OUTLINE — LECTURE 2

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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

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–>encyclopedic 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

 

The Structural Features of Justinian’s Institutes
Justinian’s Institutes (in general): JI.1.1.4:  “The study of law consists of two branches, law public and law private.”
JI. 1.2.12: “The whole of the law which we observe relates either to persons, or to things, or to actions.”
Bk. 1. Persons

JI.1.3pr: :  “In the law of persons, then, the first division is into free men and slaves.”

JI.1.8pr: “Another division of the law relating to persons classifies them as either independent or dependent.”

Bks. 2 and 3.

“Things” JI.2.1pr: “In the preceding book we have expounded the law of Persons: now let us proceed to the law of Things.  Of these, some admit of private ownership, while others, it is held, cannot belong to individuals: for some things are by natural law common to all, some are public, some belong to a society or corporation, and some belong to no one.  But most things belong to individuals, being acquired by various titles, as will appear from what follows.”

I.2.9.6: “ ... We proceed therefore to the titles whereby an aggregate of rights is acquired.  If you become the successors, civil or praetorian, of a person deceased, or adopt an independent person by adrogation, or become assignees of a deceased’s estate in order to secure their liberty to slaves manumitted by his will, the whole estate of those persons is transferred to you in an aggregate mass.”

JI.3.13pr, 2: “Let us now pass on to obligations.  An obligation is a legal bond, with which we are bound by a necessity of performing some act according to the laws of our State. ...  [T]hey are arranged in four classes, contractual, quasicontractual, delictal, and quasi-delictal.”

Books 2 and 3 are hence further subdivided:

                              “things”
_________________________________|_____________________________
|                                |                             |
individual things             succession                    obligations
(roughly “property”)      (mostly upon death)          ________|_______
                                                       |              |
                                                    contract        delict

Bk. 4. “Actions” (mostly civil procedure)


JI.4.6pr “The subject of actions still remains for discussion. An action is nothing else than the right of suing before a judge for what is due to one.”

 

The Strucutral Features of Western Law Illustrated by the 19th-Century Codes

Code Napoleon (Napoleonic Code) (1804):

bk. 1. Of Persons.  (This is where the marriage sections come from)

bk. 2. Of Property.

bk. 3. Of the different modes of acquiring property. (This is where the wild animal section comes from)

After this comes 1. Succession. 2. Donation. 3. Contracts in general. 4. Engagements formed without a contract (quasi-contract and delict). 5. Of the contract of marriage (marital property). 6–13. [Different kinds of contracts: sale, hire, partnership, loans, deposit, insurance, agency]  14–18. Security. 19. Ejectment. 20. Prescription.

(The section on witnesses is in a separate Code of Civil Procedure.  There is also a separate Code of Criminal Procedure (more provisions about witnesses), a Code of [substantive] Criminal Law, Commercial Law.  Later a Code of Administrative Law was added.)

Bürgerliches Gesetzbuch (German Civil Code) (1900):

Bk. 1. General Part (General rules on persons, things, legal transactions, limitations, security)

Bk. 2. Obligations (mostly contract, delict at very end)

Bk. 3. Law of Things (wild animal provision is in here)

Bk. 4. Family Law (marriage provision is in here)

Bk. 5. Succession

(The section on witnesses is in a separate Code of Civil Procedure.  There is also a separate Code of Criminal Procedure (more provisions about witnesses), a Code of [substantive] Criminal Law, and of Commercial Law.)

 




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URL:  http://www.law.harvard.edu/faculty/cdonahue/courses/CLH/lectures/outl02.html
last modified:  03/18/11

Copyright © 2011 Charles Donahue, Jr.