Property - Civil Law System

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Patrician

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Patricians were bestowed special status as Roman citizens. They were better represented in the Roman assemblies. The Comitia Centuriata, the main legislative body, was divided into 193 voting centuriae (centuries). The first two classes (which consisted largely of patricians) together had 98 centuriae, a number which was enough to obtain a majority, despite the fact that they were fewer in number. That meant that if the patricians acted in concord, they could always determine the result of the voting of the people's assembly. So, although it was not forbidden for plebeians to hold magistracies, the patricians dominated the political scene for centuries.

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Plebian

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The plebs were the general body of Roman citizens (as distinguished from slaves) in Ancient Rome. They were distinct from the higher order of the patricians. A member of the plebs was known as a plebeian (Latin: plebeius). This term is used today to refer to one who is or appears to be of the middle or lower order; however, in Rome plebeians could become quite wealthy and influential.

In Latin the word plebs is a singular collective noun, and its genitive is plebis.

The origin of the separation into orders is unclear, and it is disputed whether the Romans were divided under the early kings into patricians and plebeians, or whether the clientes (or dependents) of the patricians formed a third group. The nineteenth century historian Barthold Georg Niebuhr held that plebeians began to appear at Rome during the reign of Ancus Marcius, possibly foreigners settling in Rome as naturalized citizens. In any case, at the outset of the Roman Republic, plebeians were excluded from magistracies and religious colleges. Later on, after a general strike by the plebeians, the law of the Twelve Tables was promulgated, and Tabula XI explicitly forbade intermarriage (which was eventually reversed by the Lex Canuleia). However, before the Twelve Tablets plebeians were forbidden to know any laws, but were still punished for breaking them. Despite these inequalities, plebeians still belonged to gentes, served in the army, and could become military tribunes.

Even so, the "Conflict of the Orders" over the political status of the plebeians went on for the first two centuries of the Republic, ending with the formal equality of plebeians and patricians in 287 BC. The plebeians achieved this by developing their own organizations (the concilium plebis), leaders (the tribunes and plebeian aediles). When the plebeians felt the situation had become dire, they would instigate a secessio plebis, a sort of general strike where plebeians would literally leave Rome, leaving the patricians to themselves.

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Patrician vs. Plebian

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The distinction between patricians and plebeians in Ancient Rome was based purely on birth. Although modern writers often portray patricians as rich and powerful families who managed to secure power over the less-fortunate plebeian families, most historians argue that this is an over-simplification. As civil rights for plebeians increased during the middle and late Roman Republic, many plebeian families had attained wealth and power while some traditionally patrician families had fallen into poverty and obscurity.

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twelve tables

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In 449 BC, the second Decemvirate completed the last two codes, and after a secessio plebis to force the Senate to consider them, the Law of the Twelve Tables was formally promulgated. The Twelve Tables were drawn up on twelve ivory tablets (Livy says bronze) which were posted in the Roman Forum so that all Romans could read and know them. It was not a comprehensive statement of all law, but a sequence of definitions of various private rights and procedures. They generally took for granted such things as the institutions of the family and various rituals for formal transactions.

Like most other early codes of law, they combine strict and rigorous penalties with equally strict and rigorous procedural forms.

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plebiscites

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A law passed at the Comitia Tributa (Tribal Assembly).

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Leges:

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A collection of laws passed by the same magistrate(s) or a generic description of similar laws passed over time

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Lex

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A law. Generally laws were named for the magistrate who proposed it and what it pertained to (ie a law proposed by tribune T. Sempronius Gracchus related to the distribution of public land would be entitled Lex Sempronia Agraria).

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Comitia centuriata

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The Century Assembly (comitia centuriata or "Army Assembly") of the Roman Republic was the democratic assembly originally of Roman soldiers. During the years of the Roman Republic, citizens were organized on the basis of Centuries for military purposes. The Centuries gathered into the Century Assembly for legislative, electoral, and judicial purposes. The majority of votes in any Century decided how that Century voted. Each Century received one vote, regardless of how many electors each Century held. Once a majority of Centuries voted in the same way on a given measure, the voting ended, and the matter was decided.[1] Only the Century Assembly could declare war or elect the highest-ranking Roman Magistrates: "'Consuls", "Praetors" and "Censors".[2] The Century Assembly could also pass a law that granted constitutional command authority, or "Imperium", to Consuls and Praetors (the lex de imperio or "Law on Imperium"), and Censorial powers to Censors (the lex potestate de censoria or "Law on Censorial Powers").[2] In addition, the Century Assembly served as the highest court of appeal in certain judicial cases (in particular, cases involving capital punishment), and ratified the results of a Census.[3]

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Senatus consulta

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An authorization of the Senate. A Sen. Cons. Ultimum granted authority to the magistrates or specially appointed individuals to use force in the defense of the city.

The Senate of the Roman Republic was a political institution in the ancient Roman Republic. The senate passed decrees called senatus consultum, which in form constituted "advice" from the senate to a magistrate. While these advices did not hold legal force, they usually were obeyed in practice.[13] If a senatus consultum conflicted with a law (lex) that was passed by an Assembly, the law overrode the senatus consultum, because the senatus consultum had its authority based in precedent, and not in law. A senatus consultum, however, could serve to interpret a law.[14]

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Consuls

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During the time of ancient Rome as a Republic, the consuls were the highest civil and military magistrates, serving as the heads of government for the Republic. New consuls were elected every year. There were two consuls, and they ruled together. However, after the establishment of the Empire, the consuls were merely a figurative representative of Rome’s republican heritage and held very little power and authority, with the emperor acting as the supreme leader.

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Concilia plebis

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The Plebeian Council (Latin: concilium plebis) was the principal popular assembly of the ancient Roman Republic. It functioned as a legislative assembly, through which the plebeians (commoners) could pass laws, elect magistrates, and try judicial cases. The Plebeian Council was originally organized on the basis of the Curia. Thus, it was originally a "Plebeian Curiate Assembly". Around the year 471 BC,[1] it was reorganized on the basis of the Tribes. Thus, it became a "Plebeian Tribal Assembly". The Plebeian Council usually met in the well of the Comitia. Often patrician senators would observe from the steps of the Curia Hostilia, and would sometimes heckle during meetings. The representatives of the Plebians in government are called Tribunes. These Tribunes had the power to veto the laws of the Senate.

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Aediles

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Aedile (Latin: Aedilis, from aedes, aedis "temple," "building") was an office of the Roman Republic. Based in Rome, the aediles were responsible for maintenance of public buildings and regulation of public festivals. They also had powers to enforce public order. There were two pair of aediles. Two aediles were from the ranks of plebeians and the other were called curule aediles (aediles curules). The office of the curule aedile was open to plebeians and patricians, and they were considered curule magistrates.

The office was generally held by young men intending to follow the cursus honorum to high political office, traditionally after their quaestorship but before their praetorship. It was not a compulsory part of the cursus, and hence a former quaestor could be elected to the praetorship without having held the aedileship. However, it was an advantageous position to hold because it demonstrated the aspiring politician's commitment to public service, as well as giving him the opportunity to hold public festivals and games, an excellent way to increase his name recognition and popularity.

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Praetor urbanus

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The praetor urbanus presided in civil cases between citizens. The senate required that some senior officer remain in Rome at all times. This duty now fell to the praetor urbanus. As is implied by the name, he was allowed to leave the city only for up to ten days at a time. He was therefore given appropriate duties at Rome. He superintended the Ludi Apollinares. He was also the chief magistrate for the administration of justice and the promulgation of edicta, which formed a corpus of precedents. The edict was a statement of praetorial policy or decision. The praetor was careful not to attempt legislation with it. Failure in that regard would lead to a charge of treason. The development and improvement of Roman Law owes much to these precedents.

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Praetorian edict

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The incoming Praetor by his Edict laid out legal principles he intended to follow when making judicial decisions during his year in office. To some degree the new Praetor had sufficient discretion to modify the existing Edict of the former Praetor. Many years the new Praetor would simply adopt and so continue the contents of Edict he "inherited" from his predecessor.

Praetors often did not possess any special expertise in law, but rather were successful politicians. So, in deciding whether or not to augment or otherwise modify the Edict, the new Praetor would usually consult with Roman jurists who were familiar with the applicable areas of the law, and who knew the emerging currents of legal change. Language from the Responsa of these Roman scholars of jurisprudence often found its way into the Edict.[2]

The Praetor's Edict had legal force only during the incumbency of the particular Praetor who issued it. Yet, as the pre-existing contents of the ongoing Edict were generally adopted by next Praetor, the Edict attained substantial continuity, subject to marginal changes. On the other hand, the yearly changes usually resulted in welcome legal innovations. With the accretion of annual modifications, the document grew in stature, as well as in size, scope, and reach; it became a primary source of legal growth and evolution. In 67 BC, a lex Cornelia de edictis passed, which required the Praetor to abide by his own Edict.[3]

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Praetor peregrinus

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By the end of the First Punic War, a fourth magistrate entitled to hold imperium appears, the praetor qui inter peregrinos ius dicit ("the praetor who administers justice among foreigners"). Although in the later Empire the office was titled praetor inter cives et peregrinos ("among citizens and foreigners," that is, having jurisdiction in disputes between citizens and noncitizens), in the 3rd century BC Rome's territorial annexations and foreign populations were unlikely to require a new office dedicated solely to this task. T. Corey Brennan, in his two-volume study of the praetorship, argues that during the military crisis of the 240s the second praetorship was created to make another holder of imperium available for command and provincial administration inter peregrinos. During the Hannibalic War, the praetor peregrinus was frequently absent from Rome on special missions. The urban praetor more often remained in the city to administer the judicial system.[13]

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Jus (ius) honorarium

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In the period between about 201 to 27 BC, we can see the development of more flexible laws to match the needs of the time. In addition to the old and formal ius civile a new juridical class is created: the ius honorarium, which can be defined as "The law introduced by the magistrates who had the right to promulgate edicts in order to support, supplement or correct the existing law."

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Jus (ius) civile

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Ius civile is Latin for "citizen law" (originally ius civile Quiritium). It was the body of common laws that applied to Roman citizens and the Praetores Urbani, the individuals who had jurisdiction over cases involving citizens.

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Jus (ius) gentium

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Jus gentium, Latin for "law of nations", was originally the part of Roman law that the Roman Empire applied to its dealings with foreigners, especially provincial subjects. In later times the Latin term came to refer to the natural or common law among nations[citation needed] considered as states within a larger human society, especially governing the rules of peace and war, national boundaries, diplomatic exchanges, and extradition, that together with jus inter gentes makes up public international law.

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Personality principle

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Native law of a person’s country travels with that person when he goes elsewhere. Aliens, therefore, could obtain legal protection in Rome under their own law when a treaty accorded to them this right or when friendly relations existed between their native country and Rome. However, this principle became insufficient for the resolution of all legal problems as the alien population increased. To supply these needs, another body of law was developed - the law of the nations (jus gentium).

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Responsa prudentum

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Opinions given by Roman lawyers. Before the time of Augustus, every lawyer was authorized de jure, to answer questions put to him, and all such answers, response prudentum had equal authority, which had not the force of law, but the opinion of a lawyer. Augustus was the first prince who gave to certain distinguished jurisconsults the particular privilege of answering in his name; and from that period their answers required greater authority. Adrian determined in a more precise manner the degree of authority which these answers should have, by enacting that the opinions of such authorized jurisconsults, when unanimously given, should have the force of law (legis vicenz,) and should be followed by the judges; and that when they were divided, the judge was allowed to adopt that which to him appeared the most equitable.

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Julianus's codification of praetorian edicts

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These edicts, covering centuries, Julianus brought together into a straightforward and modern document, which became the basis of subsequent praetorian and aedilician activity in the field of law.

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Augustus Caesar

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Gaius Julius Caesar Augustus (23 September 63 BC – 19 August AD 14) was the first ruler of the Roman Empire, which he ruled alone from January 27 BC until his death in AD 14

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Pax Romana

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Pax Romana (Latin for "Roman peace") was the long period of relative peace and minimal expansion by military force experienced by the Roman Empire in the first and second centuries AD. Since it was established by Caesar Augustus it is sometimes called Pax Augusta. Its span was approximately 207 years (27 BC to 180 AD).[

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Hadrian

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Hadrian in English; 24 January 76 – 10 July 138) was the fourteenth emperor of Rome from AD 117 to 138.

o Waning of authority of praetors to originate law

commissions Julian

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Gaius

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Gaius (floruit AD 130–180) was a celebrated Roman jurist. The Institutes of Gaius are divided into four books: the first treating of persons and the differences of the status they may occupy in the eye of the law; the second of things, and the modes in which rights over them may be acquired, including the law relating to wills; the third of intestate succession and of obligations; and the fourth of actions and their forms.

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Papinian

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Aemilius Papinianus (142–212), also known as Papinian, was a celebrated Roman jurist, magister libellorum and, after the death of Gaius Fulvius Plautianus in 205, praetorian prefect.

In the Law of Citations (426) he is classed with Gaius, Paulus, Modestinus and Ulpian as one of the five jurists whose recorded views were considered decisive. The former are cited also as primary sources of the Codex Civilis of Theodosius II and Justinian. His view was to prevail if the other four were not congruent.

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Julian

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was a famous Roman imperial politician, jurist and public official; he was active in the reigns of Emperors Hadrian, Antoninus Pius and Marcus Aurelius.

His principal work was the Digesta (or Digests), in 90 books, a systematic treatise on civil and praetorian law which is cited by many later Roman legal writers. “It is a comprehensive collection of responsa on real and hypothetical cases; in general, it followed the edictal system... With Iulianus, the Roman jurisprudence reached its apogee.” [2] Many of his judgements were published by his pupil Caecilius Africanus.
His opinions opinions influenced many other jurists, thanks to the clarity and finesse of his reasoning, as is demonstrated by the fact that, in the Digest, there 457 fragments written by him and Julianus's name is the first to appear in the Index Florentinus. Centuries after his death, Emperor Justinianus would define him legum et edicti perpetui suptilissimus conditor ’(Const. Tanta 18).

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diocletian

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was Roman Emperor from 20 November 284 to 1 May 305

stability of imperial succession; short-lived land reform

Once he retired, however, his Tetrarchic system collapsed. Without the guiding hand of Diocletian, the empire frequently broke into civil war. Only in 324, when Constantine alone emerged triumphant, did stability return

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Constantine

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was Roman emperor from 306, and the sole holder of that office from 324 until his death in 337. Best known for being the first Christian Roman emperor,[notes 1] Constantine reversed the persecutions of his predecessor, Diocletian, and issued (with his co-emperor Licinius) the Edict of Milan in 313, which proclaimed religious tolerance throughout the empire.

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Theodosian Code

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a compilation of the laws of the Roman Empire under the Christian emperors since 312. A commission was established by Theodosius II in 429[1] and the compilation was published in the eastern half of the Roman Empire in 438.[2] One year later, it was also introduced in the West by the emperor Valentinian III.

Originally, Theodosius had attempted to commission leges generales beginning with Constantine to be used as a supplement for the Codex Gregorianus and the Codex Hermogenianus. He intended to supplement the legal codes with the opinions and writings of ancient Roman Jurists, much like the Digest found later in Justinian's Code. But the task proved to be too great, and in 435 it was decided to concentrate solely on the laws from Constantine to the time of writing. This decision defined the greatest difference between the Theodosian Code and Justinian's later Corpus Juris Civilis.

Theodosius' motives behind the codification. Lenski notes that according to Matthews, the “imperial constitutions represented not only prescriptive legal formulas but also descriptive pronouncements of an emperor’s moral and ideological principles.”

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Theodosius II

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In 425, Theodosius founded the University of Constantinople with 31 chairs (15 in Latin and 16 in Greek). Among subjects were law, philosophy, medicine, arithmetic, geometry, astronomy, music and rhetoric.

In 429, Theodosius appointed a commission to collect all of the laws since the reign of Constantine I, and create a fully formalized system of law. This plan was left unfinished, but the work of a second commission that met in Constantinople, assigned to collect all of the general legislations and bring them up to date was completed, and their collection published as the Codex Theodosianus in 438. The law code of Theodosius II, summarizing edicts promulgated since Constantine, formed a basis for the law code of Emperor Justinian I in the following century.

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law of citations

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The Law of Citations (Lex citationum) was a Roman law created in AD 426 by the emperor Theodosius II. It was designed to help judges deal with vast amounts of jurist writings on a subject and thus to reach a decision. According to the legal historian Alan Watson, "This Law of Citations marks a low point of Roman jurisprudence, since [it declares] the correct opinion is to be found by counting heads, not by choosing the best solution."[1]

Authority was given to Ulpianus, Gaius, Paulus, Papinianus and Modestinus as they were some of the outstanding jurists of the classical period. Quotations used by these jurists where also given authority. If there was a conflict between the jurists, the majority view would prevail. In the event of an even number of views on each side, the view of Papinianus would be applied. If Papinianus expressed no opinion, the judge would then be free to use his own judgement.

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"barbarian" legislation

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legislation before Justinian formed the chief sources of the codes of Roman law enacted by barbarian kings (germanic kings in the west. In order to secure certainty of law for their Roman subjects, these kings sponsored such compilations of roman law that became known as barbarian legislation because in comparison with the justinian compilation, these were crude and unscientific products.

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justinian

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Eastern Roman Emperor from 527 until his death.
Justinian achieved lasting fame through his judicial reforms, particularly through the complete revision of all Roman law, something that had not previously been attempted. The total of Justinian's legislature is known today as the Corpus juris civilis. It consists of the Codex Justinianus, the Digesta or Pandectae, the Institutiones, and the Novellae.

Early in his reign, Justinian appointed the quaestor Tribonian to oversee this task. The first draft of the Codex Justinianus, a codification of imperial constitutions from the 2nd century onward, was issued on 7 April 529. (The final version appeared in 534.) It was followed by the Digesta (or Pandectae), a compilation of older legal texts, in 533, and by the Institutiones, a textbook explaining the principles of law. The Novellae, a collection of new laws issued during Justinian's reign, supplements the Corpus. As opposed to the rest of the corpus, the Novellae appeared in Greek, the common language of the Eastern Empire.

The Corpus forms the basis of Latin jurisprudence (including ecclesiastical Canon Law) and, for historians, provides a valuable insight into the concerns and activities of the later Roman Empire. As a collection it gathers together the many sources in which the leges (laws) and the other rules were expressed or published: proper laws, senatorial consults (senatusconsulta), imperial decrees, case law, and jurists' opinions and interpretations (responsa prudentum).

Tribonian's code ensured the survival of Roman law. It formed the basis of later Byzantine law, as expressed in the Basilika of Basil I and Leo VI the Wise. The only western province where the Justinianic code was introduced was Italy (after the conquest, by the so-called Pragmatic Sanction of 554),[20] from where it was to pass to Western Europe in the 12th century and become the basis of much European law code. It eventually passed to Eastern Europe where it appeared in Slavic editions, and it also passed on to Russia.[21] It remains influential to this day.

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Tribonian

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Tribonian (c. 500–547) was a jurist during the reign of the Emperor Justinian I, who revised the legal code of the Roman Empire.[1]

Tribonian was born in Pamphylia around the year 500. He became a successful lawyer in Constantinople, and was appointed by Justinian in 528 as one of the commissioners to prepare the new imperial legal code, the Corpus Juris Civilis, released in 529. In 530 he became quaestor sacri palatii, and the chief editor of the compilation of the old Roman lawyers writings (Digesta or Pandecta, meaning Digest or Collection), which in total were much larger than the code itself. The brief version of the new code, Codex repetitae praelectionis, containing the most relevant and useful parts of the selection of imperial constitutions , was released in 533. While this was being completed the participants in the Nika riots of 532 called for his removal because of his alleged corruption. He was temporarily removed by Justinian until the riots were crushed. In 534 the full Codex Justinianus was released, along with a series of new laws created by Justinian to reflect contemporary needs (the Novellae). His life is recounted in the writings of Procopius.

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Corpus Juris Civilis

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("Body of Civil Law") is the modern name[1] for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor. It is also referred to as the Code of Justinian.

This code compiled, in Latin, all of the existing imperial constitutiones (imperial pronouncements having the force of law), back to the time of Hadrian. It used both the Codex Theodosianus and the fourth-century collections embodied in the Codex Gregorianus and Codex Hermogenianus, which provided the model for division into books that were divided into titles. These codices had developed authoritative standing.[2]

Justinian gave orders to collect legal materials of various kinds into several new codes, spurred on by the revival of interest in the study of Roman law in the Middle Ages. This revived Roman law, in turn, became the foundation of law in all civil law jurisdictions. The provisions of the Corpus Juris Civilis also influenced the Canon Law of the church since it was said that ecclesia vivit lege romana — the church lives under Roman law.[3]

The work was directed by Tribonian, an official in Justinian's court, and distributed in three parts: Digesta (or "Pandectae"), Institutiones, and the Codex Constitutionum. A fourth part, the Novels (or "Novellae Constitutiones"), was added later.

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Novellae Constitutiones

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new constitutions, Greek: Νεαραί), or Justinian's Novels, are one of the four major units of Roman law created by Roman Emperor Justinian I in the course of his long reign (527-565). The other three pieces are: the Code, the Digest, and the Institutes. Together, the four parts are known as the Corpus Juris Civilis. The Novels are laws enacted after 534, when he promulgated the second edition of the Code.[1]

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institutiones

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As the Digest neared completion, Tribonian and two professors, Theophilus and Dorotheus, made a students' textbook, called the Institutiones or 'Elements'. As there were four elements, the manual consists of four books. The Institutiones are largely based on the Institutiones of Gaius. Two thirds of the Institutiones of Justinian consists of literal quotes from Gaius. The new Institutiones were used as a manual for jurists in training since 21 November 533 and were given the authority of law on 30 December 533 along with the Digest.

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Codex Justinianus

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was the first part to be completed, on April 7, 529. It collects the constitutiones of the Roman Emperors. The earliest statute preserved in the code was enacted by Emperor Hadrian; the latest came from Justinian himself. The compilers of the code were able to draw on earlier works such as the official Codex Theodosianus and private collections like the Codex Gregorianus and the Codex Hermogenianus. The emperor was an absolute monarch, considered indeed God's regent on earth, answerable only to God, and consequently his legislative, executive and judicial powers were unlimited and accurate throughout. Due to legal reforms by Justinian himself, this work later needed to be updated, so a second edition of the Codex (the so-called "Codex repetitae praelectionis") was issued in 534, after the Digest. The social order is shown in the later Empire. According to Justinian, the Codex regulated all human and divine affairs and laws from the time of the foundation of Rome by Romulus and Remus into a clear system that was not confusing to the public. The emperor also removed repetitive or iniquitous laws, in order to “afford all men the ready assistance of true meaning.

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digesta

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The Digesta or Pandectae consist of a collection of legal writings mostly dating back to the second and third centuries. Fragments were taken out of various legal treatises and opinions and inserted in the Digest. In their original context, the statements of the law contained in these fragments were just private opinions of legal scholars. The Digest, however, was given the force of law, like the other parts of the Corpus Juris. This section of the Corpus Juris was completed in 533.

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The Digest is the most important part of the Justinian Compilation. It contains fragments of classical texts digested according to the subject matter regulated.

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remaining law schools in post-classical roman period

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constantinople and beirut

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glossators

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The scholars of the 11th and 12th century legal schools in Italy, France and Germany are identified as glossators in a specific sense. They studied Roman Law based on the Digestae, the Codex of Justinian, the Authenticae (an abridged Latin translation of selected constitutions of Justinian, promulgated in Greek after the enactment of the Codex and therefore called Novellae), and his law manual, the Institutiones Iustiniani, compiled together in the Corpus Iuris Civilis.

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The discovery of the manuscript of the digest early in the 12th century gave new impetus to legal studies. The Bologna scholars wrote mostly short comments on the digest in the form of marginal notes and became known as glossators. They considered roman law as the actual law of their times rather than an object of antiquarian learning. as a result of such an excursus, they often attributed a new meaning to the justinian compilation

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glosses

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In the medieval legal tradition, the glosses on Roman law and Canon law created standards of reference, so-called sedes materiae (literally: seat of the matter). In common law countries, the term "judicial gloss" refers to what is considered an authoritative or "official" interpretation of a statute or regulation by a judge.[1] Judicial glosses are often very important in avoiding contradictions between statutes, and determining the constitutionality of various provisions of law.

A gloss is a brief notation of the meaning of a word in a text. It may be in the language of the text, or in the reader's language if that is different.

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Accursius of Bologna

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Franciscus Accursius (Italian: Francesco d'Accorso; 1225 – 1293) was an Italian lawyer, the son of the celebrated jurist and glossator Accursius. The two are often confused.

Born in Bologna, Franciscus was more distinguished for his tact than for his wisdom. Edward I of England, returning from Palestine, brought him with him to England. The king invited him to Oxford, and in 1275 or 1276 he read lectures on law in the university. He returned to Bologna in 1282, and practiced law there until his death.

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Accurius undertook the task of collecting and coordinating the various notes (glossae). he had to examine 96,000 entries but managed to hand down to posterity a coherent text titled Glossa Ordinaria. This work incorporated the accumulated doctrine of the glossators and concluded the period

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gloss ordinaria

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A glossa ordinaria (pl. glossae ordinariae) was an assembly of glosses which came to be widely accepted in universities, esp. in the 13th century. Such books were official commentaries which professors read after the ordinary. Many important works would have their own glossa ordinaria, such as that of Accursius for Justinian's Corpus or that of Johannes Teutonicus and Bartholomew of Brescia of Gratian.[1]

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Bartolus

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was an Italian law professor and one of the most prominent continental jurists of the Middle Ages. He belonged to the school known as the commentators or postglossators. The admiration of later generations of civil lawyers is shown by the adage nemo bonus íurista nisi bartolista — no one is a good jurist unless he is a Bartolist (i.e. a follower of Bartolus).


Bartolus left an extraordinary number of works. He wrote commentaries on all parts of the Corpus Juris Civilis (except Justinian's Institutes). He is also the author of a large number of treatises on specific subjects. Among these treatises is his famous book on the law relating to rivers (De fluminibus seu Tyberiadis). There are also almost 400 legal opinions (consilia) written at the request of judges or private parties seeking legal advice.

Bartolus developed many novel legal concepts, which became part of the civil law tradition. Among his most important contributions were those to the area of conflict of laws — a field of great importance in 14th century Italy, where every city state had its own statutes and customs. Bartolus also dealt with a variety of constitutional law issues. In his treatise De insigniis et armis he discussed not only the law of arms but also some problems of trademark law.

Bartolus also wrote on political issues, including the legitimacy of city governments, partisan divisions and the regimes of Italy's petty tyrants. His political thought balanced respect for the Empire with defense of the legitimacy of local Italian governments.

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humansim

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Humanism is the term generally applied to the predominant social philosophy and intellectual and literary currents of the period from 1400 to 1650.

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A humanistic movement had focused attention on ancient history and ancient literature. Humanist jurists studied roman sources directly wihtout feeling bound by the accumulated doctrine of glossators which they regarded as a distortion of Roman legal thought. The living law of the time was neglected.

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natural law schools

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Natural law or the law of nature (Latin: lex naturalis) is a theory that posits the existence of a law whose content is set by nature and that therefore has validity everywhere.[1] The phrase natural law is opposed to the positive law (which is man-made) of a given political community, society, or nation-state, and thus can function as a standard by which to criticize that law.[2] In natural law jurisprudence, on the other hand, the content of positive law cannot be known without some reference to the natural law (or something like it). Used in this way, natural law can be invoked to criticize decisions about the statutes, but less so to criticize the law itself. Some use natural law synonymously with natural justice or natural right (Latin ius naturale), although most contemporary political and legal theorists separate the two.

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Hugo Grotius

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Hugo Grotius (10 April 1583 – 28 August 1645), also known as Huig de Groot or Hugo de Groot, worked as a jurist in the Dutch Republic. With Francisco de Vitoria and Alberico Gentili he laid the foundations for international law, based on natural law. He was also a philosopher, theologian, Christian apologist, playwright, and poet.

On the Law of War and Peace: Three books) was first published in 1625, dedicated to Grotius' current patron, Louis XIII. The treatise advances a system of principles of natural law, which are held to be binding on all people and nations regardless of local custom. The work is divided into three books:

Book I advances his conception of war and of natural justice, arguing that there are some circumstances in which war is justifiable.
Book II identifies three 'just causes' for war: self-defense, reparation of injury, and punishment; Grotius considers a wide variety of circumstances under which these rights of war attach and when they do not.
Book III takes up the question of what rules govern the conduct of war once it has begun; influentially, Grotius argued that all parties to war are bound by such rules, whether their cause is just or not.

Introduction to the Jurisprudence of the Netherlands – fused Roman law with Germanic customary law

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Jean Domat

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Domat was one of the few later French scholars of Roman law of international significance. His principal work, Les lois civiles dans leur ordre naturel (1689, 68 later editions) was to become one of the principal sources of the ancien droit on which the Code Napoleon was later founded. In line with earlier Humanist attempts to transform the seemingly random historical sources of law into a rational system of rules, it presented the contents of the Codex Iustinianis in the form of a new system of natural law. After Doneau's more thorough but less consistent Commentarii iuris civilis (1589), the Lois were the first work of this type of pan-European significance.
The major work of Jean Domat, The civil Laws in their natural order, marked profoundly the doctrine of the ancient French law. It was an attempt to establish a system of French law on the basis of moral principles. Supporter of a Cartesian juridical order, Domat builds a work of private law hard marked by a Jusnaturaliste and Romanist footprint. Domat's grand plan was to set out a scheme of Christian law for France in a rationalist view.

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Domat produced his most comprehensive treatise on "the civil law in its natural order." He derived most of its substance from the Justinian Legislation but also paid attention to royal ordinances and local customs. Domat was a proponent of natural law namely of divine law inscribed by God on human reason. He started a movement toward the creation of a unified legal system that included among its sources Roman rules, royal ordinances, and local customs

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Puf(f)endorf

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was a German jurist, Among his achievements are his commentaries and revisions of the natural law theories of Thomas Hobbes and Hugo Grotius.

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enlightenment

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The Age of Enlightenment (or simply the Enlightenment) is the era in Western philosophy and intellectual, scientific and cultural life, centered upon the eighteenth century, in which reason was advocated as the primary source and legitimacy for authority.

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secular humanism

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Secular humanism is a humanist philosophy that espouses reason, ethics, and justice, and specifically rejects supernatural and religious dogma as the basis of morality and decision-making. Like other types of humanism, secular humanism is a life stance that focuses on the way human beings can lead good, happy and functional lives.

The term "secular humanism" was coined in the 20th century, and was adopted by non-religious humanists in order to make a clear distinction from "religious humanism". Secular humanism is also called "scientific humanism". Biologist E. O. Wilson claimed it to be "the only worldview compatible with science's growing knowledge of the real world and the laws of nature".[1]

• Rational human thought discovers universal principles in law and legal systems

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Pothier

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He was born and died at Orléans, France and is buried in the Cathedral of Orleans. He studied law to qualify for the magistracy, and was appointed Judge in 1720 of the Presidial Court of Orléans, following in the footsteps of his father and grandfather. He held the post for fifty-two years.

Pothier paid particular attention to the correction and co-ordination of the text of the Pandects. His Pandectae Justinianae in novum ordinem digestae (Paris and Chartres, 1748-1752) is a classic in the study of Roman law. In 1749 he was made professor of law at the University of Orleans.

He wrote many learned monographs on French law, and much of his work was incorporated almost textually in the French Code Civil. His theories on the law of contract were influential in England as well as in the USA.

Pothier invented the rule limiting recovery in the case of improper performance of a contractual obligation to those damages which are foreseeable. This was a great achievement: mankind had searched for such a rule for over a thousand years.

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Pothier ended Domat's movement towards a unifed legal system. He wrote a most comprehensive commentary on the Digest of Justinian and a great number of treatises. He contributed to the fusion of Roman law with ordinances and local customs in a most imposing synthesis and paved the way for future codification

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codification movement in enlightmentment era was due to:

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• French law of the ancient regime: chaotically diverse, out-of-date, based on inequality of classes
• Movement seeks unity, rational ordering of law, preservation of ideals of the revolution
• Codification modeled on Roman legal example

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von savigny - why did he oppose the codification?

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) was one of the most respected and influential 19th-century jurists and historians.

In 1814 appeared his pamphlet Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (new edition, 1892). It was a protest against the demand for codification, and was intended as a reply to Thibaut's pamphlet urging the necessity of forming a code for Germany which should be independent of the influence of foreign legal systems. In this famous pamphlet Savigny did not oppose the introduction of new laws, or even a new system of laws, but only objected to the proposed codification on two grounds:

that the damage which had been caused by the neglect of former generations of jurists could not be quickly repaired, and that time was required to set the house in order
that there was great risk of the so-called natural law, with its "infinite arrogance" and its "shallow philosophy" ruining such a scheme.

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Anthropological approach

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Law reflects the history and culture of the people who produced it.

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o Romantic reaction against French codification movement

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 (von) Savigny - Influential German legal scholar of late 18th – mid-19th centuries
 Anthropological approach: Law reflects the history and culture of the people who produced it.
 Opposition to codification because of reliance on foreign legal culture of Rome

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• Emergence of Code Napoleon

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o Earlier failures of French assemblies
o Projet du gouvernement of 1800 - draft
o Final version enacted 1804

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 XII Tables

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(5th century) Transformation from the mysterious law of the priests to a written, public form of law.
o Oldest Roman legislation we have today
o Dissatisfaction with the way priests handed down the law.
o Legend is that a commission was sent to get the Laws of Solon (Greece)
o Patriarchal System: “The father can: emancipate his son, recognize the son as an adult….” Father governs within the family.

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Republic: 6th- 1st Century BCE
2 sources of law developed simultaneously

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o Jus Civile
o Jus Honorarium

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bacteriostatic antibiotics

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we're ECSTaTiC about bacteriostatics

erythromycin (macrolides)
clindamycin
sulfamethoxazole
trimethroprim
tetracyclines
chloramphenical

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we're ECSTaTiC about bacteriostatics

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 Assemblies: (Comitia)

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o Comitia tribute: Composed of citizens belonging to local districts in the city or out of the country
o Concilia plebes: Composed of plebeians
 Evolved as active legislative body in private law
 Plebiscites: Acts passed by this assembly
• Initially only binding on plebeians
• 447 BCE binding effect on all citizens
o Comitia curiata:
 Most ancient assembly
 Originally patricians
 No legislative functions
 Became insignificant
o Comitia Centuriata:
 Convened to elect the highest magistrates (judges) and consuls (enacted and enforced legislation)
 Voted on proposed bills
 Composed of both plebeians and patricians but the patricians always had more representation so they had the upper hand.

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 Magistrates:

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Elected officials, not entitled to salary, controlled by aristocracy.
o Consuls: Initially only patricians, but eventually plebeian as well
o Praetors: Judicial officials. Each year the new praetor generally adopted the previous praetor’s list of causes of action and added new ones that he would hear as needed
 Praetor Urbanis: (Praetor for city of Rome) Administered justice to the Roman citizens
 Praetor Peregrinus: (Praetor for Pilgrims) Administered justice to aliens.

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• Jus Gentium:

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Law developed by the praetor peregrinus. Embodied the laws that everyone was naturally expected to know and live by (like a natural law concept)

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 Jus Honorarium:

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This was like case law and was developed by both types of praetor and was passed down through edict praertorium

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Early Empire: 1st Century BCE- 3rd Century CE

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 Started with the empire of Augustus Caesar and ended with the German Invaders. (Roman republic ultimately folded to empirical power)
 Law became concentrated in the hands of the emperor.
 Assemblies still existed but eventually lost their power.
 Golden Age of Roman Law: A lot of the earlier law is written down for the first time.
 Praetors lost power
 Jus honorarium and jus civile were combined into a single body of law
 Senate could still enact law: senatus consulta
 Decrees of the emperor: constituciones
 Jurisconsults: (Professional Jurists) Legal scholars who issued response prudentumm (wise response) which was an opinion. Important source of civil law.
o Also wrote treatises on the law
o Gaius: Important jurisconsult whose treatise, the Institutes, is virtually all that is left today.
 Law of Citations: Reduction of the use of jurisconsults to a formula. If a majority of five jurisconsults agreed (meaning 3 had to agree) then the rule was applied. The judge only had discretion if there was not a majority.

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Later Empire: 3rd CE – 7th CE

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 More totalitarian system b/c the emperor had more power
 Barbarian Legislation (Western empire ruled by the Barbarian Empire, East continues to flourish)
 Justinian: Emperor who managed to temporarily unite the East and the West during 6th CE. Appointed a commission headed by Tribonian.
 Tribonian created the Corpus Juris Civiles (CJC)
 Corpus Juris Civiles (CJC): 4 part work
o Codex: Compilation of Imperial Decrees arranged by subject matter
o Institutes: Guidebooks for law students basically copied from Gaius
o Novellae Constitutiones: New Imperial Edicts arranged chronologically
o Digests or Pandects: (Most Important Part!) Compilation from juris consults of golden age arranged by subject matter. Took 2000 works of treatise writers and organized the best of them by subject matter. Each statement is attributed to a juris consult but it still forms a coherent text
 Justinian destroyed all the original texts on which the digests were based to preserve the integrity of the digest and closed all but 2 of the law schools

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Byzantine Empire 7th CE-15th CE

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 Flourished when the Justinian empire fell.
 Basilica of Leo VI: Code of Byzantine emperor (10th CE) that was the authoritative source of eastern imperial law until 15th CE.

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Holy Roman Empire 7th CE-10th CE

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 Really a loose confederation in the west. The thing that was continuous in it was the presence of the church
 Cannon Law: Family and inheritance laws were the domain of the church, other than that there was Barbarian legislation
 Dark Ages: Roman law did not survive after the 7th century and the digests actually disappear until the 12th CE (rediscovered in Pisa, Italy)- which coincided with the beginning of the medieval period.
 Irnerius: Bologna law professor who studied the digests and taught it to his students
o Four Doctors: Four if Irnerius’ students who studied the digests. The way they studied was to take a text from the digest and write marginal notes elaborating on the principles in the digest.
o Marginal notes known as glossa on the text so these commentators became the glossators.
 Glossators: (12th- 13th CE) Goal was to harmonize the digest with the current law. They succeeded. The digests became an important part of court decisions and legislation.
 Summa, Summae: Other work written by the glossators, basically treatises on the law.
 Accursius of Bologna: 13th CE there were too many glossa for the judges to use. Accursius made it his life’s work to compile the glossa into a single text organized by subject matter- glossa ordinaria
 Glossa Ordinaria: Became an authoritative supplement to the law. This led to the decline of the glossators b/c there was no reason to make new notes once there was a book to rely on already
 Commentators: (late 13th CE- 15th CE) From Orleans, France. Used the scholastic method/ dialectic method where the professor asked a question, answered it himself, then addressed objections to the position
o Bartolus: Most noted commentator- 14th CE- influential for 2 centuries after that
 Reception of the Roman Law: (Late 14th CE) Roman law was not received in its pure form, it was received as adapted by the medieval scholarship (Bartolus and commentators)
o Some jurisdictions refused to recognize the Roman law for some time- Spain, northern France, England
o Roman law was difficult to apply uniformly b/c there was a lack of centralized government.
o Desire to be able to trade with other countries led to unification of the law
o Roman law not the exclusive source of law- degrees of governing bodies, cannon law, etc.
o Reception complete by late 16th CE in western continental Europe (England and northern France still holding out)

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Receptionist Era

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 Reception: Took place throughout continental Europe between rediscovery of the digests and the 16th CE
 Common Law: English common law already established so it was resistant to the Roman law
 Lus Commune: (common law) The Roman law in the form of the Justinian code and the medieval commentaries on it became the common law in places where reception took hold.
 Alfonso the Wise: Force behind the codification effort in Spain. The Siete Partidas and Fuero Real were extremely influential in Louisiana law
 Sachesen Peigal: German codification
 Three Aspects of Reception:
o Movement toward centralization: Reception more prevalent where there was a move toward centralized government b/c of the need to have uniform law across the nation
o Trade: Need for systematic laws to govern trade across borders
o Universities: Growth of the universities to study the practical use of the law

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Renaissance: Late 16th CE

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 Three schools of legal study: glossators, commentators, humanism (this one came during the Renaissance)
 Humanism: Began in France at University of Bourges. Scholars turned away from studying the medieval from of the law and looked at the classic form- which was in Greek rather than Latin.
o Studied the law without glossa ordinaria, commentators/ Bartulus. Originally this had little practical impact, but became important once scholars realized what was achieved by the organization done under Justinian.
o Theory of Natural Law: This is what the humanists decided was the underlying theory to the ancient Roman law. It is the notion that law has an underlying structure that is divinely inspired and that the principles of the law can be organized in accordance with human reason.
 Influential in 17th and 18th centuries- philosophy of US founding fathers
 Donellus: Important humanist scholar of Roman law
 Domat: (France) wrote Civil Law in its Natural Order. Combined the practice of law with Roman law and set it up in an organizational principle that came from ancient Rome/ Institutes of Gaius. Three important things about his work:
o (1) Roman law organizational structure
o (2) Combination of Roman law and his local law
o (3) Entire thing operates on the theory that the source of law is natural law and the source of natural law is God.
 Gortius: (Netherlands) 2 major works that were foundational works for the civil law:
o Law of War and Peace: First treatise on international law- still quoted today
o Introduction to the Civil Law of the Netherlands/ Holland: This did for the Dutch what Domat did for France
 Puffendorf: (17th CE) German legal scholar who saw the Roman law as the embodiment of rational legal thinking.

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Enlightenment:

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 Movement toward seeing rationality as the basis for all things. Started in the 16th CE when the various protestant churches came into existence and the diverging religions led to wars.
 Philosophers of the enlightenment believed that religion was not a source of conflict of earthly power- retreated from religious power
 Deism: Religious belief that evolved during this time. Deists saw god as rational which gave rise to a rational legal system. The idea was to free the legal system from individual religions’ ideologies. Thought you could end all the wars by believing in a God who did not rely on people to maintain his authority on Earth.
 Potheir: (France 18th CE) Extremely influential French treatise writer who influenced the law of France, code of France and Louisiana. Very influenced by Domat.

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Romantic Period: 19th CE

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 Rationalism lead to a reaction against it called Romanticism
 Von-Savigny: (Germany) Leader of the anti- rationalist movement. Advocated abandoning universal rationalism as an underlying principle of law and wanted to instead look at law as the development of a particular people during a certain period of time.
o Rationalist looked for universality, Savigny looked for diversity.
o Opposed codification b/c not natural to the German approach of law
o Opposed attempts to write the law in Romanist order

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Spread of the Codes:

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 Types of Codes: Common law, civil law
 Civil Law codes:
o Digest: This basically just fills in the gaps, but does not change the existing law, only collects the law on different aspects of legal life
o Reform: This was the 2nd type of code in LA- used to make changes without changing the overall aspects of the law
o Revolutionary: This makes fundamental changes- the Napoleonic Code did this- huge changes in the areas of freedom of contract
 Prussian Code: (1794- First European Code): Established by Frederick the Great.
o The code was a huge failure b/c it attempted to be too complete and left no room for judicial interpretation. It too cumbersome to use in a reasonable fashion- 17,000 articles- digest type of code
 Napoleonic Code: (1804) After the French Revolution the old power structure was gone and there was a need for something new. The idea behind the code was that it should be reduced to a small number of articles which flow logically from few principles and represents present society- in this case the new democratic society.
o Napoleon: The code was not actually passed by the legislature until Napoleon took over- this reaffirms the already established theme that for codes to be established there needs to be a dictator/ monarchial government
o 3 Major Sections: people, things, modes of acquiring things
o Spread of Influence:
 Napoleon conquering all of Europe
 Voluntary imitation based on admiration
 Influence on political leaders
o Seamless Web of Law: Idea that all the law and articles were tied together by the same general principles
o Small in size and code articles so that everyone could have a copy to carry around- code of the people
o First code to say marriage is just a civil contract
o Freedom of contract- putting everyone on equal footing was a radical change
o Structure resembled structure of Gaius
o Code Civil Des Francais: official name
 Germaninc- Burgerliches- Gesetzbuch (BGB): (1896-1900) German codification, originally opposed by Von-Savigny, but the codification was ultimately not modeled after the French code.
o BGB Organization: different than French:
 Book One: Introductory section stating universal precepts
 Book Two: Obligations
 Book Three: Property
 Book Four: Family Law
o Approach: The approach is very different- drafted by lawyers for lawyers. Not a code for the people- it is highly technical and does not attempt to have simplicity of language
o Equally influential as French code
 Swiss Civil Code: French influence: simple language. Structurally it is set up like the BGB and has more parts than the traditional Gaius setup. The law is basically German law.
 Greek Civil Code: (Hexabiblos and Basilica Biblos)
o Origin: Greece needed a new expression of law after gaining independence from Turkey b/c it had been a colony for 400 years. New ministry ordered a drafting of a civil code which was to approximate the French code as closely as possible.
o Outcome: The project ultimately failed for several reasons.
 French law too much of a departure from Greek law
 Committee members fought about how much Greek customary law to include
 Code was not reflective enough of Greek culture to take hold
 Ultimately a German scholar who was a professor in Athens advocated using German techniques and that is what was eventually done.

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Louisiana Civil Code:

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 Louis 14th : Granted private charter to develop colony in LA. Charter was a proclamation of what the law would be: Edicts of Paris of 1712
 Bienville: Governor
 1718: New Orleans founded
 1762: Territory ceded to Spain by secret treaty but French law continued
 1769: LA governor replaced by Alejandro O’Reilly, Spanish governor who issued an order to establish Spanish law
o O’Reilly’s Code: Compilations of the Laws of Castille, Laws of the Indies, Fuero Real, Siete Partidas, Code Noir (This was actually French slavery law)
 1803: French got the colony back from Spain for 20 days before selling to the US
 1804: Congress divided the purchase into the district of Louisiana and the Territory of Orleans (which roughly corresponds with the current state)
o Legal crisis- some of the Spanish law was contrary to US principles. Introduction of common law an option but the people feared it b/c they did not know how that would affect property rights
o Edward Livingston: Moved to LA, began studying the civil law and lobbied congress on behalf of Orelans-1805
 1806: Elected legislative body announced that the law that would govern would be French and Spanish civil law.
 Governor Claiborne: First American governor rejected the idea. The legislators walked out an wrote a manifesto stating that the only law that should govern Orleans was the US Constitution
 1806: Legislature reconvened to write a civil code: James Brown and Louis Moreau-Lislet
 1808 Digest/ Civil Code of 1808: (drafted by Brown and Moreau-Lislet) Styled like the code of Napoleon and was originally in French.
 Scholarly Debate: Debate over the source of the code
o Professor Pascal: (LSU) Argued that the from was French b/c Spanish law had not yet been codified, but that the substance was Spanish. French law was used to fill in the blanks but was not used if it was incompatible with Spanish law
o Professor Bautiza: (Tulane) Conducted a study which he though proved the real source to be French law. He did a synoptic text comparison of the Napoleon code and the 1808 Code and found that 70% corresponded with either the proget of the Napoleonic Code or the actual Napoleonic Code, 15% corresponded with the French statutory and other law, and 15% corresponded with Spanish law.
o Richard Kilborne: Takes the position of Pascal
 Problem with the 1808 code: The enabling statute only repealed laws contrary to the code- it did not repeal all the old laws- this is not how a code is supposed to work
 Cottin v. Cottin: Man married a wife. The wife had a baby. The husband died and the child died shortly after birth. This inheritance issue was not addressed in the code.
o French Law: Child inherited from the father when the father died and the mother inherited from the child when he died.
o Spanish Law: Inheritance would only go to the child if he survived 24 hours after birth. But, the child in this case did not live that long so the mother could not inherit from the child and the estate passed to the husband’s father
o Outcome: The SC, finding a gap in the code, turned to the old Spanish law. The case led to a reform movement
 1825 Civil Code: The charge of the redactors was to add a commercial code and a code of practice. Derbigny, Moreau-Lislet, and Livignston were the drafters. Commercial code was never drafted, so that area was governed by the law of obligations. Contained a proget in which the sources of the code articles were listed.
o Repealed a lot of prior legislation but did not repeal the 1808 code
 Great Repealing Act of 1828: Legislature repealed virtually everything except the 1825 code and said that when there was a conflict in translations, the French translation prevailed.
 1870 Code: John Ray and 3 associates drafted this one. Important changes:
 Slavery articles gone
 New legislation included
 For the first time the code was published in English first
 Attempted 1913 Revision: This attempt ultimately failed. The code was not really a code- it resembled the common law too much- looked more like a compilation of statutes
 1938 Louisiana Law Institute Founded: Funded by the state the goal was to revise the 1870 code and to produce doctrinal materials. Did not really get running until WWII.
 Problems with the Revision: Instead of appointing a few people to revise the code, larger committees are used and it is done as a rolling enactment so it takes too long and there are inconsistencies.
 The Death of a Code, the Birth of a Digest: Palmer’s article criticizing the fact that some parts of the revision were keeping the old code articles in force and not really repealing them.
o Digest: More of a digest b/c of (1) failure to repeal (2) bonding of jurisprudence to the code (3) misuse of the comments

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to move

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cambiare casa