Roman Law: Modern continental law: beginning with the rediscovery of Roman Law in the 11th century.

First stage

Advice given by juriconsults with respect to particular cases or disputes.

Ownership of things: patrimonial things vs. extrapatrimonial, common things vs. sacred things, principal vs. accessory things. Ownership was essentially private.

Contracts: no general consensual concept.

Classification

Real: verbal (solemn words), literal contracts, consensual contracts

Liability was only objective.

Commentators: list of authorities.

Justinian’s Digest.

Second stage

Roman law rediscovered in the 11th century in Europe.

Glosses on Roman Law texts.

1804 Napoleonic Civil Code.

Resident judges.

Investigative procedure.

No judge law making.

Historical prestige of law professors.

Decline in other forms of social cohesion or glue: chtonic tradition, religion and religious morality

Other codes.

Law relational and obligational.

Rights: unilateral entitlement

Law becomes subjective and in becoming subjective it generates rights

Contract: meeting of autonomous wills. Consensual.

Delictual obligation becomes subjective, i.e., fault based.

Law has a human goal.

Greek tradition of rational enquiry.

Human construction is possible, from no thing can be developed something.

The means of creation is through logical thought –Aristotle’s law of non contradiction or the law of the excluded middle. Deductive thought follows from this form of logic.

Construction of modern state.

Interpretation of laws –rather than creation- is at the heart of the civil law tradition. Legal nature and positivism.

 

The history of civil law is the history of two periods: (i) Roman Law and (ii) Modern continental law, beginning with the rediscovery of Roman Law in the 11th century.

 

Roman law emerged from the advice given by juriconsults with respect to particular cases or disputes.

In Roman law, things could be owned and we see now a multiplication of criteria for organizing the world of things. They could be patrimonial things or extrapatrimonial, common things or sacred things, principal or accessory things.

Ownership was essentially private.

Contracts were contracts in the plural and there was no general consensual concept.

So there are real contracts, requiring the transfer of the thing, verbal contracts (solemn words), literal contracts (in writing), and –in certain cases- consensual contracts, e.g., sale, lease, partnership, mandate.

Liability was only objective.

So Roman law became an object of admiration, because juriconsults were able to convincingly state conditions for governance of complex personal relationships.

Gaius wrote his famous Institutes by the end of the 3rd century. From then on there were lots of commentators and in the 5th century a law about the order of citations was passed. There was a list of authorities, authors which you could cite. In case of conflict the majority prevailed. After the fall of the Roman empire (in the 5th century) Justinian ordered a compilation of laws, called the Digest. It consisted only of the opinions of jurists, gathered together with no systematic design. It obviously left out a lot. But when it was finished Justinian prohibited the inclusion of further comments.

 

Roman law was rediscovered in the 11th century in Europe. During the 11th and 13th century a lot of things happened in Europe. Church was separated from the state, universities began, legal professions were created, Roman law was revitalized and Greek philosophy was also rediscovered.

So the new universities with law and theology as their primary disciplines took on the tasks of adapting Roman law to the new ways. They did so by writing glosses on Roman Law texts.

 

1804 Napoleonic Civil Code.

 

Codes of law are the depository of substantive law. The judge –resident because the law is written and there is no need to travel on circuit- knows the law and so it applies it in an investigative (inquisitorial) procedure (so there is a denial of judge law making), there is a historical prestige of law professors.

 

The growth of law necessarily implies a decline in other forms of social cohesion or glue. The chtonic tradition is largely eliminated. Religion and religious morality have their place but not in public life. The small and local ways of life have become of object of legal control and tended to disappear, though contemporary sociology of law has done much to bring them back to legal life. In the absence of institutional barriers law grew exponentially. There are not only civil codes, but criminal, tax, commercial, procedural, etc. They all have their implementing regulation, spiraling deductively down, down and down. The law becomes specialized.

 

If you were born into the 14th or 15th century in Europe the mathematical chances were very good that you would be a kind of slave. You probably wouldn’t be called a slave but your life would be one of obligation, not to a cosmos you loved but to a lord that you might not. So the existing law was relational and obligational. People were stuck in their existing relations to one another, often hierarchical, and that’s where the law said they had to stay. So not only the law had to change but there had to be overpowering reasons to change it. These reasons were found in the judaeo Christian tradition. As delegated of God on earth people may exercise dominion over things as does God over the world. So now the roman law now becomes formulated in unilateral entitlement, and law becomes earthly sanction to ensure that such entitlements are respected. Law becomes subjective and in becoming subjective it generates rights. The law gives rise to rights. In property law, this means that the individual ownership of Roman law had to become an exclusive form of ownership, so communal forms of ownership were prohibited. Contract becomes the result of the meeting of the autonomous wills. Most are consensual in nature now.

Delictual obligation becomes subjective, i.e., fault based.

Once rights exist and everyone has them without regard to birth or race, there is a notion of social equality which is afoot. And since people have the power, in rights, to resist oppression, there is also a guarantee of human liberty. So all the great concepts of western civilization come together in a kind of package and at that base is the centrality of the person.

So law comes to be recognized as having a human goal, a human instrumentality. There had to be rights and there had to be codes to ensure their respect. The change in the expression of law follows from the necessity to place explicit human rationality above the interstitial rationality of the chtnonic (or Talmudic) traditions.

So what does it mean to be rational in law? The lawyers of the Enlightenment did not simply invent contemporary legal rationality. They went a long way back to the Greek tradition of rational enquiry. This means two things: (i) human construction is possible, from no thing can be developed something. So if religion authorized human creation, Greek thought said it was also possible, and (ii) the means of creation is through logical thought, and logic is embodied in that which, since Aristotle, is know as the law of non contradiction or the law of the excluded middle. Aristotle said that what you really can’t do is affirming at the same time two things which contradict themselves. Put differently, between two contradictory things, there is no middle (it’s excluded). You can’t have your cake and eat it too. In a formula, it would be A or not A. A and not A would be having your cake and eat it too.

Deductive thought follows from this form of logic, given a point of departure you can reach further conclusions which are derivable form it in a consistent manner.

This permitted the construction of modern state, which is essentially built upon formal, written law. So in civil law people speak about the State of Law rather than the rule of law, since law is inextricably linked to modern state.

So we find a civil law tradition of explicit rationality in law.

Crisis: there are a lot of problems close to the ground that the great theory does not specifically address.

 

Interpretation of laws –rather than creation- is at the heart of the civil law tradition.

Legal nature and positivism.