Italian Codification Flashcards
When and by who was the Pragmatic Sanction issued
In 554 AD by Justinian who briefly re conquered the Italian peninsula
What was the Pragmatic Sanction
It was his code, namely Corpus IURIS Civilis, which was implemented in Italy
What does corpus IURIS Civilis mean
Body of civil law
What was Codex Florentinus
It was copy of the Digest of the Emperor Justinian which was a manuscript of the Justinian codex thats as found in Bologna at the end of the 11th century
Who was Irneus
-he studied the Justinian Digest and started giving lectures on the basis of that book
-he was an Italian jurist and the first glossator
Describe the school of glossators/ Glossary Ordinaria
-Glossa was a style of scholarship wherein the original Digest was in the middle, and commentary by scholars surrounded it.
-Glossa Ordinaria → a standard text summarizing the relevant commentary, used for study of Roman law across Europe
-glossator- A person who writes glosses, especially a scholarly commentator on the texts of classical, civil or canon law
What changed the course of legal history in Europe?
The recovery of roman law which led to it becoming common law in the centuries that followed in Western Europe
What happned after Justinians brief re conquest in Italy
Northern Italy as taken over by a Germanic tribe, called the Lombards
When a legal question emerged as to what law should be applied in the North, what two competing theories emerged:
-personality principle
-territoriality principle
Define the personality principle
law applicable to a person was the customary law of their
tribe of origin.
What was the territoriality principle
law applicable to a person was based on where they lived,
regardless of ethnicity.
What was teh constitutio Antoniniana
-212 AD
-with the constitution, Emperor Caracalla declared that all inhabitants of the roman empire to be roman citizens, therefore to all citizens Roman law was applicable.
Give me an example of the personality principle in law
-Germanic tribes (lombards), codified tehir law (dictum Rothari) and gave exclusivity to it. Therefore their legislation only applied to them
What problem occurred with the personality principle
the higher the number of different population groups who lived within one territory, the higher the number of tribal laws existing alongside each other.
What happened to the personality principle in the end
Eventually the personality principle became completely useless, so there was a switch to the territoriality principle, where the local customary law of a city/region became applicable:
- These customs were based on the ethnic composition of the region + unique custom.
What was universitas
referred to an organisation created by students to ensure they
received a proper education from the teachers they were paying.
How did the university of Bologna emerge?
-first modern Western European university: not as a creation of the government but as a product of the students( student association)
-Irneus, a italian jurist taught thesis new source of law here, therefore Bologna became a hub for legal scholarship
How did the use of customary law come about in Italy
-In the long run, even amongst the population of Italy that was not Roman in origin, Roman law had started to be considered as the Italian secondary law or common law (ius commune)
-therefore, throughout Italy, local customary law started replacing tribal laws (national laws: Lombard)
What two criteria did customary law have to meet in Italy
- diuturnus usus: legal conduct must have been adhered to for a long time
- opinion iuris: general opinion should be that such conduct is legally binding
Who decided whether the requirements of customary law in Italy were fulfilled and if he could apply such common law
Judge
How would judges know if the customary law met the two requirements
Judges would consult lay people with knowledge of local customs that would gather in turba (crowd)
What happened if there was no rule in the primary source of law (customary law) when the judge was deciding a case
Subsidiary law (roman law) would be applied
What were the two causes of legal diversity in Italy
- Various customary laws
- Development of feudalism
Define feudalism
Feudalism can be regarded as the reaction to the collapse of Roman authority in Western Europe in 476 AD.
During this period, there was no powerful central government – in 776 Charlemagne became King of the Lombards and implemented a feudal system (contractual relationship between lord and vassal):
What was the contractual relationship between lord and vassal that’s as established by feudalism
• The king owned the land and gave portions of it (called fiefs) to wealthy lords and nobles.
• In exchange, these lords and nobles promised to provide soldiers and horses to the king’s army.
• Soldiers pledged their loyalty to their lords, and the lowest rank in this system was the peasant.
• Peasants, to safeguard themselves, entered into vassalage(vassalage was a relationship between a lord and a subordinate known as a vassal). They swore an oath of allegiance to their lords, promising to follow them into military service.
• In return, the lords were obligated to provide their vassals (peasants) with protection and support.
So, the feudal system established a structured relationship of mutual obligations between the king, lords, and peasants, with land ownership and military service as key elements.
Who is the vassal
Someone who serves a lord
Who were the lords
People that served the king
After, Charlemagne how were the obligations between a vassal and a lord determined?
the agreements between a vassal (someone who serves a lord) and a lord were decided when the vassal received land (fief). The rules for these agreements depended on what they agreed upon during the investiture (the ceremony of granting the land) and the local customs where the land was given.
Who’s as Charlemagne
-huge figure in medieval Europe because he embarked on his renovatio imperium
-He was crowned ‘Holy Roman Emperor’ by the Pope in 800 AD, and since the
throne of the Eastern Empire was held by a woman, he thought he had full and sole claim to the title.
What two major implications did renovatio imperium have for European history
a. Unified most of Europe under a single polity … therefore Roman law is the
common law of Europe.
b. Signaled the absolute and universal authority of the Roman Catholic Church,
since the Pope crowned the Emperor.
Since caudal law differed form place to place, creating legal diversity, where were some of these rules eventually placed
Libri Feudorum, which was inserted into the corpus iuris civilis
Who’s as the first to make glosses and the first to teach on the basis of the complete corpus iuris
Irneus
Who were glass actors
Scholars which conducted detailed text studies and explained the meaning of difficult words that were in the works of Justinian. They wrote annotations in the margins of old texts (glossary marginalis) or between the lines (glossa interlinearis)
Why was the school of glossators so important
Later these were gathered and resulted in collections of explanations that became extremely important since they gave interpretation for years-old legal texts.
If a text remained unglossed, then it was clear to the reader that that regulation was not valid in legal practice anymore
Define sword fief/ female fief
Heirs of the vassal could use the land
What is allodium
Free owned land. Without loans
What was glossa ordinaria (Accursius)
-attempt to create cohesion in the cluttered mass of glosses
-by Accursius, Bolognese professor
-his edition became known as standard gloss ( glossa ordinaria) and set the conclusion of work of glossators
What was the school of commentators
-Azo who was a bolognese professor sets the beginning of legal commentaries, called summa codicis-> settings he beginning of legal commentaries
-diversity of commentaries was created that even in the court the judges would ask for the help of law professors who would give their opinions on matters of law THUS LEADING TO THE NOTION OF COMMON OPINION/ STARE DECISIS
What was MOS ITALICUS (Bartolus de Sassoferrato)
-he was a famous commentator
-his primal aim was to be able to decide modern cases by applying ancient Roman Law -> interpretation in a systematic way (commentators would look for principles within roman law and form these principles they would deduce rules
What was the investiture controversy
Power struggle between the Pope and the Roman emperor regarding the possibility to appoint a bishop
Investiture
The action of formally investing with an honours of rank
Why was there an investiture controversy
-both the church and the king would appoint bishops
-BUT the church decided that its the job of the church to appoint bishops and not the job of a non-religious authority (the emperor
-the church would also see itself as the highest authority as it was the pope who would crown the emperor and not the other way round
Why as appointing a bishop extremely advantageous for the emperor
- Bishops wouldnt have offspring which led to no offspring meant no heirs, therefore, once the bishop died, the land would go
back to the emperor - no offspring also meant that the bishops would have to be appointed every time,
therefore, the king would have its own monopoly in nominating a bishop
What was Dictatus Papae 1075
It was political manifesto published by Pope Gregory VII when the investiture controversy was on the rise, in which the absolute supremacy f the pope was proclaimed (the pope was the only one who could nominate bishops).
As a result, the Roman emperor (Henry IV) was excommunicated in 1077 (Canossa) and lost his imperial power. -> famous walk to canossa
What was the greatest political conflict between the Emperor and the pope linked to?
The emergence from both roman law and canon law
What was Irneus’s opinion on the investiture controversy
He would state that according to the Corpus Iuris Civilis power of the Emperor would prevail over the law of the Church.
Was canon law ever written down
No!
What could canons be found in
- Decretals: letters of the pope that formulate ecclesiastical law
- Ecclesiastical councils: meetings of bishops
- Writings of Church Fathers
Why was canon law also considered the ‘common law of Europe’
Because basically all of medical Europe was catholic, haowever it was harder to study than roman always because there was no single place to find it
What was the first attempt on syststematizing canon law
-by monk named Gratian in 1140 -> his aim was to harmonise apparent contradictions in texts by means of interpretations
-DECRETUM GRATIANI AKA Concordia discordantium cononum
-wasnt a code tho because it was issued by a private person (no government), therefore it could not create exclusivity
What was the result of the publication of the DECRETUM GRATIANI
This became super influential (comparable to rediscovery of Digest) and created a boom in Canon law scholarship, which merged together with Roman law studies at universities-> iura
What was corpus IURIS canonici
-The Decretum started also to be seen as a book of authority and eventually, canonists would write in the margins of the textbook explanations.
-In 1220 Johannes Teutonicus created a standard gloss of the Decretum named Corpus Iuris Canonici which was comprised of five parts
What five parts was the corpus iuris canonici (Johannes Teuronicus) consist of
- Decretum (1140): Gratian’s compilation of canon law (no codification): authoritative
- Liber extra (1234): compilation of papal decretals in five books ordered by pope
Gregory IX (codification) - Liber sextus (1298): compilation of new papal decretals ordered by Bonifacius VIII (codification)
- Clementines (1317): compilation by pope Clement V (no codification/ no exclusivity clause)
- Extravagantes (end of 15th century): two private collections of materials that are not to be found in the existing collections (no codification)
When was canon law officially codified
In 1918 -> the church gave an exclusivity cause to all parts of the corpus Uris canonici
What does aequitas cononica mean
Equity of canon law
What basis is secular law always tested on
Equity
What was roman law perceived as for a long time
Ratio scripta (reason (ratio) put into writing)
How did canon law influnce secular law
Canon law would cover loopholes in roman law (became of ius commune: roman law + canon law). The
Roman Catholic church would live according to roman law (but canon law could change roman law).
What were the medieval methods used by courts
Trails by ordeal, battle or water
What does pasta servanda sunt mean
“Pacta servanda sunt” is a Latin phrase that translates to “agreements must be kept” or “agreements must be honored” in English. It reflects the principle that parties to a contract or agreement are obligated to fulfill their agreed-upon terms and commitments. This concept is fundamental to contract law and signifies the importance of honoring and upholding agreements between parties.
Give two examples of how roman law was changed by canon law
- The contract comes into existence in roman law not only by consensus but also by the
action of giving → not all contracts were enforceable (pacta nuda non servanda sunt).
In canonist courts, canonists would apply roman law but they would also check the
bible, which stated pacta servanda sunt. - Ownership according to Roman law: good faith in the moment of possession
(acquisitive prescription); ownership according to Canon law: good faith at the
beginning and during the three years of possession.
In the 18th century, before codification, what was the hierarchy of sources
Local law was the first to be applied and it took precedence over ius commune
How was customary law proven
- Burden of proof -> done by holding a trube (gathring of senior experts on customs of their tribe)
- There were cases in which the legislator collected the rules of customary law and
put them in writing a mere practical goal → so that rules on customary law could
be more easily consulted (this did not transform customary law into ordinance
neither did it guarantee the existence of the rule; moreover, it was not consider
codification as it didn’t have exclusivity -> other ordinances and customary laws) - Customary law could also be invoked if one cited a prior case in which that rule
was applied by the judge
What two solutions did roman law have for which provision took precedence
-any conflict between the two provisions could be reconciled by applying
the lex posterior rule-> However, it is difficult to prove and find a date in which a customary law was
originated because they are not written down
-subsidiary sources-> roman law. secondary sources were to be used if no primary sources were available. it consisted mainly of Roman law that was rediscovered by Irnerius
What was the Van Bijnkershoek, Observationes Tumultuariae
Cornelis van Bijnkershoek (1673-1743), president of the Hoge Raad, kept a diary of the cases that had been decided by his court. This diary was meant only for personal use. He called his notes Observationes Tumultuariae.
Give a summary of the boat case
In simple words, a merchant from Rotterdam insured his coal and an imaginary profit. The ship carrying the goods was confiscated, and the merchant asked the insurance company to cover the losses. The insurer refused, citing laws that deemed insuring imaginary profits illegal. The merchant argued that customary laws among merchants allowed such contracts, and he won the case. Some believed the merchant acted in bad faith, anticipating the loss of his ship, and argued that customary law wasn’t well-established. However, the court upheld the customary law, and the insurer had to pay for the coal and imaginary profit.
What three sources of law conflicted in the boat case
- Customary law: imaginary profit should be paid
-> “imaginary profit” refers to a potential profit that the merchant expected to make from the goods (coal) being shipped
-> The dispute arose when the ship was confiscated, and the merchant sought compensation not just for the value of the coal but also for the profit he had hoped to make, even though it had not materialized yet. - Law created by the (local) ruler(sea ordinance of Philips II 1563) : imaginary profit should not be paid
- Law created by the city(ordinance on insurance of Rotterdam and customary law) : imaginary profit should not be paid
How was the boat case decided
In favour for customary law -> The insurance company initially refused to pay, arguing that insuring imaginary profit was against certain laws. However, the court ruled in favor of the merchant, stating that customary laws among merchants prevailed, and the insurance company was obligated to pay for the losses, including the value of the coal and the anticipated profit.
Why as the boat case decided in favour of customary law
The case was decided in favor of customary law because the court determined that, in the context of maritime trade and business practices among merchants, the established customs and traditions held more weight than specific legal statutes or ordinances that the insurance company relied on to deny coverage for the imaginary profit.
Constitutional law distinguishes between a democracy and a monarchy. Explain
the difference between these two constitutions. Which form of government would you associate with Julianus’ opinion and which one with the opinion of Emperor Constantine?
Democracy: sovereignty of the people’s rule – Julianus – Assembly of the Roman people
Monarchy: power to one – Emperor Constantine – lex de imperio
Summarise the case Rota Florentina 1780 & MOS ITALICUS
- Customary ballgame, played in summer on the town square
- House owners round the square wanted compensaion for the (potenial) damages the game could cause them
- Should the game players be held accountable for damages?
- Judge ruled in favour of the ball players
- The customary game was played every year – the owners already knew damages could be caused
to the houses round the square, they willingly exposed themselves to potenial danger
Define most italicus
Italians would use roman law for their own contemporary legal problems. In order to do that they would give broad interpretations of the law
In the rota florentina case, what did the judge base his judgement on
Roman law because there was no local law
Roman law on torts requires:
*Unlawful act (iniuria)
*intent (dolus)
*and at least with fault (culpa)
Which question of law forms the core of this case and how is it answered?
Whether the act causing damage (playing the ball game) can be regarded as tort and therefore give rise to criminal liability for damages? The judge answered that the act was lawful.
Which interests clash in this case and which interest is given preference by the
judge?
The interest of the Fabronis family (private interest) and public interest (everyone wants the game). The judge gives preference to the interests of the team as they follow customary law in playing their game.
