generally, a combination of primary law and roman law
● i.e. Roman-Holland law
● i.e. Roman-Frisian law

Dutch Supreme Court 1953: Voorste Stroom VII

● The contested act (nuisance) is in itself unlawful
● However, the government acted in the public interest
● Because of this, the government is allowed to eliminate the unlawfulness by paying compensation
● Drion: ‘compensation constitutes the tariff at which the act may be performed’
Began when Spanish King was not happy with the rebellion in the Netherlands, and in response sent troops.
● 1580: Spanish forces arrive in Friesland ‘to set things right’
● To deter the Spanish troops, they erected a redoubt in Cornwert
● Some properties fell outside the redoubt → destroyed these properties to prevent the Spanish troops from taking cover there
→ Lieuwes’s property was amongst those

Court of Friesland: Decisiones Frisicae by Judge Van der Sande

● Both the redoubt and Friesland itself were saved by the destruction of his property
● Lieuwes lost around 3000 gold florins and requested compensation from government (the states of Friesland)
○ Lieuwes used the Lex Aquilia as a basis
■ Most difficult is whether the act was unlawful
○ States: motion to deny Lieuwes’ claim
■ Dictates of absolute necessity
● Digest: Dictates justify actions normally considered unlawful…
■ Public interest
● Digest, Bartolus, Accursian gloss: When government acts in the public interest, it is allowed more
than private citizen…

Ius curia novit - the court knows the law

• The person making the claim does not need to know the law: the only thing that needs to be proved are the facts of the case
• Therefore, Court can switch between basis, which is what happened in this case as the court made decision in favour of
Lieuwes not based on the Lex Aquilia but rather the Lex Rhodia
o Made use of roman law in a situation that roman lawyers did not foresee
▪ Can solve modern problems with Roman law → by analogy
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WEEK 7: NATIONAL CODIFICATIONS AND EUROPEAN LAW

Summarizing:
• Lecture Notes (Week 7)
• Working Group/Tutorial (Week 7)
• Chapters of the History of European Codification – Lokin and Zwalve (Chapter IX)

National codifications and European law

The European Commonwealth
The Congress of Vienna in 1815 determined the balance of power for the next half a century. French philosopher Saint Simon was
extremely dissatisfied with the result.
• The Congress tried to reach an agreement that would ultimately fail as they were basing the guarantee of peace on the states’
sovereignty and maintenance of this sovereignty
• This is problematic, as always one dominant force will emerge that would want to control the others
o This agreement did indeed fail as too many big states were left in contrast to the small states
o The emerging superpower after this Congress was Prussia
• Saint Simon proposed that they should create European institutions that are in control of certain areas of politics (Warfare,
Foreign Affairs)

The Council of Europe and the ECHR

The Council of Europe was established in 1949, and originally intended to require states to transfer sovereignty to its Parliamentary
Assembly but failed.
In addition, it does not block one of the members going to war with another member as no sovereignty was given up resulting in the
Council have barely any powers over the countries.

While based on its initial intentions the Council may be seen as a failure, it however, created the European Convention of Human Rights,
the ECHR, and established the Court, the ECtHR in Strasbourg.
In the beginning the document was mainly directed at Eastern Europe and to prevent human rights violations under Russian influence.
• Falsely believed that in Western Europe there would be no human rights violations, and therefore it now prevents human rights
violations in all of Europe.
• Helps European civilians but not the constant war between France and Germany, which was still an important issue to solve
after the Second World War

The ECHR can be characterized as a successful by-product of an otherwise failed attempt towards European political integration.

The European Union, the Community law and the European Court of Justice
The France and Germany power struggle desperately needed to be solved after WWII to ensure peace in Europe.
• Multiple ideas were suggested, such as the Morgenthau-Plan, which proposed the creation of a primarily agricultural society in
Germany.
Following the war, Russia pretty quickly occupied eastern Europe and took control of east Germany (DDR), which in response the allies
occupied West Germany fearing the spread of communism.
• However, this occupation of Western Germany was not seen as a permanent solution.
In 1946 in Zürich, Churchill held a speech during which he suggested the idea of a United States of Europe to end the constant warfare
in Europe. While he suggested it, he did not plan on the UK being part.

The creation of the European Steel and Coal Community in 1952 was the beginning of the European integration process, which has led
to what the EU is today.
• The idea was proposed and influenced by Adenauer, Schumann, and Monnet who believed that by combining the coal and
steel industries in Germany and France, they would be dependent on each other making them less likely to go to war.
o If one would decide to go to war, the other would know: steel and coal production will go up

This over time developed into the EU

• Treaty of Rome 1957
o EURATOM + European Economic Community
▪ The EEC treaty created 4 institutions: Commission, Parliament, Council of Ministers, Court of Justice
• Treaty of Maastricht 1992: EU
o Important decisions regarding political unity were made in the Maastricht Treaty, where new wider objectives were
assigned
• Treaty of Lisbon 2007
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EU law and national law

• The Union has its own legislative authority, which is separate from the national states
• As each state gave up parts of their sovereignty to join the EU, EU law supersedes national law (Costa v. ENEL)
• This has further created legal unity in Europe, which is an extremely different environment to what it used to be

An important organ of the European Union is the Court of Justice of the European Union, to which national courts may make preliminary
rulings asking about the interpretation or validity based on article 267 TFEU.
• In cases on interpretation, only the highest judges have to refer, while lower courts have the option to do so.

To sum up
The EU has been able to unify Europe to levels it has never even dreamed of reaching before, even to the extent that in 1989 the
European Parliament suggested a codification of private law at European level.
• While this iniative failed, it formed the basis of an international collaboration which created a draft of European contract law, the
Draft Common Frame of Reference (DCFR) further showcasing the level of legal unity in Europe.
• However, for a real codification of civil law at European level, would require a lot of political motivation making it difficult to
achieve.

Working Group
Young v. Bristol Aeroplane
Question 1
Relevant facts
Young got injured and received a weekly payment until he started work again
• Wanted to claim compensation, but couldn’t because he didn’t claim it before he started taking money: he didn’t know about
this when he did
• Went to court → Court used decisions in Perkins and Selwood to prove that by signing he had given away right
o Appealed based on the fact that the decision was inconsistent with the decision by House of Lords in the Kinneil
case: Court had come to a wrong decision and should be overruled

Question 2
The court had to apply precedence.
• Precedence can only be changed by the House of Lords and not the Court of Appeal when it is a previous decision by the
court of appeal.

Question 3
Statutes usually name a certain sum one can receive for compensation, while in common law a certain sum is not specified and
therefore, probably thought that once could receive more through this avenue.

Question 4
Most important question of law: Can the court of appeal can overturn a decision it has previously made?
• No: in other cases where there was a similar situation the judges had stated that only the House of Lords can overturn a
decision

Question 5
Exceptions
1) Court is entitled and bound to decide which of two conflicting decisions of its own it will follow
2) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot in its opinion stand
with a decision of the House of Lords
3) The court is not bound to follow a decision of its own if it is satisfied that the decision was per incuriam

Question 6
Precedents used in Young
Selwood
● Had not claimed compensation and there was no exercise by the workman of his option
● More comparable to the current case and sets the precedent that is harmful to the case being made by Young
Perkins
● Workman had claimed compensation
 45

Question 7
Not possible to use the ‘beautiful art of distinguishing’ because the situation in the Selwood case concerns the situation of a claim of
compensation when he has already been paid compensation, which the judge could not distinguish from this situation.

Bulmer v. Bollinger
Question 8
Art. 177 of the treaty - now: art. 267 TFEU

Question 9
Interpretation method preferred in England: Grammatical interpretation
Interpretation method preferred by continental judges: Teleological interpretation

Question 10
It is the prerogative of the Court of Justice of the European Union to interpret EU law, but it is down to the national authorities to apply it
in their courts, as seen in this case where the UK judges apply EU law.

Question 11
The national courts decide whether a rule needs to be submitted for interpretation by the CJEU.
● Lower court may refer questions on interpretation, while higher courts have the obligation to do so.
● Highest courts = no judicial remedy possible to that decision under national law

Question 12
The case was not sent to the CJEU, and meanwhile decided there was no dishonest trading. Before it reached the House of Lords a
compromise was reached, where they would stop using ‘champagne’.

Further notes…
Young v. Bristol Aeroplane
● Introduction of precedent in the 19th century
● Reason: legal certainty
● Ratio decidendi (basis of decision) creates precedent, obiter dicta (additional comments made by judge) does not
● Possibility to deviate from precedents?
○ Own decision considered wrong -> cannot deviate
○ Two contradicting decisions
○ Decision conflicts with subsequent decisions by superior judge
○ Decision given per incuriam
■ Judge has to make decision based on what parties give to him → if the parties do not provide the proper
legal rules then they cannot be used → cannot set precedence because proper legal rules were not applied

Bulmer v. Bollinger
● ‘They interpret a statute as applying only to the circumstances covered by the very words’ Lord Denning
○ Grammatical interpretation
○ Through this strict interpretation they are able to apply common law when a statute does not apply
● Main Questions
○ By which court should the regulations be interpreted?
○ At what stage should the task of interpretation be done?
○ What are the principles to be applied in the interpretation of the regulations?
● Acte clair: just by saying that something is clear is already giving it interpretation