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English Legal History
1/28/2009
Outline
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I. OUTLINES OF
THREE LEGAL HISTORIES
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II. THE LEGACY OF
THE ANCIENT WORLD — ROMAN LAW
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English Legal
History
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Period
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Description
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Politics
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Sources of Law
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Roman Influence
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Continental Contrast
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600–1150
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Age of Tort
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Tribal->Feudal Monarchy
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Barbarian Codes, Custom
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Almost non-existent
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Weak
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(1000?, 1066?)
1150–1300
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Age of Property
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Feudal monarchy
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Custom, Case Law, Statute
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Strong on Method
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Same
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(1250) 1300–1500 (1602)
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Age of Trespass
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National monarchy
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Case Law
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Weak
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Quite Strong
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(1375) 1500–1700
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Age of Equity
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Absolute Monarchy
-> Const. Monarchy
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Case Law, Statute
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Strong in spots
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Strong
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1700–1900
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Age of Reform
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Const. monarchy
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Case law, Some Codification
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Submerged but there
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Very strong
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Roman Legal
History
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Period
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Description
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Politics
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Sources of Law
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500–250 BC
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Archaic
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City-State
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XII Tables
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250–1 BC
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Pre-Classical
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Urban Empire
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Statutes/Cases
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1–250 AD
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Classical
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Principate
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Cases
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250–500 AD
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Post-Classical
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Dominate
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Imperial Constitutions
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533 AD
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Justinian
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Byzantine
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Code
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English Law
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Roman Law
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600–1150
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Age of Tort
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500BC–250BC
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Archaic
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Pre-classical
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1300–1500
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Age of Trespass
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1AD–250AD
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Classical
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1500–1700
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Age of Equity
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250AD–500AD
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Post-classical
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1700–1900
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Age of Reform
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500AD–550AD
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Codification
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Continental
Legal History
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Period
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Description
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Politics
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Roman
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Canon
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Customary/Nationalt
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450–1100
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Early Middle Ages
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Barbarian Invasions
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Romano-barbarian Codes
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Collections
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Barbarian Codes
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1100–1250
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High Middle Ages
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Feudalism, Feudal monarchy
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CJC-glossators
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Gratian->decretists Papal decretals
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Coutumiers
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1250–1500
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Later Middle Ages
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National monarchy
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CJC-commentators, Consilia
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Decretalists–>encylopedic jurists
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Coutumiers and statutes
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1450–1550
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Renaissance
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Absolutism
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Humanists
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Councils, Consilia
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Codification of custom, Reception
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1550–1750
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Early Modern
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Absolute monarchy
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Natural law
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Papal bureaucracy, Handbooks
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“Institutes” and statutes
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1700–1900
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Modern
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Revolution
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Pandectists, Historical School
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Codification
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Codification
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A.
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Not the direct background of
Anglo-Saxon law
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B.
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As a paradigm of legal
development—archaic, pre-classical, classical, post-classical as
paralleling our ages of tort, property, trespass and equity,and the
continental ages of Germanic codes, glossators, commentators, and
humanists/natural lawyers with codification coming at the end of all three
developments
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C.
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As an influence—weak in the age of
tort, strong in the age of property,weak in the age of trespass (but strong
on the Continent), strong in the age of equity
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D.
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Fundamental structural distinctions
in Roman law (derived from Justinian’s Institutes) that appear at
different times in medieval and early modern law.
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Justinian’s
Institutes (Basic Categories)
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J.I.1.1.3–4
The study of the law consists of two branches, law
public, and law private. The former relates to the welfare of the Roman State; the latter to the advantage
of the individual citizen. Of private law then we may say that it is
of threefold origin, being collected from the precepts of nature, from
those of the law of nations, or from those of the civil law of Rome.
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J.I.1.2.12
The whole of the law which we
observe relates either to persons, or to things, or to actions. And
first let us speak of persons: for it is useless to know the law without
knowing the persons for whose sake it was established.
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J.I.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.
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J.I.2.6pr
It was a rule of the civil law that if a man in good
faith bought a thing, or received it by way of gift, or on any other lawful
ground, from a person who was not its owner, but whom he believed to be
such, he should acquire it by usucapion—if a movable, by one year’s
possession, and by two years’ possession if an immovable, though in this
case only if it were in Italian soil;—the reason of the rule being the
inexpediency of allowing ownership to be long unascertained. The
ancients thus considered that the periods mentioned were sufficient to
enable owners to look after their property; but we have arrived at a better
opinion, in order to save people from being over-quickly defrauded of their
own, and to prevent the benefit of this institution from being confined to
only a certain part of the empire. We have consequently published a
constitution on the subject, enacting that the period of usucapion for
movables shall be three years, and that ownership of immovables shall be
acquired by long possession—possession, that is to say, for ten years, if
both parties dwell in the same province, and for twenty years if in
different provinces; and things may in these modes be acquired in full
ownership, provided the possession commences on a lawful ground, not only
in Italy but in every land subject to our sway.
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J.I.2.9.6
So much at present concerning the modes of
acquiring rights over single things: for direct and fiduciary bequests,
which are also among such modes, will find a more suitable place in a later
portion of our treatise. 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.
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J.I.3.1.13
Let us now pass on to obligations. … [T]hey
are arranged in four classes, contractual, quasi-contractual, delictal, and
quasi-delictal.
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J.I. 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.
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