28/79 Flashcards
LEGES ROMANORUM
Took legal roman tradition and remainders of the imperial legislation in order to write a new legislation for the Romans
LEX ROMANA VISIGOTHORUM
Essentially a codification process, drafted the legal rules for the Roman people under the Visigothic ruling. All laws sourced from Rome.
LEX ROMANA BURGUNIONUM
Aim was to provide legal answers for FAQ, for Burgundian subjects.
LEGES BARBARORUM
Legislation aimed at those of roman origin and germanic ethnicity.
ISLAM
It is a culture of civilisation, with high levels of education and learning.
ROMAN LEGAL CULTURE INFLUENCE
Roman legal culture influenced many, like the germanics, goths and franks into putting their oral precepts and customs into writing
Isidore of Seville’s Etymologiae
Discusses Roman and Christian heritage of early modern medieval europe, with hundreds of topics including law terminology.
ROYAL LEGISLATION
Capitalarium was an order issued by the king containing legal orders which were applicable to all subjects in his territory.
CANON LAW
Canon law is a set of rules and regulations made by the church leaders, for a church and its members. Functions as a component to understand roman law.
CHURCH DEVELOPS ITS OWN SOURCES OF LAW
For things like marriage..
The bible, the canons of the councils, Church fathers, and Papal letters also known as decretals.
INDICUM PARIUM
The belief that you should be judged by your people.
FEUDALISM
Feudalism was a system in which people were given land and protection by people of higher rank, and worked and fought for them in return.
12TH CENTURY: THE RENAISSANCE
Global warming and agriculture led to an increase of cultivation and population. More trade activity and rise of banking and finance activity.
BUBONIC PLAGUE OF THE 14TH CENTURY
In the 14th century economic prosperity comes to an end.. not enough food to sustain the
growing population and Europe’s state of malnutrition leads to the Bubonic plague.
9th and 10th century
9th century: end of the Carolingian empire
10th century: start of the Holy Roman empire.
13th century: decentralisation and Germany became way more autonomous.
REDISCOVERY OF ROMAN LAW
The books of the roman codification were rediscovered. The corpus ius civilis: Institutiones, Digest, Codex and Novellae.
BOLOGNA DEVELOPMENTS
Rise in commerce and trade made the need of lawyers way more apparent in society.
University of Bologna
Since Justinians texts became available in Bologna which included his digest. Many students went to bologna to study his works and the law, and join Irenius which was a great professor. They only taught roman law.
Irenius Littera Bononiensis
The literra was composed of loose manuscripts, to attempt to reconstruct Justinians codification. The digest, the codex, and others make up the libri legales (which are the books found of Justinian in the 11-12 century)
Glossators
Jurists who explained the texts, and also evaluated possible meanings. They did so, by writing explanations on the glossa (the margins of the text). They stuck very closely to the text. Famous glossatord: Azo and Placentinus.
Accursius
Accursius was a Roman jurist. He is notable for his organization of the glosses, the medieval comments on Justinian’s codification of Roman law, the Corpus Juris Civilis.
Glossa Ordinaria
is a collection of biblical commentaries in the form of glosses, used to study law with Roman texts
Commentators
Extensive commentaries on each subject, interpreted roman law.
Decretum gratiani
Written by Gratian, a collection of canon law texts. Became a crucial reference piece, helped when solving contradictions.
Papal decretals
Decretals are letters of a pope that formulate decisions in ecclesiastical law of the Catholic Church. Had the force of law.
Decretals
Liber extra, all ecclesiastical tribunals apply the same law. Liber sextus: Church legislation of pope Gregory. Consitutiones clementines: held legal weight in christian churches.
Libris legales
Corpus ius conoici:
Decretum gratiany, decretals.
Corpus iuris civilis:
Three digests, nine codex and volumen parvum with the Institutions, codex and novellae.
Ius commune
Basically common law. Both canon law and common law, can be applied in all cases. Most broad and general. (seen as the reliable ideal)
Ius proprium
Customary law. Multiple jurisdictions, different in territory (city, town region) and also personal (judgement by equals). It is directly applicable in court. ( seen as the less sophisticated version)
clergies in canon law
a group ordained to perform pastoral or sacerdotal functions in a Christian church, important in courts.
Legislation in late middle ages
b) monarch was not an authoritative figure who imposed laws from above but
legislation was often the result of complex negotiations between subjects and the
state.
c) subjects negotiated via various pressure groups -> securing their aspirations were
enacted in laws since jurists and canonists were responsible for drafting texts of laws, there was a spread of roman and canonical concepts.
Normans of Sicily
Normans (Northern Europe) arrived in Sicily. Assizes of Ariano: series of laws for the kingdom passed by roger II
Then another legislation called the liber augustalis: a collection which was a kind of body of public and administrative law, based on norman laws and new laws. Inspired from the writing of Justinian.
SIETE PARTIDAS
Siete partidas were aimed to spread canon and roman law, they were seven books which written in spanish during alfonso x reign. Was esentially a codification of the legislation, including philosophical reflections & biblical texts. (shaped society, common heritage and stimulate tolerance).
ROMAN VS CANON LAW
Roman law the emperor had full legislative power, in canon law the pope had legislative power.
Cognitio procedure
a) One stage -> this means, that all phases of the process were taken over by judicial
officials, who were responsible for all administrative handling.
b) Appeal: previously appeal was not possible -> now, when decided by the
Emperor, appeal is possible:
- it was natural for party that had lost its case to wish to appeal to emperor,
who regularly allowed this
- heard parties -> then consulted with his consilium -> and then ruled via
decretum (decree) or issued a rescriptum in which he delegated his power
to a judge to rule in his name.
Canonist and cognitio in 12-13th century
abolishment of ordeals (e.g.: Feuerproben & co)
- everything is written in the procedure
- the introduction of appeal (made possible through the fact that it was written!)
- judge still has procedural and evidentiary initiative (Inquisitory) making the process less biased.
Customary law
Was the main source of law until the 18th century, since it wasn’t written it was easily adapted, but it was hard to prove its existence.
Magnacarta
- first legal document imposed on the King of England in the attempt to limit his power by
law
POWER
Ascending theory of power -> power comes from the people
Descending theory of power -> the power comes from above; from god.
SURETYSHIP
the surety gives the creditor the guarantee that if the debtor cannot pay, the
creditor can ask the surety to pay
ORDO IUDICISARIUS
Process Law, meaning fair treatment and rationality.
-written appeal, due process, higher appeal, prohibition of ordeals which were often biased and unfair. Based on the cognitio procedure. Focused on rights established by natural law.
Natural law
right to be heard, right to know
what you’re accused of, right to have time for preparation, etc..
When do Late Middle Ages end?
Around 1500
- year 1453 -> fall of Constantinople, end of Hundred years war between France and
England, invention of Modern printing press
- year 1517 -> Marthin Luther brought religious unity in Europe to an end
- so, around this time -> great changes in Europe!
15th century
Began the rise of humanism and saw the middle ages as barbaric and gothic. Seen negatively.
Legal humanism
Began to censor the work of commentators, inaccurate conclusions and translations as well as the manipulation of meaning by the jurists of the middle ages in order to fit into their beliefs. Francios Hotman criticized the repetitions and contradictions within the Corpus iuris civilis and detested the fact that only 5% of Roman law was actually in the digest. Studied roman law at its purest form. Everything was translated back into the greek language, to uncover roman law.
Canon law during the renaissance
- these ‘revelations’ had lasting consequences for canon law -> showed that it had profoundly
changed over time.
a) Medieval Canonists had already detected these contradictions but considered them part of
the body of law and believed that contradictions were conceptually not possible.
The school of Salamanca
is the Renaissance of thought in diverse intellectual areas by Spanish theologians, rooted in the intellectual and teaching work of Francisco de Vitoria. Contributed to the development of teaching on autonomous international law, and private law like contract and property.
SUMMA THEOLOGICA
Collection of concise and detailed information about the theology (religion) , philosophy, or canon law. Written my Thomas Aquina. Also included law and justice.
Usus modernus pandectarum
Modern use of the digest, incorporated humanist subjects and methodologies into the bartolist approach to law (ancient and medieval annotations of roman law texts)
the usus modernus is essentially the preservation of Roman law texts (since they are
used as supplementary law) while creating scientific editions of the text through the historicalphilological method to make sense of the concepts outside their context.
Hugo Grotius
Founding fathers of the international law system, humanist and natural law movement supporter. Grotius’ Introduction to Dutch jurisprudence would become the first and finest summary of a
national legal system.
How the scientific revolution explains natural law:
- How the scientific revolution explains natural law:
a) nature is intelligible and reasonable (absolute belief in reason!)
b) it is believed that man does not have access or is not capable of knowing the
principles of natural law.. but through rationality and scientific-mathematical
method -> he can deduce principles to create a ideal legal system.
c) so, essentially, one should deduct which laws of natural law should become
human law
Modernism
- Rejection of auctoritates (compilation of other writings in Middle ages): true knowledge
comes from reason, they took the attention away from Roman law, and now it could only be used as a supplement.
Legislation in modern era
Only the monarch could enact the legislation, car ainsi nous plait-il -> “this is the law, because this is how I like it”.
In france, - unified and simplified the procedural laws across France’s different parlements -> improve
quality of legislation.
Bourgeois age
18-19 century, french revolution as the end of modern early age. surplus of the agricultural production and also technological advances. much immigration, and the demand of separation of powers as monarchies begin to collapse.
Enlightment
Promoted the use of reason and science, mans fate belongs to him meaning optimism and progress. All men are equal, and the man is fundamentally free against monarchy and the church. The church no longer has a privileged position. After french revolution the freedom of belief became a fundamental right.
Natural law era vs enlightment
Natural law considered divine creation sustained by god, whilst englightment believed we were left here by god and everything should be reformed.
Social contract
- so, in response to this -> enlightened philosophers formed the ‘social contract’, including public and criminal law.
- states that popular sovereignty is the solution: meaning, people uphold the sovereignty and
every citizen was inherent to this. - power does not come from God -> and it should never be placed into the hands of only one
person. - Limit state power and protect citizens’ rights -> John Locke Two Treatises of Government
Allgemeines Bürgerliches Gesetzbuch
Austrias general civil code.
10-11th century modern era
- Capetians(french) took over Carolingians(german)
a) Frankish law broke up into small territories -> many different legal systems - Laws in northern france-> dependent on oral tradition
and had customary law. Charles VII made all customary laws to be written down.
Napoleonic code
1804, designed to comprehensively deal with the core areas of private law, systematic collection of laws.
France
bill of rights that states in one list the fundamental rights of men, became a republic with a new constution and feudalism was eliminated. Louis XIV’s legislative projects-> wanted to unify law throughout whole of France. Important lawyers: Pothier, Bourjoun and Domat. The church was placed under control of the state. Remove customary laws, and make solid law based on reason and logic.
Code Civil des Français “French civil code”.
> Code Civil des Français “French civil code”.
- Symbolized the revolutionary project of civil law -> the reason for success of the
- contents of code:
- Many traditional elements: customary law of Paris
Contained more germanic influences than roman, contained ancient regime and revolution, good fusion.
- only limited number of new rules (according to Enlightenment Principles).
Napoleonic codes
civil code, civil procedure code, criminal code, maritime law, and code of commerce.
Legal positivism
Exegetic school saw legislation as the only source of law, case law and customary was not valid. Written rules regulations and principles which are recognized are the only ones valid. Received much criticism.
Against: law is dynamic and has to take into account socio-economical aspects.
Pandectism
German university scholars in early 19th century who studied and taught Roman Law as a model of conceptual jurisprudence as codified by the digest (also known as the pandect). Opposed codification.
Bürgerliches Gesetzbuch BGB
Book of civil law, it represented a solid system based on roman law.
How did law become common.
The courts, in deciding local disputes, applied local customs. Over time, these customs became rules and were the basis for later courts to make decisions on similar disputes.
Writ
“no writ, no right”
- in order to bring an action in the King’s courts -> person had to buy a writ from the
Chancellor’s office.
- The writ was a sealed letter issued in the name of the King. It ordered an individual, such as the
sheriff (lord of the manor) or the defendant to do something.
Remedies for plaintiff.
the manner in which a right is enforced by the court when someone is harmed. It is
the character and extent of relief to which a successful claimant is entitled
Common law limitation
Only recognized certain rights, the concept of trust: the control of distribution of property after dealth
Equity
Court of chancery, developed the body of law called equity. This allowed courts to use natural law, discretion and apply justice. abuses of the common law, expenses and delay. law was narrow and rigid.
Court of chancery
No writs needed, chancellor adjudicated a fair trial, and justice was relatively quick. Not bound by rigid procedures.
Law of trusts
New right recognised by equity, A custom developed whereby landowners would transfer their property to a trusted friend on
the understanding that it would be used for the crusader’s family, if he did not return.
Equitable remedy
an equitable remedy is the decision of the court, which is why equitable principle are used. Common law remedy is a matter of right, entitled to damages.
Types of equitable remedies
Injunction: which is an order of the court compelling a person to perform an action or to
refrain from an action.
a decree of specific performance which is an order compelling someone to perform their
obligations under a contract or trust
Common law v equity.
Conflicts between common law and equity, it was directly challenged at times. Decision that equity shall always prevail.
Reformation of the common law system
- now, all civil courts could grant both common and equitable remedies in same proceedings -> e.g.:
injunction to stop unlawful behaviour can be ordered in addition to compensation for damages or losses.
Common law now
Law made by judges (case law) and legislation from pariliament. case law (main source of english law) : cases are summarized by special journalists called court reporters. However, laws cannot originate from judges so past decisions are used now.
civil vs common law
common law is focused on case law whilst civil is focused on codes.
ius gentium
law of the people
ius praetorium
laws made by preaetors in order to overcome the strictness of the ius civile, set in the edicts (orders)
per formulas
form written of the case and hypothesis written, the judge then decided the ruling and this could not be apprealed. overcome the strictness of ius civile
rescripta
bureaucratic administreation is in charge of handing legal queries submitted to the emperor, through ius respondendi
casuisty
using past cases as a form of guidance for the future
gaius
law professor who wrote the institutiones: manual for law students.
top jurists
papianus: quastiones libri and responsa, specific cases featuring critiques of ancient jurists
ulpianus
gaius
lex citandi
only writing from top jurists could hold weight in court
possession
factual detention recognized by the law
mancipatio
obtain ownership of res mancipi, 5 participants, bronze scale holder
in iure cessio
mock trial, buyer states the good as his own and the seller doesnt deny the claim
traditio
simple hand over, for non romans demonstrated instant ownership
usucapio
after period of time, the good becomes yours.
rei vindicatio
non-possesing owner to a possesing non-owner
actio publicana
possesor without ownership would have become owner if good wasnt stolen and time interrupted.
legis action
template to follow for the claims to reach the court.
hammurabi code
one of the oldest known legal codes, supported the idea of retribution (punishement is equal to crime commited)
