Comparative Law Spring 2002 Prof

							Comparative Law
Spring 2003
Professor Susanna Fischer

CLASS THREE
HISTORICAL ORIGINS OF THE
CIVIL LAW: ROMAN LAW
OPENING YOUR MIND TO
COMPARATIVE LAW
Try to take a scholarly, objective
perspective to other legal systems,
putting cultural stereotypes and
preconceptions out of your mind
  Few legal systems are absolutely bad or are
  so good as not to be able to benefit from
  other ideas
Try not to assume that any law that
differs from that of the United States is
inherently inferior
Never close your mind to new ideas
TODAY’S CLASS
  A flying tour of Roman law from the 8th
  century B.C. to the 6th century A.D.
  We will focus in particular on the corpus juris
  civilis of the Emperor Justinian
  We will see how Romans very gradually
  developed legal institutions and also
  developed “law as learning, in written form
  and subject to rigorous requirements of
  reasoning” (Glenn p. 119)
  Roman law has high points and low points
  over this period
WHY STUDY ROMAN LAW?
  John Henry Merryman has stated: “Roman
  law is often said to be the greatest
  contribution that Rome has made to Western
  civilization.”
  The Romans (through jurisconsults) were the
  first to look at law as a kind of science for
  ordering the world, including people and
  property and their relationships.
  Clarity, simplicity, orderliness of classical
  Roman law
  Heritage of Roman law lives on today in
  many modern legal systems of the world
            Originally chthonic.
ROMAN LAW   Pontiffs interpret law
            Rome originally a
            monarchy until 6th c. BC
            Republican Rome: in
            451 B.C. decemvirs
            write the Twelve Tables
            Ius becomes lex
            Issues decided by iudex
            (a lay juror)
            Initially law quite
            draconian: e.g. winning
            party could kill debtor if
            did not pay up, but later
            becomes modified
Excerpt from the Twelve Tables
   “If a man is summoned to appear in court
   and does not come, let witnesses be heard
   and then let the plaintiff seize him. If he
   resists or absconds, the plaintiff can use
   force. If he is too ill or too old, let the
   plaintiff provide a beast to bring him; but if
   he declines this offer, the plaintiff need not
   provide a carriage…If a man is killed while
   committing theft in the night, that killing is
   lawful.
   Note – in entire Republican period, v. little
   statute law. Law is mainly case law based.
More from the 12 Tables
   TABLE IV
   Law II
   If a father sells his son three times, the
   latter shall be free from paternal
   authority.
   TABLE IV
   Law III
   A father shall immediately put to death
   a son recently born, who is a monster,
   or has a form different from that of
   members of the human race.
Development of Roman Law in
the Later Half of the Republic
                  367 BC est. of Praetor
                  Formulary procedure
                  moderates harshness of
                  Twelve Tables
                  After Punic Wars of 3d
                  c. BC, Empire leads to
                  development of ius
                  gentium, applicable to
                  non-citizens (peregrini)
                  unlike ius civile
                  From 250BC there
                  arises a class of
                  jurisconsults
Roman Law During the Empire
  Expansion of Roman citizenship
  Growth of imperial legislation
  0-200 A.D. was the classical period of Roman
  law: the law had become very sophisticated
  despite the barbarism of some ruling
  emperors like Nero and Caligula
  2d c. AD : Gaius– a jurist teacher whose
  student work, Institutes, became very
  influential for centuries after his death
  (though not in his lifetime). Divided into
  Persons, Things, Actions
Imperial Roman Jurists
                   Edict of Emperor
                   Caracalla (l.) (212 A.D.)
                   made many Empire
                   residents into Roman
                   citizens. Now, even if
                   they did not know Latin,
                   they had to follow ius
                   civile.
                   Most distinguished third
                   century jurists:
                   Papinian, Paul, and
                   Ulpian
4th C. AD: An Empire Under
                      Germanic tribes
Siege Divides in Two (Visigoths, Goths,
                           Vandals) attackthe
                           frontiers of the western
                           part of the Roman
                           empire
                           On the death of
                           Emperor Theodosius in
                           395, the Roman Empire
                           divides into eastern and
                           western parts.
                           Empire is christianized.
                           Emperor Constantine’s
                           Edict of Milan of 313
                           ends persecution of
                           Christians.
Post-Classical Roman Law: Less
Precision and Less Consistency
   Cognitio procedure replaces formulary
   procedure – professional judge replaces
   iudex; courts opened up to direct access
   Best brains turn away from law
   Law becomes less precise
   Growing provincialism of law and increase of
   customary law leads to lack of consistency of
   Roman law throughout the empire
   In the 5th century, Emperor Theodosius II
   prepares a code which has not survived but
   has been substantially reconstructed
Collapse of Rome
   Visigoths sack Rome in 410 A.D.
   In village, villa, cross-roads, district, field
   down every roadway, and at every turning,
   death, grief, destruction, arson are revealed.
   In one great conflagration Gaul is burning.
   Why tell the deathroll of a falling world which
   goes the accustomed way of endless fear?
   Why count how many unto death are hurled
   when you may see your own day hurrying
   near?
   -5th Century Roman poet
The Start of What Some Have
Called the “Dark Ages”
   In the 5th century, as Rome collapsed,
   invaded and plundered by Germanic
   tribes (which some have called
   “barbarians”), Europe entered a period
   of widespread poverty, illiteracy, and
   intellectual stagnation
JUSTINIAN AND THE CORPUS
JURIS CIVILIS
               When and where did
               the Roman emperor
               Justinian live?
JUSTINIAN AND THE CORPUS
JURIS CIVILIS  When and where did
                   the Roman emperor
                   Justinian live?
                   Ruled in
                   Constantinople
                   between 527 and
                   565 with his wife,
                   the actress
                   Theodora
Justinian’s Empire
   Military actions
   Architecture
   Law
Map of Justinian’s Empire: ca
565
CORPUS JURIS CIVILIS
  What is this?
  Why was it created?
  Who drafted it – was it Justinian’s
  work?
CORPUS JURIS CIVILIS
  Justinian ordered the preparation
  of the Corpus Juris Civilis by a
  commission under the supervision
  of the jurist Tribonian.
  The commission included lawyers,
  a civil servant, law professors
CONTENTS OF CORPUS JURIS
CIVILIS
  What are the 4 different parts of
  Justinian’s compilation, which came to
  be called the corpus juris civilis, called?
  Describe each part
CONTENTS OF CORPUS JURIS
CIVILIS
  What are the 4 different parts of Justinian’s
  compilation, which came to be called the
  corpus juris civilis, called?
  Code (update of Theodosian code) Digest
  (anthology of extracts from great jurists like
  Ulpian), Institutes (textbooks for students),
  Novels (constitutions)
  Digest/Institutes became law in 533, and
  revised Code in 534.
JUSTINIAN’S GOALS
  Justinian believed that the post-
  classical Roman law of his time
  was decadent. He wanted to
  restore past glories, remove
  obscurities, errors, conflicts, and
  doubts, and create a systematic
  whole.
  Did he succeed?
JURISCONSULTS
  What approach did Justinian take
  toward legal commentaries?
  Was this a realistic approach, in your
  view?