English Legal History
1/30/2007
Outline
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I. PAUL’S LETTER TO THE ROMANS
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II. THE LEGACY OF THE ANCIENT
WORLD — CHRISTIANITY
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III. THE LEGACY OF THE ANCIENT WORLD — ROMAN
LAW
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IV. CATEGORIES IN JUSTINIAN’S INSTITUTES
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THE LEGACY OF THE ANCIENT WORLD
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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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an"'>1.
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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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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A.
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“The study of 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.” (J.I.1.1.4)
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B.
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“The whole of the law which we observe relates either to persons, or to
things, or to actions.” (J.I.2.12.)
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C.
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Justinian divides the law of things is divided into three parts —
acquisition of single things — acquisition per universitatem, the acquisition of things “in a bunch”
(mostly succession upon death, including legacies and fideicommissa [roughly equivalent to trusts]) — acquisition and
extinction of obligations.
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D.
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obligations–in
general–3.13
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ex contractu
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quasi ex
contractu
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ex delicto–4.1–4
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quasi ex
delicto
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E.
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obligations ex contractu
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delivery
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a form of words
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writing
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consent
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re
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verbis
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litteris
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consensu
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F.
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delicts
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theft
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robbery
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wrongful damage
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“injury”
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furtum
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vi bonorum raptorum
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damnum iniuria datum
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iniuria
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G.
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[procedure]
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actions
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exceptions
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interdicts
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abuse of process
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judges
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crimes
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