Comparative Law Spring 2003Professor Susanna Fischer

CLASS THREEHISTORICAL ORIGINS OF THE CIVIL LAW: ROMAN LAW

OPENING YOUR MIND TO COMPARATIVE LAWTry 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 CLASSA 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 JustinianWe 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 lawHeritage of Roman law lives on today in many modern legal systems of the world

ROMAN LAWOriginally chthonic. Pontiffs interpret lawRome originally a monarchy until 6th c. BCRepublican Rome: in 451 B.C. decemvirs write the Twelve TablesIus becomes lexIssues 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 TablesTABLE IVLaw IIIf a father sells his son three times, the latter shall be free from paternal authority.TABLE IVLaw IIIA 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 PraetorFormulary procedure moderates harshness of Twelve TablesAfter Punic Wars of 3d c. BC, Empire leads to development of ius gentium, applicable to non-citizens (peregrini) unlike ius civileFrom 250BC there arises a class of jurisconsults

Roman Law During the EmpireExpansion of Roman citizenshipGrowth of imperial legislation0-200 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 Caligula2d 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 JuristsEdict 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 Siege Divides in Two

Germanic tribes (Visigoths, Goths, Vandals) attackthe frontiers of the western part of the Roman empireOn 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 accessBest brains turn away from lawLaw becomes less preciseGrowing provincialism of law and increase of customary law leads to lack of consistency of Roman law throughout the empireIn the 5th century, Emperor Theodosius II prepares a code which has not survived but has been substantially reconstructed

Collapse of RomeVisigoths 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 actionsArchitectureLaw

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?