Part 1: Codifications before the Era of the Movement of Codifications From Antiquity to Modern Times Flashcards
What were the Early forms of Codifications in Antiquity?
- Codifications in Middle East
- The Roman Codification
- Medieval forms of Codification
What were the Codifications in the Middle East like?
Mesopotanian civilization, a region is southwest Asia, was the birth place of writing (3000 BCE)
Main features:
- Monarchical organization. Divine mandate for the king
- Struggle for justice, devine sanction against a king who failed his mission
Existence of different codes: Most known Code of Hammurabi (1750 BCE)
- Question: Does this qualify as a codification?
Which were the oldest codes in Mesopotamia?
- The Code of Ur-Nammu
Most important legislation in active of this part of Mesopotamia
Written in Sumerian language 2100-2050
Laws arranged in an autistic form: If crime, then punishment. Specific pattern,
Codification? Yes because of its structure. Based on three parts: Prologue, body of provisions, epilogue. - The Code of Lipit-Ishtar
Written during the Rang of Lipit-Ishtar (1934-24 BCE)
King of city Isin which dominated Southern Mesopotamia
A codification because of the structure (as above). But caustic form.
This is the olderst surviving law code
Sumerian language. - The Law of Eshnunna
A collection of ancient Mesopotamian legislation, first half on 18th century BCE
Written in Arcadian, attributed to king Dadusha of Eshnunnaim
Not considered a codification
In the beginning it was called code of Hammurabi
What was the nature of the Code of Hammurabi?
Clearly borrowed previous collections, starting with tripartite form of prologue, body of rules, epilogue.
King important authority. Most legal rules derived from kings action as a judge. Judicial role of the king: handled disputes between individual
Just judgements - gave rules for the future, a case law
Had some statued law, general rules
No organisation of the code with chapters, articles.
What was the nature of the Code of Hammurabi?
Clearly borrowed previous collections, starting with tripartite form of prologue, body of rules, epilogue.
King important authority. Most legal rules derived from kings action as a judge. Judicial role of the king: handled disputes between individual
Just judgements - gave rules for the future, a case law
Had some statued law, general rules
No organisation of the code with chapters, articles.
What was the caustic approach to rules of law?
Taking a situation, a case and giving a sanction
Hammurabi mixed matters falling under criminal, civil law in successive lines
How did the Code of Hummurabi comply with formal requirements of Codifications?
As for the content, either a reformation or compilation of law, closer to compilations.
No structure based on specific, but a real intention to reach systematization
Content of code begins with criminal law, and continued to civil
Exhaustiveness of codification: what is left outside has no legal existence
Incompleteness. Search for unity not implementation anywhere in the kingdom.
Uneasy conclusion.
What was the Roman Codification like?
Old customs in the Kingship era (753 to 509 BCE)
By 509 establishment of Res Publica (Republic)
At first it was a monarchy
- Law of Twelve Tables
- Gregorian and Hermogenian Codes
- Theodosian Code
- Justinian’s compilations
How was the evolution of the sources of law in the Roman Codifications?
Most famous source: Law of Twelve Tables (451-449 BCE)
By the third century BCE: New sources of law
Senatus consulta - Senate resolutions
Plebiscrita - Role of plebeians
Praetor: PRivate judgeg
Jurisprudentia = Jurisprudence, legal science
Today it means body of judicial decisions
Political change: Birth of Roman Empire. Control of sources of law by Emperor
New source: Imperial Constitutions
Led to conflicts with Romanian citisens regarding equality between rich and poor.
The assembly of the pleb and majesty of the pleb
Partitions decided to give law to roman people
What was the Preator?
A magistrate with a specific mission, where he had to organize the litigation between two persons
Organize first part of judicial trial, discuss content of judicial action, give a name of the judge. He was not the judge. Reelection every year.
If rights were protested you had possibility to oppose this - Preator had a list of action to protect the rights. A crucial role in roman system.
What was the Preator?
A magistrate with a specific mission, where he had to organize the litigation between two persons
Organize first part of judicial trial, discuss content of judicial action, give a name of the judge. He was not the judge. Reelection every year.
If rights were protested you had possibility to oppose this - Preator had a list of action to protect the rights. A crucial role in roman system.
What were the 4 types of documents under the Imperial Constitutions? What were the problems with this?
Edits: Enactments of the empror
Mandates: Administrative instructions
Rescripts: Official answer to an administrative question
Decrees: Judicial decisions emanating from the imperial court of justice
Classical problems. Multiplication of sources lead to difficulity to comprehend provisions and problemsof knowledge of rules of law
A need for codification appeared in the end of Fourt century BCE. Most important was Corpus Iuris Civilis under Emperor Justinian 1st
What was the Law of the Twelve Tables?
451-450 BCE
Enactment in the context of Crissis in Rome
Solution was a Comission of 10 members
The nature of the law was 12 tables
Main principles:
- Recognition of preogaratives of the patrician class and patriarchal family
- Validity of the enslavement for unpaid debt
- Interference of religious custom in civil cases
- Access to Justice for Plebeians
Innovations: Remarkable liberality for their time concerning testamentary right and contracts. Adaption to social changes. Creation of legal actions
A codification? A code of procedure with innovations
What was the Gregorian and Hermogenian Codes? What were the consequences?
An aspect of development of a legal doctrine called Jurisprudentia
An extension of the imperial power over all the sources of the law. Origine was the regime of Emperor’s doctrine
Problem with multiplication of sources of law - difficulties to access content of all these different legal texts. –> Therefore, end of 3rd century, the experts presented a new organisation of Roman law of Imperial Constitutions.
The weakness was that there were no sanctions
This resulted in a desire to codify the law in the 4th century, and making it easier to find all rules of law, and classifying fields and matters
For legal security and justice and peace
Control of legal system –> Control the power
Gregorian was a collection of Constitutions from emperor Hadran down to Constantine by Roman jurist Gregorous
Hermogenian was a collection of constitutions by emperors Diocletian and Maximian prepared by jurist Hermoegenes to supplement.
They were different in structure, but both were composed by emperor Constitutions.
Too narrow. Not general rules of law. Unofficial
But represented a benchmark for future Codifications. Easy use, easy access for judges
First step in Roman Empire
What was the Theodosian Code?
Multiplication of imperial Constitutions in connection with extention of imperial power
Important changes in administrative and private law
New problems of knowledge of legislation. Lack of unity about rules of law
Goal: An official Codification
Constantin 1st (306-337). Most important decision was acceptance of Christianity. Division of empire in two parts: Western and Eastern. Easier to rule.
Structure - Division into 16 books, subdivided into titles with specific field of law
This structure and unity lead to qualification of a code. The first official codification. Obligation to implement the code before the Courts
Perceived as the standard of codifications
Official sanctions
