Modern European Legal History

Question 1

When was the French Civil Code promulgated?

Answer 1

1804

Question 2

Circumstances surrounding the re-discovery of Roman law

Answer 2

• in Italy in the 11th century, Roman law picked up again for study.
• But countries are living by many diff kinds of law, customary law

Question 3

What is the root of civil law?

Answer 3

• Civil law refers to the city law of Rome, the root of the term

Question 4

Definition and hallmarks of customary law

Answer 4

• Strong on the family, successions (who gets the $), agriculture, feudal law (your obligations to the lord).
• Unwritten rules everyone knows about.
• These used to be the primary sources of law

Question 5

Edicts and ordinances of the king

Answer 5

• another source of law
  Edicts – smaller subjects (no dueling).
  Ordinance – broad subject (regulating court procedure). - These were infrequent compared to the customs

Question 6

Customary law in the LA civil code

Answer 6

• LA CC 4: legislation & custom are the sources of law.
• One of the code drafters was a specialist in customary law. Community prop, e.g., was a customary system that got into the civil code

Question 7

Process of drafting the French Civil Code

Answer 7

• Attempts to codify French law began in 1791. 3 or 4 drafts are attempted by Committee on Legislation presided over by Napoleon’s right hand man, Combaceres. Napoleon made him second consul.
• They appointed a committee including Tronchet and Portalise.
• Code drafted in 4 mos, but really was a process going back to 1791.
• The drafts are more revolutionary (Combaceres drafts): allowed divorce, got rid of primogeniture. But divorce was seen as immoral and equality for illegitimate children fosters relations outside marriage.

Question 8

Project (Projet) of the Government

Answer 8

• 1800 draft of the French Civil Code
• Was partially used in drafting LA Civil Code
• Judges of the 13 cts of appeals were sent the Projet draft – let everyone have a shot to comment.
• Then, it went before the council of state, presided over by Combaceres.
• Then, sent to the legislative section – over a 1 year pd they passed 36 separate statutes (bits of the code) – then stitched them back together & numbered them consecutively.

Question 9

French Codes enacted between 1804 and 1810

Answer 9

• Civil Code, Code of Civ Procedure, Code of Commercial Law, Penal Code, Code of Criminal Procedure.
• This is a great change in the law.
• Thought Civil Code should only contain rights of people. Remedies should be in another book, procedure. Didn’t adhere to this totally.

Question 10

Qualities in a true code (vs. codes that don’t live up to those qualities)

Answer 10

• Original work
• Exhaustive regulation of a particular area
• Must have a coherent program
• Consistent logical structure
• In language accessible to all
• Free from all archaisms and jargon

Question 11

Sources of the code civile

Answer 11

• Roman law, customary law, royal ordinances on gifts, wills, and substitutions (almost like partial codifications - the work of Henri Daguesseau)

Question 12

Southern vs Northern France in pre-codification time

Answer 12

• Customs as a source of law – looked at customs of all areas, particularly north (heaviest concentration of customary law)
• Southern France – land of written law. Roman law was written. Justinian’s Digest (530 AD).
• Northern France – customary law. Lots of different smaller systems. Voltaire – “you change law as often as you change horses.”
• Custom doesn’t cover all of private law. Not contracts. Not much about torts. Deals with community property, successions, etc.
• Debate in north re whether they should build a system around Roman law, not our law. Or should we build a common law around our customs like England. From the customs of Paris.

Question 13

Writers that influenced the French Civil Code

Answer 13

• Pothier: treatises on custom of Orleans & other writings. Code writers (redactors) relied heavily on him
• Bourjon: The Common Law of France and the Custom of Paris Reduced into Principles, taken from the statutes, ordinances, the decisions of the juris consults, and put into a complete commentary. He’s calling the custom of Paris the common law of France. Influenced by nature, reason, and religion
• Jean Domat – The Laws in Their Natural Order. French writer on natural law.

Question 14

Inequities and problems that led to French Revolution

Answer 14

• Bourgeois revolution. Equality for the masses
• Freeing the people from serfdom (who owed many taxes); anti-feudalism
• Lived on the land but you couldn’t own it.
• Unburdening the land from the feudal rules and tributes
• If you wanted to marry, had to get permission from lord
• Introduced freedom of contract
• Introduced civil marriage rather than only church.

Question 15

Positivism and the French Civil Code

Answer 15

• This is the code, no interpretations
  
  • Articles 4 & 5 – judges don’t make law. A judge can’t refuse to judge a case on the claim that there is a silence, gap in the law. You must find a solution within the 4 corners of the code. Judges are forbidden to pronounce general regulatory rulings, can’t generate your own precedent.
• Legislature lays it down and judges must follow.
• Also, no theoretical introduction, no canons of interpretation
• No legal definitions in it
• No general outline of the contents
• Repealing clause – repeals all prior law (custom, edicts, Roman, etc.), not just those that are in conflict.

Question 16

Ius commune (definition)

Answer 16

• common law of Europe (Roman law, commercial law, etc)
• also seen as the learned law - Canon law and Roman law
• also seen as result of a coming together of local custom with feudal law, Roman law in modified and elaborated form, canon law and the law merchant

Question 17

Ius proprium (definition)

Answer 17

• your own law that would fill gaps (custom, local statutes and edicts)

Question 18

What was the natural law school replaced by?

Answer 18

The Natural law school was replaced by the Exegetical School and Historical School. The Exegetical School prevailed in codified European countries, like France, and the Historical School prevailed in uncodified Germany. The Historical School was then split into Romanists, who used Roman Law in their conception of Volksgeist, like Savigny, and the Germanists who thought the Volksgeist was embodied by old Germanic customs and disfavored Roman law. Apart from all these schools is Thibaut, who didn’t belong to any of these schools but disagreed with Savigny in wanting to codify as France did.

Question 19

Natural law

Answer 19

• Rose during the Enlightenment
• Reason over authority (like Roman law, the Bible)
• detached from church law. Used Roman law to fill gaps, but it wasn’t the complete authority
• Grotius and Pufendorf
• trying to be scientific and mathematical
• natural law passes out of existence because of the codification that relied on it so much (primacy of statute). Roman law had such authority and universality that we needed a different universal law to get rid of it.

Question 20

Enlightenment reforms to court structure

Answer 20

• criticized the old court structure where the church had courts with jd over marriage, successions; nobles had their own courts when accused of a crime (tried in Parliament by other nobles); courts presided over by lords.
• Enlightenment - pyramidal court structure

Question 21

Bentham

Answer 21

• Englishman who pushed for codification (and coined the term)
• Bentham problems with common law – it’s made in haste by judges without reflection; and it’s ex post facto, made up after the facts are submitted, so people have no means of knowing the law until it is made by the judges

Question 22

The law of reason (Enlightenment law)

Answer 22

• primacy of statute (reason over authority)
• deductive reasoning
• take away discretion from judges, interpretation shouldn’t be allowed. Referral to legislature for unclear cases. Judges as the mouthpiece.
• secularization of law

Question 23

Codification movement in England

Answer 23

• 18th c. main push - Bentham
• England had no need for national unification like France or Germany. Some of the Enlightenment achievements were already achieved in England.
• England set up a commission (including John Austin a legal philosopher – positivism, law as a command) that sat for 20 yrs and they developed a digest of the criminal laws. Judges unanimously turn it down. When you codify, you take away judicial discretion.
• Another commission created & by 1877 they had developed another digest of criminal law, a bill was introduced into parliament. Parliament: this was an expert commission and we have to take it on trust?
• In England (unlike the continent), there was no tradition of learned writers (exception is Blackstone).
• Codification succeeded abroad where England ruled in India, ironically. Muslim and Hindu law relating to inheritance, succession, marriage, family. English judges apply English law outside those areas. Started codification w/ criminal law - 1859. Then civ pro, crim pro. Started an India civil code in pieces. Draft and enact a companies act, limitations act, evidence act, etc.
• England advocated codification only for their colonies.

Question 24

Historical School

Answer 24

• Carl Friedrich von Savigny
• jurisprudence should be historical, the historical experience of a people should be a source of inspiration for its legal practice.
• thought law was natural, organic expression of the life of a people. Can’t be codified at a given stage of development.
• Law evolved and was modified by conditions of time & place. Law should be rooted in its historical past.
• debate between Savigny and Thibaut in 1814 - Thibaut advocated codification in Germany, Savigny was opposed.

Question 25

Exigetical School

Answer 25

• (19th c.) Clear law requires no commentary
• law was identical to codes, statute was sole source of law, the job of scholarship was to confine itself to exact interpretation. Excluded the use of natural law.
• Resist going behind the code for any sources.
• Laurent: even if a statute is absurd, still have to follow it to the letter. Considerations of equity irrelevant.
• Came to an end around 1900. Francois Geny’s book is often credited with its demise.
  
  • Claims code isn’t complete, doesn’t have all the answers. Life is so rich it can’t cover every possibility.
  • Realities of life, need more sources than just statute. Should take into acct concepts like equity, judge will have to weigh competing interests of P & D and give priority to the most impt of them.
  • Believed customary law should be acknowledged
  • Believed jurisprudence was impt, not necessarily Law, but a factor. Not precedential rule.
  • Believes in a living code

Question 26

How legal ideas migrate

Answer 26

(1) direct conquest, imposition of the law
(2) path dependence – once there’s an established path, people tend to continue along on it
(3) adapting your own based on a model – voluntary reception of a foreign law
(4) law follows the flag – bring settlers who already know the law and will keep to what they know (England)
- There’s never been a voluntary reception of the common law. Codifications of civil law are very transportable, exportable, and packageable.

Question 27

Usus modernus (Germany)

Answer 27

• modern usage of Roman law
• 1500 - 1800
• trying to adapt Roman law to the local circs. Take what is best for Germany and discard others

Question 28

Path to codification in Germany

Answer 28

• Codification is postponed for about 50 yrs. Savigny saying this is not the moment. We need to do historical studies. A code would arrest our development. Must be built on a sound understanding of the past.
• Germany split into two camps: Romanists (the pandectists) and Germanists (ancient Germanic law, Grimm).
• Pandectists – an offshoot of the historical school. Emphasis on classical Roman law. Origins – Justinian’s Digest. Wanted a deductive method. Founded by George Friedrich Puchte, pupil of Savigny. Bernard Windscheid’s book shows the organizational merits of the pandectists. He incorporated cases into his manual. He serves on the codification commission.
• Code directed toward German jurists, not the average person. Written by professors mostly, not practitioners.
• Commission heavily staffed by academics. The General Part (first book) is largely their work.
• Conservative values in code. Paterfamilias, freedom of contract, property protected, no tort liability except for fault.
• Different structure than French civil code. Not 3 books, but 5. In the spirit of the pandectists.
• Has had a big extraterritorial influence – Japan, Austria, Brazil, etc.

Question 29

Early Development of English Law

Answer 29

• In early centuries, customary laws on the continent were similar to England.
• The institutions were unique in Europe, though. The French kings were weak, German map had bunch of municipalities, but not the case in England where there was a strong king. Varying customs, but a more centralized institutional structure – the concept of the king’s peace is universal.
• The king’s peace – king gives the people the right to enforce the king’s peace on the land. Not until William the Conqueror that king claimed he owned all the land.
• Hundreds courts are w/in a shire – free men with their families. Has its own court that meets monthly.
• Shire has its own ct that meets twice a year. Sheriff presided (earl’s deputy)
• Borough courts – like cities or settlements.
• Sheriff reviews the tithings – guaranteeing that everyone is registered and responsible for one another. Tithing system dates from 10th century.
• Shire and hundred courts used “oath-helpers” (compurgation, you go on your oath). Defenders got oath helpers to swear he’s telling truth. Depends on your reputation in community. Then it could go to trial by ordeal (hot water, irons) – in the hands of god.
• Wergeld – schedule of injuries and what they are worth. Adjusted for the status of the people involved.

Question 30

English developments under William the Conqueror

Answer 30

• 1066 – Norman conquest. William claims the throne. He swears to uphold the old laws.
  
  • Feudal concept that all land was held of the king
  • Land holding and military service linked
• Conquest brought trial by battle – for both civil and criminal trials.
• Bishop is removed from shire courts, moving toward division between church and state. Church still has courts handling affairs of the church, but this removes the church from secular affairs.
• Thomas Becket wanted to keep ecclesiastical courts and keep canonical procedure.
• William commissions the writing of a book in which all of the land in England is evaluated. The Domesday Book. Shows the king’s power. Inventory of how much money the king is owed, or how much each piece of land produces in a year. He had to send out commissioners all over England to get the information. They had to answer on pain of perjury under oath.
• Increase in use of the writ – sent with sheriffs and had to be returned to the king, other types of writs.

Question 31

Centralizing forces in England

Answer 31

• The Exchequer – helped to centralize. Under Henry I, it is settled at Westminster, doesn’t follow king. The king’s court followed him around. But, the Exchequer stayed in one place, kept the royal accounts. The first of the institutions to be kept in one place. It will later be turned into a court. Barons of the Exchequer decided some of the most famous cases.
• Writs become to take on set forms, standardize.
• Henry I sent commissioners in the eyres, adds another layer of cts. His own judges sent out on a circuit. Eyre = king’s circuit. Would go into shires and a jury of presentment (beginning of grand jury, large) would present an accused to be tried by the itinerant justices.
• 1118 – book called the Laws of Henry I – in latin, explains the customary and vernacular law.
• Common law emerged out of these early administrative & centralized apparatus. From expansion of institutions that existed in a less centralized form before 1066.
• Court of common pleas also was in central location
• Reforms: The eyre, The jury, The use of the writ
• By 14th c., eyre disappeared, central courts took over.

Question 32

The writ

Answer 32

• If you want justice in the king’s court, ask for a writ. A summons that contains a cause of action, a complaint.
• Glanville describes 36 kinds of writs. You had no cause of action unless you went to Chancery and bought a writ. Writs are standardized (writ of trespass, etc.). But within 100 yrs, there are 2500 writs.
• Magna Carta – don’t issue so many writs, but you can analogize and modify the writs.
• Procedure dominating the substance.
• Writs were in Latin.
• Collections of writs were put together. The Pleaded Writs, the New Counts, the Pleas of the Crown, etc.
• Writs made by Chancery.
• They create a Register of Writs which contained 2500 separate writs.

Question 33

Trial by battle

Answer 33

• Priests, women, the lame, the blind, minors, and people over 60 didn’t participate
• The last time it was requested by the defendant – 1818 (Ashford v. Thornton, 106 ER 149).
• Petty Jury – replaces trial by battle
• Jury was a good instrument for discovering the truth – should be credited to Henry II.

Question 34

Emergence of the common law in England

Answer 34

• Common Pleas, Chancery, Exchequer, and Kings Bench all together at Westminster. This is where Blacksone puts the formation of the common law. B/c the lawyers and judges used to be scattered, but when you put them all in one place, opportunity to form the Inns of Court, for creating a guild of sargeants at Common Pleas (only sargeants can become judges, higher than barristers). Now the whole apparatus has a seat and it became more powerful. Opposition of the guild may have contributed to not receiving the law from the continent.
• Common Law not taught at univ., like on continent.
• Blackstone - when the Normans came, the common law weathered the shock, the common law at that time was taught at monasteries & in families of nobility. But at conquest, foreign clergy were strangers to the language and constitution. Common law nearly ruined bc a copy of Justinian’s pandex brought civil law into vogue. Many learned civil scholars were put at Oxford.
• But no easy reception. King Stephen proclamation that no one should teach civil law – forbade teaching Roman Law anywhere in England. But it went on. From here on, the nation was divided (1) bishops and clergy who studied civil and canon (2) the nobility and laity who adhered to the old common law. The nobility didn’t want to change the laws of England.
• Foreign clergy, finding it impossible to discern local law, began to withdraw from secular cts. By Henry III, ban on them being advocates in secular cts. Pope Innocent IV forbade clergy from even reading common law bc its decisions were merely founded on the customs of the laity. Church controlled the universities. - Blackstone says England went its own way b/c the study of the common law was cultivated outside university at Inns of Court in London. Due to centralization of everything at Westminster, they were formed into an aggregate body.
• Chancery – developed into a court of equity

Question 35

One big difference btwn common law and civil law

Answer 35

• Common law – describes remedies not rights. You find rights in the interstices. Different from civil law (rights not remedies)

Question 36

Why did England develop differently?

Answer 36

• Early institutional centralization, a strong king. Also, a tendency to deal w/ problems as they came. Unlike civil law trying to have broad ideas that cover every situation.
• French revolution = equality = accessible law. But that didn’t happen in England.
• Language – French that wasn’t used on the continent. Latin for the writs.
• Strong criminal law; The king’s peace; Inventive system (jury, Inns of Court); Writs
• Want their own system – statute in 13th c. that said no changing law of England. Banning study of Roman law.
• Irrelevance of universities in common law. More practical. Not until 19th c. is there a modern university teaching common law. Before that, would go to Inns of Court, listen to lectures, do apprenticeship.
• Chancery – civil law doesn’t know distinction btwn law and equity. England developed this on its own.
• Development of a system of precedent stabilizes a system. Stare decisis. System of reporting cases.
• William removes the clerics from the secular courts. Impt bc clerics are attached to Roman learning.

Question 37

The “learned law”

Answer 37

Canon law and Roman law

- Legist - someone learned in the learned law

Question 38

Reasons for the mixing of Roman law and customary law (ius commune)

Answer 38

• 1100 re-discovered the corpus juris civilis
• And there was the first international university. Students coming to learn the learned law from all over.
• When there’s a gap in the custom, you can fill it in the Netherlands with the Roman law. The Roman was filling gaps. It came in that way a lot.
• Degree of mixture varied from country to country. Some received more Roman law than others when combined with custom.
• Germany accepted Roman law the most, pretty much all at once, around 1500s. Extreme opposite of England (no reception)

Question 39

Homologation of the customs

Answer 39

• Homologate – approve or agree upon
• Write down the customs and get approval from jurists.
• In France, they would send these written customs, then send it to judges and parliament for revisions. More than just approving, a revising process at the same time.
• In France, edict from Charles VII in 1454 – ordinance ordering they be put into written form, starts homologation process.
• Custom of Paris – took 130 years to get approved. 1580. Became most famous, many thought it was the most impt custom (territory around Paris). It had a wide sweep. And Paris was the first parliament established in France, so it had a status.
• One fundamental question – was it or was it not necessary to preserve customary law? Because there was a need for modernization. Could wait for the internal process of customary law to change, but it would always be behind. Or you could supplement custom by using an external system that would help to modernize when you blend it – Roman law.
• Tended to make the law more similar, but it didn’t eliminate diversity. Btwn 1600-1640, 600 customs in N. France set down, but not all homologated. Netherlands, 832 customary systems were written, 96 homologated.
• In Netherlands, homologtion was mostly in southern provinces. Didn’t homologate in Holland. Palmer thinks this made it easier for Roman law to come in – cts freer to let it come in. Roman-Dutch system may have been affected by this.
• End product of homologation – hybrid law, custom in a sense, legislation in a sense. It’s a transitional phase.

Question 40

Coutumes

Answer 40

• Book of customary law in France
• First of these – Beaumanior’s coutume. Deals with customary law of Beauvaisis, Vermandois, and Paris, but also draws on case law (from Pariament of Paris), and on learned law (Roman/canon). Written in French, not learned Latin. A work practitioner can use. Formulating and systematizing the customs.
• Becomes a popular form of writing customs.
• Culminates with Charles Du Moulin – his aim was to set out from the principles of the custom of Paris and to arrive at the unification of French customary law. Main work was the commentary on the custom of Paris.

Question 41

What Roman law interacted with the customs?

Answer 41

• rediscovery of the CJC
• Justinian did this in @533 AD, then no complete copy of entire work available until discovered in library in Pisa @1100.
• Italian scholars glossed & commentated on it, gradually developed a neo-Roman law or medieval Roman law.
• Gloss the text – write on the text what it means. Glossators. Commentaries in margins. Found CJC would have internal contradictions, so they had to reconcile them. Create internal logic.
• Followed by the commentators – known for attempting not just to expose text’s meaning, but to adapt it to the social conditions of their world. They were bending it or interpreting it in light of needs they found around them.

Question 42

CJC

Answer 42

• CJC – 4 parts
  1. Codex (529 AD) – compilation of all the enactments issued by the emperors over the years. A compilation of the statutes of the emperors.
  2. Novels – recent statutes from Justinian on. New things.
  3. Institutes – textbook for students. Based upon the insttutes of Gaius, a 2nd c. Roman jurist.
  4. Digest (or Pandex) of Justinian – brought into force in 533, after Justinian’s ministers went through classical writings of Roman jurists & selected portions (50 books).

Question 43

Glossators and Commentators

Answer 43

• Glossators revered the CJC. Considered it reasonable. Elevating it to a status of universal model, didn’t want to go beyond it.
• But, general statements of the Roman way of life weren’t adaptable to the medieval age. Concentrating on a system of a bygone era and not connected to the current legal profession.
• Commentators
  
  • Tried to make it relate to current times
  • Dealt w/ real life problems b/c people came to them for advice. Consilia – legal opinions.
  • Interest in the law outside CJC, adjusting learned law to the times, allowed it to enrich and interact with the law of the time.
  • First to draw distinction btwn ius commune and ius proprium – ius proprium = the law particular to the particular country or region.
  • Bartolus – biggest commentator.
  • Engaged way of adjusting law to local times

Question 44

French humanist school

Answer 44

• Thrives in 16th c.
• Increased focus on Roman law in its historical context. No longer putting Roman law on a pedestal – it is man-made and also fallible like man.
• Thought the commentators and glossators corrupted the original purity of Roman law.
• Exposed a lot of errors in the commentators and glossators.

Question 45

Canon law

Answer 45

• Canon law – Gratian was the scholarly founder. 12th c. Bologna. Gratian – the Decretum Gratiani. The Harmony of Discordant Canon. The human race is ruled by natural law and usages. The glosses around it – the glossa ordinaria. Resembles what the glossators did in look.
• Usages – customary law or written/unwritten human law
• Natural law – contained in Bible
• Systematic collection of ecclesiastical sources. The great decisions of councils (canons), the letters of the pope responding to law questions and establishing rules (pontifical letters, decretals), extracts from scriptures.
• He established a hierarchy of sources.
• This is the book they use to teach canon law at Bologna. Can get joint degree in canon and Roman law.
• Pontifical letters – huge number btwn Alexander III and Gregory IX. 2000 of them. Lead to systematic collection, 5 books – called the liber extra. Liber sextus (6th book) – another collection.
• All of these called – corpus juris canonicus. Became the study of the decretalists and the canonocists.

Question 46

How Roman law and canon law influenced eachother

Answer 46

• Roman law had a big influence on canon law. E.g., for marriage, error as to the person was taken from Roman contract law. Or the Roman penalty for treason was taken to punish heresy.
• But it was a mutual influence. A legal system w/in the church, a bit detached from pure theology. Roman law provided this model causing creation of semi-secular system. B/c it is enforceable in court. Resembles a legal system, structure, sources w/ a hierarchy, could codify it.
• Canon law served as a model for the institutions of kingdoms.
• One of key contributions from Canon law – Romans only enforced Ks if it fit a particular pigeon hole. Church thought that every promise should be kept, sin to break them. Canon law taught that merely agreeing created an obligation regardless of what Roman law said about form.

Question 47

Opposition to the ius commune

Answer 47

• Opposition b/c there is customary law in place, they have a way of doing things. Also, a feudal system in place, land issues, didn’t want that displaced.
• Roman concept of ownership was unsettling bc it would release ppl from duties they owe. E.g., the military service that a vassal owes his lord.
• Might also unsettle family concerns. Rules of inheritance. Family organization.
• Local customs are often viewed with pride, don’t want to give them up. Way of maintaining your independence from someone who’s trying to centralize his power.
• Chancellor Daguesseau talking about customs of Normandy – the Normans respect their customary law probably more than their religion.
• An English king said this law can’t be taught. Also a French king, Philip III – prohibited the citation of Roman law in regions of customs.
• From 1200s on, Roman law couldn’t be taught in Paris. The kings are saying so. (E.g., Ordinance of Blois)

Question 48

Development of commercial law

Answer 48

• Another element of ius commune could be commercial law – not part of any one country, but is a broad supra-territorial law that has been spread and developed by commercial usage. Spread by merchants and guilds.
• Commercial law – they have to transact in money, but roads are bad and there are criminals, so they find ways to do business w/o sack of coins. Bills of exchange, etc. All this comes from them, not Roman law. Roman law was weak in commercial transactions.
• Law developed by merchants and shippers
• They made compilations of these usages.

Question 49

Roman canonical procedure

Answer 49

• System of proofs
• Judges investigate the law and the facts.
• Behind closed doors – not public trials
• Vast majority of the process is written. What the witness says is recorded, becomes a written document.
• Professional judge performing all the factfinding and the rendering of judgment, limited some by evidentiary rules. Conducted in secret and bureaucratically.
• This procedure is canonical – it came from the church and was then taught at university.
• Judges had to keep basis for judgment secret. No one should know secrets of the highest ct, which sometimes decides contrary to the rigor of the law for a cause that is just according to God.
• No law reports before the 17th c. in France
• This is changed by the Enlightenment/French Revolution

Question 50

Law of evidence during ius commune time

Answer 50

• Law of Evidence w/ mathematical system of proofs – ct required to give predetermined weight to testimony based on status of W, age and status, sex, number of Ws, etc. The testimony of nobles, clerics, and prop owners was higher than others. Testimony of women was either barred or given a fraction of the weight of a man’s. Based on what was believed to be common practice or experience. The parties can’t testify.

Question 51

How did procedure influence the reception of the Roman law?

Answer 51

• Roman canonical procedure was a big influence. While people would push back more on changing the substantive law, they didn’t push back on procedure.
• France – relative strength of custom, so ius commune more apparent in procedural law rather than substantive.
• Lay control of ct judgments gave way to professionals, partly based on new procedure.
• After the Reformation, Protestant Europe kept Roman-canonical procedure.
• Key factor in spread – Latin is the common language.

Question 52

Reception of Roman law in Germany

Answer 52

• Reception in Germany was late and all at once.
• Lack of political centralization – highly fragmented
• Schoffen – notables who were guardians of the legal order.
• Strong Romanization doesn’t start until 15th-16th c. – starts with converting to the new procedure.**
• Some of the major cities would develop city customs that were Romanized, then there would be daughter cities founded who would send for advice on how to handle matters.
• People would also send requests to universities for help with a legal problem. Professors would write out an opinion. So they will probably put it in terms of learned law, so the learned law got in that way.
• Germany had no real part in the creation of that which they received – the ius commune, neo-Roman law. By the time they rec’d it, it had already been modified.
• It was the civil rather than the Roman law that was received.

Question 53

Usus modernus

Answer 53

• blending of Roman law and German local sources

- 1500 - 1800 (core period 1600-1750)

Question 54

Attempts at codification that preceded the French civil code

Answer 54

• Codes of the Enlightenment
• Bavarian code (1756) – Max Joseph. Written in German (make law accessible to people)
  
  • Didn’t repeal all other law. Code was actually a second source, some statutes were primary. Restated much of usus modernus.
• Prussian Code (1794) – commissioned by Frederick the Great. Wants code based purely on reason, but to also be in character w/ Germany. Didn’t want commentaries.
  
  • Code too detailed, tried to cover every eventuality, almost unworkable.
  • Frederick didn’t want judges’ interpretation
  • Tried to use natural law basis – law should be like the sciences, evident. Use logic and reason.
  • Still feudal society – diff rules for peasants, nobility. One reason why code has limited life – French Rev.
• Austrian Code (1811)
  
  • Commissioned by Empress Maria Theresa, written in German
  • Told to aim for simplicity and stress natural law.
  • A natural law code, just not in its arrangement.
  • When case couldn’t be decided by code alone, judge should use analogy to other code sections. If that fails, decide according to natural law (what does reason tell me is the proper rule).
  • No customary law, even excludes possibility of customary law in the future.
  • Statutory lawmaking is the only way forward. Customs shouldn’t be a source of law. Natural law idea that the law should be accessible.