M2 T2 Evolution of law from the 17th-19th century Flashcards
What happened to the classic Roman law after the fall of the Western Empire in the 5th century?
It entered a period of decline, and would gradually emerge later by successive schools
What was the backbone of the codification process of the 19th century?
Corpus Iuris Civilis and the continental universities
Which schools of law did the corpus impact?
13th-14th century: Glossators and Commentators
17th-18th century: Natural law
19th Century: Historical School of law
What ideas gave rise to the revival of law in the Middle Ages?
Instabilities in Western Europe had people think that law should represent a guarantee of order and stability. Social relations should be governed by law and there should be an end to arbitrariness.
What are three trends to the development of the continental legal system?
- The increase of commercial activities. Trade became an important reason for the need for legal security
- Law should be secular and be based on justice and reason.
- The cultural unity allowed for the development of a community of legal thought in the shape of the Roman/Germanic
What is the difference between the common law and the continental law in terms of its development?
The continental law did not evolve from political will as in the case of the English Crown.
Which important event took place in the north of the Italian peninsula in the 11th century?
The rediscovery of the corpus iuris civilis by Bolognese legal scholar Irnerius
What became a cornerstone in the studies of all European universities after its rediscovery in the 11th century?
The corpus iuris civilis
Which European city became the capital of European legal teaching and had the first university of law?
Bologne
Some characteristics of the first European universities on its study of law
- Juridical circumstances were not considered important
- The positive law in force was chaotic and uncertain
- Focused on finding a method that would create legal rules in accordance with the concept of universal justice
- Law was a means of social organization: how would just citizens behave
What characterized the positive law of the 11th century?
it was based on legal particularism and subject to administrative regulations (usage, customs, statutes of local town legal codes etc..)
Medieval education was based on Latin classics. Which two groups did they distribute the seven liberal arts into?
- Trivium
2. Quadrivium
What was studied under Trivium?
Grammar, rhetoric, and logic or dialectic.
The study of law was included in ethics and logic and theology. (Many jurists were priests.)
What was studied under Quadrivium?
Arithmetic, geometry, music and astronomy
Which three categories have been involved in the evolution of Continental law?
- Theology
- Canon law (law made within certain Christian churches)
- Roman law
The study of Roman Law rehabilitated the…
scientific development of law
What was the aim of the first European universities?
provide legal scholars with terms, methods, classifications, and general legal principles to find the justest solutions for everything
What was an important reason for the rise of European juridical science?
the autonomy of Roman law in respect to the national positive law of states. The aim to create a law common to the whole of Europe that united people and respected diversity.
What was the ius commune?
same law studied by all. Even those countries that had not been under the Romans.
What was the aim of the School of the Glossators in the 13th century, and how did they work?
Aim: explain the original sense of the Roman law
The gloss method: clarify meaning through taking notes in the original texts.
What was an important work of the glossators?
Glossa Ordinaria by jurist Accursius contained 96.000 glosses from his predecessors.
Which school evolved from the school of glossators in the 14th century?
The school of commentators, also known as the Post-glossators school.
What was the aim of the school of commentators?
to adopt Roman law to the social context of the age as institutions such as slavery no longer existed.
Which school of law evolved in the enlightenment period(17th and 18th century) and renewed the science of law?
The School of Natural law
What important changes took place during the School of natural law?
- The separation of law studied in universities and the corpus iuris civilis
- the logical and unquestionable systematization of law
- Discover principles of fully rational law
- Construct social order on the study of man, not the will of God
- Praised the natural rights of individuals through subjective law
What were the jurists of the school of natural law inspired by, and what did they seek to proclaim?
the ideal of justice
The rules of a universal law common to all men at all times
Which levels of law did Natural law influence?
The public and the private law.
How did the School of natural law influence private law?
In no revolutionary way as it did not reject the solutions given by the commentators.
It did not seek to abandon the Roman law but wanted to create a more progressive method that was coherent with reason, justice, and the need of society
what view did France have of the Roman law that was supported by the School of Natural law?
It was only valid as a written reason and the corpus iuris civilis did not represent a compulsory source of law.
How did the School of Natural law, with the influence of common law, impact public law?
established:
- Natural rights of man
- Secured liberty
- Laid down the structure of states and legal systems
growth of:
- Administrative law
- Procedural law
- Criminal law
What represented an expression of the principles created in public law with the influence of Natural law and common law?
The constitution
Which school of law evolved in the 18th century and from where did it evolve?
The Historical school of law from the literary trend of romanticism and the philosophical trend of criticizing rationalism
what did the jurists of the historical school of law challenge?
The legitimacy of Natural law
Which opinions did the German Romanist Savigny express in his work The Vocation of our Age for legislation and jurisprudence?
Opinion: law changes on its own and there is no need for a regulatory authority.
the jurist should verify how the legal evolution occurs and ensure that it has a scientific form
identified the science of law with other sciences such as linguistics and zoology
What did Savigny believe to be the sources of law?
the conscience or spirit of the people.
- Custom
- Science
- Legal practice
According to Savigny, what must jurists look to in order to understand the evolution of law?
history through the systematization of legal institutions and usages in order to construct general juridical categories
What did Savigny believe influenced German law?
Roman law
The historical school of law focused on the corpus, but in what way?
rationalizing and systematizing it subject to general principles
What was the method of the historical school of law?
What was the object of study?
Juridical principles in history
Roman law
