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English Legal History
2/3/2009
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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III. JUSTINIAN’S INSTITUTES
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IV. PAUL’S LETTER TO THE ROMANS
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V. THE LEGACY OF THE ANCIENT
WORLD — CHRISTIANITY
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INTRODUCTORY LECTURE; THE LEGACY OF THE
ANCIENT WORLD
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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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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 Wrst 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 Wduciary bequests, which are also among such
modes, will Wnd 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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A.
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The anger of God against both pagan and Jew. Why God is
angry aginst the Jews is easy. They have the Law but they do not keep it,
2:21–2 (p. I–11): “You preach against stealing, yet you steal; you forbid
adultery, yet you commit adultery; you despise idols, yet you rob their
temples.” Why God is angry against
the pagans is a bit more complicated, 2:14–15: “Pagans who never heard of
the law but are led by reason to do what the law commands, may not actually
‘possess’ the law but they can be said to ‘be’ the law. They can point to
the substance of the law engraved on their hearts—they can call a witness,
that is, their own conscience—they have accusation and defense, that is,
their own inner mental dialogue.”
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B.
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Now comes the first big move:
3:21 (p. I–12): “God’s justice that was made known through the Law and the
Prophets has now been revealed outside the Law ... to everyone who believes
in Jesus Christ. ... [3:31] do we mean that faith makes the Law
pointless? Not at all: we are giving
the Law its true value.”
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C.
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7:1: “Brothers, those of you who have studied law will
know that laws affect a person only during his lifetime. A married woman,
for instance, has legal obligations to her husband while he is alive, but
all these obligations come to an end if the husband dies. ... That is why
you, my brothers, who through the body of Christ are now dead to the Law,
can now give yourself to another husband, to him who rose from the dead to
make us productive for God. ... The reason [8:1] (p. I–13) therefore why
those who are in Christ Jesus are not condemned, it that the law of the
spirit of life in Christ Jesus has set you free from the law of sin and
death. God has done what the Law, because of our unspiritual nature was
unable to do.” But what is now
law? The Church had already decided
that circumcision and most of the rules of kashruth were not to be
followed, but what is left?
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D.
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13:8–9 (p. I–14): “Avoid getting into debt except the
debt of mutual love. If you love your fellow men you have carried out your
obligations. All the commandments ... are summed up in this single command:
You must love your neighbor as yourself.”
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E.
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13:1 (p. I–14):
“You must obey the governing authorities. Since all government comes from God, the
civil authorities were appointed by God, and so anyone who resists
authority is rebelling against God’s decision ...
. The state is there to serve God for your benefit. If you break the law,
however, you may well have fear; the bearing of the sword has its own
significance. The authorities ... carry out God’s revenge by punishing
wrongdoers. ... This is also the reason why you must pay taxes since all
government officials are God’s officers ... .”
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A.
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The
importance of Christianity in English legal development
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B.
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The
letter to the Romans
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1.
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The
theology of the letter (justification comes from faith in Christ Jesus, not
from the Mosaic law
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2.
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The
antinomianism that seems to lurk in the letter (freedom from the law in
Christ Jesus)
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C.
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Law
and Christianity in the Roman Empire
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1.
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The
relative absence of what we think of as law from the NT
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2.
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Possible
explanations
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a.
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Law
was not the Greeks’ long suit
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b.
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Justification
by faith not by the Mosaic law
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3.
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The
Council of Jerusalem
(Ac 15:1–34; Gal 2:1–21)
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4.
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The
need for unity and the concept of communion (koinonia)
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5.
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Christianity
becomes the official religion of the Roman empire
(4th century)
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a.
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The
Greek councils (Nicaea (325), Constantinople
I (381), Ephesus (431), Chalcedon (451)
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b.
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Canons
of councils (nomos vs. kanon)
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c.
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Decretal
letters of the popes (e.g., Leo I, 440–461)
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6.
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Why
does Christianity not develop a genuinely religious legal system?
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