CLI - Rome & The Civil Law Tradition

Question 1

How did who you are affect your interactions with the legal system in Rome?

Answer 1

Rome was a diverse empire that had a dual track legal system for citizens v. non-citizens

Question 2

How did mediation work in Rome?

Answer 2

Mediation – two parties requesting a third’s input for a compromise
Mediatory was usually a local notable – b/c both need to respect him

Question 3

How did arbitration work in Rome? When did they resort to it?

Answer 3

Arbitration – two parties ask a third to hear their sides and make a decision that they will obey
Cicero: Arbitration is for uncertain sum; adjudication for certain sum b/c arbitration is about compromise not dichotomous decisions
Selected when (1) parties couldn’t afford litigation or (2) willing to compromise
compromissum - mutual contract in which they set out details of dispute and agree to set it before named arbitrator, cooperate in proceedings, and abide Contract includes penalty for plaintiff to pay if breach
-high enough to incentivize, breach of contract can be enforced by state

Question 4

How did adjudication work in Rome?

Answer 4

Adjudication – one party places the dispute before a third party, who, using state power, calls the second party before them and renders a decision

Question 5

What did the Duovir do in the Roman Municipium?

Answer 5

Sets a formula which will decide the outcome of the case

Asks who disputants want as their iudex (either agree or D appoints)

Question 6

What did the Iudex do in the Roman Municipium?

Answer 6

Iudex – jurorish/judgish - chosen by parties
Sets time/place for full hearing after which he renders a judgement according to the parameters of the formula provided by the duovir

Question 7

How did hearings work in the Roman Municipium?

Answer 7

Hearing - litigants state their interpretation of events, call witnesses, provide evidence, and iudex renders judgement (monetary award) according to parameters of formula provided by duovir - ruling is final

Question 8

How was law different in Rome?

Answer 8

same procedure but: Praetor = Duovir
Two Praetors: one for Roman citizens; one for non-romans
Alternatively, emperor/prefect performed roles of Duovir and Iudex
more options for disputants

Question 9

What were the three evolutions of the civil law tradition?

Answer 9

Roman law, Roman Catholic Law, and Commercial Law

Question 10

Where was Roman law first embodied? Why was it embodied?

Answer 10

First embodied in the Corpus Juris Civilis at the end of the Roman Empire
Promulgated (1) in reaction to the decadence of his time and (2) to organize the confused/contradictory corpus of law and its commentaries – similar to how Confucius reacted to the disorder and fading morals of his historical moment a millennium prior
Tried to anticipate all possible scenarios

Question 11

Why did the Corpus Juris Civilis retain influence over time?

Answer 11

Failure in its time and forgotten for centuries until the Medieval renaissance in the 12th century in the first modern university Bologna
During the rise of nation states, Corpus Juris Civilis thrived as the learned bureaucracies saw it as true law and royal edicts as a kind of interpretation

Question 12

How was Roman Catholic Law different from Roman Law?

Answer 12

• Derectum was for canon law what Corpus Juris Civilis was for European law
• Students studied both at university and principles of canon law diffused across Europe by the same mechanisms as Roman Law

Question 13

How did commercial law arise and relate to the other civil law traditions?

Answer 13

Commercial law aka lex meritorium
• No unified political authority
• Created by Italian city states once they had reestablished dominion over the Mediterranean during the crusades
• Roman law influenced commercial law because merchant judges consulted royal decrees to ensure that they are not in conflict with the royal courts

Question 14

Why was the emphasis on equality in the French revolution such a radical shift for civil law?

Answer 14

Equality – as opposed to the status stratified society it replaced
History: Paternal power over everyone: slaves, women, children
Law was status determinative - see Henry Summer Maine

Question 15

Why was the emphasis on equality in the French revolution such a radical shift for civil law?

Answer 15

Equality – as opposed to the status stratified society it replaced
History: Paternal power over everyone: slaves, women, children
Law was status determinative - see Henry Summer Maine

Question 16

How did separation of powers have a different meaning during the French revolution from the meaning we are used to?

Answer 16

France emphasized the separation of the judiciary where America/UK did not because judges had been a conservative force there – revolutionary ideals resulted in overcorrection

Question 17

What did nationalism in the French revolution mean for the civil law tradition?

Answer 17

The Jus commune - invariant legal principles within civil law tradition - could be rejected in its authority without rejecting the content

Reasoning (human rationality!) was still valuable, but authority now came from state

Question 18

How are human rights different in civil and common law countries?

Answer 18

In common law countries – centered around right to contract (Maine: From status to contract)

In civil law countries – centered around antifeudalism b/c feudalism was still prevalent in many of them

Question 19

How did glorification of the secular state change civil law during/after the French Revolution?

Answer 19

o Concentration of power formerly left to localities, ecclesiastic courts (family law), guilds (commercial law), etc. now centralized in the state
o Single centralized body of law, synonymous with legislation

Question 20

What codes emerged after the French Revolution?

Answer 20

Napoleonic Code was the first of its kind - other civil codes followed - purported to be a complete statement of law in one book

Question 21

What was the aim of French Civil Codes?

Answer 21

Sought to remove the need for lawyers and decrease the influence of judges by having all rules clearly written - Designed to be a popular tool

This was very diff from german codes which was professional in tone, technical, requiring the continued work of lawyers

Question 22

What did the French civil code purport to accomplish?

Answer 22

There is a good deal of abstraction because could not predict all the possible fact pattern permutations
Believed they had reasoned their way to universal principles

Question 23

What influenced the german civil codes? What process did they use in creating it?

Answer 23

Influenced by nationalism and German Romanticism - Code is of a uniquely German flavor

Scientific and technical approach to creating the code
Studied historical sources to see what worked
Therefore, code wasn’t as reactionary as French equivalent

Question 24

Which actors were most important in the french and german civil codes?

Answer 24

In German tradition, scholar is more important

In French tradition, legislator is more important

Question 25

What characterizes society a2 Henry Sumner Maine? How does this play out in the development of civil law?

Answer 25

Society is hallmarked by the gradual dissolution of family dependency and growth of individual obligation - moving from STATUS to CONTRACT

The Civil laws of States first make their appearance as the [rules] of a patriarchal sovereign w/same sorts of irresponsible commands that a head of household would have imposed on their subordinates - then transition towards free agreement of individuals
from slavery TO servitude
from choiceless wives TO voluntarily contracted wives

Child-parent relationship is the exception that governs the rule - they are not yet able to contract so their relations are governed by the “law of persons” according to their status - derived from powers and privileges originally residing in family

Question 26

What characterizes society a2 Henry Sumner Maine? How does this play out in the development of civil law?

Answer 26

Society is hallmarked by the gradual dissolution of family dependency and growth of individual obligation - moving from STATUS to CONTRACT

The Civil laws of States first make their appearance as the [rules] of a patriarchal sovereign w/same sorts of irresponsible commands that a head of household would have imposed on their subordinates - then transition towards free agreement of individuals
from slavery TO servitude