Summary Global Legal History - notes for Global Law students

Global Legal History Notes

1. Roman Law
1. Civitas
 Latin Tribes living along the Tiber river under Etruscan influence
o Patriarchical society
 Pater potestas – family and clients were quasi-property
 Two main tribes / classes – patricians and plebeians
 King (Rex) wielding supreme power (imperium)
 Council of elders (Senate)
o Ended in civil strife
 509 BCE the latin patricians rebelled and established the Roman
Republic
 Rex became a taboo in Rome
 The early republic
o 509 BCE Imperium was given to two consuls, who held a mutual veto power
 One-year term, appointed by vote from among the patricians
 Other magistrates: Praetors (judicial), censors (lands, census and
votes), aediles (buildings, public works), quaestors (treasurer), tribunes
(representatives)
 Usually always two or more, originally only patricians, later
also plebeians
o The Senate
 Senators appointed for life by censors
 Senatus Populusque Romanus (S.P.Q.R)
o Legislative assemblies
o Structure of society: patricians ruled as aristocracy, plebeians as lower class
 Law of the XII Tables (450 BCE) – The first Lex
 Plebeian tribunes: officials who could draft plebiscites
 The Late Republic
o During the 3rd century BCE, Rome became a Mediterranean power (a
functional empire)
 Punic wars 246-201 BCE: Defeat of Carthage
o Roman law developed around the judicial officials and legal experts
 Praetor urbanus (367 BCE), Paetor peregrinus (242 BCE)
 Rise of jurists (iuris consultus, jurisprudentes)
 The birth of institutionalized legal education
o Roman civil law led to a vast collection of learned legal opinions, debates, and
perspectives arising from the practices of litigation and mediation
 The Roman Empire
o 49 BCE: Caesar’s civil war; 44 BCE: The ides of March; 27 BCE: Augustus
imperator
o Roman law became more codified and institutionalized
 Expansion of citizenship and ius civile throughout the empire
 Attempts by the Empire to restrict the jurisprudents (not very
successful)

, o Division between Western and Eastern Rome (385 CE / 395 CE)
o Emperor as Dominus – “Dominate” ca 284 CE onwards
o The Christianization of Rome CE
 The Legacy of Rome
o 467: Odoacer of Germanic tribes forced Romulus Augustulus to abdicate
 “The fall” of Rome
o The Byzantine Empire lasted until 1453, when conquered by Mehmed II
 Justinian I: Corpus Juris Civilis (534 CE)
o The Papacy and Catholic Church remain
o Holy Roman Empire (800 – 1806 CE) – Charlemagne to Bonaparte
o Roman law remained embedded in European customary and common law
 Corpus iuris civilis rediscovered ca. 1088
 Ius commune
2. Ius (law in action)
 Archaic Rome
o Law was closely related to religion and rites, often unwritten
o Resolution of private conflicts by priests (pontifex)
 Formal legal causes of action / rituals: legis actiones
 Highly formalistic – predetermined to the letter; even the
slightest deviation could lead to the case being dismissed
 Often verbal, need of witnesses
o Law of the XII Tables contained also procedural rules
 E.g., summons and boligations to appear in court (Table I)
 Eventually the right to interpret the law passed from the clergy to the
aristocracy
 Ius Civile
o Around 367 BCE, the first Praetor nominated
 Magistratus majore, curulis held imperium (though consuls had veto)
o Legal procedure: the “Formulary Procedure”
 Part I: In iure
 Praetor decided whether the matter was admissible, and under
which action
 If yes, the praetor appointed the Iudex (among eminent
citizens)
 Part II: Apud iudicem
 Iudex examined the facts of the case: hearing, evidence, etc.
 Then the Iudex applied the formula given by the Praetor
o Compare to jury trial / arbitration compromis / oyer et terminer
o Consequence: praetor started to distinguish rules from facts: Rule ^ Fact ->
conclusion
o Further developments:
 The praetors (esp. peregrinus) began to express formulas in free
language
 Before elections, candidates would publish at the agora lists of
formulas that they promised to uphold (Praetor’s edict) – ius
honorarium – law lasting while the praetor is in office

,  Copy-Paste: Edicts often retained useful formulas and discarded others
 Repetition - > retention of normative information
 Ius Gentium
o Law not specific to man but common to all living creatures
o Romans developed ius gentium as they interacted with neighbors and later
ruled their diverse empire
 Actioned legis did not apply to non-romans
o Praetor peregrinus (421 BCE)
 Began to develop and establish legal practices based on mediation,
practical experience and abstract reasoning
 New disputes cases and customs started to form new law
 Jurisprudence
o Accumulated experience in legal matters (legal expertise, authority –
autocritas)
o A new group of intellectuals: Iuris consultus / jurisprudentes
 Often senators / former senior officials)
 Individuals would request advice, potential praetors requested opinions
 Legal opinions (responsa), hypotheticals, books and treatises,
institutes
 Institues of Gaius (161 CE)
o Typical method: identification of ‘legal questions’ (quaestio iuris), and
deriving rules and concepts through the study of case law
 Law during the Empire
o Imperial law in books: Empire signified the end of jurisprudential law; Law
instead settled in codifications, constitutions and institutions
o Imperium vs Autocritas: Emperors began to limit the acceptable written
authorities, and restrict the right to give responsa and legal opinions
 The famous jurists of the Digesta are from this era
o Codification of formulas: around 130 CE, the praetorian formulas were fixed
in the perpetual edict (Edictum perpetuum)
 At orders from Emperor Hadrian
o Permanent courts: since the early Empire, permanent judges (iudex) were
appointed
 Investigative procedure cognition (extra ordinem)
 One judge to rule them all, no two phases and no lay iudex
 Gradually allowed for adjudication even if no exact formula was at
hand
o Legal education became formalized
 In Rome, various “schools” of apprentices formed under different
teachers
 By the 2nd century, imperial certificates were granted to law schools
(Rome, Constantinople, etc)
3. Lex (written law)
 Lex in the Republic
o The Law of the XII Tables (450 BCE)
 Result of long discord between patricians and plebeians) in the Senate