OUTLINE — LECTURE 1

(For a more “printer-friendly” version of this outline (pdf) click here.)

 

 

Continental Legal History

 

Period

Description

Politics

Roman

Canon

Customary/National

450-1100

Early Middle Ages: primitive collections

Barbarian Invasions,

Romano-barbarian Codes

Collections

Barbarian Codes

1100-1250

High Middle Ages: academic study

Feudalism, Feudal monarchy

CJC–glossators

Gratian–>decretists Papal decretals

Coutumiers

1250-1500

Later Middle Ages: academic application:

National monarchy

CJC–commentators, Consilia

Decretalists–>encylopedic jurists

Coutumiers and statutes

1450–1550

Renaissance and Refor-mation: academic bifurcation

Absolutism

Humanists

Councils, Consilia

Codification of custom, Reception

1550–1750

Early Modern: bureaucracy and philosophers

Absolute monarchy

Natural law, usus modernus pandectarum

Papal bureaucracy, Handbooks

“Institutes” and statutes

1700–1900

Modern: codification

Revolution

Pandectists, Historical School

Pandectists–>Codification

Codification

 

Roman Legal History

 

Period

Description

Politics

Sources of Law

500-250 BC

Archaic

City-State

XII Tables

250-1 BC

Pre-Classical

Urban Empire

Statutes/Cases

1-250 AD

Classical

Principate

Cases

250-500 AD

Post-Classical

Dominate

Imperial Constitutions

550 AD

Justinian

Byzantine

Code

 

English Legal History

 

Period

Description

Politics

Sources of Law

Roman Influence

Continental Contrast

600-1150

Age of Tort

Tribal–>Feudal Monarchy

Barbarian Codes, Custom

Non-existent

Weak

1150-1300

Age of Property

Feudal monarchy

Custom, Case Law, Statute

Strong on Method

Same

1300-1500

Age of Trespass

National monarchy

Case Law

Weak

Quite Strong

1500-1700

Age of Equity

Absolute Monarchy–> Const. Monarchy

Case Law, Statute

Strong in spots

Strong

1700-1900

Age of Reform

Const. monarchy

Case law, Some Codification

Submerged but there

Very strong

 

  1. Introductory remarks
  1. Chronological range: 450 AD to 1648, with looks backward 400 years and forward 250 more. Geographical range: all of Continental Europe with occasional glances at England. How to avoid superficiality?
  2. By testing our generalities against three particular topics:
  1. The capture of wild animals as the foundation of “property.”
  2. The formation of marriage
  3. Witnesses in both criminal and civil procedure
  1. By relating our generalities to one particular region: France (with England, Germany, Italy, Spain, the Low Countries, giving examples for comparison and contrast)
  2. By checking our generalities against the documents in the coursepack.
  1. What is this course about?
  1. law <– licgan, not lecgan, i.e., ‘lie’ not ‘lay’
  2. lex vs. ius: loi vs. droit; Gesetz vs. Recht; wet vs. recht; diritto vs. legge; derecho vs. ley
  3. ‘Constitution’
  4. “Mankind is ruled by two things, natural law and custom.” Gratian, Concordance of Discordant Canons, c. 1140.
  5. ‘Civil law’ vs. ‘common law’
  1. Periodization
  1. The problem of periodization.
  2. Look at the tables at the top of the outline. We can organize the material:
  1. By events.
  2. By intellectual centers.
  3. By formal sources of law.
  4. We can try to create a matrix of all three.
  5. Some tag phrases with which to begin:

  450–1100  age of the primitive collections
1250–1500  age of academic application
1450–1550  age of academic bifurcation
1550–1750  age of bureaucracy and philosophers
1750–1917  age of codification

  1. In all these ages except perhaps for the period 1550–1750 there was a close parallel between the canon law developments and the Roman and some with the national
  1. The codification phenomenon.
  1. At the beginning:
  1. literacy
  2. the beginnings of a realization that law belongs in separate category
  3. realization of the connection between what we would call the state, and what they called different things, and the law
  1. At the end:
  1. a long period of professional development
  2. sources of law proliferating and becoming unmanageable
  3. person of genius
  1. ‘True’ codes, i.e., codes that follow the model of the 19th European codes, are:
  1. authoritative
  2. exclusive
  3. systematic

Applying these tests there is no Western code as opposed to collection before the Prussian Civil Code of 1794; this is followed by the Napoleonic code of 1804, and by the Austrian Civil Code of 1811.

  1. At the end of the table above for Roman law, we have the great Roman collections: 529–533 A.D.

 

Some Key Dates in the ‘Codification’ of Roman Law

 

220 A.D. — End of classical period; no official collection except the praetor’s edictum perpetuum (perpetual edict), a collection of formulae and rules of procedure published by the chief judge of Rome, known as the praetor..

 

439 A.D. — Theodosian Code (begun 429).

 

527 A.D. — Justinian becomes emperor

529 A.D. — Publication of the first Code

530-533 A.D. — Compilation of the Digest

533 A.D. — Publication of the Digest and the Institutes

534 A.D. — Publication of the second Code

 

534–565 A.D. — Justinian’s Novels

About 1/3 to 1/2 of the Theodosian Code survives. Justinian’s first Code does not survive, but the rest of his work does survive:

    1. The Digest or Pandects, a mamouth collection of extracts from the writings of the classical jurists from roughly 100 BC to roughly 220 AD.
    2. The Institutes, an elementary and quite short textbook following that of the second-century jurist Gaius.
    3. The Code, a compilation of imperial constitutions (i.e., rulings by the emperor on matters of law) from roughly 100 AD to Justinian’s time.
    4. The Novels, a private collection, probably made shortly after Justinian’s death, of 168 constitutions that he promulgated after 534.

Together, these became known as the Corpus Iuris Civilis. The entire Institutes may be found in Part I of the coursepack, accompanied by extracts from the Digest and Code to show how they are arranged.

 

Sources:

 

Codex Theodosianus, P. Meyer & T. Mommsen eds., 2 vols. (1905) (includes the Sirmondian Consitutions and the Theodosian Novels)

 

The Theodosian Code and Novels and the Sirmondian Constitutions, C. Pharr trans. (1952)

 

Corpus Iuris Civilis, T. Mommsen, P. Krüger, R. Schöll, W. Kroll eds. (var. ed. 1911, 1915, 1904) (Many times reprinted, known as 'the Berlin stereotype edition')

 

The Civil Law, S.P. Scott trans., 17 vols. in 7 (1922) (only complete English trans. of the Corpus Iuris Civilis, must be used with caution)

 

The Digest of Justinian, A. Watson ed. trans., 4 vols. (1985) (far better than Scott for what it covers)

 

The Institutes of Justinian, J.B. Moyle trans., 5th ed. (1913, repr. 1967)

 

 




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last modified:  03/18/11

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