EUROPEAN LEGAL HISTORY

FINAL EXAM REVISION

ALL CONTENT

60 MINUTES
CLOSED BOOK EXAM

FRIDAY 9TH DECEMBER 2022

 HISTORY LAW
ARCHAIC PERIOD (753 BC – OUTBREAK
⮚ law and religion: no clear distinction
OF PUNIC WARS 264 BC)
Regal Period…
⮚ the King had the full power (rex)
⮚ Rome is founded (Romolus and Remus)
⮚ focus on customary law: mos maiorum -> “the habits of the elderly
⮚ On seven small hills on the shores of Tiber
people”,
⮚ Latins, Sabines, Etruscans> organized in ⮚ Law was based on tradition and what was learned by elders
clans that possessed most lands.
⮚ Rural society: paterfamilias (control & power!)
⮚ Provided Rome with its language, culture
and religion.
⮚ Society: based on agriculture and
livestock.
⮚ Latin's government: elective monarchy
where the rex had supreme power
(imperium).
⮚ Eutruscan society began to grow as the
Romans opened up to trade.
⮚ In 509 BC, the landowning nobility of
Latin descent (patricians) rebelled.
They created THE REPUBLIC
THE EARLY REPUBLIC…
⮚ The word rex was stigmatized
⮚ The main concern was to prevent
excessive concentration of power
⮚ There were also external pressures as a
result of the expulsion of Etruscan kings.
⮚ Rome consolidated its power on the center
of the Italian Peninsula with military
victories that induced people to forge
alliances Rome.
⮚ Rome would control the entire peninsula y
the beginning of the third century BC
Separation of power:
Senate: suggested legislation
⮚ The best of the best, children of old
consules, riches and oldest families.
Popular assemblies: vote on propositions
⮚ All adult male citizens.
⮚ At first more upper class
Magistrates: 2 executive officers voted on by the
popular assembly
⮚ Consules: imperium
o elected every year, had to agree
with each other.
o Sole consuls were allowed for 1/2
of that period (dictator)
⮚ Praetor: responsible of the entire judicial
system
⮚ aediles
⮚ Quaestor: keep the order
Priests (pontefices) > important role in
developing and applying the law until 3 BC.
⮚ they were guardians of the social
structure
* Old law was not replaced by new law (clashes with Roman sensibility,
characterized by deep respect for tradition) -> new elements were only gradually
superimposed over old ones
Laws of religion: fas–nefas
⮚ Affected the community as a whole
⮚ Fas: in accordance to gods
⮚ Nefas: not in accordance
Law of the people: ius
⮚ Establishment of law as a secular order
⮚ Governed relations between individuals
⮚ Mos maiorum: customs of the elder
⮚ Iniuria: violation of ius
⮚ Responsa was influenced by the "oracle-like" protocol from religion.
⮚ Formalistic, ritualistic
Plebeians demanded the codification and subsequent publication of the ius…
450BC - Law of the Twelve Tables:
⮚ First legislation > law is no longer oral
⮚ Condensed all the secular heritage of pontifical law into a general law
known by all
⮚ Open to public access in the form of 12 bronze tables hanging on the walls
of the Forum
⮚ They did not contain regulations pertaining to the organization of the state.
Ius civile: law applied to roman citizens
⮚ XXII tales
⮚ Leges (writings of the jurists) - Responsa
Ius honorarium (ius pretorium): right to give an edict
⮚ Predators had potestas
⮚ Lex anna: actions did not modify or amend ius civile
⮚ Edictum perpetum
Responsa (given by the pontiffs/priests at first, then by jurists)
⮚ ‘oracle-like’ character

⮚ they were responsible for preserving and

transmitting law The pontiffs gradually lost their monopoly on knowledge of and the application of
the uplaw
⮚ they were responsible for explaining
interpreting, and applying casuistry (case
law)

Social structure:
Still an agriculture-based society
⮚ Two social classes:

⮚ Patricians (small class but more power)

 ⮚ Plebeians: originally excluded from
public positions
o Commitments: concessions
granting plebeians access to
magistrates, or plebeian tribunes.
o Plebeian Curiate Assembly
▪ Elected the plebeian
tribunes in the
magistrate
Passed legislation

CLASSICAL LAW *The different types of legislation continued to exist

THE REPUBLIC (264 BC - 27 BC) *Emperor didn’t make much use of his legislative power
⮚ Rome expanded into Southern and
The influx of foreigners and non-citizens led to the …
Western Europe, the Middle East and Ius gentium - law of the people
Egypt.
⮚ A law developed to settle disputes involving one or more foreigners - it
⮚ Octavian took over in 27BC – THIS
could only be applied to Roman citizens.
MARKS THE END
⮚ It was based on values of fairness and reason
⮚ Rome came into close contact with Greek
Culture ⮚ Oftern related to natural law -> ius naturale

⮚ Greek influence in Roman law was seen in ⮚ Romans wanted people aspire to receive roman citizenship: only granted
terms of philosophy, rhetoric and logic. to the elite foreigners or conquered citizens
Ius civile: law for roman citizens
⮚ Scientific and systematic study of law
began after the conquest of Macedonia and ⮚ The iuris prudentes (Rechtswissenschaft) inherited function, method and
Greece. style from the priests -> continued to formulate response
Society:
⮚ ius civile remained eminently casuistic.
⮚ Economy: Large scale and massive
It was divided in three layers:
operations
o Trade, commerce, industry, ⮚ oldest and most archaic layer -> made up of moral and custom-based
finance, slavery. precepts.. mos maiorum (teachings of elders)
⮚ Increasing intellectual capacity of the ⮚ second layer -> Law of the Twelve Tables
Romans
⮚ third layer -> responsa issued by experts
⮚ New distinction between proletariat and
Ius praetorium -> set of precepts contained in the edicts
aristocracy
Politics: ⮚ Predators had ius edicendi -> capactity to issue edicts of obligatory
⮚ But: republican political structure no compliance
longer responded well to the new needs of
the developing society:
⮚ like a legal manifestation of his term in office.
⮚ After 1st century BC -> almost permanent ⮚ Technically: valid for the period in which praetor was in term (1 year) and
civil war.. after several attempts to take each praetor was free to completely rewrite these edicts.
power by others,
⮚ Usually: repeated the majority of the content established by predecessors.
How did courts work?
⮚ ius praetorium did not replace ius civile -> but rather
Preators: Experienced politicians eager to overlapped/supplemented it (the basic nucleus of archaic law was not
successfully ascend to consuls. Took possession of changed by the praetors
office every year. Decided which remedies or
claims he would entertain. Responsa changed:
⮚ Lay jurists in charge
⮚ Preator urbanus: administered justice
⮚ job of the lay jurists: due to little and quite imprecise legislation, the lay
between roman citizens
jurists consulted and guided civilians that had questions about the law.
⮚ Preator peregrinus: administered justice
⮚ did not have binding force, but were assigned great social and moral value
between foreigners
Jurists:
Not much legislation in private law
⮚ Analyzed legal problems and issue expert
opinions to citizens, to orators, to ⮚ Public and criminal law
magistrates and judges.
⮚ Exception -> lex Aquilia: addressed specific difficulties without
⮚ cavere (drafting the documents of legal
systematically governing a field.
acts)
⮚ Had 3 different chapters concerning themselves with laws on murder
⮚ agere (advising litigants and officials
(‘wrongful killing’) or damage to slaves and four-footed herd animals.
during suits)
⮚ plus, problems: the laws only outline the value in terms of different market
⮚ respondere (responding to legal questions
prices. the money does not consider the fruits the owner can have (i.e.: the
and giving advice). money the owner can make through the slave)

Procedure: ⮚ You could not claim rights you think you have. The Praetor would decide
#1. In iure (in a part of the Forum of in a basilica which remedies are available to the citizens -> establishing this on a
near it) caseby-case basis.
⮚ Preator: gives an analysis of the law, with ⮚ Conclusion: law is not yet well formulated: incomplete and poorly drafted
help from the jurist. legislation
⮚ The easy cases are decided in plane (down
Ritualistic procedure:
of the tribunal)
⮚ For the harder cases he stays on the ⮚ Legal complaints where processed by a limited number of remedies
tribunal ⮚ Legis actiones > beginning of law procedures
⮚ He listens to the legally relevant
⮚ Legis Actio > the template of the process that had to be met
information
Then came…
o Denies action > process ends
o Grants actio > passes on to the ⮚ Process per formulae
judge
⮚ Praetor, after analyzing the case, condensed and noted down on a formula
⮚ He can give a form with instructions
the instructions to the case (jurists helped in drafting an exact formula).
(formulae)
⮚ these instructions were binding upon the judge
⮚ The drator has the help of the jurist, tries
to prove his case. Very practical, focused ⮚ Formal procedure -> but more flexible and responsive to the changes in
on the facts legal and economic conditions compared to legis actiones.
⮚ It goes to a private law that ennacts Once the wording of the formula were determined (usually with agreement of the
formulae (a kind of guide or script for the parties) -> it was recorded on tablets in an act called litis contestatio
subsequent trial phase before the judge)
#2. Apud iudicem (held in the Forum or basilica
itself)
⮚ The judge would hear witnesses and
lawyers, learn about the facts and then
(without departing from the strict ruling of
the praetor), issue his ruling.
⮚ If he felt that the facts in the formula were
true, he was obligated to convict the
defendant.. if he felt that the facts were not
proven or turned out to be speaking for the
defendant, he was obligated to acquit the
defendant.
 THE EMPIRE: THE PRINCIPATE (27BC-
284AD)
Octavian (Ceasar, Augustus) Came to Power
⮚ He managed for the entire Republican
order to revolve around him
⮚ took constant care to avoid being called
King (still a taboo)
⮚ He asked to be called princeps senatus.
Leader of the senate.
⮚ He controlled social and political life but
stayed away from republican
magistracies.
⮚ His charismatic leadership, political
attributes, solid relationship with the new
order, favorable public opinion and the
stunning period of peace and stability
ensured the continuity of the new regime
after his death in AD14
Emperor’s power:
⮚ The emperor was allowed to keep part of
the taxes for himself.
Legislation:
⮚ republican institutions did endure, but emperor took on some of the
functions.
⮚ no major changes in terms of legal sources
Jurisprudence:
⮚ ius respondendi: emperor could be asked for his views on legal matters
● In theory, his response was not binding.. but in practice his
prestige and charismatic authority were so great no judge dared to
contradict his opinion.
⮚ Small group of highly renowned jurists:
● He conceded the ius respondendi -> i.e.: the authority to give
responsa based on emperor’s authority while retaining their status
as normal jurists.
⮚ By second half of 2nd century
● Most famous and prestigious jurists joined imperial consilium
permanently -> thus, ius respondendi became unnecessary.
● New legislative power
⮚ Ius prudentia (jurisprudence) was considered the most important source

⮚ the Fiscus was like the private
wallet/treasury of the Emperor. If the new
Emperor came to power (elective
monarchy) -> then he would take over the
fiscus of the previous Emperor.
The Pax Romana (period of peace and stability)
⮚ The empire continued to spread through
England, Romania and Iraq.
⮚ Minimal expansion by military force in
the 1st and 2nd centuries AD.
⮚ Apex of classical jurisprudence:
recognition of jurists
Duopoly - two centers of power: the emperor and
the Senate
⮚ The Senate was princeps inter pares ->
initially only means that he is allowed to
speak first in a debate. but essentially it
means that he is the leader of his ‘fellow
citizens’.
⮚ Emperors became the most talented
jurists: first by the concession
(Zulassung) of ius respondendi
The decline period… (beginning of 3rd century)
⮚ Profound institutional crisis, bordering
anarchy
⮚ Many emperors were being assassinated.
⮚ Rulers looked to the army as the basis of
their power
⮚ Rome was on the defensive on its borders
⮚ Economic crisis racked the empire
⮚ Jurisprudence decline with the death of
Papinian (212), led to the post-classical
era of roman law
⮚ Carcalla (211-17) in order to collect more
taxes, granted citizenship to all free
people in the empire.
This was a big step towards territorial integration
and legal unity.
POST-CLASSICAL LAW (284 BC – 5TH/6TH
CENTURY)
THE DOMINATE
Diocletian and Constantine
⮚ Managed to gain and hold power
⮚ Diocletian: limit the power of the army in
order to stabilize the government
⮚ Removed generals from key executive
positions and made a body of civil
servants in each government branch.
of law
● More important than legislation, custum-based rights or the
administration of justice.
Rescripta
⮚ bureaucratic administration would be responsible for responding to
countless queries submitted to the Emperor
⮚ The answers were written down on the same document submitted by
those making the requests.
⮚ lacked legal validity -> but still followed in most cases (prestige of the
people behind it!)
the Praetor:
⮚ formulas continue to be written by Praetors but: the ius honorarium had
reached a point of refinement and breadth that the changes introduced by
the praetors became fewer and less necessary with each passing year.
⮚ In 138 AD the Edictum Perpetuum is published -> the Perpetual Edict
stated that Praetors were no longer able to change the program.
⮚ Ceased to be those driving the evolution of law.
Roman Citizen rights:
⮚ in 212 Roman citizenship was granted to all free subjects in the Empire -
> therefore, increased demand for capable jurists trained in Roman law
⮚ why? to increase the Fiscus (the personal treasury of the Emperors) ->
the more citizens, the more taxes are payed!
Beginings of legal science
⮚ Legal certainty - Casuistry
⮚ Romans would not extract rules from cases, but instead use cases as a
form of guidance for future cases (case law)
⮚ Beginning of systematization
⮚ Institutiones by gaius – dividied law in 3 – personae, res, actiones
Most important jurists mentioned in the digest:
⮚ Gaius
⮚ Palpinian
⮚ Ulpian
⮚ Paulus
Law came to exhibit the traits of what is known as “vulgarism,”:
⮚ Tendency to suppress everything that seemed too complex or useless for
judicial use
⮚ Naturalist trend to approach law from the point of view of its economic
or sociological effects
⮚ Because of religion
o Moralistic tendency, which sought justice-dispensing solutions
with scant regard for form.
⮚ distinction between private law and public law becomes very significant!

⮚ Glorification and worship of his own
person. The emperor was now "lord over
all" or " Dominus"
⮚ Period of absolute monarchy, depending
upon an anonymous bureaucracy.
Constantinople
⮚ Division between Eastern and Western
empire. Rare collaboration
⮚ The center of power shifter to
Constantinople
⮚ Seat of government was moved from
Rome to Milan and then Ravenna
⮚ Centralized State:
o anonymous but extremely
effective bureaucracy -> came to
be called the Dominate
Christianized empire:
⮚ before 3rd century, Romans have little
interest in Religion
⮚ In the 3rd century, when there is a
political struggle, the Emperor purposely
tries to enforce religious beliefs
⮚ There are many different ethnic
backgrounds, so he uses religion to
streamline all the people.
⮚ Bishop of Rome very important figure -
Emperor becomes a important role of
worship -> like a messenger of god.
Crisis
⮚ The West was devastated in the 5th
century with the invasion of Germanic
Asian barbarian tribes
⮚ The East managed to survive and enjoyed
a period of peace and relative prosperity
⮚ Theodosius I (379-395) was one of the last
great emperors
⮚ He declared Christianity the sole and
official religion
⮚ This had consequences for private law -
softening of the harsh family regime.
Civil rights
⮚ The legal status of slaves and women
improved
⮚ Distinction between private law and public
law became significant.
Jurisprudence was only still cultivated in some
schools of law such s those at Berytus and
constantinople.
The influence of jurisprudence on the evolution of the law almost disappeared.
⮚ shift in the structure of the state: now an absolute monarch came to rule
through imperial decrees
⮚ with the Law of Citations it was the emperor who conferred binding
power upon the views of the five great jurists
⮚ The imperial constitutions were collected and became the object of
commentaries.
Law schools also flourished, reaching their apex during this era: founded in
Constantinople, Athens, Carthage, Alexandria and Caesarea
Cognitio extra ordinem (“outside the ordinary process”)
⮚ Eventually replaced the formulae
⮚ judicial officials took over the administrative handling of the whole
process in all its phases, removing the figure of the private judge and,
with him, the bipartition of the process.
⮚ the lawsuit no longer needed to rely on the availability of a specific
remedy, and thus became a generic way to seek justice.
⮚ Appeal: previously appeal was not possible -> now, when decided by
the Emperor, appeal is possible
ius prudentia (legal science)
⮚ Almost disappeared
⮚ Emperor has become the mainspring of law and the centralization of the
sources of the law
Lex citandi in 426 AD
⮚ Due to problems with the digest
o availability (copies go rotten on the papyrus. also, all are
handwritten -> takes a lot of time and expensive)
o uncertainty (hand-copied texts of law make the quality worse ->
may include mistakes or not include all information)
o conflicting opinions among the judges
⮚ set forth that only the writings of the five most outstanding jurists
(Papinian, Gaius, Ulpian, Paulus and Modestinus) could carry weight in
the courts.
However, did not solve problems..
o Lex citandi: if there was a conflict between these jurists ->
majority view would prevail - in the event of an even number
on both sides -> the view of Papinianus would be applied
o if Papinianus expressed no opinion -> judge would then be free
to use his own judgement.
Emperor Justinian then ordered the codification project in the first half of the
6th century
⮚ Institutiones (brief introdyctory textbook, systematically organized)
o Inspired by the eponymous book by Gaius.
o Introduction to law: most important principles of jurisprudence
o It anticipated post-classical style
⮚ Digesta (anthology of classical jurists)
o An anthology of excerpts from classical Roman legal texts
o Presents cases with their corresponding legal regulae
o Divided them into 50 books featuring fragments of writings from 39
jurists.
o "Interpolations": rework and alterations made to the fragments in
order to edit contradictions, superfluities, update legal terms and adapt
the texts to current circumstances.
⮚ Codex (compliation of laws following the edictum perpetum order)
o Fragments of laws enacted by the Roman emperors as of Hadrian
(117–38)
o As a tribute to the Law of the Twelve Tables – the initial, legendary
compilation of Roman law – the new Codex was divided into 12
books
o Dealt with: ecclesiastical law, sources of law, administrative law,
private law, criminal law and tax law.
⮚ Novellae (complitation of Justinian’s law after the codex)
o Not Justinian's doing
o laws enacted after 534 were grouped into private collections
⮚ The corpus iuris civilis (modern name 16th century)
Most important book in legal history, a bridge between times
 GERMANIC LAW (Early Middle Ages)
GERMANIC PERIOD (BEGINNING OF THE
2ND CENTURY)
⮚ Barbarians became the Roman’s main
adversaries
⮚ The western sphere of the Empire suffered
the greatest invasive pressure
⮚ Goths (wanted to settle in Romania)
o Visigoths >> lost Gaul territories
to the Franks>> stayed in the
borders of Hispania
o Ostrogoths
⮚ Vandals proceeded to North Africa >
Romanized rich and fertile region
Italian peninsula:
o Sacked
Other places:
⮚ Nertherlands >> Frisians took over
⮚ British Islands>> Angeles, Saxons and
Jutes
o Romanized the Celtics – made
them flee to Wales, Ireland,
Scotland and Brittany.
⮚ Switzerland >> Alemanni defeated the
Franks and Clovis
Franks (preeminent power in Western Europe)
⮚ Mainly established in northern France and
southern Belgium
⮚ Dominated territory extending from
Pyrenees to the Danube.
⮚ Under the authority of Frank Kings lived
people of very diverse ethnic origins:
o Gallo-romans
o Franks
o Burgundians
o Visigoths
o Alemanni
o Frisians
o Etc
⮚ Germanic tribes start looking for a place to
settle.
⮚ They attempt going to the eastern Roman
Empire, but found no success because
Constantinople could still count on the tax
money coming from Egypt and Syria, for
they were very wealthy provinces.
⮚ So even if they were to be defeated by the
Germanic tribes, they could still afford a
new army
Religion:
⮚ Oral, not written
⮚ Customary, not rationally re-elaborated (duels, fights, boiling water)
o Not much legislation
o No notion of state
⮚ Personal application of law: law applied in accordance with ethnic origin of
person involved in conflict (very tribal)
⮚ They saw war as customary
⮚ Public, not arcane
⮚ Popular, not elitist - not a professional class of jurists, no legal teaching
⮚ Elementary, not sophisticated
Principle of personality law
⮚ The application of one or another set of legal rules based on the litigant’s
belonging to one nation or simply one ethnic group.
⮚ Germanics did not wish to impose their own norms and customs on people
whose ways and customs mattered little.
⮚ Each individual > judged based on the legal rules of the group to which he
belongs
⮚ Problems> not always clear to which group one belonged and thus which
laws were to be applied.
Leges Romanorum (legislation based on Roman sources)
⮚ Llex Romana visigothoru: sole source of knowledge of Roman law (it
was a code)
⮚ Lex romana burgundionum: for Roman subjects
⮚ Both provided general response for common legal questions
⮚ Edictum theodorici: applied to both populations
⮚ Germanic tribes used Latin instead of their own Germanic languages to write
law
Leges barbarorum(Not based on previous legislative or jurisprudential tradition)
⮚ Wanted to put into writing the already existing oral tradition
⮚ “forum of the judges”
o Lex burgundionum: for Burgundian subjects
o Lex visigothroum
o lex salica of the franks
▪ claimed that woman cannot inherit lands of their fathers.
▪ Later developed into a law stating that women cannot inherit
the throne in France.
Iudicium Parium “judgement of the peers
⮚ To be tried by peers
⮚ Clerics judged fellow clerics, nobles judged fellow nobles
 ⮚ Their own vision of Christianity
⮚ Arians
⮚ Only believed in the Father
⮚ Strongest unifying factor
Idea of nation and authority:
Germanic personal, not territorial idea of
nation: Ostrogoths, Visigoths, Franks,
Burgundians, Anglo-Saxons, etc.
"I belong to my tribe"
Germanic personal dimension of leadership:
⮚ Leadership originally consensual,
temporary: loose confederation of clans
and tribes for specific military enterprise
⮚ Warriors formed the nobility and
acclaimed the military leader (dux)
⮚ Germanic tribal leadership evolved into
kingship by influence of Roman
conceptions – but still personal, not
territorial: rex Francorum, not rex
Franciae
⮚ Kings not supreme rulers like emperors:
patriarchal, consensual
o Power was based on their military
elite
o They were elected by the military
o Personal loyalty: oath of fealty to
the king
⮚ Personal loyalty (fides): the oath of
fealty
⮚ Cfr. Roman sacralization
and Jewish anointment but
distrust of public authority
FEUDALISM - The feudal contract
⮚ Way to organize admisnitration and
military
⮚ Characterized by institutions that that
combine personal and real property
elements
⮚ The system failed during military
difficulty
⮚ Fief and vassalage > contract entailing
rights and responsibilities> contract
ended when vassal died.
o Fiefi: provided protection
o Vassal: promised to provide his
lord with assistance
⮚ Unifying structure
o Charlemagne (800)
o Ottonian dynasty (10th century)
⮚ Collapse of royal authority: different paths
o France: from weak to strong royal
authority
⮚ Privilegium fori “jurisdictional priviledge”
o Applied only to the nobles
o Resulted in extreme fragmentation
Royal legislation
⮚ Society governed by custom
⮚ Obtained normative effect based on the community-wide conviction that
the norms ought to be obeyed.
⮚ Rules adapted to changing circumstances
Carolanian age changed things…
⮚ Capitularia: orders issued by the king containing legal precepts applicable
to all subjects
o Best known and most relevant examples
o Did not govern matters of private or criminal law
o Dedicated to ecclesiastical matters
o Because rulers and church needed one another
▪ Carolingians needs the clergy to administrate their
empire and provide internal coherence.
▪ The pope was eager for protection against military
threats.
Canon Law (Law of the church)
⮚ Stabilizing and unifying force
⮚ Decentralized power
⮚ Recognized as the official religion – Edict of Milan
⮚ Evolved:
o From a clandestine sect – organization aspiring universal scope.
⮚ Ecumenical councils
o At the beginning the emperor had control> arbitrator between
Arians and Catholics.
o Bishop on the West:
▪ He was the leader
▪ Appointed pontiffs
⮚ Developed its own law> addressed private law, such as marriage
⮚ “canons” > text adopted by the councils with important legal precepts
⮚ “decretals” > papal letters containing answers to questions submitted by
the bishop of rome.
Mallus: Germanic court procedures
⮚ Trial by battle: Both parties of conflict would go, in front of the assembly,
into dual. Dual would define winner of the trial
⮚ Adversarial: there must be an inquisition before something takes place.
(there must be an adversary before a trial)
e.g.; a dead body is found. If the family members of victim don’t initiate trial, there
is no inquisition
Germany: from strong to weak imperial authority
Late MIDDLE AGES
ECONOMY
⮚ Global warming, together with the
development of new agricultural techniques
made the economy more productive
⮚ More people could dedicate to trade
⮚ Emergence of banking and financial activity
⮚ Empires like the Latin and Christian Europe
were still rural,
⮚ th
Mid 14 century:
o Agriculture was no longer capable to
meet demand >> growth in
population
o Malnutrition and the break of the
Bubonic Plague
o 100 years’ war
o Hunger, disease and war formed a
lethal combination and killed ¼ of
Europe’s people
POLITICAL INSTITUTIONS
Roman Empire
⮚ Charlemagne empire was divided amongst its
th
3 sons and it rapidly declined in the 9 century
⮚ Otto I after his victory in the Battle of
Lechfeld (955), headed into the imperial idea,
leading to the “Holy Roman Empire”
o In theory comprised all Latin
Christendom
o In practice actual Germany
represented the Empire’s territorial
IUS COMMUNE
The Discovery of Roman Law
⮚ Bologna was seeing a rise in commerce that required legal experts
⮚ Bologna’s school curriculum centered in teaching liberal arts:
o trivium: grammar, rhetoric and dialects
o quadrivium: music, astronomy, arithmetic and geometry
⮚ Legal texts of Roman origin continued to appear and circulate, while only
some were authentic
⮚ 17th century - the complete text of Justinian’s compilation was available at
Bologna: the Littera Bononienesis- was composed of several loose manuscripts
and pachments that turned up in a gradual piecemeal way
⮚ The Vulgate (Roman law during middle ages) was organized in the gradual
discovery of texts
o The Digestum vetus (old digest)
o Digestum novum (new digest)
o Infortiatum (what appeared after the Digestum novum
⮚ Corpus iuris contained 5 volumes: Digest (3), plus a forth with the first nine
books of the Codex, and a fifth (Volumen parvum) which featured the
Institutiones and the last 3 books of the Codex
o Later the Libri feudorum was included, which were compilations of
the 12th century of Lombard feudal law and German emperor excepts
⮚ Bologna became a model and further European universities were composed of
4 departments: Theology, Roman Law, Canon Law and Medicine
Canon law
⮚ Canon law was continuously transmitted and developed throughout the Early
Middle Ages, was fairly well preserved and many copies were produced
⮚ The “pseudo-Isidorian” decretals - composed of canons and papal letters with
forged decretals
⮚ Papal authority was reinforced as falsified letters suggested that the pope had
 core
⮚ It soon lost hegemony due to the
decentralization of the feudal system
⮚ Decentralization was irreversible and emperors
from the House of Habsburg based their power
upon their territories
France
⮚ Hugh Capet (987-96) ascended the throne,
royal power in France was completely
fragmented
⮚ Powerful feudal lords reigned as effective
sovereigns over their territories, recognizing
that in theory they were vassals of the king of
France >> the supreme feudal lord
⮚ The king of France had a clear and
undisputable rule for royal succession
⮚ He gradually expanded the territory where he
exercised effective power, counteracting the
centrifugal forces of the feudal order
⮚ By the 16th century the king of France
exercised effective power over the whole
territory of France
England
⮚ Was pivotal and developed the essential
features of its political and legal organization
⮚ William I the conqueror, successfully
intervened in a neighboring isle implementing
the feudal system
⮚ During the Anglo-Saxon and Scandinavian
dominance, an administrative organization was
developed
⮚ The king declared himself as the owner of all
the land of England and he granted it to the
lords of the new Norman nobility and the
former Anglo-Saxon lords pledging loyalty to
him
⮚ England feudalism did not have the
decentralizing effects as the rest of Europe
o Political circumstances forced the
king to consider the interests of the
clergy, nobility and commoners as
seen in the Magna Carta
Iberian Peninsula
⮚ In the 8th century, the power held by rulers
hardly differed from that of feudal lords
⮚ In the 13th century, advances in the
Reconquista had strengthened the royal power
⮚ The nobility, ecclesiastical lords and the urban
elite continued to wield power, with whom the
king had to cope
Italian Peninsula
⮚ Principalities and city-republics maneuvering
to obtain political gain from the struggle
between popes and emperors
headed the church since the beginnings of ecclesiastical history
o Important powers were assigned such as papal ratification for conciliar
decisions to enjoy validity
o They used the pseudo-Isidorian decretals to concentrate power in Rome
⮚ The Donatio Constantini (the donation of Constantine) was a false document
where Constantine ceded secular power over the city of Rome and center of
Italy to pope Sylvester
o It was not until the 15th century where the humanist Lorenzo Valla
proved it was fake
⮚ Amongst the most important collections of Canon law texts form the middle
ages are those of Regino of Prüm and Burchard of Worms.
⮚ The Gregorian reformers needed new collections, as they had to demonstrate
that their arguments were based on canons
⮚ The most foundational of all medieval canon law collections was the
Decretum Gratiani (Decree of Gratian)
o He was a jurist in Venice and died as the bishop of Chiusi
o Other authors took his work and expanded it
o The Decretum Gratiani exerted authority without being officially
promulgated as ecclesiastical legislation
o Based on: canons of council and synods, patristic writings, elements of
Roman law and the Carlinian capitularia, papal letters and pontifical
law.
o Its objective was to compile ancient and medieval canon law, transmit it
to future generations and offer a solution to all apparent contradictions
between materials
⮚ The Gregorian reformers believed strongly on the mission of integrating the
world into a religious and ecclesiastical framework
o The most effective tools were legislation, justice and administration,
within the church, the pope had all these roles
⮚ The decretals were the standard form of pontifical legislation in the Middle
Ages
o a case which was submitted to the pope, whose decision is published in
the form of letter or decretal. It could be applicable to different cases
with ascertain the most recent views of the pope, the supreme judge of
the church
⮚ By the second half of the 20th century, there was found the need to compile
papal law and jurisprudence
⮚ In 1234 Pope Gregory IX ordered to compile a systematic collection of
decretals to be enacted as law. They were named Decretales Gregorii IX or
Liber extra
o it was promulgated with the force of law, reinforcing the universal
nature of rationale behind papal decisions
o unifies the law through the church and place it under the pope’s control
o the popes expected all ecclesiastical tribunals to work with the same
body of law
⮚ After Gregory IX, the popes continued to draft new legislative material,
compiling collections of decretals and promulgated them as universal law
o these collections didn’t nullify themselves but complemented them
⮚ In 1582, the Corpus iuris canonici acquired its final form, gathering:
Decretum Gratiani, Liber extra, Liber sextus and Constitutiones clementianae
with two lesse collections of Extravagantes of John XXII and extravagantes
communes of Sixtus IV
o The medieval texts would continue in force until the promulgation of
the Codex iuris canonici in 1917
⮚ Canon law exerted significant influence outside the ecclesiastical domain and
was present in some fields over which secular courts normally had jurisdiction,
buy which, ratione peccati (“due to sin”) were governed by ecclesiastical

⮚ Normans transformed the kingdom of Sicily
and Naples into a regional power that
dominated the Mediterranean
⮚ The Papal States were the political entity under
direct sovereign control of the pope
⮚ Florence, Siena and Milan established wealth
and power based on trade and commerce
THE CHURCH
⮚ 10th and 11th century the emperor often
intervened on the election of the pope to
prevent chaos
⮚ Intervention in Rome brought benefits in the
German territories since the Pope was
favorable to their interests
⮚ 11th century (Gregorian reform)
o Aimed to revoke the right of secular
princes to appoint people to
ecclesiastical positions
⮚ The Investiture Controversy: the legal and
political debate regarding who was entitled to
appoint ecclesiastical officials
⮚ The Concordat Worms (1122) did away with
the secular appointment of ecclesiastical
officials
⮚ Clergy:
o They were elevated to a superior,
qualitatively different plane from the
secular, ordinary state
o Celibacy was imposed to prevent the
transmission of ecclesiastical posts from
fathers to children
⮚ The struggle with the empire, forced the
papacy carry out a structural reform of the
Church based on the introduction of
centralism and hierarchy
o Canon law played an important
role during that process
⮚ Through the Crusades the papacy
exercised leadership over Europe’s
military economic and demographic
expansion >> to integrate the secular
world into an ecclesiastical framework.
⮚ Christian morality, based on canon law,
was extended to the most varied social
fields
o Primacy of spiritual power over
wordily regimes
⮚ When the empire weakened, and these
states could forgo papal support, however,
they turned against him
SCIENCE AND CULTURE
⮚ Scholasticism was based on the idea that
truth could be found in a set of texts of
hallowed authority; man could know truth
thanks to his faith and these texts:
jurisprudence
⮚ Canon law frequently encompassed fields that secular law didn’t
o Marriage, adultery, bigamy, kinship, consanguinity, perjury, violence,
theft, murder, rape, purchases, contracts, donations and wills.
⮚ Canon law gained so much importance that it rivaled roman law
Canon law was implemented while roman law remained as a subject of
o
university study
IUS COMMUNE AND IURA PROPIA
The relationship between Ius Commune and Ius Proprium
⮚ The study of both laws was called Utriusque iuris
⮚ The interaction between Roman law and canon law was intense and fertile
⮚ To refer to both, the term ius commune was used to indicate the object of
study common throughout Europe
o However, only canon law was applied
⮚ ius proprium refers to the multitude of specific jurisdictions or laws existing
across Europe, each with its own dispositions and customs.
⮚ These jurisdictions were different in both their territorial and personal scope of
application
o Iudicium parium (judgment of equals)
o The iuria propria was very fragmented and was normally governed by
consuetudinary law, by its customs
⮚ The ius proprium was subject to customary law and did not achieve the level
of sophistication of academic law
⮚ The ius commune was perceived as a model, a distant ide
⮚Roman and canonical institutional principles would soon begin to influence the
multiple iura propria in several ways
o In southern Europe, roman law was accepted as lex scripta, law
supplementing local dispositions. The courts looked at the learned law
for answers.
o Iura propria has the mark of Roman legacy without denying the
presence of Germanic elements.
o In northern Europe the ius commune did not function as lex scripta, but
at least as ratio scripta (written reason)
⮚ Even though the ius proprium continued to be applied, in the long term the
penetration of concepts and techniques from the ius commune was
inevitable, this began especially evident in legislation, courts and
customary law
Legislation
⮚ The importance of legislation depends on the degree to which a government
has advanced in the process of establishing itself as structure capable of
exercising public authority over a defined territory.
⮚ In a public sphere based on feudal contractual relations, legislative activity
was feasible only when the ruler wielded power, acquired by distributing the
spoils of war, riches and honors to pacify and appease the great lords of the
realm.
⮚ The rediscovery of Roman law and the development of canon law afforded
the king an added incentive: the revival of the ideal image of the monarch as
the supreme legislator
⮚ Initially the creative and innovative potential of legislation was very limited,
not going much beyond the mere confirmation of some traditions and
customs
o The Late Middle Ages legislation was often the result of complex
negotiations through which subjects, via various pressure groups,
secured many of their aspirations – even when texts stated that laws
 o Bible
o Western Canon
▪ Greek Philosophers
▪ Roman law
▪ Fathers of the Church
▪ Corpus Iuris
● Civili
● Canonaci
⮚ Scholastics believed that there was one
coherent truth, and allowed them to
employ very refined techniques in the
interpretation of different texts to apparent
contradictions
o Distinctio: differences between
situations that seemed different
o Aequiparatio: approached similar
situations in the same way
o Divisio: divided a subject into
categories
o Quastiones, controversiae,
disputationes: they examined
given points of view which
supported them
⮚ The university can be traced to the 12th
century with the objective of the study of
theology
o Bologna (1088) main focus was
Roman law
Glossators and Commentators
⮚ The first objective was exegesis
(interpretation): to clarify the phrases and
understand its meanings, while the last phase
of teaching consisted of the refutation of
possible arguments against the solutions of the
reading.
⮚ “Glossators” is the term applied to jurists
active from Inerius until 1263 but not only
applied to jurists
o Glossa: notes in the margins of the
texts and relations to different texts
⮚ Glossators stuck very closely to the text
⮚ Azo, Hugolinus de Presbyteris and Accrusius
o Accrusius compilation of its
predecessors’ glosses was so flawless
that glosses reached the apex of
development called the glossa
ordinaria
⮚ “Commentators” also payed greater attention
to the application of Roman law in practice,
featured with the divergence of the format of
their research: they wrote extensive
commentaries about a subject
⮚ Commentaries used texts as a point of
departure for the examination of a topic
were promulgated based on the monarch’s sole authority
⮚ Academic law was key to providing new vigor to the hitherto languid
creativity of legislation.
⮚ Little by little legislation would come to be seen as the most direct route to
introduce changes to laws, although customary law would still remain the
most important source of precepts for a long time.
o The Siete Partidas of Alfonso X the Wise represent the most
important Spanish contribution- the most ambitious and complete
project of its time aimed at expediting the spread of learned law
▪ The Partidas stretched beyond the legal sphere to include
philosophical reflections by classical thinkers such as Aristotle and
Seneca, theologians such as Thomas Aquinas, as well as biblical
texts
The administration of Justice
⮚ The fragmentation of central power yielded a correlative fragmentation in the
administration of justice.
o Territorial: courts’ jurisdiction coincided more or less with the
territories (sometimes very small ones) over which feudal lords
effectively wielded power.
o The principle of the iudicium parium accentuated decentralization,
giving rise to a myriad of courts – seigniorial, rural, municipal,
ecclesiastical – and similar institutions for guilds and universities, etc.
⮚ 12th century - strengthening of royal power, and consciousness of its public
nature - the monarch began to exercise tighter control over the administration
of justice.
o His strategy involved not so much trying to impose order upon the
functioning courts, but to offer his own justice administration in
addition to those already in place.
⮚ The image of the monarch as a supreme judge came, like that of the supreme
legislator, from the ius commune
⮚ It became necessary to channel jurisdictional functions towards specialized
and professionalized bodies, invariably staffed by university jurists educated
in the ius commune.
o The Parlement de Paris, a royal court charged with hearing and
deciding cases submitted to royal justice, whether via appeal or, in
certain cases, in first instance
o It was through these courts that one of the most important and lasting
creations of canon law would be received: Romano-canonical
procedure
⮚ Romano-canonical procedure was the litigation system that was
institutionalized in the ecclesiastical courts of the Late Middle Ages.
⮚ It took direct inspiration from the cognitio extra ordinem,
o The canonists of the twelfth and thirteenth centuries would adopt the
cognitio as a model for a new way of handling cases, more suited to the
new centralized organization of the Church
o Its basic features were the elimination of all non-rational elements, such
as ordeals
⮚ One of the most important features of the Romano-canonical process was the
introduction of written record-keeping, which differed Roman-canonical
from other trial methods in Europe
⮚ The division of the legal process into successive phases after which the
possibility of bringing new allegations or presenting new evidence was
precluded.
⮚ Writing guaranteed a rational and objective assessment of the facts and legal
issues to be judged.
⮚ Commentators didn’t limit themselves to
Roman law but also Canon law among others
⮚ Bartolus de Saxoferrato and Baldus degli
Ubaldi
o They had great influence on the
jurisprudence and evolution of law in
the West
⮚ Medieval jurists sought to solve with logic and
scholastic techniques apparent contradictions
⮚ Since demand of jurists increased, jurists
gradually expanded by genres and produced
legal literature in different formats
o Consultations or consilia: the jurist’s
expert opinion on a legal question
posed to him
o Massive commentaries on the entire
Corpus iuris civilis or elements of it
o Treatises consisted on analyzing
institutions
⮚ Glossators and commentators agreed on
considering Roman law as a body of texts of
universal value that bore truth and reason
Decretists and decretalists
⮚ Decretists are the ones who based their work
on the Decretum Gratiani
o The first generation of decretists until
Johannes Teitonicus used the same
method as the glossators,
o One of the most influential
commentaties - Huguccio of Pisa>>
Summa Decretum, which was one of
the main sources of what would
become the Ordinary Gloss of the
Decretum Gratiani of Johannes
Teitonicus
⮚ Decretalists are the ones who based their work
on the Liber extra and other collections of
decretals
o Before the publication of the Liber
extra, they focused on the papal
decretals themselves
o Sinibaldo dei Fieschi wrote an
influential commentary on the Liber
extra>> Golden Summa or Summa
aurea
o Johannes Andreae wrote the Novella
which means “new things” and would
soon be regarded as the standard
glosses on the Liber extra
Canonists would soon occupy positions of
leadership within the Church
⮚ Appeals were introduced
⮚ Another new development was one affecting criminal matters: the
inquisitorial principle.
o proceedings the judge possessed the authority to initiate the procedure
ex officio and to investigate and verify the truth about what happened.
⮚ Judicial proceedings could be slow and complex
⮚ Pope Clement V issued the Saepe contingit decretal (Clem. 5.11.2), which
established a new, simplified process of summary proceedings that combined
the rationality and guarantees of what was coming to be called “due
process” with the advantages of orality, concentration and limited appeals.
⮚ The procedures of customary law gradually either gave way to the new
procedure or were imbued with its rules and principles through the
permanent supervision and control of the central courts.
⮚ The royal courts managed to gradually streamline the administration of
justice throughout the country through 3 pillars
o Imposition of nullity on sentences of non-royal judges in the event of
formal errors in the judicial procedure.
o The broader appeal, which ruled not only as to whether or not the
sentence was valid, but encompassed a full review of the case, including
the possibility of resubmitting evidence
o In some cases, the monarch managed to establish his own jurisdiction of
first instance.
Customary Law
⮚ During the Late Middle Ages customary law served as the main source of
private law and would continue to do so until the late-eighteenth century.
⮚ Despite not being recorded in writing, it represented a genuine body of law,
its binding force proceeding from a shared conviction that a prescript should
be respected, and that its violation generated liability.
⮚ The fact that rules were not set down in writing allowed them to be gradually
adapted to fit new social conditions and general notions of justice.
⮚ 9th century - the application of the principle of the personality of law
declined and bodies of customary law based on territory, rather than
ethnicity, flourished.
⮚ This fragmentation was hardly absolute. Towns, cities and regions often
shared a core of laws, and the closer they were to one another, the more
similar those laws were.
⮚ 12th century - there were official and private codifications of the then-
existing customary law.
⮚ In transnational fields, such as trade, and especially with regards to maritime
trade, the trend towards unity was remarkable
o “Law Merchant” (or lex mercatoria) stands out for its originality,
creative force, and subsequent repercussions.
⮚ Apeal to precept – need to prove the precept exists - due to the non-written
nature of such a law, this proof was not always easy
⮚ Thus, during the thirteenth century techniques were developed to legally
certify the existence of a custom
o These methods had two effects: the gradual unification of law and the
introduction of written records into the process
⮚ “Costumals” were writings which contributed to a greater unification of
customary law (Ex.Grand Coutumier de Normandie)
⮚ The growing systematization of these books containing and describing
customary law revealed the growing infiltration of the ius commune into the

THE EARLY MODERN AGE
When did it start?
⮚ Marked by the fall of Constantinople
⮚ The end of the Hundred Years War between
France and England
⮚ Discovery of the new world
⮚ End of the reconquest
Economics
⮚ Discovery of American in 1492
⮚ Christopher Columbus: found continents rich
in food and precious metals.
⮚ Portugal: found ways to Africa and Brazil
⮚ Europe recovered from the tragedies of the
“Black Death”
⮚ 1600’s: population recovered
⮚ 1600’s: Spain and Portugal had a monopoly
over commerce with the New World
o Netherlands and Italy – economic
centers
o Florence, Venice, Milan – flourished
as centers of trade until the 17th
century
o Spain started to lose power as a result
of inflation due to the flow of silver
coming from Mexico.
⮚ Soon enough war started again.
o England, France and the United
Provinces began to colonize new
territories.
o Because of the large expenses on
war…. western monarchs started to
perceive the importance of prosperous
domestic economies.
o Jean-Babtiste Colbert - export taxes
on raw materials. Import tariffs on
foreign-made products. He also
improved infrastructure.
⮚ 1850’s: development in medicine, agriculture
and technology – population grew again
ius proprium
⮚ Customary law was, by definition, oral. Over time, however, it was laid
down in writing due the combined influence of private codification
initiatives, evidentiary techniques, and efforts by public authorities to
produce records of custom-based law.
⮚ Due to the greater unification of customary law, the common core of shared
precepts expanded, and fragmentation decreased accordingly.
Legal Humanism
⮚ Renewed efforts to recover original texts
o Man-centered
o Antiquity
o New artistic ideals
o Rationalism as opposed to superstition
o Science and empirical observations
⮚ Greek language was rediscovered – attractive because of the fall of
Constantinople and flight of Greek scholars to the West
⮚ Texts searched for:
o Those endorsed and lauded by authorities in the Middle Ages
o The Bible
⮚ Vulgate: translation of old texts into Latin
o Necessary for a comparative study
o Donation of Constantine – proven to be forged
o Comparative studies also applied to ius commune, particularly Roman
law
⮚ The work of the glossators and commentators censured
o “barbaric use of Latin by their authors”
o Guerra, instead of the classical term bellum for war
⮚ Disparaged Bartolous and Baldus
o No admiration towards the ordinary gloss
⮚ Expert humanists made positive contributions:
o Critical study of the text of the Coprus iuris civilis
o Did not consider Justinian code as timeless and universal – they saw
them as writings composed in a specific geographical and historical
context.
o Highly valued the classical writings from the Digest
⮚ Antitribonianus (Francois Hotman) – accused the digest author of having only
drawn upon 5% of the legal material available and contaminating the purity of
the text with interpolations.
o Corpus iuris civilis – too many contradictions and repetitions –
excerpts of jurits were mixed together and presented outside of their
original context.
o Tribonian (author of the digest) “ a corrupt politician who altered
texts based on individual requests in exchange for large sums of
money.”
⮚ Refinement and systematization of roman law would continue to fascinate
academic jurists - point of reference for the development of jurisprudence
based on ius proprium.
⮚ Demographic growth helped trade and industry
Politics
⮚ The Hundred Years War ends
⮚ Exaggerated forms of patriotism, “nationalist”
tendencies start to rise:
o Spain unified under the idea of shared
enemies: Jews and Moors
o France saw itself as the country
chosen by god “ Christianisimus”-
King: miraculous powers
o England: anti-papal, anti-French
sentiments
⮚ State as a unique power: elimination of other
authorities: Feudal nobility, autonomous cities,
the Church.
⮚ Rapid evolution of military technology:
gunpowder, heavy artillery, riffles, bows,
cannons. (mercenary infantry and artillery)
o Nobles and bourgeois were unable to
bear the costs
o Slowly replaced by professional
bureaucrats
o Cities could not defend themselves
either.
o Domestic competition was suppressed
⮚ th th
During the 15 and 16 centuries, institutions
were created or reformed
o Staffed by professionals, in charge of
applying royal law and state
legislation.
⮚ ABSOLUTE MONARCH
o Only “absolute” in theory
o In practice: he had to negotiate with
established interests. His power relied
on his personal savvy and skills as a
politician, as well as that of his
advisers.
Spain:
⮚ Marriage of the princes of Castile and Aragon
joined two realms
⮚ Direct conquests -Moore and Navarre –
territorial unity
⮚ Administrative centralization:
Representative assemblies or Cortes –
supplanted by new central institutions such as
the Inquisition.
⮚ Four feudal military orders brought under the
kings’ direct control.
⮚ War of the Spanish Succession – Bourbon
Dynasty won
England
⮚ Defeated in the Hundred Years War
⮚ Civil war: House of Lancaster and House of
York
⮚ Renaissance jurisprudence:
o “Historical philological method” in which they clarified important
legal content.
o Novellae, corpus iuris civilis
o 1583: Denis Godefroy – published a version of the corpus iuris civilis
that would replace the Vulgate
o EVEN GRATER REFINEMENT OF LEGAL CONCEPTS
o Compared ancient terms with those used by poets and grammarians –
if ambiguity remained they appealed to the authority of Quintilian or
Cicero.
o Traduttore traditore: Translators are traitors
▪ Sometimes, during the course of translations, some meanings
are lost
⮚ Mos gallicus (french “ way" of doing things) vs. mos italicus (italian “way" of
doing things)
o Andrea Alciato- French Scholar - Elegand jurisprudence – spread
through England, Spain, the Netherlands
o Clashed with bartolous approach( Italian Peninsula) – more
entranched and of more practical utility
⮚ Important people:
o Guillame Budé:
▪ One of the finest hellenists of the day
▪ Advised Francis I on cultural matters (libraries, classical
language education, printing)
▪ Master of Requests – one of the highest ranking judicial and
administrative officials
▪ His version of the Digest – restored the original passages in
Greek.
o Jacques Cujas:
▪ Analysis of legal meaning through the reconstruction of
mentality, ideas and values of roman jurists.
o Hugo Donellus
▪ Wanted to devise an idea system of law
▪ Studied roman texts in search of general principles and a
logical theoretical reconstruction.
▪ Commentaria iuris civilis ( Commentaries on Roman Private
Law – a lot of commercial succes
⮚ Humanistic doctrine:
⮚ Assigned importance to pedagogy
⮚ Glossators and commentators stuck very closely to the texts, concrete
fragments, or very closely related references.
⮚ The humanists: examined each legal institution in a comprehensive manner,
broader.
⮚ Preferred the format of the treatise to publish their conclusions because they
could systematize things in their own way
⮚ Produced commentaries, manuals, dissertations, monograpgs, questions and
answers…
⮚ Applied historical-philological method to canon law.

⮚ Henry VII: stabilized the kingdom and laid the
financial foundation for policy centralization.
⮚ English Common Law – applied to Wales
⮚ 1603 – New Dynasty: The Stuarts – endorse
radical ideas about divine right of kings.
⮚ Civil War Between Crown and Parliament:
o Charles I accepted the Petition of
Rights 1628 (no one could be
arbitrarily deprived of their right of
freedom – he could not impose new
taxes or fees without parliament
approval)
o 1640 – lack of money made him
ignore this
⮚ Fleeting Republic – “Commonwealth”
o Policy of pacification
o James II – Generated more hostility
between crown and parliament
⮚ Toppled by the Glorious revolution - birth of
Parliamentary Monarchy
United Provinces
⮚ Stuarts - sought to concentrate power and
authority in the monarch
⮚ William of Orange – Hanovers – willing to rule
in collaboration with the Parliament
o Signed the “Bill of Rights”
o Ties with Scottland and England
turned into a constitutional union
o United Kingdom of Great Britain
France
⮚ Relentlessly expanded during the middle ages
⮚ Central administration under the monarch’s
authority resumed (it had been suspended
during the Hundred Years War)
⮚ Augmented territory: invasion of Burgundy
and annexation of Brittany
⮚ Louis XII and Francis, I – centralized the
administration through the creation effective
administrative institutions such as the conseil
privé, central courts and parliaments
⮚ Feudal nobility’s political influence evaporated
⮚ Centralization failed: (Second half of the 16
century)
o Struggles between Catholics and
Huguenots
o Civil wars
o Dynastic succession problems
o Defeat by Spain
⮚ 1589 – Henry IV took the throne –
pacification
o Edict of Nantes – freedom of religion
to the Huguenots and declared peace
with Spain
o King became object of veneration –
o Bible – Latin, Hebrew and Greek
o Scientific editions of patristic texts
o Realized that the Decretum Gratiani had many alterations
⮚ Charles Dumoulin – used scientific editions of original texts in the Bible,
patristic texts, decretals of the councils, older canonical collections, papal
decretal and Roman Law to restore canonical texts
⮚ Centralized humanistic work on Canon Law
⮚ Corpus iuris canonici – 1582
⮚ Diachronic comparison revealed a lot of change over time.
⮚ Humanists saw these changes as manifestations of ecclesiastical and social
context of particular historical periods
o Chronological and regional differences – prior to the development of
papal monarchy – debilitaded the universal value of the Corpus iuris
canonici
o Corpus iuris civilis represented the law of a particular people in a
certain historical period
⮚ Humanists = ius propium
o Intellectual respectability, study of legislation, justice and customary
law.
o 18th century – university teaching on local and national law began
The school of Salamanca
⮚ Humanism did not end the scholastic method
⮚ It was important for reconciling faith and reason, universal and particular,
morality and law
⮚ Spanish Renaissance – sholatic splendor after Francisco de Vitoria
o Summa Theologica (by Thomas de Aquina) – principal book for
theology in the school of Salamanca.
o It was also object of commentaries – gave birth to a new type of legal
commentary – no longer followed the order to the corpus iuris civilis.
⮚ Francisco de Vitoria – never published, but had great impact
o Reflercted on the legitimacy of Spanish conquest in the Americas
bsed on modern natural law and human dignity
o Crucial to the development of independent international law.
⮚ “Late scholatism” focused on
o Challenges posed by economic realities, global trade and finance,
plight of natives in colonies, international relations between states,
church reform, and political theory.
⮚ Francisco Suarez – Jesuit – theorist in the area of sovereignity and the social
pact.
⮚ Spanish scholastics – very innovative in the fields of trade and commerce
th
o Martin Azpilcueta – canonist – concepts key to the modern economy
and defended the free market as an instrument for fair prices.
o Leonardo Lessius – de iusititia et iure – novel issues related to
finance, banking and insurance law
⮚ Natural law: search for elements through which humanity could build an order
fair for all.
o Created by god.
o Eternal and universal
o Transcended religion and nationality
o Could be asserted through:
▪ Divine revelation
 attempt to concentrate power and
guarantee peace
⮚ 1600’s – raised taxes, more control of Crown
over Church.
o Luis XIV: “I am the state” –
aggressive policy of expansion
⮚ 1740 - 1748 – War of The Austrian Sucession
⮚ 1756 - 1763 – The Seven Years War
⮚ 1778 – 1783 – American Revolutionary War
⮚ France was bankrupted
⮚ 1789 – French Revolution
Netherlands
⮚ Duke of Burgundy wanted to unite all
territories – Never Achieved – he was a “feudal
lord of seventeen provinces”
⮚ Charles V – steps towards unification
o 1546 – uniformized succession law
o 1548 – the transaction of Augsburg –
undid ties with the holly roman
empire
o Administrative centralization
⮚ The centralization policy generated revolt
o Union of Utrecht was signed –
northern provinces were free
⮚ Republic of the United Provinces:
confederal structures of seven states with a
common foreign policy and army, shared fiscal
and administrative affairs.
⮚ Power shifted to Amsterdam: because of
Spain reconquest and the blockade of River
Scheldt.
⮚ Eight-year war against Spain
o Dutch won independence – Peace of
the Munster 1648
o Southern provinces chose to remain
under the authority of the habsburgs
The Holly Roman Empire
⮚ Entered the modern age as a collection of
semi-autonomous kingdoms and territories
⮚ Attempts to establish a central court:
o Reichskammergericht
o Wars inspired by political and
religious factors
o Thirty Year War
o Peace of Westphalia – 1648 –
Germany independence
▪ Focused administration on:
Austria, Bohemia and
Hungary
Church and Religion
⮚ 12th and 13th century – Papacy laid foundations
for a centralized and hierarchical church.
▪ Human reason
⮚ Francisco Suarez - God creates nature, and with-it natural law. By principle,
men must form political communities – only way to live in peace and order.
⮚ Contractual monarchy - transfer implies a fair possession of political power,
granting the king legal and ethical superiority. The monarch’s will is law.
⮚ Aquinas: law is noting more than a prescription of reason, organized to serve
the “common good” the monarch must reign accordingly.
o King: above law and custom, but linked to the law insofar as the
common good forms part of it. – if he doesn’t, he is a tyrant – can be
legitimately deposed.
o The boundaries for this code of conduct cannot be defined a priori.
⮚ Development of basic legal concepts: contract and property
o Unique in their synthesis of roman and canon law, ius propium,
theology, philosophy, morality and ethics.
o Lay the foundations for natural law apologists.
Usus modernus pandectarum and Roman-Dutch law
“The Digest brought into line with current practice”
⮚ New way of conceiving jurisprudence
⮚ Group of jurists that worked togetherin the 17th century who incorporated
humanistic subjects and methodologies to traditional “bartolist” approach
to law.
⮚ The importance of humanism was recognized and integrated into the
Bartolist school
⮚ Holly roman Empire – close raltionship with Roman Law.
⮚ German emperor – considered direct successor of Roman predecessors –
Roman law naturally his.
⮚ 1495 - Supreme imperial court created. Roman law was used when local
law could not be applied.
⮚ Usus modernus pandectarum – neo-Bartolist – turned to Roman law to
solve everyday issues
o Took the scientific advances of humanism (historical-philological
method)
⮚ Important author: Hermann Conring, German.
o On the origins of German law
o Eye-opening for Germany’s jurists. Pointed them on their own
laws, which should be implemented into the Roman law sytem.
o Ius commune – opened up to new areas of the law. (commercial,
criminal, constitutional)
⮚ Dutch Republic 17th century – intellectual and economic prosperity.
⮚ Usus modernus: blend of Roman law with local legal concepts,
combining elegant humanistic approach with a practical view of its
applicability
o Major figures: Arnold Vinnius, Johannes Voet,
o Hugo Grotius: very important, part of theological dispute with the
Dutch Reformed Church. Then became Swedish ambassador to
the French King. His vast culture and ability for synthesis
resulted in important works for the state and for law.
▪ Introduction to Dutch Jurisprudence – became the
model for similar compilations of national law, and most
civil codes.
International Law and Rational Natural Law
⮚ France was subordinated to papal power
⮚ Holly See was located in Avignon – this was
extremely detrimental to the church
⮚ People advocated for a return to the Eternal
City:
o This resulted in the Wester Schism –
there were two and three popes at the
same time.
⮚ 1414 – Council of Constance solved the
problem – “anti-popes”, resignation of Gregory
XII, and nominating a single pope – Martin V.
⮚ Martin V: refused to recognize the conciliarity
doctrine, but he had to in order to maintain
austerity and spirituality.
⮚ His successor: dispensed from councils and
further concentrate power in rome
o Marthin Luther and John Calvin –
appeals for general internal reform
⮚ Radical revolution/ reformation
o Luther had support from protestants in
the empire, France, Netherlands,
England and Scotland.
⮚ Anglican Church founded in 1535 – Act of
Supremacy
⮚ Peace of Augsburg – “whose realm, his
religion” – the religion of each territory would
be determined by its feudal lord.
⮚ This represented the religious division that had
come to be in Europe.
⮚ Counter reformation (Council of trent) –
movement for deep and genuine renewal –
reform morality and customs and enhance
education and organization.
⮚ Tridentine Reform – church managed to halt
Protestantism’s territorial expansion
However, …
⮚ Popes had to make concessions to Catholic
monarchs: In terms of appointing key officials
of the church and taxes and fees on clerical and
ecclesiastical assets.
⮚ Luther: faith can only be found in the Holy
Scriptures rather than in the tradition and the
church that sustained it.
o Believed centralization was a product
of Canon Law
o He burned the copy of the Decretals
o Canonical precepts were still
applied in Protestant countries
because they had become part of
customary law.
Science and Culture
Renaissance or Humanism
⮚ Emerged in Italy, spread to the rest of
Europe
⮚ Alberico Gentili, Italian – Professor of Civil Law at Oxford university - De
iure belli (on the law of war) – a state is perfectly justified in pursuing its own
interests.
⮚ Gratious – humanist and precursos of rational natural law – founding fathers
of international law
o Mare liberium (On the freedom of the seas) – against Spanish and
Portuguese monopoly over colonial trade.
o De iure belli ac paci libri tres (On what is just in war and peace)
o To overcome religious divisions - Even if got did not exist, natural
law would continue to be both knowable and applicable. The
principles of natural law find their own place within the law itself.
⮚ Jurists had to ascertain these principles, accessible to all through reason and the
empirical method
⮚ Natural law – post the individual as the centerpiece of jurisprudence.
⮚ “law of reason” – man is not only able to discover and understand the
principles, but to deduce an ideal legal system.
⮚ Rene Descartes, Baruch Spinoza – Rationalists – provided tools for logical
deduction, inductive reasoning, empirical observation and aciomatic
postulations.
⮚ Thomas Hobbes – De Cive (The citizen) – state of nature consists of s struggle
of man pitted against man – to seek peace – agrees to a social contract to form
part of a political community.
o This contractual thinking left a big mark on European Jurisprudence
⮚ Samuel Pufendorf – De iure naturae et Gentium (On the Law of Natura and
Nations) – synthesis on the thoughts of Hobbes and Grotious – humans possess
all the qualities necessary to make community life possible – only a strong
government can maintain order and security.
⮚ Abstraction and empirism distracted attention from Roman Law.
o Gratious would continue to cite it
o Others would merely use it as reference for empirical reality – would
not force reality to fit into Roman concepts.
⮚ IN GENERAL: jurisprudence featured trends towards fragmentation.
THE STATE AND LAW
Legislation
⮚ Centralization strengthened monarch’s legislative activity
⮚ Importance of customary law endured.
⮚ In principle: monarchs enacted legislation “this is my desire” – extended
their authority to feudal lords and powerful cities.
⮚ Representative institutions lacked legislative authorities (except for
England)
⮚ In France – Eight French parliaments they could refuse to register a law by
means of remonstrances, the monarch could try and impose it, but the
parliament could repeat the refusal.
⮚ Over time… legislation grew orderly and acquired greater systematic
coherence.
⮚ 16th century – legal ordinances established to set down terms for
regulations of multiple areas
o French Ordonnance de Villers-Cotterêts – reform of the state
administration: delimited ecclesiastical and secular jurisdictions,
generalized inquisitorial prosecution in criminal law, and
regulated donations.
o Luis XIV and Jean Babptiste Colbert – unified France under law.
 ⮚ New conception of man and the world
different from that of the medieval era
⮚ “rebirth” of interests in classical culture –
sought to recover Greco-roman influence
⮚ Broke with medieval artistic
interpretations, describing them as
“gothic”, that is typical of goths.
⮚ Humanists said that their predecessors had
manipulated the Latin language and
altered texts with fallacious
interpretations.
However:
These ideas now seem too harsh for the study of the
classical had never ceased during the Middle Ages
– continuity was evident/
The Administration of justice
▪ Ordonance 1667– unified and simplified civil
procedural law, 1670 criminal, 1673 commerce.
▪ Code de procedure civile 1806 – Napoleon exported it to
many European countries.
⮚ th
18 centuty – many more ordonances
o 1731 donations, testaments 1735 solved the discussion between
written and oral wills.
o 1804 civil code – transcribed the articles of these two ordinances.
⮚ In Castille – much greater legislative systematization
o Had a background – the Siete Partidas, and entreaties by the
Cortes
o Phillip II – endorsed as law the Nueva Recopilación 1567.
▪ 4000 laws systematically organized into books
▪ Gathered all royal law into single volumes
▪ Represented a very groundbreaking attempt to
systematize national law.
⮚ Compiliation of the Laws of the Indies 1680
⮚ Danish Code 1683 – unifed law in a country – used as basis for the
Norweigian Code
⮚ Objective: the establishment of a complete, hierarchical and centralized
court
⮚ Roman-canonical procedure – inspired monarchs to establish their own
judicial apparatuses
o Ex. Parlement de Paris
⮚ Strengthened system of royal courts – direct and indirect control over the
administration of justice.
o Local and feudal courts remained, but where under the authority
of royal courts.
⮚ Organization system began to take a homogeneous form.
⮚ Reinforced by the erosion in the ecclesiastical courts – the king now had
authority.
o Church only had a say in affairs involving clergymen, and
miserabiles personae (widows and orphans). As well as cases of
faith, sacraments, marriage, pious donations, wills and church
property.
o In the rural economy, 30% of production lay in the hand of
ecclesiastical bodies
o The church asserted its right over cases that might affect the state
and the destiny of souls.
o Until the 13th century -ecclesiastical courts were very popular –
those who sought justice and were fleeing from the biased,
ineffective feudal and local courts.
o 15th century – negative reputation, loss of jurisdictional authority.
o “clergymen” became very strict, and cases regarding widows,
orphans and other unfortunate passed to be held by the king.
o Marriage law was separated from marital property regimes
o Wills would lie completely in secular hands.
⮚ Political debates: no longer talked about religious beliefs. Talked about
the role of the church in political, economic, social, cultural and
educational matters.
o Clergy created and ran schools and hospitals, aided the poor and
needy.
 o That is why freedom of worship and conscience was conceptually
impossible
⮚ After the reign of Henry IV, the Hunguenots lost their privileges in France
o 30 year war
o Tensions between Anglicans, Puritans, Calvinists and Catholics.
o United Provinces: policy of certain tolerance – Protestants would
not bother Catholics in return for financial contributions and
private worship.
⮚ GENERAL: religion was a matter of state
o Dealing with it represented a major concern whether they were
catholic, Lutheran, Valvinist, Anglican, etc…
o By the eighteenth century, ecclesiastical nationalization was
evident. Even in Catholic countries.
Customary law
⮚ Continued to be the most importer source of law – particularly private law

⮚ Monarchs put it under their control as well

o Put customs down in writing
o Documentation served to fix and put an end to the natural
evolution of customary law
⮚ Eastern Europe: characterized by the persistence of customary law along
feudal lines
o Because vast areas continued to be predominarilly rural. Lack of
urban elite and scarcity of institutions of higher education =
limited jurists.
o Large medieval character until the 19th century
Scientific study of National law
⮚ Universal and eternal idea of law sparked interest in the ius propium – if roman
law was the law of the Romans at a given time in existence, people felt it
necessary to study, systemize and improve their own legal system also
⮚ Frenc law in the 16th and 17th century – concided with the glorification and
aggrandizement of the French monarchy.
o Charles Dumoulin – believed French national law should be purged
from romano-canonical influences.
o Etienne Pasquier – wrote a historical narrative of France – he deemed
it as important as Roman history.
⮚ In Spain – doctrine would include commentaries on legislative compilations
o Nueva Recopilación
o On the law of the Indians (regulations for overseas colonies)
⮚ Rational law was founded on the ius commune but also national law
o Jean Domat – Loix civiles dans leur ordre naturel (The civil law in
their natural order) – marked the beginning of a trend in which natural
law would be studied only in so far as it corresponded to natural
rationality.
o This would inspire the Enlightment and new codification movements
 THE BOURGEOIS AGE
Historical Evolution
● Bourgeois age: 18th- 19th century
● War of Spanish succession (end 1713 with
the treaty of Utrecht)
● Until WWI (1914-1918)
Economy
● Industrial economy (surplus of agricultural
production, capital, technological
advances)
● Huge population growth: more workers in
trade and industry
● James Watt: Improvement to steam engine
● Electricity, Cheap labour, Telegraph:
communication revolution
● Industrial revolution: industrialization,
mass production, internationalization
● Capital: no longer land, monetary
Law and Jurisprudence during the Enlightenment
The enlightenment
● Philosophical, scientific, artistic movement to apply rational principles
● Difference with natural law: Nature as a divine creation sustained by God
● Both believed nature had answers
● Embraced deism; answers must be rational, deduced from logical
principles
● Differences between the world derived from rational models and reality
● Man is good by nature; political system corrupting man’s goodness
● Universe and nature could hold no secrets from human mind
Law and society according to the enlightenment philosophers
● Tradition was irrational
● Theory of social contract: political power was inherent to each person;
entre to be protected and enjoy their rights
● Foundation of political community (Jean-Jacques Rousseau)
● Treatises of government:
 economy created, capital needed for
investment
● Foundation of central bank: bank of
England (1694)
● Immigration into cities; concentration of
proletariat (workers)
● Bourgeoisie superseded clergy and
nobility
Politics
● Enlightenment philosophers: John Locke,
Montesquieu, Voltaire, Rousseau
● Called for rational organization of state
and society
● Separation of powers: recognition of
fundamental rights and freedom
● Falling model of absolute monarchy
● Prussia, Austria: monarchy
organized society
● Rational, efficient military
organisation: need for taxes,
education, supplies/care for
soldiers
● State took church function; medicine and
education: concentrate power
● Public authorities responsible for the
creation of life conditions and growth
● Reform met resistance
● Colonies also called for rational
government
● July 1776: American colonies declared
independence from GB
● Constitution of USA: ratified
1789
● Radical revolution in France: channel for
expansion of enlightenment
● Struggle between bourgeoisie and
clergy/ nobility. Nation
bankrupted
● 1789: clergy privileges
eliminated, 1791: church under
state control, 1793: feudal regime
removed
● Fundamental rights written; liberty,
equality, division of power, citizen right
● Internal conflict and war: military
dictatorship by Napoleon Bonaparte
(1769-1821): territory expansion,
monarchical form of government,
eliminated revolutionary ideas
● Fall of Bonaparte in 1815: peace
● John Locke (father of liberalism): limit state power
● Montesquieu: separation of power
● Criminal law
● No individual will enter social contract where the government has
power to kill (remove death penalty)
● Legislation: embodiment and expression of the peoples bidding; general
will
● Law guarantee citizen equality
● End of traditional and arbitrary fragmentation.
Codification projects
● Knowledge and law compiled into 1 book
● Reform the law: bring order to society
● Complete code: General laws for Prussian states (1794) shaped by natural
law doctrines
● Bavaria: code of civil law influenced by natural law and structure of
institutions (people, property, inheritance, obligations)
● Austria’s general civil code (1811): Customary law supressed, inspired by
natural law and Insitutiones
Napoleonic Codification
Law before the French revolution
● Trying to deduct logic from generalities
● Idea of rational law as rational natural law
● Fugue of laws, adaptation of old laws to new laws
After napoleon
● HE did not break from revolution, he took what was useful from it
● Classical in language
● Conservative
● But to the service of the will
The dream of legal unification in France
● Fragmented law: in the evolution of jurisprudence the customary law of
Paris had a privileged position
● Rational, clear, single French legal system (Domat)-> intellectual basis for
the code civile
● Robert Joseph Potheir: commentary on customary law of Orleans,
synthesis of Roman law
Revolutionary Projects
● Single code: reform existing laws: would achieve equality
The code civil
● Napoleon + cambaceres: commission charged with creating civil law bills
(1800)
● Many drafts rejected
● Separate bills proposed: 1804: first was approved
● Arrangement inspired by Insitutiones with enlightenment twist; procedural
 conference in Vienna: restoration period
Other Napoleonic Codes
● Holy roman empire: replaced by weak
confederation of Rhein (40 states)
● Chosen people idea (nationalism): national
welfare as ideals with the state as the
nation’s visible embodiment
Expansion of French Codes
● Revolutions: Greece (1821-29), Belgium
(1830), Italy (1860-66), Germany (1866-
70)
● Franco-Prussian war (1870), WWI (1914-
18), WWII (1939-45)
Church and Religion
● Debate on the role of the church: clergy
privileged position revoked
● Jesuits: defenders of the pope,
insubordinate to bidding of secular rulers
● Portugal: expelled in 1759: reductions;
banished France and Spain
● Restoration: pope dissolved the expulsion
● Society was secularized
● Church assigned annual
allocation, religious freedom as a
fundamental human right,
separation of the church and state
An assessment of the Code civil
Jurisprudence
The Exegetic school
law removed and put in another code (code napoleon)
● Enacted other codes eg. Civil procedure code (1806)
● Needed after revolutionary era: new courts established
● Civil processes: greater responsiveness and lower costs
● French introduced their codes in their territories
● New codes based on French model eg. Netherlands, Italy
● Unification of Italy: risogimento
● Dismantled old legal structures; introduced those from piedmont
(piemontesizzazione), triggered protests
● 1865: law unified
● French influence, german pandectists methodology
● Mussolini planned new civil code with more fasict aspects
● Priority in unification of private law (huge diversity)
● German jurisprudence: attracted admiration
● Spain: constitution of cadiz in 1812, not adopted until 1889
● 1880: bourbon restoration; fueros eliminated, efforts at
codification, new framework; sacrified legal unity for political
pragmatism
● Reflects restrained liberalism: spains codigo civil
● Legislative enterprise
● Monopoly on producing law
● Balance: legal achievments of ancien regime and contributions of the
revolution
● Portalis masters this balance in the discourse to the code
● Portalis vs. tronchet: Roman law of customs of Paris
● Based on customary law: economic arrangments of marriage and
inheritance
● Based on roman: obligations
● Influence of canon law: in procedural law (romano-canonical
procedure)
● Value on individual freedom eg. Transfer property by consent
● Jacobin: ideal of national unity applied through Europe, impacted
centralization of private law
● Pillars of 19th century society: equality before the law, freedom of contract
● Transparency: rationality of material prescripts: furnished code with a
consistency that contemporary codes of Prussia and Austria lacked.
● New way of understanding jurisprudence
● Influenced by the enactment of napolenoic code
 ● Focus on legislation as the sole source of law

● Legal postitivsm: results from the idea of separation of powers and

predominance of legislature
● Confidence in the codes: believed no problems of interpretations

● France: commentaries to explain the new letter of the law: Exegesis

● Jurists: new school legislation is the law, and law is legislation

● Case law, customary law: lacked validity

● Comparative law, legal history: expendable

● Scientific school: law as dynamic reality that must take into account
economic and sociological aspects
● Jurists must be free to present conceptions of law in a systematic
way without being constricted by order of articles in the civil
code
The Historical school
● Code civil was embodiment of complete, timeless model (postulates of
enlightenment)
● Germany against code civil: reaction in context of classicism and
romanticism
● Kant, Fredrich Hegel, Fredrich schiller, Johann Wolfgang Goethe

● Jurists of historical school: headed by Savigny

● Law as an expression of volksgeist: spiri of the people

● Built on historical material based on jurists; build a coherent logical

orderly legal system
● Law developed natural way, could not be imposed top down

● Popular creation not political

● Function: interpreters of legal sensibilities

● Romanists

● German legal system should be built on basis of roman law,

legislation was marginal
● Rationalist constructivism: logical and deductive method

● Holy roman empire: roman law suppletive directly applied in

Reichskammergericht
● Germanists

● Imbued with roman ideas

● Karl Fredrich Eichhorn: summary of German law in 1808: German state

and legal history
● Germanists: rejection of roman law, reception of it was a disaster that
deprived people of the most authentic expression of their identity (own
body of law)
Pandectism
● Historical school founded by Savigny: Germanist and Romanist versions

● Jurist: deduce historical material (empirical observable data, general

principles, institutions): an interpreter of the peoples’ legal spirit
● Methodology of conceptual/systematic thinking applied to roman law
 ● Friedrich Puchta: Lehrbuch de pandekten

● Proposed construction of logically, coherent conceptual system

● Pandektes: complete expression (textbook of roman law) by Puchta and

Savigny
● Critics: Rudoplh von jhering: spirit of roman law is not applicable in a
new sociological moral influence
● Theodor Mommsen: rejecting excesses of pandectists

● Positivist thinking spread in a different way in Germany

● Dogmatic formalism: principles and concepts deduced form the

system itself
● Legal positivism: solution to a problem was the logical operation

● Roots in Kant: function of law to protect subjective rights

Pandectist Codifcation
Burgerliches Gesetzbuch (BGB)
● Pandectists opposed codification, but were ideal because of their mastery
of systematic methodology
● Drafting a civil code for unified Germany: unify force that established 3
pillars of liberal society: equality before the law, private property, freedom
of contract
● Peace of Westphalia (1648): Holy roman empire disovled, Confederation
of the Rhine, Germanic Confederation (1815 after Napoleons fall)
● Bismak: federalized, unified passports, established single parliaments
(Reichstag)
● Private law: Only obligation-related law was legislated

● 1873: authority to legislate in other fields: civil code project

launched
● 1889: draft; protests; technical language

● 1890:
Characteristics and intellectual context
● BGB made of 5 books

● Organisation: general part, books; obligations, property, family, &

succession law
● Product of its time and context

● Consistent system based on roman law

● Precise formulation

● Systematic idea: pandectists strove to extract, distil general principles from

existing prescripts
● Characterised by inclusion of generalklauseln

● Guiding principles aimed at judged

● Follows role of roman praetor; judge rule in good faith (bona

fides)
● Enabled BGB to respond to Germany’s dynamic and difficult
circumstances in 20th century
The second Pandectist code: Switzerland
 ● Civil war (1848): swiss confederation into a modern state (central
government)
● Movement to unify private law (19th century), need for national civil code

● Pandectist principles

● Evident in generalklauseln

● Language understood by everyone

● Work subject to public referendum, enacted in 1907

● Removed distinction between civil, commercial laws of obligation,

contract for unified regime (1911)
● Influenced in turkey (1927)
The expansion of the Pandectist Codes
● BGB had influence on states

● Austria considered when revising own civil code (1904)

● Influenced Italian jurisprudence; conceptual clarity was inspiring

● Influence fell after WWII

 COMMON LAW / ENGLISH LAW
The Origins of English Common Law
● 19th century: English common law was
having a bigger impact
o Oversea colonies, the dominant
economic power
● Divide between common and civil law
o In the role of courts in the
creation of law
o Lack of all-encompassing codes
of law in the common law
tradition
● 12th century: similar legal systems that
then diverged
The Anglo-Saxon period
● New people: jutes, angles, Saxons brought
Germanic legal traditions (early 15th )
● 9th century: invasions of Viking, Dane law
used
● Territorial fragmentation; kingdom
divided in shires/counties
● Representative body (noble) had
legislative, executive and judicial
functions of each shire
● Shires divided into hundreds
(responsibility of hundredman)
o Divided into tithings (groups of
10 families)
● Development of customary law
● Fragmentation did NOT result in
decentralization (managed through
sheriffs)
The Norman Conquest
● Battle of Hastings (1066): conquest of
England By William the Conqueror
(Norman armies)
● Reinforced effective, centralized
government through:
o Radical feudalism: distributed
territories to followers
o King owned all land
The Introduction of Royal Justice
Writs
Remedies precede rights
● Continental law
o Roman roots
o substantive > procedural law
o Substantive law: conceived as systematic set of abstract rules,
o Application through Romano-canonical procedure: allow
application of different prescripts of substantive law
● Common law
o Dominated by procedural formalities
o Sue if remedy for a situation
o Where there is a remedy, there is a right
Writs until 1258
● Litigants initiated procedure before royal courts by means of a writ
● Writ: fragmented sealed parchment purchased at chancery
o Specify claim and an order for a court official to rule in a specific
way
● Was the standard instrument for litigation
● New writ -> new formula
● Impossible to issue a writ which lacked precedent
● 12th /13th century many writs created
● Marked encroachment of royal courts on power of traditional ones
● 1258: Chancery could only issue already existing writs
Writs after 1258
● Difficult to operate with the limited number of writs
● Trend toward litigation was too strong to be stopped by the writ system
and ridgity of common law
● 15th / 16th century: new writs introduced
● Writ of asumpsit: on case where plaintiff has suffered damages due to
breach of obligations which a debtor has undertaken
o Important!
The Rise of Equity
The Ridgity of common law
● Common law suffered from rigidity from the limited new writs: incapable
of responding to new social circumstances
● Attempts to stop this: actions on the case and the possibility of bill
procedure before the kings bench.
● Normans introduced own justice system
● Monarch: power of justice
● Henry II: pacification times
o Royal justice grew
● France: royal justice more effective than
local courts (definitive decisions)
● Royal justice was made of:
o Itinerant justices (traveling
around the country)
o Appeals to Kings
● Generel Eyre: judges representative of
King to ensure compliance with royal
jurisdiction
o Important visitation: population
grew unhappy, resistance started
▪ Had to wait to present
grievances, hard to
appeal to king
(traveling)
o 13th century: institution lacked
flexibility, general Eyre
disappeared 14th century
● 12th century: curia regis: consultative
body of experts /courtiers assisted the king
o Monarch started to delegate
judicial function
o The Bench: permanent court
established at Westminster for the
Curia Regis
o Still difficult to seek justice: on a
complementary basis the old
itinerant justice system was back
● Commission of gaol delivery
o Deliverare: free up gaols by
releasing/trying prisoners
o Judged cases that were of
violation of kings peace
o Commission: oyer (hear) and
terminer (resolve) criminal cases
● 1166: Henry II: Created jury of 12 citizens
(assize) to be summoned, create a verdict
o Nisi prius system: when the
verdict was arranged without
people going to royal courts at
Westminster
● Jury
o Germanic roots, pillar of common
law
o Petty vs. Grand Jury (assize)
▪ Grand: was their
enough evidence to
proceed against the
accused
▪ Petty: 12 people to form
a verdict
Chancery
● Ridgity prevented institutions to address new problems
● Although common law courts function independently, the monarch had
residual judicial authority
● Equity created to supplement common law without modifying it in the
court of chancery.
● The court of chancery was responsible for issuing writs.
o Slow, expensive
th
● 15 issue: chancellor was authorized to issue case specific decrees; orders
to perform an act outside of the common law: EQUITY
o Exceptional judicial power
o Jurisdiction: based on the rulers conscience (unpredictable,
personal)
● Common law (parliament) against the kings absolute power
o Equity was closely linked with the king
● Set of general principles to issue similar decrees in similar cases
o Equity grew more ridged (17th century) : new legal system
● 19th century: Reforms (1873-1875) supreme court of judicature acts led to
the fusion of courts of common law and equity into a single judicial
structure
Other courts
● Star chamber:
o Important in 1487, abolished in 1641
o Known for criminal jurisdiction
● Ecclesiastical courts and corpus iuris canonici
o Canon law; supranational, Christian values
o Thomas Beckett (1170): contributed to Delimitation of
boundaries between ecclesiastical jurisdiction and common law
o Judge certain issues.
o Canon law applied when not conflicting with common law
Peculiar Features of Common Law
Law making
● Before 18th century: jurists believed law was invariable set of legal
precepts.
o Functions: ius dicere (pronounce), ius dare (give the law)
● Developed for the need of legal certainty, coherence and need to address
specific circumstances.
● Doctrine of precedent (important!)
● 16th century: influence of positivism
o Theory of binding precedent developed
o Theory of Stare Decisis (standing by decisions)
● Binding Precedent
o Bound to apply if ratio dedidendi was the same
o Ratio dedidenci: reason for decision, decisive argument
o Obiter dictum /dicta: remarks from the judge in passing, do not
directly affect decision
● Distinction between these reinforce decisis principle (extreme ridgity)
● Possibility of overruling a precedent was never removed or of
distinguishing the facts of which a precedent was founded and the facts of
 o Survived until 1933 in England,
still used in US
The central courts of common law
The development of the central courts
● Monarch as source of justice was
widespread in Europe in the middle ages
● Acted as a personal judge, advised by
experts, courtiers, curia regis
● Judicial function increased
o Entrust resolution to specialised
advisors
o Treasury department (Exchequer)
was first separated department
▪ Limited first to tax
matters, could issue own
writs/bills
▪ Extended ot civil cases
● Magna carta: permanent rather than
itinerant court for handing of common
pleas
o Common Bench / Kings Bench
● Court of Common Pleas
o Also handled cases that the kings
bench should have but didn’t
● 15th century:
o Kings bench became more active:
application of bill procedure;
cheaper, more flexible than
procedure by writ
Uniformity and abolition of common law courts
● 17th century: 3 courts
o Different procedures used
● Judicature act (1973): abolish 3 courts,
transfer competencies to a single high
court Supreme court of judicature
instituted 2 years later
the case forming the object of analysis.
Jurisprudence
● Common law grew by case-by-case decisions of judges
● Built on practical cases; compilation of writs, formulas, cases
● Transmission of knowledge; through apprentices
● Ranulf of Glanvill
o Produced a landmark compilation of writs; treatise on the laws
and customs of the kingdom of England
o No local law or royal legislation; cornerstone of common law
jurisprudence
● Bracton (judge): stress upon writs, inspired by jurist Azo of Bologna
● Common law work stagnated
● 16th century: more doctrinal approach, faced with difficulties (ridgity,
overlapping jurisdictions of courts, lack of order (from growth centred
around writ system)
● Edward coke: study of common law
● Matthew Hale: Introduced that English law institutions dates back to
Anglo-Saxon period.
● William Blackston: important author, systemized the entire common law,
o Proved principles of common law embodied principles of natural
justice
● Jeremy Bentham: criticized blackston.
o Work framed by utilitarianism and reject natural law theories
o Base on utility; greatest possible good to greatest number of
people
o Common law; too formal, confusing court system
The expansion of the English Common law
Europe
● Oversea possessions; influence other countries
USA & British Empire
● Substantial part of common law absorbed.
o No ecclesiastical courts, less technical civil procedure
o Some colonies have departed e.g. Quebec, Louisiana
Scots Law
● Mixed legal system e.g. South Africa, Quebec, Louisiana
● Students from mainland Europe brought these ideas
● Reformation 16th century: Scotland separated with religious ideas
● Influence of ius commune and Romano-canonical procedure implemented
in lay courts
o Apply rules of ius proprium (Scottish parliament, local
customary, feudal law)
● Influence of roman law waned after 18th century
o Respect for scientific consciousness.
● Influence of English common law (when unified with England-
jurisdiction over civil matters)
● Scottish students applied Dutch teaching eg. Usus. Modernus Pandectarum
● James Dalrymple: author of institutions of the law of Scotland
 ● Structured in the light of rational, natural law principles: embodied in
Roman law
● 18th century: enlightenment philosophers eg. Hume, Adam Smith
Common Law and Ius Commune
● English common law not influenced by the ius commune (only indirectly)

● Ecclesiastical courts in Christian countries based on aequitas (heart of

canon)
● Until the early 20th century most English jurists approached the ius
commune with prejudice
● Common law is less influenced by roman and canon law then other
European countries
● Key divergence: national nature of the system established early
o Centrifugal forces from feudalism were controlled
o Flexibility; equity, actions on case
● Ius commune was universal, enough to overcome diversity of local
customary law