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Ch01 Civil Law History

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CIVIL LAW A US joke at European expense: 33242252984500 "In heaven the cooks are French cook, the policeman English, the mechanics German, the lovers Italians, and those organizing it all Swiss." "In hell the mechanics are French, the cooks English, the policemen Germans, the lovers Swiss, and those organizing it all Italian." 47625010858500 A European joke at American expense: What is a person who can speak two languages? Bilingual What is a person who can speak three languages? Trilingual What is a person who can speak only one language? American I. CIVIL LAW - A BRIEF HISTORY These materials introduce you the Civil Law system, the most widespread legal methodology in the world. Civil Law is European in its origins and philosophy, and is best understood in its historical context. Although its Roman Law antecedents are more than 2000 years old, they continue to animate the structure and method, if not the very substance, of Civil Law systems throughout the world. As you read these materials, compare the Civil Law methods of law-making, interpretation, and application to the Common Law methods. Are they different? Are they similar? The following readings introduce you to Roman Law, as well as excerpts from some of the most influential Roman legal texts. The excerpts give you a flavor for the style and subject matter of Roman Law. What kind of society do the Roman laws assume? Are Roman laws concerned with relations between private parties or between the ruler and his subjects? What are the essential elements of Roman Law? How are they different from Common Law methods? How are they similar? Do you see any similarities to old English common law? __________________________ A. Roman Law Foundations 1. Classical Jurisprudence The Austrian Legal System It is common knowledge that a considerable part of our cultural heritage has its roots in the creative spirit of Ancient Greece, and that Rome played an important role as an intermediary of this culture. As great admirers of Greek philosophy, arts and sciences, the Romans made them their own and passed them on to the Europe of the Middle Ages. It is less well known that Rome also made a very significant original contribution to European civilization, namely Roman law. This may well be the most important (and probably the most durable) legacy of Ancient Rome to the modern world. 1. Early and Classical Roman Law a. The Twelve Tables and Subsequent Legislation Roman law enters the light of history with the enactment of the Twelve Tables around 450 B.C. This legislative statement reflects an astonishing level of sophistication on the part of a small city-state living on agriculture. The Laws of the Twelve Tables attest to an early and unrivaled creative legal talent, which expressed itself in precise logic, in language capable of concentration as well as abstraction, an economy of legal forms and procedures, and a carefully calibrated balance of unwritten rules and statutory regulation. After the monumental (but by no means comprehensive) Twelve Tables, which more or less confined themselves to regulating critical points of social interaction (such as a summons to court, the execution of a judgment, the charging of interest, tort and crime), the development of the law only occasionally occurred by legislation in popular assemblies. It was generally effected through delegated rulemaking by an elected official, the praetor. The Twelve Tables Transl. by Johnson et al., Ancient Roman Statutes (1961) 9-13 Table VIII. Torts or Delicts 2. If anyone has broken another’s limb there shall be retaliation in kind unless he compounds for compensation with him. 3. . . . If a person breaks a bone of a freeman with hand or by club, he shall undergo a penalty of 300 asses; or of 150 asses, if of a slave. If one commits an outrage against another the penalty shall be twenty-five asses. . . . 11. Whoever fells unjustly another's trees shall pay twenty-five asses for each tree. 12. If a thief commits a theft by night, if the owner kills the thief, the thief shall be killed lawfully. . . . 21. If a patron defrauds a client he shall be accursed. ... Table IX. Public Law 1. Laws of personal exception shall not be proposed. Lex aquilia (tort statute 286 BC) Transl. by H. F. Lawson, Negligence in the Civil Law (1950) Gaius D 9, 2, 2 pr. (text of first chapter) The Lex Aquilia provides in its first chapter: ‘If anyone kills unlawfully a slave of either sex belonging to another or a four-footed animal of the kind called pecudes, let him be ordered to pay the owner whatever was the highest value of the victim in that year’: Ulpian D 9, 2, 11 pr. (barber and ball player; assumption of risk) Again Mela writes: if, when people were playing at ball, one of them hit a ball rather hard and knocked it against the hands of a barber so that a slave who the barber was shaving had his throat cut by reason of the razor being jerked against it, in such a case whoever of them is negligent is liable under the Lex Aquilia. Proculus says the negligence is the barber’s; and certainly if he was shaving at a place where people were accustomed to play or where there was heavy traffic, some blame must be attributed to him; though it is well said that if a person entrusts himself to a barber who has his chair in a dangerous place, he has only himself to blame. b. Praetor and Edict All Roman litigation was initiated before the praetor, a high state official who annually promulgated the Edict, a catalog of actions (similar to the former English common law writs) and other legal remedies. Although the praetor considered himself bound by his own Edict, in exceptional cases he would formulate a new remedy. In this respect, he assumed a role of equity jurisdiction similar to that of the English Chancellor. In any event, once the praetor selected a specific actio as the proper program of litigation, he would refer the parties to a iudex (lay judge) who collected evidence, heard oral argument, and decided the case. In conducting the trial, however, the judge was bound by the instructions contained in the formula of the action originally issued by the praetor. Praetorian actio: 1. Rei vindicatio (Action on Ownership) “Titius shall be judge. intentio If it appears that the thing which is the object of litigation (Subject matter) belongs to the plaintiff under the law of Roman citizens, clausula arbitraria and if this thing is not restored, (restitution in kind) condemnatio you, the judge, shall condemn the defendant to pay to the plaintiff a sum of money equivalent to what the thing will be worth. If it does not appear, you shall absolve (the defendant).” 2. Actio Empti (Action on Sale) If the plaintiff purchased from the defendant the slave under dispute, the judge should condemn the defendant to pay to the plaintiff the value of whatever the defendant owes to the plaintiff on the basis of bona fides. Otherwise he should release him. c. The Classical Jurists The praetor and the judges were laymen with little or no knowledge of the law. But they were advised by jurists, who belonged to their own social class, the Roman aristocracy. The social and professional authority of the jurists gave their advisory opinions at least de facto force of law. Judicial decisions were not considered binding precedents and thus were not recorded. The legal writings of the jurists, however, functioned as authoritative works, preserving both leading and dissenting opinions and providing persuasive argument for future legal disputes. Roman law of the so-called classical period, essentially the first two and one-half centuries A.D., was fundamentally jurists' law. It was also case law in that Roman jurists did not want to bind themselves to inflexible rules, preferring instead the freedom to develop their law on a case-by-case basis. No equivalent of the Common law doctrine of stare decisis (binding nature of previous opinions) existed, yet jurists had great respect for the authority of older opinions and would not deviate from them lightly. The function of jurists in Roman society transcended the mere scholarly exposition of existing law. Despite their strong tendency to preserve legal traditions, Roman jurists also realized that the law must not be static and immutable, but rather responsive to new social circumstances and changing practical needs. They consciously accepted the challenge and the responsibility to create new law. This role changed only in form but not in substance when Roman Emperors drew jurists into their service to prepare legal opinions and decisions on their behalf. The classical jurists had at their disposal a broad range of formal and substantive reasons to support and justify their decisions. Among their more formal arguments we find deductions from logic and grammar, references to legislative intent, or the contracting parties' intent, the ordinary usage of language, analogy and so forth. Among the substantive arguments there is strong emphasis on values such as bona fides (good faith), aequitas (equity or fairness), boni mores (public policy), and utilitas (practicability). Roman law provided a framework in which Roman citizens could pursue their social and economic interests with considerable freedom and equality. Because private property and freedom to contract were recognized, citizens were able to order their private lives with a maximum of flexibility. For the exercise of this private autonomy, Roman jurists formulated and specified social and ethical standards calculated to facilitate the harmonization of public and private interest. As a result of the impressive level reached by Roman legal science in its classical period, it came to influence substantially the later development of legal systems in medieval and modern Europe, as well as in many other parts of the world. Institutes of Gaius (textbook 126 AD) Trans. by F. de Zulueta, The Institutes of Gaius I (1946) BOOK I 1. Every people that is governed by statutes and customs observes partly its own peculiar law and partly the common law of all mankind. That law which a people establishes for itself is peculiar to it, and is called ius civile (civil law) as being the special law of that civitas (State), while the law that natural reason establishes among all mankind is followed by all peoples alike, and is called ius gentium (law of nations, or law of the world) as being the law observed by all mankind. Thus the Roman people observes partly its own peculiar law and partly the common law of mankind. This distinction we shall apply in detail at the proper places. 8. The whole of the law observed by us relates either to persons or to things or to actions. Let us first consider persons. 9. The primary distinction in the law of persons is this, that all men are either free or slaves. BOOK II 1. In the preceding book we treated of the law of persons. Let us now consider things. These are either in private ownership or regarded as outside private ownership. 12. Further, things are divided into corporeal and incorporeal. 13. Corporeal things are tangible things, such as land, a slave, a garment, gold, silver, and countless other things. 14. Incorporeal are things that are intangible, such as exist merely in law, for example an inheritance, a usufruct, obligations however contracted. BOOK III 88. Let us now proceed to obligations. These are divided into two main species: for every obligation arises either from contract or from delict. 89. First let us consider those that arise from contract. Of such there are four genera: for an obligation by contract arises either re (by delivery of a res: real contract), by words (verbal contract), by writing (literal contract), or by consent (consensual contract). 2. Justinian Corpus Juris Civilis Thomas Glyn Watkin, The Italian Legal Tradition (Law of Nations Series 1997) Justinian and the Corpus Juris Civilis Italy has a strong claim to being considered the cradle of European legal culture. This is so because it was in Italy that Roman civil law was first developed in the ancient world and also in Italy that that system re-emerged in the Middle Ages to become the foundation upon which the majority of European states chose to erect their modern legal systems. Indeed, the influence of Roman law stretches even farther afield in that it is the basis of the legal systems of all those nations across the world which have established their legal orders upon the tradition received when they were the colonies of European countries. Roman civil law began as the legal system of a small city state upon the banks of the river Tiber in central Italy. As Rome grew from these modest beginnings to become the centre of the largest empire that the world had then seen, so also its legal system came to hold sway over the whole of southern Europe, much of Europe north of the Alps, much of the Middle East and North Africa. The Roman genius for law was closely allied to the great Roman feats in engineering. In both disciplines, the Romans were not great theorists like the Greeks, but rather endowed with a tremendous practicality, for ever conquering the problems they encountered with practical, workmanlike answers. Their system of private law endured the change of republican to imperial government under the Caesars, the rise and fall of a vast empire, the conversion of the people from paganism to Christianity, and finally the shifting of the centre of government itself from Rome in the west to Constantinople in the East. It is a remarkable tale of survival, and of the fitness of Roman law to survive and serve a much changed and much changing social order. When the emperor Justinian ascended the imperial throne in 527 AD, the empire of which he became emperor was Roman mainly in name. Control of the western empire, including France, Spain and Italy itself, had already been lost, Rome herself having fallen to the invading tribes from northern Europe during the last quarter of the previous century. The empire which Justinian was to govern was centred in the east, his capital being Constantinople or Byzantium. Justinian set himself two great goals at the outset of his reign. Firstly, he wished to restore to his dominions those territories of the western empire that had been lost, and secondly to restore to his subjects the classical law of Rome as their rightful legal heritage. Justinian was well aware that the law by which the inhabitants of his Christian, mainly Greek-speaking empire now lived was but a poor reflection of the great system which had been developed in ancient Rome itself and which had reached its apogee in the first half of the third century AD. In the first of these ambitions, he enjoyed but limited success. His generals did manage to reconquer some of the lost lands of the western empire, particularly in Italy, but their success was of short duration. Ultimately, the Byzantine emperors were only able to retain control of a relatively small portion of these reconquered territories. For many centuries, they did manage to retain control of the region around Ravenna in northeastern Italy which to this day- bears in its name the evidence of its reconquest for the Roman people, that is Romagna. However, not even Justinian could possibly have foreseen the extent of the success which he was to achieve in the pursuit of his second goal, the restoration of Roman jurisprudence. The problems which faced Justinian with regard to this second goal were considerable. The sources of Roman law by his time were to be found mainly in two places: the enactments of his imperial predecessors and the works of the classical jurists. Both sources were vast and previous attempts at systematization had met with only very limited success. The array of source materials to be mastered must have appeared particularly daunting to those who were setting out upon a legal career in the law schools of Constantinople and Beirut. Justinian therefore determined to appoint a series of commissions to examine these voluminous sources and to extract from them those rules which were to remain valid, to amend those which required up-dating, to discard those which were no longer necessary or desirable, and finally to present their product in a systematized, accessible form. The immensity of the task confronting these commissions can be readily appreciated by a common lawyer were he to imagine being faced with learning or discovering his law from the assembled mass of all the statutes passed since Magna Carta together with all the reported cases from the Year Books onwards, the whole having no order other than the chronological and no really systematic guide to the contents being available. Such was the task which faced the commissions appointed by the emperor Justinian. The first was appointed to examine the enacted laws in 529. Its work was probably aided by the existence of previous attempts at this task, which had produced the codex Gregonanus and the codex Hennogemanus, both in the third century, and also the Theodosian Code of the late fourth century. However, the task was still considerable and took them the best part of a year. The end result was the first code of the emperor Justinian, known as the codex Vetus, promulgated in 530. Another commission was then appointed to examine the writings of the great jurists of Roman law. The work of this commission was much more onerous in that there were no previous attempts at systematization of any significance to assist it. Instead, the commissioners, six in number, were faced with having to wade through the whole range of juristic literature from roughly the third century BC to their own day, being assisted in their task by ten barristers from the Constantinople bar. When they completed their work in 533, it was said that they had worked wonders, in that the job had been expected to take ten years. Modern scholarship, however, suggests that they had worked from the outset to a strict timetable and that from this it was clear all along that the work would be done by 533. The end product of their prodigious research, assimilation and ordering is known as the Digest or Pandects, both titles adequately describing the nature of their achievement: Pandects illustrating its comprehensiveness, while Digest points to the degree of assimilation achieved. However, the work was far from being small. The Digest consists of fifty books, each divided into titles. By means of these books and titles, the various legal subjects are presented in a systematic, indeed scientific, manner. Thus, for instance, all the authorities on property are brought together and are then presented so that means of acquisition are dealt with first, then modes of transfer, and so on. The whole nevertheless is a massive work, being one and a half times as long as the Bible. Justinian quickly realized that whatever the merits of the Digest, and they were indeed considerable, the work was hardly one which could be placed in the hands of an aspiring law student in the hope that from it he could easily acquire the requisite legal knowledge. Accordingly, Justinian asked three of the commissioners who had worked on the Digest - Tribonian, Dorotheus and Theophilus, the last two being law professors at Beirut and Constantinople respectively - to produce a smaller work, suitable as an introduction for the "young desirous of learning the law" as he put it, and these three produced by the end of 534 a student textbook in four books, based largely on the second century institutes of the Roman jurist, Gaius. This work was known as Justinian's Institutes, and has remained a basic textbook for aspiring civil lawyers to this day. This work, along with the Digest and the Code, was given the full force of enacted law, a somewhat remarkable fate for a student text. Meanwhile, the changes to the law which had been made by way of up-dating during the compilation of these works had rendered the original Code out of date. It was therefore revised to incorporate the legal innovations and amendments of these jurisprudentially hectic years and republished as the Codex repetitae praelectionis. This revised Code, together with the Digest and the Institutes, was now to be the sole source of law in the Byzantine empire, all previous authorities being deprived of legal authority. It is these three works which a later age was to term the Corpus Iuris Civilis, but they did not bear this name in Justinian's time. Justinian's reign ended with his death in 565, but his legal codification was to survive to form by far the most important source of knowledge of Roman law for subsequent generations in western Europe. _____________________________ H. Hausmaninger, The Austrian Legal System (2d ed. 2000) 291-294 Justinian's Corpus Juris The fourth and fifth centuries A.D. mark a period of stagnation and decline in legal scholarship. The political center of the Empire moved from Rome to Constantinople (Byzantium; today Istanbul, Turkey). In the context of his ambitious plans to reconstitute the Roman Empire in its former splendor, the Byzantine Emperor Justinian (527–565 A.D.) pursued two challenging legal policy goals: 1) to reform the legal system in the spirit of Christian humanism and social justice, and 2) to codify the law to provide legal security and renew classical Roman legal culture. In A.D. 528, Justinian instructed a commission to collect and publish imperial legal decisions and enactments of previous centuries in a single code. This code was published one year later (but does not survive). One commissioner, Tribonian, exhibited unusual skill and devotion. He was rewarded with a promotion to junior minister of justice and immediately embarked on a much more ambitious project – the collection and editing of the writings of the classical jurists. Tribonian began by preparing 50 imperial edicts ("constitutions") in which the Emperor was to decide disputed questions of classical legal doctrine. He then asked the Emperor to set up a new commission to prepare a Digest of classical jurists' law. The Digest. The Commission began its work in 530 and finished only three years later. It was given free reign to select texts, to abbreviate and to change them in order to remove the obsolete, to eliminate controversies, and to harmonize the collection by reformulation. The Commission worked in three subcommittees, each of which excerpted a portion of classical legal literature. According to Tribonian, they read 2,000 "volumes" (i.e., papyrus scrolls of approximately 10,000 words each) and reduced them to roughly 1/20 of their former size. The remaining 9,142 excerpts were arranged in 50 volumes under 430 "titles" (i.e., subject matter headings). The collection contains excerpts from the works of 39 jurists from the late republic to the early third century A.D. It was given the name Digest or Pandects. The Digest was published in A.D. 533 with a dual purpose. It was to be taught by professors in law schools and to be applied as law by the courts. But in practice, the use of the Digest outside the imperial capital remained confined to use in legal education. The provincial judges read no Latin and did not comprehend the sophisticated case analysis of the classical jurists. This situation improved when Greek translations and learned commentary led to the development of a Byzantine legal culture. The Institutes. After the compilation of the Digest, Justinian asked a small commission consisting of Tribonian and two law professors to compose an authorized textbook (or nutshell) for beginning law students. These Institutes of Justinian in four slender volumes are based on a similar work of the classical jurist Gaius written about 160 A.D. They include excerpts from a few other jurists, but offer a continuous text without indicating the origin of these inserts. The Code. The legislative activism of Justinian required a new edition of the original collection of imperial enactments made in 529. Thus in 534 a new Justinianic Code was promulgated, consisting of more than 4,600 enactments ("constitutions") arranged in twelve volumes and numerous subject matter headings similar to those of the Digest. The Novels. Justinian continued to enact reform legislation after the promulgation of his Code. These additional laws, usually written in Greek, have been transmitted through private collections and are referred to as Novels (from novellae leges, "new laws"). Together with the three official parts of Justinian's compilation, they have been labeled as Corpus iuris civilis since the time of the standard print edition by the French humanist Dionysius Gothofredus in 1583. \* MERGEFORMAT Emperor Justinian (born AD 483, ruled AD 527-565) Roman Texts (From Herbert Hausmaninger, European Legal Traditions, 2003) Digest of Justinian (excerpts from titles 1.1, 1.3, 1.4) Transl. by C. Monro, The Digest of Justinian, vol. I (1904) 3-5; 19-24 I. On Justice and Law 1 Ulpianus (Institutes 1) When a man means to give his attention to law (jus), he ought first to know whence the term jus is derived. Now jus is so called from justitia; in fact, according to the nice definition of Celsus, jus is the art of what is good and fair. 1. Of this art we may deservedly be called the priests; we cherish justice and profess the knowledge of what is good and fair, we separate what is fair from what is unfair, we discriminate between what is allowed and what is forbidden, we desire to make men good, not only by putting them in fear of penalties, but also by appealing to them through rewards, proceeding, if I am not mistaken, on a real and not a pretended philosophy. 2. Of this subject there are two departments, public law and private law. Public law is that which regards the constitution of the Roman state, private law looks at the interest of individuals; as a matter of fact, some things are beneficial from the point of view of the state, and some with reference to private persons. Public law is concerned with sacred rites, with priests, with public officers. Private law has a threefold division, it is deduced partly from the rules of natural law, partly from those of the jus gentium, partly from those of the civil law. 6 Ulpianus (Institutes 1) The civil law is something which on the one hand is not altogether independent of natural law or jus gentium, and on the other is not in every respect subordinate to it; so that when we make addition to or deduction from universal law (jus gentium), we establish a law of our own, that is, civil law. 7 Papinianus (Definitions 2) The civil law in the law which is derived from statutes, plebiscites, decrees of the senate, enactments of the emperors, or the authority of those learned in the law. 1. Praetorian law is that which was introduced by the praetors in order to aid, supplement, or amend the civil law, with a view to the public advantage. The same is also called ‘honorary law,’ after the honor (public office) of the praetors. 8 Marcianus (Institutes I) In fact honorary law itself is the living voice of the civil law. 9 Gaius (Institutes I) All nations which are governed by statutes and customs make use partly of law which is peculiar to the respective nations, and partly of such as is common to all mankind. Whatever law any nation has established for itself is peculiar to the particular state (civitas), and is called civil law, as being the peculiar law of that state, but law which natural reason has laid down for mankind in general is maintained equally by all men, and is called jus gentium, as being the law which all nations use. 10 Ulpianus (Rules 1) Justice is a constant, unfailing disposition to give every one his legal due. 1. The principles of law are these: Live uprightly, injure no man, give every man his due. 2. To be learned in the law (jurisprudentia) is to be acquainted with divine and human things, to know what is just and what is unjust. III. On Statutes, Decrees of the Senate, and Long Usage 10 Julianus (Digest 59) Neither statutes nor decrees of the senate can possibly be drawn in such terms as to comprehend every case which will ever arise; it is enough if they embrace such as occur very often. 11 The Same (ibid. 90) Consequently, when a rule is laid down in the first instance, a more precise provision has to be made, either by interpretation or else by direct legislation on the part of the most excellent Emperor. 12 The Same (ibid. 15) It is impossible for every point to be expressly comprehended in statutes or senatorial decrees; still if, in any case that arises, the meaning of the enactment is clear, the presiding magistrate ought to extend the rule to analogous cases to the one expressed and lay down the law accordingly. 14 Paulus (on the Edict 54) But where a rule has obtained force which is against legal principle, no analogous extension thereof should be made. 17 Celsus (Digest 26) To know the statutes does not mean to have got hold of the actual words, but to be acquainted with their sense and application. 18 The same (ibid. 20) Statutes ought to be interpreted indulgently, so as to preserve the intention. 19 The same (ibid. 33) Where a word in a statute is obscure, the meaning which ought rather to be adopted is the one which involves no absurdity, especially considering that it is possible by applying that principle to arrive at the intention of the statute. 20 Julianus (Digest 55) It is impossible to assign the principle of every rule of law laid down by our forefathers; 21 Neratius (Parchments 6) consequently the reasons for the law laid down ought not to be inquired into; or else a great many rules already established will be upset. 23 Paulus (on Plautius 4) Where a particular interpretation has always been received, there ought to be no change made. 24 Celsus (Digest 9) It is not like a lawyer to take hold of one particular portion of a statute and found a judgment or opinion upon it without examining the whole statute. 31 The same (on the lex Julia et Papia 13) The Emperor is not bound by statutes. The Empress no doubt is bound, at the same time the Emperor generally gives her the same exceptional rights as he enjoys himself. 32 Julianus (Digest 84) In any kinds of cases in which there are no written laws the rule which ought to be observed is that which has come to prevail by use and custom; and should there in any case be no such rule assignable, then what comes nearest and answers to one: if even this cannot be found, then we ought to go by the law in use in the city of Rome. IV. On Imperial Enactments. 1 Ulpianus (Institutes 1) What the Emperor has determined has the force of a statute. Consider the drafting instructions that Justinian gave Tribonian in composing the Digest: Constitutio Deo auctore On the Composition of the Digest, addressed to Tribonian by Justinian on Dec. 15, 530 ..... (4) We therefore command you to read and work upon the books dealing with Roman law, written by those learned men of old to whom the most revered emperors gave authority to compose and interpret the laws, so that the whole substance may be extracted from them, all repetition and discrepancy being as far as possible removed, and out of them one single work may be compiled, which will suffice in place of them all... (7) There is something else of which we wish you to take special account: if you find anything in the old books that is not well expressed, or anything superfluous or wanting in finish, you should get rid of unnecessary prolixity, make up what is deficient, and present the whole in proportion and in the most elegant form possible..... (12) We command that our complete work, which is to be composed by you with God's approval, is to bear the name of Digest or Pandects (encyclopedia). No skilled lawyers are to presume in the future to supply commentaries thereon and confuse with their own verbosity the brevity of the aforesaid work, in the way that was done in former times, when by the conflicting opinions of expositors the whole of the law was virtually thrown into confusion. Finally, consider how the Justinian Corpus Juris addressed the question of a private dispute in which one person A has acted for another person B, without the B’s consent or knowledge.Below are a series of answers, first from Justinian’s Code (imperial edicts), then from the Justinian Digest (the official collection of jurists’ writings), then from the Justinian Institutes (the nutshell of Roman Law), and finally from Gaius’s Institutes (which served as the basis for the Justinian Institutes). Which answer is most convincing. When can A recover from B? C 2,18(19),24 (The Emperor Justinian to Julian, Pretorian prefect) If someone engaged himself in the affairs of another without the latter's knowledge or despite his express prohibition, there is doubt among the great legal authorities whether such an administrator of affairs should have any claim against the owner for expenditures made for his benefit. (1) While some jurists offered a direct or analogous action, and others, among them Salvius Julianus, refused to grant a remedy, we decide the dispute by ordering that if the owner contradicted and prohibited him to administer his affairs, there will according to Julian's opinion be no claim against the owner... Done in Constantinople on November 18, under the consuls Lampadius and Orestes (530 A.D.) D 6,1,23,3 (Paul, Book 21of the Commentary on the Edict) Whatever is written on my paper or painted on my board at once becomes mine. Although in the case of a painting some writers have held the opposite, on account of a painting's value, yet where one thing cannot exist without the other, it necessarily accedes to that other. Inst. Just. 2,1,34 If someone has painted on someone else's board, there are some who think that the board accedes to the picture while others hold that the picture, whatever it be, accedes to the board. To us, however, it appears preferable that the board accede to the painting: for it is ridiculous that a painting by Apelles or Parrhasius should, by accession, become part of a cheap board... Gaius, Institutes 2, 73; 77-78 (73) Moreover, by the law of nature what has been built by someone on our land becomes ours although he built on his own account, because the superstructure becomes part of the land. (77) On the same reasoning it has been held that what someone has written on my paper or parchment is mine even if it is in letters of gold, because the letters have become part of the paper or parchment... (78) But if someone has painted something on my board, such as a portrait, the opposite rule holds; the preferred view is that the board accedes to the painting. The reason given for this difference is scarcely adequate... __________________________ B. Reception of Roman Law in Medieval Bologna H. Hausmaninger, The Austrian Legal System (2nd ed 2000) 294-297 From Roman Law to a European Legal Science After reconquering Italy from the Ostrogoths, the Emperor Justinian in 554 A.D. put his legal compilations into force in that part of his empire as well. Soon, however, Lombard invaders reduced the Byzantine presence to a few enclaves such as Ravenna, Rome, and parts of southern Italy and Sicily. Surviving traces of Roman law and legal science from that period are scarce. The Digest, the intellectually most demanding work, was soon forgotten and practically disappeared. Its rediscovery in the eleventh century coincided with a period of flourishing commerce and scholarship but great political tension. With these favorable conditions, a powerful intellectual movement developed Roman law into a European legal science and into the subsequent foundation of modern European civil codes. The Glossators Towards the end of the eleventh century, Irnerius, a professor of grammar or rhetoric in Bologna, founded the most important law school of medieval Europe, in which, for the first time, the entire Corpus iuris of Justinian was subjected to scholarly analysis and exposition. The law professors of Bologna are called glossators. Glosses are explanations of words, concepts and rules which a jurist writes in the margin or between the lines of text of his copy of Justinian's Digest, Code or Institutes. They are then copied together with the annotated text, and occasionally they are also published in separate collections. Justinian's compilations consist of different types of materials (especially writings of classical jurists and imperial enactments) which extend over several centuries. They lack system and contain many contradictions. The analysis, harmonization, and systematization of these compilations posed a fascinating task for the law teachers of Bologna, who accepted this challenge equipped with the scholastic method of medieval theology and philosophy. Their exegetic-didactic procedures first explained the text at issue, then established links with other texts, and finally examined all of them from the perspective of their usefulness to practical problem solving. The first steps toward a systematization of legal substance matter were taken in the form of distinctiones (distinctions). These distinctions provided structure to smaller and larger summae (summaries), which ultimately grew to the size of a textbook. Thus the glossator Azo's Summa Codicis, a summary of Justinian's Code published around 1210, successfully served as a student textbook until the 17th century. Conflicting rules in the Roman texts were explained away as imaginary rather than real contradictions. Maxims abstracted from the texts also served an important function in harmonization and systematization. The crowning achievement of the school was the Glossa ordinaria (standard gloss) by Azo's pupil Accursius, in which the work of all predecessors had been critically sifted and condensed. It comprises 96,940 glosses, 62,577 of them added to the Digest. This work remained the standard commentary to the Corpus juris for centuries. In practical application, the importance of the texts receded behind the interpretation and commentary provided by the gloss – quod non agnoscit glossa, non agnoscit curia (what the gloss does not acknowledge will not be acknowledged by the court). Bologna, the first center of scholarly instruction in Roman law, won high recognition, and thousands of students from all over Europe came to study there and in other universities founded in the course of the 12th and 13th centuries in Italy and France. These students were not motivated only by scholarly interest. Roman law became instrumental in the political struggle between the Emperor and the Pope, both of whom claimed worldly authority and legitimacy on the basis of Roman law sources and reasoning. In its jurisdiction, the Church generally applied Roman law (ecclesia vivit lege Romana). It employed learned judges trained in Roman law and thus forced parties who litigated in ecclesiastical courts, as well as the secular opponents raising jurisdictional claims against it, to use a Roman law type of argument. Law graduates from Bologna and other universities quickly found gainful employment as judges and advocates for Church and State, and as officials and consultants in the service of the Church, the Emperor, princes, and cities. 1. Accursius, Glossa animo ad D 41,2,3,1 Accursii Glossa in Digestum Novum (Corpus Glossatorum Iuris Civilis IX, 1968) D 41,2,3,1 (Paul, Book 54 of the Commentary on the Edict) And one acquires possession by a corporal and a mental act (intent)*, not by a mental act (intent) alone, nor by a physical act alone. The statement we have made, that one must acquire possession by both physical and mental act, must not of course be taken to mean that one who wishes to take possession of an estate must visit every parcel of it; it is enough to enter any part of the estate, provided one has the purpose and intention of taking possession of the whole estate up to its boundary. * By intent. Although it can be retained (by intent), as infra, same title, lex si quod, last paragraph (D 41,2,25,2), and Code, same title, lex licet (C 7,32,4). But in some cases it is also acquired solo animo (by intent alone). First because of the presence of the thing, as supra, first lex, para si iusserim (D 41,2,1,21). Second if a guard is posted, as infra, same title, lex quarundam (D 41,2,51). Third case: supra title On Contracting a Sale, lex clavibus (D 18,1,74). Fourth: infra, same title, lex quod meo, initial para (D 41,2,18 pr.). Fifth: through delivery of a deed, as in Code, title On Donations, first lex (C 8,53,1). Sixth: through retention of a usufruct, as in Code, title On Donations, lex quisquis (C 8,53,28)... The Commentators The successors to the Glossators are called Commentators. They were active from the middle of the 13th to the beginning of the 16th century and considerably strengthened the practical effect of Roman law by linking it with the other legal systems of the times, subjecting these systems, together with Roman law, to their scholarly analysis and exposition. This broader perspective concerned primarily the Canon law of the Catholic Church, which had already been taught and studied parallel to Roman law under the Glossators. Many ideas of Canon law were now absorbed into the civil law (cf. mala fides superveniens nocet, i.e., a stricter standard of good faith in the acquisition of ownership by adverse possession, prohibitions against interest-taking and usury, the binding nature of pacts confirmed by oath, etc.). The Commentators also paid attention to Lombard feudal law as well as to local customs (consuetudines) and to the statutes (statuta) of Italian city-states. They developed rules for the conflict of laws and generally interpreted statutes restrictively in order to preserve the broad applicability of Roman ius commune (common law). In their legal literature, the commentary to parts of or the entire Corpus iuris gained special prominence. This commentary emancipated itself from the order of the texts and took a further step towards systematic exposition. But perhaps the most important type of the Commentators' legal literature was the consilium or expert opinion. The consilium was rendered by a law professor on a question of practical importance. Addressees could be the parties to litigation, but more usually it was the judge. The latter had a right but not a duty to ask for an opinion concerning a difficult question of law. The opinion was not binding on him. The expert opinion of the law professor played a special role in the new podestà-system in Italian city administration. The mutual distrust of local aristocracy led to a neutralization of city government: An outsider, either a nobleman or a jurist, was appointed as city manager for a specified period of time, such as one year, at the end of which he was subjected to an official liability procedure in which he had to account for the legality of his acts. If his official decisions were based on the glossa ordinaria or the communis opinio doctorum (common opinion of the learned jurists), he was cleared. In doubtful cases, he could defend his position by the expert opinion of a recognized legal authority. These opinions were structured in five parts: the facts (casus), the problem (quaestio), arguments for (pro), arguments against (contra), and finally the decision (solutio). They often extended Roman law rules far beyond their original scope to fit social and economic situations in medieval life. In using bold analogy they adopted a creative idea wherever they found it, with no regard to original context and systemic limits. This opened the door to creative lawmaking as much as to abusive manipulation. The first noteworthy representative of the Commentators was Cinus da Pistoia (1270–1336), a friend of Dante's and Petrarch's who taught in Perugia and Siena. His pupil, Bartolus de Sassoferrato (1314–57), taught as professor in Pisa and Perugia. In the commentaries and opinions of Bartolus the school reached its intellectual peak. His authority was unmatched by any medieval jurist, his method – referred to as mos docendi Italicus ("the Italian way of teaching") – was considered the standard way of legal thinking and remained exemplary for centuries (nemo jurista nisi bartolista or "nobody is a jurist unless he is a follower of Bartolus"). In the form practiced by Bartolus and his pupil Baldus de Ubaldis, Roman law achieved international recognition as ratio scripta (written reason) and underwent a process of reception as European common law. 2. Bulgarus, Distinctio Tubingensis No. 16 Edited by Emil Seckel, Distinctiones Glossatorum (1911, reprint 1956, 297 sqq.) To summon someone to court may be prohibited for reasons of his business or out of respect for his person. (I) Out of respect for the person: either based on divine law or on human law. Based on divine law: such as regarding the priest in the act of sacrifice. (D 2,4,2) Based on human law: according to public or private law. (a) According to public law: every judge while holding trial, or a consul, or praetor, or other officials. (D 2,4,2) (b) According to private law: a parent, or patron and their children in the absence of special permission by the praetor. (D 2,4,4,1) (II) For reasons of business: based on public, or common, or individual necessity. Public necessity: such as regarding the soldier on his way to war. (D 2,4,2) Common: as someone at the time of harvest or vintage. (D 2,12,1 pr.) Individual: when someone buries his parent or celebrates his wedding. (D 2,4,2) Digest texts referred to in Distinctio Nr. 16: D 2,4,2 (Ulpian, Commentary on the Edict, Book five) One is not allowed to summon to court a consul, prefect, praetor, proconsul, or other magistrate, since they hold imperium and can punish anyone and order him to be imprisoned. Nor should a priest be summoned while he is performing sacred rites, nor those who on account of the sanctity of a place cannot move from it, nor one who is being transported by public horse on public business. Furthermore, a man who is about to take a woman in marriage ought not to be summoned, nor the bride, nor a judge while hearing a case, nor a man while he is conducting a case before the praetor, nor one who is conducting the funeral of a member of his household or is performing the rites for the dead. D 2,4,4,1 (Ulpian, Commentary on the Edict, Book five) The praetor says: “Let no one summon to court without my permission a parent, patron or patroness, or the children or parents of a patron or patroness.” D 2,12,1 pr. (Ulpian, All Tribunals, Book four) It is provided in the legislative proposal of the deified emperor Marcus that no one may compel his adversary to come to court at harvest or vintage time, because persons occupied in agricultural matters are not to be compelled to come to court. 3. Bulgarus, Quaestio 61 (Latin text edited in Kantorowicz/Buckland, Studies in the Glossators of Roman Law, 1938, 251) Seia, the wife of Titius, fearing the beatings of her husband, who often beat her (for instance when she talked with other men) fled from her husband’s house and returned to her father’s. When she refused to return to her husband otherwise, the husband promised by stipulatio to pay her 100, should he ever beat her again. When she had returned to him, it did not take long for him to beat her again. Now the question arises whether the penalty falls due. Seia, the wife, demands the penalty by means of condictio certi, because her husband had acted against what he had promised. Because when we have someone promise not to do something, we correctly agree on a penalty “in case something is done against it” (cf. D 45,1,137,7), as in D 45,1,71. The husband argued: where a stipulatio is invalid, because it violates public morals (boni mores), and no penalty arises from it, as from the one “if you do not institute me as your heir, will you pay such an amount?” as in D 45,1,61. For it is against public morals to impose a penalty on a husband if he wants to enjoy intercourse with and the embraces of his wife, and neither is the following stipulatio valid “if divorce occurred through your fault”, as in C 8,38,2. Thus it appears that from such a stipulatio no penalty arises, because a marriage must always remain free, not restricted by any penalty, be it a future or an already contracted marriage, as in D 45,1,134 pr. Seia responded: it is true that a penalty does not fall due where contrary to public morals an inequitable stipulatio has been framed (D 45,1,121,1). But in the present case, the stipulatio has not been entered against public morals, but in a legal manner (C 5,17,5,1), because the wife could even divorce her husband if she could prove that she was beaten by him (something that is improper with respect to freeborn persons), see C 5,17,8,2 and N 22,15,1. As one can see clearly, if she can divorce him because of his beatings, she can all the more, in order to avoid such beatings, accept the promise of a penalty and take care of her interests. For under natural reason a husband should love his wife, as the Apostle Paul preaches: “men, love your wives as Christ loved his Church” (Eph. 5,25). Likewise a stipulatio is admissible in which a wife accepts the promise of a penalty should her husband keep a concubine during his marriage with her, as in D 45,1,121. For she has an interest in her marriage remaining immaculate. All the more she has an interest in not being beaten, since beatings provide a reason for divorce, as I stated above. When the law (C 8,38,1) says “marriages must remain free” this applies to their conclusion and dissolution. But in this case the stipulatio is neither made in concluding nor in dissolving the marriage, but in order to provide for oneself. The husband countered: one cannot claim a penalty under such a stipulatio, namely, one made in violation of public morals. For a wife must render her husband his due (e.g., Grat. C 33 qu. 1,2,4 and 5) with-out restriction by penalty, as a slave must provide service to her owner without promise of freedom. An owner has no duty to obey the contract clause if she agreed with her slave that she would be free after a certain time of service (cf. C 7,16,36). And as a slave has a duty to provide service to her owner, a wife must provide intercourse for her husband. Thus one can see that a husband cannot be forced to pay a penalty, because his wife must return to him without the promise of a penalty. In addition, a similar case may be invoked, where something is given or promised to a borrower so that he will return the object he received on a loan for use (commodatum). One may reclaim what has been given by a condictio ob turpem causam, and what has been promised cannot be claimed. The situation is the same with the wife, who must return what she owes without being given anything or being promised a penalty, as in D 12,5,9 pr. The wife defines that legal provision (C 7,16,36), which says that the owner does not have to obey the contract clause she agreed on with her slave that the latter would be free after a certain time of service. It is true that the slave does not become free on account of the contract. And this is the reason: because freedom is acquired not by agreement, but by lawful manumission, as in C 7,14,8. The agreement would be valid, however, as an undertaking to provide freedom, as in C 7,16,8. Thus it appears that what has been said about the slave is no valid argument against the wife accepting the promise of a penalty that would be paid to her in case she would again be beaten. And this is how she responded to the other argument: a borrower is liable to return what he received so that he would return the object loaned to him, because he has no reason to keep the object loaned. The wife, however, has a good cause to accept the promise of a penalty, namely, so that she would not be beaten. Bulgarus decided: the husband is not bound by this promise to pay a penalty, because the wife had a duty to stay with her husband without the latter being under threat of penalty, in analogy to a borrower who must return the object he received for gratuitous use without accepting a reward (D 12,5,9 pr.). It seems to me [namely, the reporter of the case], however, that the husband is bound to pay the penalty, because the wife had a just cause for accepting the promise. 4. Bartolus, Consilium 128 Franciscus had as his wife a certain Thoma, and he had a dowry of 200 florins. This Franciscus died and left some minor sons, with whom the said Thoma, the mother of the said sons, continued to live for three years. Then she entered a second marriage, and had stayed with that man for three years, when that second husband demanded his wife's dowry and alimony from those heirs of the said Franciscus. The question is whether alimony is owed and for what time. In this question it must be examined why this alimony is demanded, whether it is demanded on behalf of the mother who should be supported by her sons, and then it is a question to be decided by the judge, and must be denied: For she is owed support by her husband, in whose service she is, as in Digest 13,6,18,2... And this is my opinion. Bartolus. Digest text referred to in Cons. 128 D 13,6,18,2 (Gaius in the ninth book of his Commentary on the Provincial Edict) There are sometimes good reasons for suing someone who has lent a thing for use, as where there have been expenditures on the health of a borrowed slave...Of course the cost of food falls, according to natural reason, on the one who has borrowed him for use... C. Reception of Roman Law outside Italy Thomas Glyn Watkin, The Italian Legal Tradition (Law of Nations Series 1997) The Humanist School of Civil Law Byzantium, or Constantinople, had been the capital of the Greek, Orthodox east since the time of Justinian, and the compilations of Justinian had formed the basis of the law in the Byzantine empire throughout the intervening period. The west had occasionally come into contact with the exotic civilization of the Byzantine court during that time, particularly during the Crusades, but contact had been by no means close. The invasion of the city by the Muslim Turks in 1453 led to an exodus of Greek-speaking Christians from the shores of the Bosphorus to western Europe. Many of those refugees settled, at least at first, in Italy. The upshot of their emigration was to bring the Latin west into closer contact with the culture of the Greek east than had previously obtained. Those with an interest in the classical age set themselves to learn the Greek language as the key to opening up their understanding of ancient Greek culture and civilization. The emigrants also brought with them manuscripts of ancient Greek texts which had previously only been known in the west in Latin translation. Moreover, some of those translations had been made not directly into Latin from the original Greek, but through the mediating influence of Arabic. This was true, for instance, of the west' s knowledge of much of the works of Aristotle, which had been discovered in an Arabic translation during the reconquest of Spain from the Moors. These works were now available to the west in the Greek original, and it was quickly realized that the Latin versions which had hitherto formed the focus of attention were often faulty in places, where either the translation or the manuscript tradition had been in error. Nowhere was this knowledge so shattering to western confidence as in the case of the New Testament. Written originally in Greek, it had been known in the west through the Latin Vulgate of St. Jerome. Now, the original Greek text was available for study and the results of the subsequent revision were social and political, as well as intellectual, dynamite. In the Latin Vulgate, the Greek word, ?????o?o?, had been translated as the Latin episcopus meaning "bishop". The meaning of the Greek word itself, however, did not designate a formal, authoritative office, but rather a seniority recognized by the people who conceded respect to the person, the elder, concerned. Thus, the Catholic Church's emphasis upon episcopal power was brought into question. Likewise, the very word taken to mean "Church", the Greek ????????, Latin ecclesia, was found to mean something more like "congregation" or "the people". Dissatisfaction with the Roman Church's practice of selling Indulgences for the forgiveness of sins was fuelled further by the discovery that the Greek word ????v??v did not mean "do penance" so much as "change one's attitude". This new knowledge, the new learning of the Renaissance, provided the intellectual ammunition used to attack the power and prestige of the Catholic Church by men such as Martin Luther and John Calvin, as well as more moderate reformers like Erasmus and St. Thomas More. The new learning exposed the weakness of the intellectual status quo in western Europe. The notion that the Bible, in the form of the Latin Vulgate, was revealed truth was shown to be unacceptable. The Vulgate was a translation, given to the defects and blemishes to which any other such work was prone. The scholars of the Renaissance were as prepared to tear down the old orthodoxies in religion in order to discover the truth as were their counterparts at that time who had demonstrated by geographical and scientific exploration that the world was not flat and that it did not lie at the centre of the universe. It is important to remember that all of these discoveries occurred at roughly the same time. Men were prepared to redraw the map of the world, to rechart the heavens and to redefine their religious and spiritual allegiances. The result was a fundamental reshaping of man's perspective of the world during the sixteenth century. If the Vulgate of St. Jerome was not the revealed truth of God but rather an imperfect translation of the Bible, then the Corpus Juris Civilis of Justinian was but a sixth-century redaction of classical Roman law and not the real McCoy. Respect for Justinian's compilation did not diminish any more than did respect for the Bible, but scholars were prepared to question how true a reflection it was of the classical age of Roman jurisprudence, particularly as the text itself spoke of amendments having been made. During the sixteenth century, scholars began for the first time to look behind the compilation of the Corpus Iuris Civilis (as it became known at this time) in an attempt to discover the rules of Roman law as they had been known in the heyday of the western empire, in the times of the Caesars and even earlier at the close of the republican period. For the first time since the renaissance of Roman legal studies in eleventh-century Bologna, the focus of civil law studies moved outside of Italy. During the sixteenth century, the centre of this new Humanist school of Roman legal studies was in France, in the university city of Bourges. The two foremost scholars in this endeavour were Jacques Cujas and Hugues Doneau, both often referred to by the Latinized forms of their names, Cujacius and Donellus. Doneau was a Huguenot, that is a French Calvinist, and his religious beliefs eventually made France a dangerous country for him in which to reside. Accordingly, he moved to the freer atmosphere of the Low Countries, where his Calvinism was less objectionable, and where also the next important phase of civilian scholarship was to be inaugurated. The leading figure in Dutch legal scholarship in the first half of the seventeenth century was Hugh de Groot, better known as Hugo Grotius. He it was who took the logical step of holding that if Justinian's Corpus Juris Civilis was not written reason, ratio scripta, as had previously been believed, then it need not be either the highest form of law known or knowable to man. Indeed, the fact that it was not even a true reflection of classical jurisprudence pointed up this fact. Accordingly, there was no reason why man should not strive by his intellectual powers to achieve newer, greater heights in the field of jurisprudence and law making. Grotius himself devoted himself to producing a system of law which would govern not the doings of individuals or groups within a particular nation state but rather the relations of such nation states one with another. He is recognized as the father of international law. In his great work, De iure belli ac pacis, concerning the law of war and peace, he attempted to set out the principles and rules that should govern the dealings of nation with nation in times of hostilities as well as during peaceful coexistence. An example will show, however, that he relied much upon the principles of the Digest. Roman law had recognized the natural law mode of acquiring property called occupatio. One instance of acquiring by occupatio was where a new island emerged in the sea, by means of, for example, volcanic activity. Such an island would become the property of the first person to take possession of it. Grotius addressed the different question, a topical question in his day, of which nation had sovereignty over islands which were newly discovered and were not previously inhabited by Christian people. On analogy with the Roman occupatio, Grotius maintained that sovereignty over such lands would go to the nation whose citizens were first to take possession of it. Thus were whose continents taken by the Spanish, Portuguese, British and French, and many parts of the world by the Dutch themselves. By dint of reason operating upon the Roman legal heritage, Grotius initiated the idea and the substance of international law. Reason and Codification : the Napoleonic Code Grotius believed that, through reason, a legal system could be devised to introduce legal order among the nations of the world. Although he based many of his proposed rules of international law upon the norms of the Corpus Iuris Civilis, he no longer felt it necessary to follow those rules slavishly if his own reason suggested a departure. The influence of the Digest was still great, but it was no longer an unassailable, ultimate authority. This was not only the case in relation to international law. In the sphere of national law also, the supreme place of the Corpus Iuris Civilis was sacrificed to the idea that Justinian's work was the fruit of the intellectual achievement in his age, but there was no reason to believe that the intellectual achievements of the current age could not match or even surpass those of sixth-century Byzantium. Jurists therefore began to aspire to the creation of a new legal perfection, based on reason rather than the written reason of the Digest or even revelation. The later seventeenth century and the eighteenth century have become known in intellectual and cultural history as the Age of Reason, a title which is both accurate and less tendentious than the alternative name given to the period, namely the Enlightenment. Belief in reason at this time reflected the tremendous confidence of the age. It was a confidence which is perhaps as difficult for our own age to grasp as was the certainty of faith in the Middle Ages. The savants of the Parisian salons in the eighteenth century actually believed that by the use of reason the human mind could embrace all knowledge, everything that could be known. They initiated the great enterprise which sought to reduce all knowledge to writing and place it within the covers of a single, multi-volume work, the Encyclopaedia. The belief in reason, the confidence in the human intellect, fuelled scientific and technological development, bringing about in Britain the industrial and agricultural revolutions. Rational order was to be imposed upon chaos. This belief in the imposition of order can be seen in the architecture and landscaping of the period. Houses were built in the classical style, reflecting the order of symmetry and proportion. Gardens were laid out formally, to modern eyes perhaps rigidly, in subservience to the rational ideal. Nature itself was to be tamed and indeed improved upon; landscape gardeners thought nothing of creating proportioned lakes, even hills, to produce a terrain which conformed to the dictates of an ordered sensibility. The musical works of Bach and Handel, Haydn and Mozart reflect the same rational order, while in poetry the verse of Moliere and Racine, the writing of Pope and the other Augustan poets, all indicate the same veneration for classical order and presentation. Painters such as Poussin, David and Ingres belong to the same school. In law, the jurisprudence of this age reflects a certain contempt for the mediaeval inheritance. In France, in particular, this led to an abhorrence of the local, customary laws by which the kingdom was governed. Jurists were called upon to try to overcome the fragmentation which was the legal heritage of France. As Louis XIV abandoned the disorder of Paris, marred for him by his memories of the insurrection called the F'ronde, in favour of the reasoned order of life at Versailles, so his jurists sought to lead his subjects from the darkness of their mediaeval legal heritage into the dawn of a new, rational legal age. Work upon this task had begun in the reign of Louis XIII, with the production of new codes of law which were to apply to the whole kingdom. These codes dealt with specific areas of the law, such as road transport, transport by canals, trade and other such topics, where local customary rules inhibited the growth of commerce and the free passage of goods. The production of such ordonnances, as they were known, continued until the Revolution. The ultimate goal, however, the legal equivalent of the Encyclopaedia, was the production of a code of law which would suit the needs of any nation at any time. Prominent in the jurisprudence of France at this time were jurists such as Pothier and Domat. It was not until after the Revolution that a code in fact emerged. The Revolution fired the confidence and enthusiasm of the nation to achieve even greater things. For many it was the ultimate triumph of reason, democracy replacing the feudal order of kingship. Fresh starts were made in a bewildering number of areas. Nothing perhaps expresses the strident self confidence of the period so well as the attempt to reform the calendar. No longer were years to be measured according to the age of Christ, but a new start was to be made for the new era. Thus, Year I began in September 1792. Likewise, the internal divisions of the year were no longer to be according to the names of Roman gods and deified emperors; new months were introduced with equal numbers of days, and with names reflecting the predominant weather - Pluviose, ventose, Brumaire and so on. These departures did not meet with success in the long term, but some of the rational reforms did. Older notions of measurement were permanently swept away in favour of the new metric system, based on multiples of ten, in which the standard unit of measurement - the metre, the gram, the litre -was established on a reasonable, scientific foundation. Decimalised currency also proved to be a lasting reform. It was not until 1804, however, that a code of private law was produced and promulgated for the people of France. By that time, Napoleon had assumed control of the nation, and, although the code is in reality the fruit of many decades of juristic effort, its creation as well as its promulgation is usually accredited to the emperor. Nothing perhaps better illustrates the contemporary attitude to the Code Civil as the bas relief at the foot of Napoleon's tomb which celebrates Napoleon the law-giver, one of several relating the emperor's achievements. There sits the emperor in all his state, with the tomes containing the customs of the old French kingdom being suppressed like a serpent beneath one of his feet. At his left hand, a figure approaches offering him the Corpus Iuris Civilis of Justinian as a worthy replacement for the old French laws, but Napoleon disdainfully raises that hand to signal their rejection. In his right hand, he holds up to the gaze of his adoring nation his own great contribution to the jurisprudence of the world, the new Code Civil. The message cannot be in doubt. The Code Civil, or the Code Napoleon as it is sometimes known, is the summit of human, legal achievement. Napoleon is a new and greater Justinian. Napoleon's legal achievement was not however limited to France. The new code, as a rational system of law, was suitable for all peoples at all times. Accordingly, wherever Napoleon's armies triumphed, their victorious general introduced his legal order. Thus, the French Code Civil came to be known in the territories which Napoleon conquered in Italy and in Spain. In those countries, the code replaced older systems of law and, although the subject nations, which had French jurisprudence forced upon them, were more than ready to cast off the legal mantle by which they had been forcibly covered as soon as the military yoke was removed, they could not deny that the Code Civil had been a better system of law than that which it had replaced. Accordingly, although national or civic pride forbade their adoption of the Code Civil itself, they set themselves the target of producing for their own lands law codes after the French model. In Italy, these were to come after the unification of the kingdom in the second half of the nineteenth century, but before that point is reached, attention must be given to one final and important influence upon the development of the Italian civil law system and indeed of civil law systems generally. The Romantic Movement and the German Historical School The emphasis that had been placed upon reason during the eighteenth century almost inevitably provoked a reaction. Man, it was thought, could not live by reason alone but required that attention be paid to other needs, notably the emotional and the spiritual. Those who reacted against the over-rational approach of the savants and philosophes of the Enlightenment wished to reassert the importance of the spiritual nature of man. This reaction to rationalism at the close of the eighteenth century and at the beginning of the nineteenth century is known as the Romantic movement. Romanticism affected the cultural life of Europe quite profoundly. In the literature of the period, it produced in Britain poets such as Keats, Shelley, Byron and Wordsworth, all of whom responded to beauty and feeling rather than to reason. Wordsworth's outburst of joy and confidence at the French Revolution was emotional rather than rational, while Keats summed up the Romantic reaction of reason as the royal road to knowledge in the lines [John Keats, Ode on a Grecian Urn, v. 9-10]: 'Beauty is truth, truth beauty,' - that is all Ye know on earth, and all ye need to know. In music, the rational, classical models of composition gave way to the freer approach of Beethoven and Schubert, while in painting the classical gave way to the romantic in the works of artists such as Gericault and Delacroix. Architecture also responded to the romantic impulse; builders sought to emulate the gothic of earlier ages and in the nineteenth century there was not only a gothic revival but also a departure from Roman to Greek styles and even acceptance of models from the Orient and the Americas. People began to pursue the natural rather than the rational. Walking in beautiful countryside, climbing mountains for exhilaration and appreciation of fine views came into vogue. Romantic exploits were undertaken, such as Lord Byron's championing of Greek nationalism, the movement to rescue Greece from the rule of the Ottoman Turks who had remained in power in that country since Constantinople had fallen in 1453. In law, it is hardly a surprise to learn that no school of jurisprudence has been dubbed 'the Romantic school'. Nevertheless, the same forces which produced the Romantic movement in the Arts were at work among the jurists of the period and with much the same results. The movement was most influential in the emerging state of Germany, for Germany like Italy underwent unification in the nineteenth century, and in Germany the juristic movement in question came to be known as the Historical school. Its leading exponents were jurists such as Von Savigny and Jhering. The motive force of the Historical school was the rejection of reason as the sole, appropriate basis for a system of law and thus the rejection of the French Code Civil as a system of law which was, as it claimed, a system of law suitable for all peoples at all times. In this rejection, one can detect a strong element of anti-French feeling, tied in with the growing spirit of German nationalism. Tensions between the two nations were to be present from the Congress of Vienna onwards, and were eventually to be manifested in the series of conflicts which began with the Franco-Prussian War and were to continue through the First and Second World Wars. The German jurists, instead, postulated that every nation had a right to its own system of law based on its own customs and history, hence the title Historical school. This notion arose from the concept of the nation as an expression of the identity of the people which made up the State, and that their law was as much an expression of their nationality as their language. The law had to be an expression of the spirit of the people, the Volksgeist, and not just of a cold impersonal reason. Herein lie the roots of the Historical school in the Romantic movement. The same ideas influenced German writers and artists of the period, perhaps most notably the philosopher Nietzsche and the composer Richard Wagner. Wagner deliberately based his operas on German myths and legends rather than on classical sources. In the twentieth century, however, the concept of the Volksgeist has fallen into disrepute largely through its connection with National Socialism in Germany. In this, the concept has suffered through association with an extreme and unrepresentative form of the idea. The idea that Germany should have a law of its known, expressing its own legal culture and tradition, emanated in a demand that Germany should produce a code of law which manifested the spirit of the German people. Work on this code culminated in 1900 with the publication and promulgation of the Burgerlichesgesetzhuch, the German Civil Code, more commonly referred to as the BGB. Although this code was meant to be the peculiar expression of German legal culture, its pedigree is as clear as that of its French counterpart; it is a descendant of the Corpus luris Civilis of Justinian. Indeed, much of the German code is indistinguishable from its French cousin. The family resemblance is apparent almost everywhere, although in the area of contract much is based upon Germanic rather than Roman concepts. By the time that Germany produced the BGB in 1900, Italy too had become a nation state and had promulgated its own law codes. In the fifty years leading up to Italian unification, northern and central Italy especially had been subjected to alternating French and German influences. The aftermath of Napoleonic conquest had familiarized Italy with the advantages of a code on the French model, while the nationalist sentiments which anticipated and led up to the Risorgimento favoured a warm reception for the ideas of the German historical school, as did the exposure of this part of Italy to German influence as alliances were alternately formed with France and Austria during the struggle to regain control of the peninsula. At the end of the day, the French Code Civil had the greater influence upon its Italian counterpart, but German jurisprudence has probably held the greater sway in Italian legal thinking. Conclusion: the Civil Law World From France and Germany, the modern civil law codes, the latter-day successors of their great Byzantine ancestor, have gone out to conquer the world in a manner that the emperor Justinian cannot possibly have contemplated. Italy was not the only nation to adopt the French Code Civil as the model for its own codified legislation. Spain and Portugal did the same, and so did all those nations which were once colonies of those Iberian states. Thus, the whole of Central and South America is composed of countries with codes after the French model. The erstwhile colonies of France in North Africa - nations such as Morocco, Algieria and Tunisia - have the same basis for their law, as do the former colonies of Belgium, for the kingdom of Belgium adopted French civil law as its juristic base after achieving independence in 1830-31. The freed people of Greece also conformed to the prevailing fashion for French jurisprudence, and in the United States, Louisiana alone of all the fifty states has a legal system based upon the French Code Civil. In Canada, Quebec's legal system is also French in inspiration but its laws are based upon the laws of France prior to Napoleon's codifications. The German BGB has also been influential on the world stage. The Austrian empire followed Germany in its legal ordering, as has the modern state of Austria. Neighbouring Switzerland also has a German-based code of laws. Somewhat remarkably, Turkey adopted the Swiss version of the BGB for its legal affairs and, even more remarkably, Japan assumed the legal tradition of the BGB when it was minded to westernize its legal system in the 1930s. Since the Second World War, Japan has adopted a body of public law based on that of the United States, thus making its legal system into a fascinating jurisprudential hybrid. Italy therefore has a legal tradition which is related to those of a very large number of other countries around the world. Every one of those systems is ultimately a descendant of the civil law of ancient Rome as mediated by the Corpus Iuris Civilis of Justinian and the work of the Italian Glossators and Commentators of the Middle Ages. Thus, it can be said without exaggeration and with little fear of contradiction that Italy is possessed of a legal tradition which has given much of the globe its legal order. An appreciation of that legal heritage is essential if a proper understanding of modern Italian law is to be achieved. _______________________________ D. Appendix Dates in Roman and European Legal History B.C. 753 Foundation of Rome 509 Expulsion of Kings, Republic established 451/450 Twelve Tables 366 (Urban) Praetor to administer civil procedure 286 Lex Aquilia (tort statute) 242 Peregrine Praetor 44 Caesar murdered 27 Principate (Early Empire) established by Augustus A.D. 130 Consolidation of Praetorian Edict by Emperor Hadrian 161 Institutes of Gaius 260 End of "classical" legal literature 284–305 Emperor Diocletian, founder of Dominate (Late Empire) 306–337 Emperor Constantine (the Great) 313 Christianity tolerated 326 Transfer of capital to Constantinople 391 Christianity becomes state religion 395 Division of Empire 476 End of West Roman Empire 527–565 Emperor Justinian 528–534 Corpus iuris civilis (Code, Digest, Institutes) 568 Lombards in Italy (Pavia) 750 Lombards incorporated into Frankish Empire 800 Pope crowns Frankish King Charlemagne Roman Emperor 1050 Digest rediscovered and studied in School of Bologna 1150 Vacarius teaches Roman law at Oxford 1250 Glossa ordinaria of Accursius 13th–16th C. Commentators (Bartolus et al.), Reception of Roman law 1453 Turks conquer Byzantium (Constantinople, Istanbul) 1495 Reichskammergerichtsordnung 17th–18th C. Usus modernus pandectarum and Natural law 1794 ALR (Prussian Code) 1804 French Code civil 1812 ABGB (Austrian Civil Code) 19th C. German Historical School and Pandectism 1900 BGB (German Civil Code) 1907/12 ZGB and OR (Swiss Civil Code and Law of Obligations) 1949 German Basic Law 1953 European Human Rights Convention 1957 Treaty of Rome (European Economic Community , EEC) 1993 European Union Treaty (Maastricht) Table of Civil Law Systems Gaius, Institutes personae (‘persons’) res (‘things’: property, inheritance, and ‘obligations’, i.e. contracts and delicts) actiones (‘actions’, i.e. civil procedure) French Code civil (1804) Persons (including family law) Things (property) Modes of acquiring property (inheritance, obligations) Austrian General Civil Code (ABGB 1811) Persons (including family law) Things (property, inheritance, contract, delict) Common provisions of the law of persons and things German Civil Code (BGB 1900) General part Obligations Property Family Inheritance Swiss Civil Code (ZGB 1907) Persons Family Inheritance Property Swiss Law of Obligations (OR 1911) Dutch Civil Code (1947-1992 Revision - Nieuw Burgerlijk Wetboek) I. Law of Persons and Family Law (including the law of matrimonial property); II. Legal Persons (general part, associations, corporations with limited liability, foundations); III. Patrimonial Law in General, i.e., provisions applicable to all subsequent books; IV. Law of Succession; V. Property and Real Rights; VI. General Part of the Law of Obligations; VII. Specific Contracts; VIII. Law of Transport; IX. Intellectual and Industrial Property; X. Private International Law.

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