Western Legal Tradition

I. Overview of the WLT is the study of the law that emerged from Western Europe and then spread and influence most of the world. We study the law:A. Try to understand law, concepts and relationship to change and continuity. Study what law is

available through transcriptions and translations. 85% -95% of the law probably has not survived. Try to connect the dots with the small snapshots of law we have.

B. Try to identify ways of interpreting law: Look at statutes, judicial precedent, and even how laws were interpreted by looking to history.- intent of the framers. Used by Scalia a lot; Romans didn’t use methods.

C. Try to get understanding of legal institutions: come from long history of lawyers. Lawyers played a significant role in history; did job well. Also to understand their evolutions: only history can explain why we use juries in common law system and none in the Romano-Germanic system. Also to learn how the education of law has changed: used to at U of Bologna have to memorize the Digest of Justianian from lectures given by professors.

D. To study similiarities and differences of legal systems:E. Try to distinquish fact from fiction or what myths have developedF. Try to evalutate to what extent change in society result in the change of law and vice-versus, to

what extent did a change in law result in the change of society: Drafting of the Code of Napoleon: huge influence on world, no one put a gun to Napoleon’s head, so why was it done? Or Justianian, why did he order the compilation of Roman law into the Digest? What was the impetus?

II. “Families of law”: Term coined by historian Rene David in the 1950s.A. Romano-GermanicB. Anglo-AmericanC. Socialist Law

1. Developed in the 1950s in USSR, China, and their satellite countries. Epoused new law. W/ end of communism, law looks archaic.

D. Other Conceptions of law and order1. Jewish: grounded in Old Testament2. Islamic: arises out of the development of Islam. In the 600 A.D., new religion

developed in Saudia Arabia and spread through out the Middle East, N. Africa, India and Spain.

3. Customary law: regional law; all nations have a place, including LA

II. Rome in AntiquityA. Why start with Rome: Egyptians, Greeks, and Babylonians didn’t have the same influence on

W. Europe. Roman law becomes the major component of WLT. Req of history of civil law. Ius Civile, the civil law of the Roman republic, is bedrock of WLT. Prerequisite to Civil law, less influential on the common law system, but Rome did hold UK as colony from 40 B.C. – 400 A.D. Roman law also influenced RCC and its universities. UK only divurged in 1170 A.D. Rome also influenced politics, history, language. Napoleon’s career shaped by JC and Augustus. US founding father looked to Republic and tried to avoid its mistakes. Even bad dudes, Lenin, Hitler, and Huey Long all schooled in Roman history.

B. Early Roman History & Law1. Founding of Rome used to establish the dates of beginning; way to tell time-

measured from Year 1 AUC- “from the founding of the city”. Archeolgogist know that city occupied before 750 B.C.

2. Regal Period (753 B.C. – 510 B.C.): Known as period of the Kings of Rome. Descended from a group of Etruscans-from area of Tuscany. Don’t know much about the period; few Roman writings survive about the Etruscans.

(i) Tarqan the Proud—last traditional king of the period. Named for his excessive pride that led the establishment of the Republic.

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(ii) Res Publica—“public thing; commonwealth”- established during regal period. The counsel of elders, the Senate, (Senex) [meaning senile] survived into the Republic. Had no real powers in the regal period.

(iii) Law of Pre-Republican Rome: Have fragment of end of regal period, shows difference between classes and notion of patronage. Kind of resembles later lord and vassal relationship during Medieval times. Piece also deals with marriage. All of women’s property becomes her husbands. Marriage seen as status- if believed married then were. Or could do it by K. Women viewed as possession of man, but if man died was his heir. If intestate, got all his property. Women were punished for drunkenness and adultery by death. If wrongly punished, man lost all property- ½ to wife, ½ to gods. Also deals with Pater familias- patriarch rules the family-can send son 3 times into slavery. Have power of life and death over family. Mourning rituals elevated into law, methods to free slaves. Some of the law are kept during codification of 12 tables.

(iv) Twelve Tables - 450 B.C. – arose from class struggle. Plebs wanted laws written down since often between disputes of the two classes, the patricians won. Became the bedrock of Roman law. Cicero even noted that all the children had to memorize. Much of it adopted from Pre-Republican times. Organized.(a) Table I: very detailed legal procedure- allowed for self-

help since no police and fleeing a problem to settle disputes. Plaintiff must have witness that tried to summon defendant. “Shall” indicates that must use self-help when other refuses to come in. 1 day limit shows expeditious. No mention of lawyers, plead themselves.

(b) Table II: each party had to make solemn deposit. Similar to today’s filing fees. Every 3rd day dealt with evidence.

(c) Table III: law of debt. Creditor can lock up if don’t pay or no surety. Very severe law, can sell into slavery or kill if don’t pay. Later, Roman’s outlaw debtor prison. Creditors punished if take more than owed. Extensive provision, arbiter used in complicated matter.

(d) Table IV: Patria Polestas- head of the family- mandates that must kill deformed child. Much of law is carried over from Pre-Republican times: can sell son 3 times, child born more than 10 months after dad’s death gets no inheritance; customary law. Also shows Roman understanding of gestation and conception. When 12 tables didn’t deal with emancipation of son- Romans got creative and went through feigned sales.

(e) Table V: Succession law: decreased community property from Pre-Republican times. Limitation placed on all women. If unmarried, placed under guardianship. Vestal virgins: virgins of the vestal temple, tended fire, special class of women who had to remain celebate. If lost virginity, placed in care and starved to death. Romans recognized insanity and had measured to take away property. Spendthrifts also placed under guardianships. Freed slave- if no will or heirs, estate goes to patirican. Similar provision in Pre-Republican times and with Medieval tradition of estate going to lord.

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(f) Table VI: Acquisition and Possession: lost of analogous civil code provisions, sophisticated laws, marked distinction between title and possession. Conveyance marked with symbolic gesture~ livery of seisen. Use b/c don’t have as many documents. Large number of illiterates, have some semblances of religion and ritual.

(g) Table VII: Very concrete, deals with recurrent problems: overhanging limbs, fruit dropping, rainwater, Roman roadways.

(h) Table VIII: Tort and Delicts: high value of reputation, can clubb to death for slander, If do commit a tort, can settle, Punishment seems severe-arson or destruction of corn, can be bound, whipped, or put to death. To have less severe punishment for negligent acts. Distinctions between crimes committed during day/night. Lesser punishment for young or freed slaves. Strong punishment for abusing fiduciary or being a false witness-thrown down the rock.

(i) Table IX: Public law: bill of attainder: killed without trial, Roman law outlaws this. Judge bribery has capital punishment

(j) Table X: religious law(k) Table XI: forbidding different classes to intermarry.

Quickly repealed.(l) Table XII: Supplement law: last provision for arbitration

or statutory provision for modification.(v) Classes of citizens:

(a) Patricians: the upper class made up of priests, magistrates, judges. Established patronage over the plebs. Referred to them as “clients”

(b) Plebians: paid homage to the patricians. Ignorant of the laws since law were from religion and examined only by priests. Eventually revolted against the patricians by going on strike. Led to the 12 tables. Plebs also had sub-plebs. Distinctions among those in military and the wealthy. Between groups there was jockeying for power. During different leaders, one would pull ahead, went back and forth.

(1) Pleb optimates: made up of the senatorial class, special status.

(2) Equites: “knight” and those that belonged to the commercial class. One could afford armour, horse. Later, allowed to engage in commerce. Senators were not allowed to do this. Many became very wealthy. To be equite: free born citizen, over 18, and net profit of 20, 000. Cicero tied to this group.

(vi) Rome: citizens had strong tie to their city. Civic duty to give to the city and to help with cost of its buildings. Rome was urban civilization and was extraordinary for its time. Was multi-national city with people from all over the empire. Not everyone was a citizen, but in time many incorporated in order to tax. Previously, citizenship was earned. Rome thought to have ½ million at height. Rest of Europe in 1000 A.D. only had 3 cities w/ populations greater than 10K. When Rome sacked in 476 A.D., city goes into decline and people move to countryside.

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Spheres of Private Life in Rome: Identity formation

Family: Husband, Wife, child

Houshold: slaves, extended family,Servants, freed slaves

Clan~curaie: relic of the classical period where had city state clans

Tribe (belonged to 1/35 tribes)

Class

City

Nation

IIi. Classification of Roman Law ~ Sources of Roman lawA. Ius Civile: Civil law that was applicable to Roman citizens. During antiquity, one was governed by laws of the land you were from. Your jurisdiction went where ever you did. Had notions of intent, but disinclination for abstract formulation of legal rules. Also noted mitigating circumstances, like age and inexperience. Made points by citing to illustrative cases. Distinguished public v. private law. Jurist focused on private law. In provincial regions, see some influences of those cultures. Sources of the Ius Civile were:

1. Twelve Tables- see above2. Legislation from:

(i) Senate-decrees from the Senate(ii) Assemblies

(a) Comitia Centuriata(b) Comitia Tributa© Plebicites

(iii) Jurists—those persons, learned in the law, legal experts. Made fundamental contributions to development of Roman leal system. supplemented the statutes and legislation from these bodies. These were commentaries on the laws that helped with interpretations, were unofficial.

B. Ius Honorarium~ law of the magistrates; mostly dealt with procedural issues and what actions could be brought. Jurists also wrote commentaries on these.

1. Praetorian Edict2. Edict of Aediles3. Imperial law

C. Ius Gentium: Imperial/International law- law that applied to foreigners or non-citizens. Ex: if there was dispute between Syrian and Spainard in Rome, this was the body of law that was applied by the Praetor. Some resemblance to the Ius Civile. Provincial law, in time, also begins to influence the Ius Gentium.

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D. Ius Fetaile: originally religious law from college of fetials, also involved some international laws, and international relations. Dealt w/ things like, ie, formalities of going to war.

E. Imperial Law: added during the Principate. Although Augustus wanted to avoid looking like monarchy, pretenses disappeared with Tiberius. Tiberius sharply curtailed powers of the senate and assemblies. Led to the complete elimination of the Senate as a legislative source and emergence of absolute monarchy under Diocletian. Imperial law becomes heart of Roman law, along with jurists commentaries. Emperor had 4 types of legislative acts, known as constitutions- had force of a statute.

1. Edicta: statements on novel matters, broad in scope. Had force of statutes.2. Rescripta: Replies by the emperor to inquiries from officials and to petitions of

individuals. Some only applied to that case, others set precedents. There was a tendency to use as precedent for the future, use was validated by Justianian.

3. Decreta: Judicial decisions of the emperor, in cases of 1st instance or appeal. Diocletian, such decisions usually rendered by rescript.

4. Mandata: Administrative orders prepared in the imperial chancellery for governors setting out for provinces. Briefed them on status of legal principles that they would need to apply in office. Not really new imperial enactments, but incorporated existing constitutions. Served jurists as up to date sources of the law.

F. Jurists—legal experts-gained prominenece in 27 B.C. ;commented on legisltation of the Senate and assemblies, along with the Aediles and Praetorian edicts. Provided advice to parties to legislation, and lay judiciary on legal issues, procedures, and remedies available. Become an important part of the Ius Civile. Some of the jurists become so prominent as to become anointed or patented- their commentary is considered binding and can be introduced in a lawsuit to determine the outcome;-- seen as manifestation of emperor’s power. Done during Augustus’ time. During Imperial times, jurists writings become extremely important. Thus served two functions as legal advisors: (1) written technical advise to judges and praetors about the law of law and interpretation of law, like 12 tables. (2) solely responsible, thru response, for development of comprehensive jurisprudence, independent judicial decisions to meet changing demands of society. 1st generation of patented jurists were true scholars, as time went as not as good. Result, went from fringe of Rome to heart of law. If all of the jurist agreed, it was the force of a statute. If they disagreed, judge was at liberty to follow which decision he pleased. Famous jurists come to the forefront. In 125 A.D., Hadrian freezes the annual edicts of the Praetors, with which the jurists have great influence, and implements the Perpetual Edict. Some scholars say no new stuff anyway. Their influence doesn’t last forever and always existed by leave of emperor. Ex: Propinian who lived in 212 A.D. Yet he was executed for criticizing emperor. Ulpinian was also executed in 223. In a sense, become bureaucrats. But final end, With Rome in decline in civil wars, around 235-284 A.D., jurists stop writing. No clear reason why jurists stop writing. Yet, writing prove to be very important during the Medieval times. Jurists transformed into professors.

III. Roman Civilization/HistoryA.Republic (509 B.C. – 27 B.C.): Livy described it as the golden age

(vi) Office of praetor established- 367 B.C.: created due to class conflict

(vii) Office of jurists established: 253 B.C. (viii) Julius Caesar assignated: 44 B.C.(ix) Formal end of Republic – 27 B.C. End caused by tensions

with demogogues, Grachi brothers. Took 90 years to fall apart. Reasons:(a) corruption- internal decay. provincial governors abuse

their powers. Lots of wealth leads to more corruption.(b) Excessive wealth-conquests spoiled morals, corrupted

people, resources squandered(c) Increasing resort to violence- increase in assignation

attempts

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(d) Geographical/International affairs: Rome involved with treaties even from early stage. Felt important enough to reduce to writing. Highlights a relationship between religion and foreign affairs. See affairs intermixed with traditional rites and forumula for declaring wars. Rome fought Carthage and Hannibal. Carthage destroyed in 146 B.C.- some early historian felt that destruction of enemy lead to decline of Rome—Florus argued that no longer kept ancient discipline, thus Rome turned on itself.

3. Principate (27 B.C. – 284 A.D.)(i) Octavian Caesar Giventitle- “Augustus”—27 B.C. – 14 A.D.(ii) Birth of Jesus ~ 6/4 B.C.(iii) Cruxification of Jesus: 33 A.D.(iv) Tiberius Caesar- 14 A.D. to 37 A.D.(v) Hadrian – 117 A.D. 138 A.D.(vi) Gaius- Institutes- 160 A.D.

C. The Players in the Development of Roman Law1. The Republic ~ 510 B.C.

(i) Tripartite government: Executive, Quasi-legislative, and no judiciary. Some of the assemblies have appeal and judicial powers. Tripartite system doesn’t work perfectly. Roles of government, like US’s, do evolve with time.

(ii) Consuls: executive power of the Republic. In time, there were 2 consuls with the same powers to deal w/ concern of build up of power. Held 1 year term. Basically the chief executive power of the city. Handled public affairs.

(iii) Praetor (367 B.C.) office of the Praetor established. Akin to magistrate, and served as judge to pre- trial to define issues. Seldom had legal training. Eventually there were 8. Held term for 1 yr. Concerned with Roman law. Usually held by young Roman who was a patrician, knew the 12 tables, wanted to become a Senator. Similar to today’s Attorney General: was in charge of administration of the legal system; adjudication and litigation. Also were lay persons who prepared legal document with helps of jurists.(a) Praetorian Edict- published by chief praetor-public edict

that established what lawsuits could be brought. Grew in length over time- vehicle for the development of legal procedure. Evolved with public needs. Ends with Hadrian in 129 A.D.

(b) Index(c) Judex-second type of judge, less capacity than praetor;

filled more traditional role of judge during trial. Selected on ad-hoc basis; given authority by praetor. Relied on jurist for legal advice as well.

(d) Judicial decions were not accorded any importance in roman legal system.

(iv) Jurists: Patricians who had an interests in law; saw it as civic duty to help plebs with filing legal documents. Didn’t charge for services. Seen as “Iuris Prudentes” knowledgeable in the law. Knew and could explain the law; relied on by the Praetor to help draft the Praetorian Edict. Weren’t orators though. Jurists also were legal scholars and would write a treatise on

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law. Most jurists wrote to address a theoretical or concrete fact or occurrence in law. Had no method to preserve the law, like a Southern Reporter; would only record who won the dispute. No attempt to reason and extrapolate substantive law. Avoided abstract terms or phrases. The logic is embedded in the outcomes. No mention of contributory negligence or assumption of the risk but see the argument embedded in the outcomes.(a) Ex: Gaius in 160 A.D. who wrote Institutes: an overview

of Roman law for law students. Divided into books: (1) Persons (2) Things (3) Mode of Acquiring Things. Marks evolution of response to legal treatises prepared by jurists. Culminated by Gaius’s comprehensive state of private law. An extensive collection of legal principles and rules governing matters from citizenship to interstate succession. Analogized to “hornbooks” of today-elementary discussions of Roman law designed to educate students and assist practitioners in resolution of issues.

(b) Responsa-responded to specific questions of law-prepared for praetors and judices.

(v) Assemblies: not based on representation of the people. Representatives were the people. Every citizen was member of Comitia Centuriata & comitia Tributa. All plebs belonged to Concilium.(a) Senate: counsel of elders. Senate had 300 members,

except when packed by Sulla the dictator to 600. Julius Caesar increased to 900; Reduced by Augustus to 600. Power of the Senate evolved over time- strongest in Republic, declined in the Principate. During Republic, true governing body, considered to be most important governing body. AT first, just advising consuls, but eventually their responses become akin to statute. Served for life. Had to be patrician. Yet, checked by consuls who could remove senator. During republic, consuls also appointed senators. During Principate, emperor would select senator. Duties included: direction of foreign policy, treaties and alliances, control of public expenditures, declaration of state of emergencies, and power to appoint dictator when Rome under attack. Senate also appointed military commands, provincial governors. During Principate, lost power to emperor, but became more of legislative body and made laws.

(b) Comitia Centuriata: Comitia means “assembly”. comprised of of centuries of 100 men, Roman men of military age. Had 193 centuries. Voted in order of property classes. Equaled number of people capable of military service. Those centuries who voted first, had lots of armour, fortune, but also took the brunt of the attack. The 6th class, the Proletaria, comprised of ½ of the population, had 1/193 votes. Soldiers would stand out in the field in their groups, voted by secret ballot, then each century voted by unit. Prior to Tiberius, Comitia Centuriata would elect censors, praetors, consuls. Allowed to declare war, voted on proposals submitted by consuls, acted as court of appeal for citizens w/ capital punishment or heavy fines. Power was checked by Senate,

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any bill passed by Comitia Centuriata had to be ratified by Senate.

(c) Comitia Tributa: Tribal assembly which voted by tribe. Everyone assigned to tribe. Originally had 3, by 240 B.C. grew to 35. Method to raise property taxes, collected by tribe. Summoned by consuls. Showed good cross-section of population, rich and poor. Voted by tribe, 18 = majority. Duties: elect lesser magistrates-quastors and aediles, and military tribunes.

(d) Comitia Curiata: assemblies of the clans, assigned to one even if not formally related. Duties: convened to hear adoptions, to witness very formal wills, granting citizenship to foreigners. Its President was a high priest-Ponifus Maximus (name later adopted by Pope). By end of Republic, just formalistic- each clan would appoint 1 person to represent the clan.

(e) Concilium Plebus: most legislative assembly. Arose from class struggle. Difference w/ patriacian, not necessarily based on wealth. A lot of plebs involved in commerce. Summoned by tribune. Voted by tribe to issue referendums or initiatives. By 287 B.C. their actions became binding on patricians as well. Very prolific, but often hard for historians to discern from those issued by comitia centuriata’s laws. Other duties included: electing tribunes, pleb aediles, prosecule magistrates-grand jury.

(vi) Quastors: Roman IRS; dealt with taxes and finances.(vii) Aediles: magistrate charged with overseeing the economy,

markets, roman roads, aquaducts. Eventually dealt with commercial law: the relations between professional merchants. Also published annual edict, which was frozen by Hadrian.

(viii) Tribunes: formed 16 years after Republic. First had 5, grew to 10 members. Elected annually by plebs. Protected from arbitrary arrest, got immunity while in office. JC demanded to be “tribune for life”. Had veto power over magistrates and senate, except in time of war. Went to meetings of the Senate, wore special garmet. Submitted bills enacted by Concillium to the Senate. Also tried magistrates in front of Comitia Centuriata.

(ix) Censors: recorded listed people-age, slaves, property. Like registrar of voters. Determined what tribes people went into. Also legislated morality- could deprive people of citizenship, change class one belonged to for things like failing to feed horse, yawning in court, or showing a pattern where can’t control-sexual obsessions or habits. Didn’t punish for isolated instances.

(x) Lictors: low public officials. Ceremonial role to carry “facis”- the symbol of authority. Would accompany higher magistrates to shown sense of authority.

2. Transitional Period to the Empire(i) Cicero~ Marcus Tuicius~ 106 B.C.- 43 B.C.

(a) Life : known as the greatest lawyer in anquity. Contemporary of JC, lived during a great time of upheaval. Papers survived; question is he the greatest b/c his papers survived? Style consists of long sentences,

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long clauses. Saw himself as the guardian of the Republic, but even he abandoned the law at times and executed people w/o legal process. 900 letter survive. Didn’t know who to back and who would turn out to be good or bad. At same time, wants to remain true to his beliefs. Wants to preserve the Republic, but saw what can happen if you back wrong person. Lived thru Sulla’s proscription. Cicero lives through all the upheaval of the 1st Triumverate and makes a decision to back Pompey, a poor decision.

(b) Named as Senator- 74 B.C. (age 32)(c) Elected Praetor- 66 B.C.(d) Elected Consul-63 B.C.: In his Republic, does reflect views of the

senatorial class, that an aristrocratic gov’t, with “a just and wise king or a select number of leading citizens, or even the people itself (though least commendable type) can form a stable gov’t.” Saw aristocracies as an intermediate position which represents moderation between the weakness of a single ruler and rashness of many” Similar to Aristoltelian doctrine, the mean between monarch and popular rule. However, this assumes that emperor is not above the law, that a “man imposes no laws upon the people that he does not obey himself, but puts his own liefe before his fellow citizens as their law” Shows ideal that no one is above the law, but that is not what comes to be adopted.

(e) Proscribed by 2nd Triumverate: 43 B.C. (hitlist): “Cicero, who had held supreme power after Caesar’s death as much as a public speaker could, was proscribed together with his son, brother, his brother’s son, and all of his household, faction and friends” Piece also shows superstitions, ravens flying and awakening when men coming to get him. B/C had backed Pompey, made wrong choice. JC didn’t kill him, though Cicero didn’t spurn but didn’t embrace him. Made mistake of applauding JC assignation, but what really does him in is his criticism of Mark Antony. Cicero tries to hide out in the country side and remain quiet, but men come to get him. Tries to flee by sea, but gets sick and returns to land. Shoemaker, Clodius, rats on him. Mark antony receives Cicero’s hand and head.

(f) Influence: not a perfect man, married for wealth, etc. But loved by many including St. Augustine. More than anyone else, his work survives. 900 letters. Learn a lot from him: values, decisions. Discovery of some of his letter spawn Renaissance. Known as supreme example of latin style-long; unparrelled, even though Americans like too verbose.(iii) Concepts

(ii) Suppression of Piracy: Deals with international issues. Exploded as problem when Rome busy with domestic strife. War lasted from 102-67 B.C. Pompey is given extraordinary power and authority to rid sea of pirates, does it in 3 months. Apain described the campaign, moved so quickly that pirates learned of what was happening and gave up without a fight. “He astonished all by the rapidity of the mov’t, the magnitude of his preparations and his formidable reputation, so that the pirates, who had expected to attack him first, or at least show that the task he had undertaken against them was not easy one, became straightaway alarmed and abandoned their assaults upon the towns they were besieging and fled. . . he took 71 ships by capture and 306 by surrender from the pirates, 120 of their cities, fortresses and 10K were slain” Pompey crushes the pirates.

(iii) Government of Rome: Cicero in writings described the Roman gov’t before the Principate. Gives an overview of the gov’t and describes the different role, duties, and describes how the Senate, consuls, and citizens act as a check and balance on each other. Also described the legal system. Judges were not professional, person w/ worth and were lay persons. Plaintiff would file suit,

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Praeotor would ratifiy choice of judge from a list of possible people. Praetor, through help with jurist, would issue a list of specific instructions for the judge. Gellius wrote on the parliamentary practices of Senate and the vetoes given to tribune. Not a true separation of church and state. There is a respect for the sacred- magistrates still performed rites and sacrifices.

(iv) Suppression of Baccahanalia in Italy: 186 B.C. – Roman conservatism in Senate lead to secret orgiastic rites of the Greek cult to be suppressed. Cult had spread rapidly, especially in lower eschelons. Fear amongst the upper classes that such cult might foster revolts. Used powers to stamp it out. Livy’s account shows depictions of all kinds of debauchery: sex and alcohol. Record of criminal and immoral practices are exaggerations, compared with similar charges against early Christians. 7,000 men and women punished or killed. Also punish those who harbor the fugitives.

(v) Education: get except of Cicero’s education—very liberal education, study Phil, Rhetoric, Oratory, logic, and Greek and latin. W/ decline of Rome, Greek becomes more important. Also spent a lot of time with the old masters. Huge difference to how trained now.

(vi) Status of Women: remnants of the Pre-Republican times; held traditional passive role, subject to guardianship of a male, domestic, chaste. Could be killed if involved with drunkenness or adultery. Shows a double standard- women supposed to be one-man woman, but men allowed to indulge. Women had laws on how one was supposed to dress, even could be divorced for going somewhere w/o permission of husband. Last century B.C., relative liberalism-women could get divorce or live w/o a guardian. Due to the wealth of the times and enjoyed by upper class women. Allowed in a sense to be equal and led independent lives, education and some had power. During 43 B.C.- it was a tumultuous time and there was the stress of war. Senate decides to tax the women . Women march of the Forum and revolt. Argue that can’t take away property if they have no voice. Argue that ok if some voluntarily pay, but shouldn’t make them. Women sent home but Senate next day reduce # of women who have to pay. Successful rebellion.

(vii)Signs of stress: In the last century, Rome shows signs of stress. Senate declares national emergency. Evidence of corruption. Cicero’s attack of Verres is example of this. Cicero is acting as prosecutor in a criminal case. Verres was well connected and was guilty of corruption. Cicero attacks visciously b/c hates corruption. Verres tried to escape conviction by election of his cronies and his wealth.. Cicero doesn’t want people to lose faith in government and the judicial system. Cicero attacks every aspect of Verres life.

(viii) Dictatorships(a) Sulla – 82 B.C. -79 B.C.(b) First Trimverate: 60 B.C. -50 B.C. Consisted of:

(1) Pompey: great general who was famous for crushing the pirates in the Mediterreanean.

(2) Crassus: born poor but amassed great wealth as a provincial governor. Suppressed the Sparticus slave revolt in Southern Italy and crucifies all the men.

(3) Julius Caesar: 62 B.C. Plutarch notes in Life of JC, Bona Dea scandal. Man sneaks into ritual dressed as woman so that can be with JC’s wife. Caught and causes big scandal. Gives JC authority to divorce wife. Piece also described the rites followed.

© Julius Caesar- 49 B.C. – 44 B.C.: JC first successful in Gaul (France) in his military career. Gallic wars brought him great prestige in Rome. Like Sulla, decides to make a run for the roses. Reaches the Rubican river and

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decides to go ahead and leads his regions into Italy. Forms the 1st Triumverate with Pompey and Crassus. Once has power, decides to: bring welfare reform, reduced proletariate in Rome, conferred citizenship on all doctors and all teachers of the liberal arts, adopts lenient laws for debtors, increased law and order, increases punishment for criminals, and public works and art. Sutonius writes on JC and sees him as the model of how one gains power:

(1) must have an army: army key to success. Not very big-only 125,000 men that stretched from Asia Minor to UK. But was helped by great roman roads that allowed them to travel at great pace. Also, army men were trained to be engineers- could build bridges, walls, etc. Very effective fighting force.

(2) must win over the people: JC did this by spreading largess to the people. Had tremendous wealth from $ he got from Egypt- the bread basket of the Mediterranean, which he ruled alone. Promised his men grain, oil, banquets, free rent for a year.

(3) Get power of the gov’t: did this thru bribery.(4) Legitimized what he did: stacked the Senate with

his people. JC was also generous to his former enemies-gave them honors, $, and positions.

(d) Second Triumverate- 43 B.C. – 31 B.C. Consisted of:(1) Mark Antony(2) Lepidus(3) Octavian:

(A) Early life: adopted son of JC. When JC dies, young, 19, and not considered a valid threat for power. Starts 2nd Triumverate 43-31 B.C.

(B) Qualities: ends up being more powerful than JC. Had quality of common touch. Good PR and good at winning support. Still gets good press today.

© Influence: kept institutional trappings of the Republic, but accomplished huge shift in power from Senate and Assemblies to the Principate.

IV. Principate

(A) Octavian/Caesar Augustus: 27 B.C. – 14 A.D.: (1) Power: Saw how JC made mistakes, and Would not make same: allowing his former

enemies to remain. Like Sulla, draws up a proscription list: 300 Senators die w/o due process. 2000 of knightly class proscribed. Anyone is given authority to kill these men; makes them outlaws. The Proscriptions of the 2nd Triumverate show the chilling tactics that were used. Piece shows how men were justified in being killed. Able to keep power through his immense wealth. Bought political and army support. Spent liberally on the Roman people. Like JC, wealth came from Egypt.

(2) Augustan Age: In 27 B.C., major reorg of the Roman gov’t. Octavian laid down de facto military dictatorship and constitutional gov’t reestablished. Proclaimed restoration of the republic, but got a proconsular power for 10 years-had control of the civil gov’t. Got honorary title of Augustus and informal title of princes senatus “first citizen”. Senate was to be partner in gov’t. In reality, trappings of Republic

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gov’t, façade for anew imperial administration. Monarchy all but in name. Senate became semihereditary aristocracy. Became principal legislative body of state and a hight court of justice. Administration of the city came under imperial control. New office formed and encroached on powers of traditional magistrates. 4 prefectures established to take charge of various aspects of the security of Rome. Justinian’s Digest note on the new positions and their jurisdictions:

(i) Prefecture of the city: chief cop of city w/ 3 security forces. Had power to debar anyone from city or their profession. Any offense within city.

(ii) Prefecture of the night patrol: had to patrol at night-jurisdiction of burglary, thieves, robbers. Gets to punish those who negligently start a fire and interrogate slaves by torture if necessary.

(iii) Prefecture of grain supply(iv) Prefecture of Praetorian guard: imperial guard

(3) Administration of the Provincial Administration: historical division of imperial and senatorial provinces gave Augustus rivals with war loads. So, Augustus assumed power of Spanish and Gallic provinces, Egypt and Syria and got the bulk of the military and foreign policy under domain. Tried to suppress the abuses of exploitation of previous provincial administration. Senate got less unruly, unwealthy provinces.

(4) Social Legislation: launched program of social and moral regeneration to restore public morality and increase marriage and family, esp. if upper class. Made adultery a criminal offense, eliminated some of class barriers of marriage, penalized celibacy, granted priv. to married people, rewarded childbearing. Efficacy was limited. Unsuccessful b/c underlying socio-economic conditions remained unaltered.

(5) Status of Jews: Jews had privileges under earlier Roman rule. Continued to get equal status of Greeks under Augustus until Claudius. Yet, Jewish revolt of 66-70 was heavily suppressed. Temple was destroyed. Second was under Trajan and suppressed in 117.Finally, third was under Hadrian when ordered a Roman colony formed at Jerusalem. After revolts lost a lot of privileges. Creates diaspora of Jews.

(6) Res Gestae : One of the most famous ancient inscriptions. The accomplishments of Augustus: At end of life, compiled what saw as accomplishments. Seen as a deity by Romans. “Augustus” meant magestic, revered. Seen as super-human. Used religion and the idea of myth well. Used idea of agrarian myth- had enormous wealth but lived in modest home. Despite what is in piece, not known as good general. Had bad defeats to Germanic tribes. Influence decision that empire shouldn’t be stretched too far. Pieces shows his accomplishments. Augustus tries to prove he was modest, but really charade with him turning down honors. Also, there are some blatant lies- he didn’t pardon his enemies nor did he extend empire to Egypt, JC did. Proud of his census. Was also tribune for life and had immunity. Leader of Rome during Pax Romanus-Augustan Peace- only twice before were there periods of peace. Augustus had 3 periods. Helps explain why scholars look back at age as golden period. Arts and writers also flourished during time: Virgil, Horace, etc. Last lines, show more exaggeration. Didn’t transfer back power after civil wars, kept power and worked thru puppets. Lived to age 75, ruled for 44 years.

(3) Government: reorganized Roman republic: Weeded out the Senate. Made it more a legistlative b ody. Other assemblies lose their influence also. Senate is no longer an independent gov’t body. It is purged if it goes against the wishes of Augustus.

(4) Law: (i) Augustus was real traditionalist. Tried to address social problems with law.

Made adultery criminal offense, would lose property and die. Penalized celibacy, rewarded child bearing. These laws remain on the books till Justianian, yet not very successful in changing the problems. Young men didn’t want to get married.

(ii) Under Augustus, jurists operated on the fringes of the legal system.? Certain jurists given recognition as authorative. Become pattened: Their comments become binding. Very important for civil law tradition.

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(B) Tiberius Caesar: 14 A.D. – 37 A.D.: adopted son of Octavian, Caesar Augustus. Only remaining living son, due to conniving mom, Livia. Inherited army and 2/3 of Augustus’ estate. Seen as a transitional leader. He consolidates power and proves to be despotic. Discontinued the election of magistrates by the Comitia Centuriata and transferred power to the Senate, which was thereafter the sole electoral organ of the State.

(1) Spread of Luxury: feature of Roman upper class life in last centuries of the Republic. Spread even to the lower classes in the first 2 centuries to freedmen-unprecedented heights. Literature shows decline of morals and contain moralizing strictures, but little curb by gov’t. Sumptuary laws of Tiberius only partially and temporarily successful.

(C) Calligula: 37 A.D. – 41 A.D.: started off ok ruler. Named for child nickname, “Bootsy”. Thought he was a living god

(D) Claudius: 41 A.D. – 54 A.D.: Calligula is murdered. Claudius is put on the throne since he was the uncle of Octavian. Seen as dumb, but empire did well under his rule. Responsible for bringing UK into the empire.

(1) Role of the Senate: Senate was maintained by the emperors of the first two centuries as a major gov’t organ w/ imperial administration. Elected magistrates, enacted legistlation, and served as a trail bench for major offences. But election became more designated by the emperor and legislative function degenerated to perfunctory assent to submissions of the emperor. No longer independent, policy making body; only legislative and administrative instrument of priceps. Under the Principate, increasingly subservient and decreasing importance. Increase in autocracy of the emperor.

(E) Nero: 54 A.D. – 68A.D.: Like Calligula, started off ok, but then went crazy. He participated in gladiatorial games himself. During his reign, persecuted Christians starting in 66 A.D., including St. Paul and St. Peter. Also Rome suffered great fire during reign. He seized the land, and some accused Nero of starting the fire. Assasignated.

(1) Alternate view of the roman world: Pieces show the hatred of Rome as the Oppressor. If silent or condemned Rome, you were killed. Also speech by Briton revolt shows how hated the Romans. Calgacus speech before battle depicts Rome as: “Plunderers of the world, now that there are no more lands for their all-devestating hands, they search even into the sea. If the enemy is rich, they are rapacious, if poor, they lust for dominion. Not East, not West has sated them; alone of all mankind they covet riches and poverty with equal passion. They rob, plunder, and call it “empire”, where they make a desolation, they call it “peace.”

(F) Vespasian: 69 A.D.-79 A.D.: got constitutionally invested powers by formal decree by Senate.(G) Titus: 79 A.D. – 81 A.D.(H) Domitian : 81-96 A.D.(I) Nerva: 96-98 A.D.(J) Trajan: 98-117 A.D.(K)Hadrian: 117 – 138 A.D.: Depicted in Gibbens’ Decline and Fall of Roman Empire~ saw it as

a golden age. Oversaw a period of general peace in the interior. Accomplishments:(1) Created political fabric all over Meditterenan , North to Germany, France, and UK.

Hasn’t been duplicated since.(2) Roman building was amazing: high quality, architecture, engineering. Road system

lasted till 18th century. Aquaducts were vital to health of many countries. Great public works.

(3) Pantheon: well-preserved temple for the Gods. Had amazing architecture as seen by the unsupported dome. Germans couldn’t believe built by man when sacked Rome; converted to a church.

(4) Tivoli: Hadrian’s Villa: stands in the outskirts of Rome. Unique,l classical. Had temples and buildings that depicted the various cultures of the empire.

(5) Hadrian’s Wall: construction of a wall in England to ward off invading Scotts. Was manned wall with soldiers who also built the wall.

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(6) Perpetual Edict: 125 A.D. First major change in the law. Freezes the annual edicts of Praetors and Aediles. Scholars suggest that not radical change since the law had become static anyway. Replaced by Perpetual Edict.

(7) Suppression of Jews: Builds new colony ontop of Jerusalem. New temple dedicated to Jupiter on place of old temple. Critical time for Christians. To survive, tried to emphasize the differences w/ Judaism.

(L) Antonio Pius: 138-161 A.D.

(1) Gaius’ Institutes: published in latin. Parts were introduced in Justianian’s Digest, and other historians had referred to it, but just had fragments. Full copy discovered by Nibohr in 1816 while looking at Medieval documents. Institutes was written for a special audience- law students; its an overview of Roman law. Tries to organize Roman law into logical manner. Talks of the sources of law, and situations when conflicts arise. Uses Tripartite division: Persons, Things, Mode of Acquiring Things. Influence French and LA code. Most quoted jurist. Don’t know much about the man.

(M) Marcus Auirellis: 161-181 A.D.—father in Gladiator. Seen as stoic philosopher. Kept diary. Seen as good emperor, persecuted Christians.

(N) Commodus: 180-192 A.D.: crazy son in Gladiator. Depicted as murderous. Not as good as father. Reign ends with a civil war in 192.

(O) Septimus Severus: 192-211 A.D.: seen as good emperor, but persecuted Christians.(P) Caracalla: 211-217 A.D.: famous for building public bath house. Area now used to stage

operas.(Q)Elagabalus: 218-222 A.D. – another crazy dude who thought living god.® Alexander: 222-235 A.D.(S) Civil Wars: 235-284: Dark period of Roman history. Had 21 emperors during this tumultuous

time. Not much is known about this period, but is a period of decline. See signs like debasement of currency and reduction in trade. Reasons have been explained as maybe dealing with severe weather problem, water problem, pandemic disease, or the stirrings of the barbarians.

(1)Influx of barbarians: in early 200 A.D., large demographic shift. Wave of immigration from Asia into the West. Puts pressure on the Germanic tribes and start pushing into Roman empire. At first, Romans had traded with them and allowed some Barbarians to be in the Roman army. Then when it came to much, try pushing them back by killing them, but couldn’t stop them.

IV. Dominate ~ 284 A.D. – 476 A.D.A. Diocletian: 284-305 A.D. ~ great emperor that saves the Roman empire from destruction. But

disregards all previous trappings of the remaining aspects of Republic. Gets full power, real autocrat; source of all authority and law. Still have bureaucrats, but jurists no longer writing. Diocletion reorganizes the empire into different regions called diocese. (Later adopted by RCC). Diocletian also responsible for huge prosecution of the Christians, almost wiped them out. Hated them since wouldn’t worship him. So, enforced killing throughout empire, destroyed writings, churches. Abdicates in 305 A.D. Leads to civil war- [Example of how Rome never dealt with problem of succession-lead to upheaval.]

B. Revolving door of emperors from 305-312, when have entry of Constantine.C. Constantine: 312 A.D. – 337: emerges as victor after fight for succession. Was commander of

York when fighting broke out. Led legion south and fought off other contenders. Key turning point was at Battle of Mulvion Bridge- before going into battle, Constantine saw the Christian symbol of “Key ro”. Went on the win the battle and captured Rome. Not a particulary educated but was a good general

(1) Edict of Milan/Toleration~ 313 A.D. : on winning the battle, issues the edict of toleration which allows Christians to practice their faith. Edict now tolerates and favors Christianity, gives them back their property,

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and prohibits their prosecution. Expressed series of administrative and legal acts in favor of Church. Constantine doesn’t fully convert until death when baptized. Paganism survives too. Constantine still worships the sun, as seen on coin. Kept the Vestal Virgins and temples. But built churches too- Church of Holy Seplecre. Provided for the emergence of Christianity from a sect to the a true religion. Christianity becomes official state religion in 395 A.D.

(2) Capital moves to Constantinople~ 324-330 A.D.: Constantine decides to build a new Rome in the East. Constructs huge temples, stadiums, buildings. Marks a huge shift of power to the Eastern part of the empire. Also marks a rise in the influence of Greek-language, culture, etc. This was the prevelant culture of the East. W. Europe was not seen as vital. Move leads to the eventual sacking of Rome in 476 A.D. Yet, the Roman empire survives in the Byzantine Empire.

(3) Church Council of Nicea/Nicean Creed: 325 A.D.—once Christianity tolerated, Christians started have internal strife. By handing back lands, disputes arose over property and escalated into riots and fights between rival bishops. Convened meeting at Nicea to prevent more fighting. Forced combatants to work out religious differences. AT counsil, hammered out a uniform statement, the Nicene creed, agreeing what it meant to be a Christian. Worked out nature of God and Christ, and Trinity is accepted. Council didn’t end of the disputes, but creed did help with important doctrinal formation.

E. Roman Empire Formally Divided—395 A.D.: Roman Empire formally divided into Eastern and Western empires. Eastern empire becomes known as the Byzantine Empire, while the West falls into decline. With capital move to Constantinople, Rome undergoes the decline- in population and its infrastructure. Pillaging of buildings, abandonment of the plains. Poor condition of the city.

(1) Roman Empire of the West: as empire continues, western empire is weakened. Afflicted with Germanic invasions and Roman legions must withdraw from Britain. Culminates in: (a) Sack of Rome-410 A.D.(b) Withdrawal from Britain-410 A.D.—creates vacuum and the Anglo-Saxons take

over.(c) Fall of Roman Empire in Western Europe: 476 A.D.Rome was lead at the time by

Romulus Augustulus~ “little Augustus”. Deposed. End comes when the auxiliary soldiers lead army across Alphs and then into Rome. Roman legions were outnumbered. Western Roman Empire now divided into Germanic kingdoms:

(i) Regions:(A) Ostrogoths: Eastern Goths who occupy Italy, Slav

regions, Austria and Switzerland(B) Burgundians: occupy the wine growing region of

France that still carries its name(C) Franks: occupy the Netherlands, Belgium, parts of

France, including their capital, Aixen, and some of Germany.

(D) Visigoths: the Western Goths who control south of the Pyranees in Spain and parts of Germany. Capital was in Toledo.

(E) Vandals- known for their pillaging, destroyed many parts of Europe but ended up in N. Africa.

(ii) Law: Germanic tribes did not have sophisticated law like the Romans had. Usually listed tort and then marked how

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much a person would owe. Similar to a tariff. There is no discussion of circumstances or intent.

(A) If cripple a man’s eye- pay 5 coins(B) If cripple both eyes-pay 10 coins© Unclear how the law was taught during this period.

St. Augustan still quotes Roman law, but this is the only references until establishment of University of Bologna. Last reference to the Digest of Justinian was in 603 A.D.

(iii) The people: german invaders were attracked to the Roman empire. Saw that invasion of Roman empire not difficult or impenetrable. Germans had traded with the Romans on the fringes of the northern empire. Germans began to like the goods that they acquired from trade. Some became auxiliary soldiers in the Roman empire and were well-trained. Romans often viewed Goths with disgust; saw them as gross, hairy, smelly people. During demographic shifts, became more of a threat. Romans couldn’t stop them when the Danube freezes. Many germans became latinized; literate, Christianized and liked the Roman culture.

(iv) Church turmoil: despite Nicean creed, the church still fighting amongst themselves. Lots of debate over nature of the holy ghost. The compromise didn’t hold.

F. St. Augustine Of Hippo: 354-430 A.D. Author of Confessions and City of God. Important Transitional figure. Of N.African descent and Berber tribesman, near old Carthage. Son of Pagan Dad and Christian mother. Had wild youth, then decides wants to become an Oratory Professor to train litigators. Mastered Latin and knew some Greek and the law. Comes to love Cicero’s writing and had aesthetic sense. Invited to Rome to study and gains prominence. Has religious Christian experience and embraces Jesus Christ. Goes back to N. Africa to Hippo and eventually becomes the bishop. Eventually writes his Confessions, which becomes the bedrock of the faith, where St. Augustine bears his soul and writes a very honest autobiography. Then writes City of God, defending accusations that the Church was to blame for the sacking of Rome due to the conversion to Christianity. In City, creates the paradigm that one should not focus on temporal events (wars, economy) but focus on the next life. Changes orientation of life towards the after-life. Becomes a reference point for the Middle Ages.

G. Roman Empire of the East/Byzantine(a) Justinian- 527 A.D. – 565: no one of prominence until Justianian. At first, no

different than any other predecessor. Born in Yugoslavia. Native tongue was latin, which was different from most of the Byzantine Empire who spoke Greek. He was related to a previous emperor, but was also a military man. Married Theodora, who he loved completely-actress, bad rep. Procopius was very critical of them both. When comes to power, faced with unforeseen problem: sports riot between green and blues, erupts into rest of the city, city burns, and marches on palace. Puts down riot, suggested by Theo, kills 20K. Experience makes him want to strengthen the empire and protect it.

(i) Reconquest of Western Europe: wanted to recapture the old Roman empire and drive the Germanic tribes back. Succeeded in recapturing some of Italy, N. Africa, Croatia, Armenia and south of Southern Spain. Huge undertaking b/c also pressured by Persians on East. Sent Bellisarius, a famous general. In 10 yrs, won back

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parts of Italy from Ostrogoths. Yet people, who didn’t mind Ostrogoths so much, had to pay for victories of Justinian.

(ii) Rebuilding of Hagia Sophia: Church of Holy Wisdom. Huge church in Constantinople. Contained beautiful mosaics. Converted to Mosque by Turks.

(iii) Compilation of Roman Law ~ preparation of comprehensive manuscript covering all aspects of Roman law; exhumes the old law and compiled in the Corpus Iuris Civilis: compiled in order to reduce lawlessness in the empire. Also made the law more accessible. Brought together legal treatises and principles of law. If hadn’t compiled, our knowedge of Roman law would be a lot less. Became essential building block for civil law system. Yet, no one knows exactly why wanted to compile all of Roman law. Organized well. All pagan law left out. Ordered his highest questor-Tribonia, to produce the compilation. Tribonia was allowed to interpolate the law—Corpus Ius Civilis completed w/in 2 years, consisted of 4 parts:

(A) “Codex”—consists of update of the collection of imperial constitutions from time of Constantine. First edition comes out in 529 A.D. The Revision, what survives, comes out in 534 A.D.

(B) “Digest”: most ambitious part of the Corpus. Also known as the Pandex/Pandecta-books contain everything; legal encyclopedia originally consisting of 3 million lines of text, distilled to 150,000, 2 Latin volumes. first comes out in 533 A.D. Digest selects the best and the rest are destroyed. Consists of many of the writings of 39 jurists, including: Ulpian, Paulus, Papinian, and Gauis. First paragraph explains its purpose: the importance of law, to clear confusion of old Roman law.

© “Institutes”- comes out in 533 A.D.- Based on Gaius’ Institutes(D) “Novels”- Greek supplement-contained new changes of the law-like pocket parts. New imperial law, only goes up to Tribonia’s death.

(b) After Justianian-language reverts back to Greek and the reconquest of the Western empire is lost.

V. Early Medieval Period~ 476 A.D. -1000 A.D.

A. General Background:(1) Initial Role of the Church: Invasions of the barbarians shocked the Roman people.

Papacy helps keeps order of the 7 million people. Germans didn’t kill all of the Romans when Barbarians sacked city. Division in Church over what to do with the German invaders. St. Ambrose only saw the tribes as the enemy, but St. Augustian felt that there was room for the germans, even though heretical Christians. B/c of Constantine, church had grown into a parallel gov’t: had diocese, legal system, well organized, and educated. Germans recognized the importance of the RCC. Germans use the clergy & bishops to help govern and communicate w/ the new people. Ostrogoths & RCC reach a mutual accommodation. Church helped keep the peace.

(2) Law: During this time, however from 700-1200, W. Europe does have evidence of notarial acts of sales and K. Scholars study of these acts show at first follow the law of the Germanic tribes, but later these notarial acts start referencing Roman

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phrases and forms. So, influence of Roman law persists. Germans don’t try to wipe out the Roman law, but it does go over their heads. Took a few generations before the Germans had evolve an understanding of the Roman law. Roman law seeps in and helps the German law reach a new level.

(3) Development of Monasteries and Rise of the Church(i) History: monastic tradition began early. Monks were originally

hermits, isolated to study and pray. Some were fanatical and hurt themselves or starved to death.

(ii) ST. Benedict: 480-543 A.D.: Helped development of monastic life: from Italy and grew up under Germanic rule. From a noble family and got classical education. Underwent crises and decided to devote life to religion as hermit. Eventually became a leader and set out rules of monastic life – Rule of St. Benedict. Wrote in latin and used simple reason and human nature. Cautions against extreme and beatings. Stressed a life of prayer and work, self-sufficiency. Every monk was to have their duties. Monks also had to vow poverty, obedience , chastity, and loyalty to elected abbot. Very methodical life: 8 periods of prayer, hard work. Monks were to stay at the monasteries as well. In times, the monasteries became a franchise- groups set out to start another abbey with $ & blueprints. Usually given the worst land by the rulers, but converted them to production. Growth of Monasteries develop over 100s of years. Often become agricultural stations and taught the peasants how to farm, while the monks were well educated themselves. Over time, monasteries helped to produce surplus which led to the revival of trade circa 1050.

(iii) Institutionalization of the Church:(a) Pope St. Gregory the Great --590-604 A.D: Leads the

transformation of the RCC. Very organized in face of Germanic hereticals. Devises a way to stay alive without an army. Outwits the Germanic leaders with their wits. In Italy, had land which gave them some revenue, but under the thumb of Germanic leaders or the Byzantine emperor. Outwits his opposition with intellect.

(b) 700 A.D., Pope Decides to make an alliance with the Franks and Pepin, Charlemagne’s father, in order to get military support. Pepin get recognition as leader of the Franks/Carrolligian Dynasty, worried since not natural leader. In return, Papacy also given the middle states in Italy known as papal estates.

(4) Rise of Islam: Came out of Saudia Arabia, monolithic religion based on Mohammad. Adopts some of Christianity and some of Judaism. Spreads like wildfire. Saracens came and overthrow the Visigothic kingdom and sweep into France up to the Loire River.

B. Spain(1) Lex Romana Visogothurum: 476-506 A.D. Spain is ruled by the Germanic king of

the Visigoths. The Germanic tribes and the latins mix. Visigoths allowed the Romans to keep their old law and allowed them to be governed by it, while the Visigoths kept their own law. At this time, the clerics decided to put together a collection of Roman law. Known as the Lex Romana Visogothurm, “Roman law of the Visogoths” or “Vulgar Roman Law”, collection was really fragments of Roman law. There is no systematic arrangement of the law. It is based on some of Gaius’ Institutes and the writings of Paulius. Comes before the Digest, so see no influence from Justinian.

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(2) Liber Tudiciorum “Fuero Juzco”: 654 A.D.(3) Islamic Invasion of Spain~ Saracens-711 A.D.: built a great culture. Had amassed

large libraries with thousands of books and scrolls. Achieved high civilization through scholarship and architecture. Relatively tolerant of Jew and Christian, only taxed more. But didn’t tolerate conversion away from Islam.

C. France(1) Burgundians: rulers of the South of France in the wine regions. As with the

Visigoths, the Burgundians mix with the locals. Saw a fusion of customary law and the Roman law. Romans allowed to keep their own law, while Burgundians governed by theirs. The church brought over a copy of the Lex Romana to Burgundy in 506 A.D. and came up with their own shortened version of the law.

(2) Franks defeat Saracens (Moors) at Battle of Doiters (Tours): Saracens gain in power and move up France. Meet match with Franks, defeated and turned back to the Riveria. Watershed moment.

(3) Charlemagne:--768-814 A.D.: King of the Franks. Empire reaches over France, Germany, Switz, and N.Italy. Holds the Capital at Aachen (Aix-la-Chapelle). Devout Catholic in some ways, not very literate although educated.

(i) Given title of Emperor in Dec. 25, 800 by the Pope. Idea was to revive the Roman empire. Yet, sets bad precedent, b/c if Pope can crown you, can also divest you of crown. This creates a counterweight to the Byzatine empire, who didn’t like this.

(ii) Alcuin of York: advisor of Charlemagne who helped build the kingdom with literate latin bureaucrats. W/ suggestion, every diocese built a school where men could become part of the clergy or educated. These become the seeds of European university. Develops Carolingian Minuscule, a script to read Latin.

(iii) Dies in 814, splitting his empire amongst his three sons. Divides on the boundaries of France, Germany and N. Italy, and the Low countries. Kingdom is divided and weakened, creating internal fighting over land. Higher civilization w/ bureaucracy and schools didn’t last.

(4) Viking Invasions--800-900 A.D. Beginning of a dark period of Europe: Division of Charlemagne’s empire weakens it. Vikings then begin raids across W. Europe. France is raided the most. In their wake, monateries are destroyed and looted. Western Civilization is threatened. Violent people. Struck from Russia to the Meditterrean. France has little structures that predate 900. But w/o warning, raids end. Many of the Vikings settle in York or Normandy, mix w/ the locals, and Christianize. See evidence of their Nordic architecture in these areas.

(5) Establishment of Abbey of Cluny: 926 A.D. in E. France in Burgundy. After raids, effort to reestablish monasteries. Founders based abbey on reform. Followed St. Benedict Rule , but more liberal interpretations, bending of rules like chastity. Desired autonomy from authority of local bishop and sought to report directly to Pope. Abbey became very successful, well organized, wealthy and grew to 400. Franchised out to form other abbeys, who all had to report to Cluny. Formed similar to corporation and created huge revenues. Abbey builds church almost as big as St. Peters. Revenues given to the Church got them notice. Papacy which was still under thumb of descendants of Charlemagne, now began w/ revenues to be able to assert their authority.

(6) Norman Conquest~ 1066 A.D. –Descendent from Vikings. William the conquerer lauches attack on England from Normandy. No one to succeed Edward I, so William claims w/ authority of Pope. Subjects ½ of England under “Dane Law”. RCC spread to England and is given land. Becomes a great source of wealth for RCC.

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D. Italy

(1) Ostrogoths: Before Justianians reconquest, church and the Germanic tribe still ruling. Church helps the spread of the Lex Romana and survival of the Roman law. Ostrogoths adopt their own boiled down copy of the Lex Romana and it is applied to both Romans and the Germanic tribesmen. Very crude version of Roman law.

(2) Byzantine Reconquest of Italy by Justinian: 534-568 A.D.: Justinian is for a time able to reconquest part of the old Roman Western Empire in 534-568. With the death of Justianian, the Lombards take over Italy.

(3) Last Reference to Digest of Justinian in W. Europe: 603 A.D.: This area is exposed the new Digest and keeps it. Yet, the last reference to the Digest is in 603 A.D. As with other parts of the West, Lombard notaries first rely on their customary law, but then begin to be influenced by Roman law. Then in Piza, Italy, in 1067, the Digest is once again cited by Pepo. A copy is found in Piza and stays their till the 1300s, when the Florentines steal it. Within a generation of the rediscovery of the Digest, a law school is formed at Bologna to study the work of Justinian.

(4) Lombard Rule of Italy: 568-774 A.D.: After Justinian, no one to ensure that the East and West are united. The reconquered parts fall to a new Germanic tribe, the Lombards.

(5) Charlemagne : 774-814 A.D. Crowned emperor of Rome on Dec. 25th, 800 A.D. Papacy is given the middle estates in return for the alliance with the Franks.

VI. Later Medieval Ages: 1000 A.D. – 1455

A. The Papal Revolution(1) Transformation: around 1050, Church undergoes transformation. Prior to period,

Pope was son of noble from City of Rome. Not very powerful, wealthy or influential. Very decentralized. Revenues collected from the abbeys, like Cluny, help the Papacy grow in power. Previously, emperors would designate pope, who then would be elected by college of cardinals. RCC comes up w/ new law that only the college of cardinals can elect the Pope. Bold move to get away from power of the emperors.

(i) Different view of human nature: Prior to revolution, leaders had static view of nature and society, based on writings of ST. Augustus. The idea of creating a better society through reorganization wasn’t recognized. Yet, Pope Greg thought church should be changed to improve and reorganize.

(2) Filoque Controversy/The Great Schism~1054 A.D, controversy surrounding doctrine. Overtime, people added the filioque addition to the Nicean Creed to: “I believe in the lord who proceeds from the Father & the son”. Charlemagne had insisted on addition, although Pope had resisted. However, formally added in 1050 over the objection of the Patriarch of the Greek Orthodox Church. As a result, Pope and Patriarch ex-communicated each other. Schism over differences in culture, theology, and this was last straw. Creates new fault-line in Christianity.

(3) Pope Gregory VII~ 1073-1085 A.D.—Towering figure, high handed. Former munk at Cluny. Saw that RCC was in need of reform. Yet also controversial-insistent that priests be celebate (no more bending of rules), also thought important to stress class differences from clergy and secular persons in order to raise status. Mass was celebrated differently-priests elevated on pulpit and placed behind screens. Most importantly, asserted independence from local rulers. Demanded that only church names local bishops, abbots, pope. Also helped with reorganizing the church like cluny.

(4) Investiture Struggle~ 1075-1122 A.D.— Demands of Pope Greg upset Germanic rulers who gained wealth from church lands. Created fight between RCC and rulers over grant of authority to church clergy. Led to war, assasignations and

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terror. Results in the weakening of the german emperors. In retaliation, Church would ex-communicate rulers who would become outlaws. This caused them internal strife since their authority was now under attack by feudal barrons who wanted to gain power. Effect is to weaken and divide the german emperors. Leds to fragmentation in Germany-no central rule until 1871. In end, no one wins and compromise reached: Pope has spiritual authority and emperor has temporal authority.

(5) Rediscovery of Digest of Justinian-1076 A.D: Investiture struggle had one good impact. In order to support their side, rulers and church wanted authority to cite for their position. Led to the discovery of the Digest of Justianian. German emperor used it for his position. Digest cites that authority is to come from the emperor, no mention of the Pope. Leads to the founding of the 1st law school.

(6) First Crusade~ 1095-1099 A.D.—Islamic rulers had Jerusalem in their power since 700. Previously had allowed Christrians to visit holy cites. Then, rulers refuse to allow Christians in. Seen as an outrage. RCC, also realizes, incessant warfare due to fact many men can’t make living. Therefore, solution is to authorize crusade. Free Jerusalem and get plenary indulgence for killing muslims. Many French and german knights went and conquer city. Unexpected consequences – rise of fight between religions, attacks on Jews.

B. Developments in Law(1) Peter Abelard/ “Scholastic Method”~ 1079-1142 A.D.— Founder of intellectual

movement, Scholastism. Abelard was important Medieval figure from France. Giant in the field of logic and reasoning. Applied logic to religion. Looked at Bible accounts to find inconsistencies and then tried to resolve them with his method. Organized approach. Did not question the authority of the text. Later method applied to theology and then the law.

(ii) Quasestio: Read text, identify the inconsistencies. (iii) Propositio: Adopt 1 interpretation and cite all the supporting

authority for this interpretation forming an argument in favor of this interpretation.

(iv) Oppositio: then argue opposing interpretation using opposing authority.

(v) Solutio/Conclusio: Pick the winning interpretation by synthesizing w/ reason which interpretation should prevail.

(2) Founding of First Medieval Law School~ 1100 at Bologna, Italy~ based on the study of the Digest of Justinian. At time, big demand for legally trained since the modern state was growing. RCC also needed legally trained to deal w/ property, corporate. Students came from all over Europe. Instructed in Latin. Used the Scholastic Method of Abelard to learn the law and resolve inconsistencies.

(3) Gratian, Decretum, Concordance of Discordant Canons ~ 1140: Monk who published important work Decretum. Compiled canon law and attempted to reconcile inconsistencies using Abelard’s Scholastic Method. Went back as early as late Roman period. Known as a striking example of the Scholastic Method. Example of the 1st comprehensive, systematic legal treatise of the West. Marks new development in analysis and evolution of law during Medieval times. Example intermixing of Roman and Canon law.

(4) Ius Commune~1100: Development of Law in Europe which survives till the Reformation. Law wasn’t uniform over Europe, but had striking similarities in provisions due to borrowing between areas. See below: pg. 24.

C. High Mark of Church Influence and Decline(1) Church influence: church was central institution and the prototype of modern national

state/corporation. Very important to the development of W. Europe. Clear that East civ. Are stronger in 1050, but by 1700 great changes occur. One arguable reason for change is that RCC more amenable to associations which bring change, while

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Islamic countries were not. Clear also that developments in architecture, as seen w/ RCC Cathedrals are a development with architecture.

(2) Murder of Archbishop of Canturburry, Thomas a Becket~ 1170: Cataclismic event caused by rivalry with Arch and Henry II of England. Hires someone to kill the Archbishop, cold blood during mass. PR nightmare for Henry, and causes feud between RCC and English king. Henry backs down and marks ascention of the RCC- church is supreme power in medieval society. Yet, by 1300 starts losing.

(3) Creation of Diocesan Inquistion ~ to deal with dissent, allocate power to local bishops. Set up tribunal that would seek answers through ask questions. Took detailed records and gives glimpse of social history. Not totally effective since bishops well functioned in some places, and not others.

(4) Assasignation of Pepal Legate by Albigensians/Albigensian Crusade~ 1208: part of some of the dissent. Medieval sect that rejected central dogma, related to the Minicians. Believed that the corporeal was corrupt, only the spiritual was true. Viewed the RCC as corrupt since tangible. Desired a church w/o Pope, bishops. Was low profile in France for a time, but RCC worried about its influence. Sent a spy to check it out and Albigenians killed him. RCC outraged and declared a crusade against them. Promised plenary indulgence to those who killed them and ex-communicated them. Made their land up for grabs. Sets off land grab by nobles who want land. Creates turmoil all over France and still marks big distinction between Northern and southern France.

(5) Lateran Council~1215: Lateran palace given by Constantine. Council makes 2 important doctrinal decisions:

(i) RCC decrees that it will no longer officiate over ordeals: resolving of disputes between 2 litigants by fighting, dueling, trial by fire or trial by water. Ordeals were from Germanic tribal customs. Clergy was involved through blessing at beginning.

(ii) Doctrine of transubstiation: changing the view of what happens at communion.

(6) Thomas Aquinas, Summa Theologica~ 1225-1274: Another important figure. Trained in Germany and teaches in Paris. Known for Summa Theologica where Aquinas synthesizes the study of philosophy. Looks at the Christian faith, Jewish origins, and Greek Philosophy, includes Aristotle. Although Greek philosophers are pagan, tries to reconcile with religious philosophers. Also looks at Islamic and Jewish philosophers. Becomes the bedrock of Christian philosophy.

(7) Creation of Papal Inquisition~ 1233—2nd attempt to quiet dissent. (8) Phillip IV, Le Bel ~ “the handsome” 1285- 1314: King of France. Prior to 1100, France

not a strong country, but rises to significance with Phillip. Saw a rise is law makers during rule. Responsible for suppression of knights templar and gaining RCC $ and land. Despite event, Phillip was pious. Covenes the 1st “Estates General”-parliament with 3 classes of France. 3rd estate rep. the class of bourgeois of France. Then has “bill of indictment” vs. Pope, accuses him of many crimes, but really pretext to get Church $. Sends force to beat up Pope, Boniface VIII and dies. Phillip able to suggest a French cardinal in the next election of Pope.

(9) Suppression of Knights Templar~ 1303-1312: King of France declares war on the RCC. Goes after the crusading monks, knights templar. Monks had been successful and created temples throughout Europe. Holdings held housing for the monks and $ and gold. King of France decides that wants the assets of knights and Philip IV, decides to indict monks for crimes. Convenes the Estat accusing them of crimes and tortures them until they confess. Pressures the RCC to suppress the order. King then seizes the property. The order was suppressed all over Europe. In England, property seized too and became the Inns of Court. King put property up for bid and lawyers won. Inns became training ground for new lawyers. Lawyers at time known as Sarjeants-at-law, from latin “servientes”, one who works w/ monks. Term later replaced by barrister.

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(10) Papacy at Avignon, France ~ 1309-1379: New French Cardinal moves Papacy to France. Causes a loss of legitimacy for RCC and threatened influence by French king. Creates lot of internal tension w/in church, others saw it under thumb of France. So, other countries elect their own Pope.

(11) Hundred Years War~ 1337-1453—creates rise in nationalism. Previous no allegiance to country from, only region. Church is no longer seen as neutral arbiter and France and England go to war. Mostly fought on French soil, England picks up enclaves-Callais and Bordeaux. English would raid peasant towns and peasants paid dearly for occupation. Huge chaos, disruption and cost of $. Huge castles built on fault lines. England holds Paris for 40 years, and almost loses. Leads to great resentment.

(12) Bubonic Plague 1348-52: Another factor in the fracturing of society, plague brought death. Caused 50% decline in urban areas and some country sides too. Some places not effected at all. Europe recovered relatively quickly. Land was seized and wages for peasants increased. Leads to later peasant revolts b/c want more $ for doing more work. Lesson in supply & demand. Suppressed by nobles and Church who wants land. See division in society: nobles & church v. peasants.

(13) Great Schism in Catholic Church 1378-1417: Due to move to Papacy to France, internal conflict within Church. See countries elect own Popes and division and weakening of the Church. Popes would ex-communicate each other. At times, had 3 contenders for position. Kings take advantage of the schism b/c want the land. Henry VIII is able to break from Rome and take property. Leads to fracturing of Medieval society. B/C of break down of unification, every country had own jurisdiction but unclear who to appeal to. No clear authority.

(14) Council of Constance ~ 1414-1418—attempt to deal with strife caused by move of Papacy to France and great schism of CC and the dissent caused by John Wycliff. Summoned John Hus, a Prague rector who supported Wycliff. Although got a safe conduct pass, when arrived at council killed. Burned at stake for herecy.

(15) Fall of Constantinople~ 1453—sacked by the Ottoman empire. Marks the end of Byzantine Empire and formal end to Roman Empire. Set off chain reaction-Greek scholars left city and went to Italy. Go to work for nobility as tutors. Leads to spread of Greek culture and knowledge.

(16) Lorenzo Valla: Greek scholar who leads mov’t that doesn’t accept veracity of text. Questions text’s veracity and authenticity, as opposed to scholastic method. Employed by anti-papal noble charges Valla to research authority that undermines Papal authority. Valla attacks Donation of Constantine, which is cited for giving Papal authority over Europe. Valla realizes that book, at time it is written in 300 A.D., granted the Pope authority over cities not yet founded, thus concludes that Donation is forgery and not written until 700 A.D. Encourages others to challenge old Medieval beliefs. Leads to Renaissance.

(17) Creation of Spanish Inquisition in Castile~ 1492—started by Isabella and Ferdinand. Started to deal with dissent of herracy. Was effective at stamping out future religious wars, like costly ones in France/England. Forced Jews and Muslims to either leave or convert. Caused large productive part of society to leave. Inquisition was suspicious of the converts. If believed in any the remnants of old beliefs were suspects.

(7) Protestant Reformation ~ 1517

D. Ius Commune, 1100-1520

(1) Development of the Ius Commune. Law that developed over Europe during later Medieval periods.Common to a whole kingdom and the peoples within it. Characterized by continuity and similarity of attitudes about law: a bias in favor of systems and codification. Consisted of:

(i) Roman Law(a) Digest(b) Jurists writings

(ii) Medieval Scholars/Romanists:

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(a) From 1000-1400: Italy sees rise in jurist class-due to rise of Italian city states and increased commerce and trade between them. Created need for system of law to fulfill commercial and social needs. Needed to expand beyond Vulgar Roman law and local customs. Glassators and Commentators filled the void.

(b) Irnerius/Law School at Bologna~ 1100—organizer of 1st Medieval law school. First dean of the law school. Founding of Bologna helps spread of knowledge of the law. Students come from all over Europe to study. Go back to respective countries. In time, areas want own law schools. Leads way to Oxford, Cambridge and schools in Germany. Formation and formalism of legal studies.

(c) Source: Authorative text was Digest of Justinian. Romanists and law students would study and memorize the Digest and try to resolve any contradictions using the Scholastic methods.

(d) Glassators: didn’t develop new principles- scholars of the Digest who would interpret textual material and disseminated interpretations to others- make notes in between the lines and in the margins of the text. In time, began to see copies with annotations of these notes. Yet, glassators was in scholastic tradition, didn’t try to compare to original texts, like Humanists do. Also didn’t pay attention to when jurists wrote or how the Roman law had evolved. Took as found the law. Also, not upper class anymore, but professors, law faculty.

(A) Azo~ 1150-1230(B) Accursius~ 1182-1263, Glossa Ordinaria—most

famous of the glossators. Compiled his glossa in 1250. Common for later lawyers to cite the Glossa instead of the text itself. Very authorative-became common only to let into evidence that text to which Accusius had commented on. His Mos Italicus taught how to interpret Roman law-spread all over Europe. Continued to be used for next 100 years. Similar to Gaius’ attempt to create a comprehensive statement of the law.

(C) Compared to Roman jurists: Roman jurists were case-oreinted; and not dedicated to building system of law. Italian glossators emphasized system building and logical form. If Corpus couldn’t supply rationale, turned to local customs to fill the void. Marked another difference from Roman jurists, since little evidence that Roman jurists appreciated customs as a source of law. Similarities: provided much needed legal advice to untrained judiciary, developed practice of preparing short legal treaties – sort of similar to responsa. And acted w/o any grant of political or civil authority. Summaries also developed into complete statements of private law, similar to work of late Roman jurists. Also achieved great influence like Roman jurists.

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(e) Commentators: Next stage in Romanist study. Knew the Digest and the annotations created by the glossators. Further developed and refined legal doctrine under Corpus. Sought to apply the Digest to other areas of law. Sought to extract principles and apply the principles to Commercial and Canon law. Very influential in N. Italy were big developments in trade and commercial law. Also resp. for creating new areas of law: conflicts of law to try to deal with what law to apply when have more than one possible jurisdiction. Looks to the implicit structure of Digest and extract principles to solve disputes. Became great systematizers. 1st to suggest a unitary theory for contracts, consisting of different elements. Excelled in conceptual paradigms. Saw themselves as logical progression based on antecedents. Responsible for reception of Roman law into modern legal systems in Germ, France, Spain. Esp. influencial in Spain.

(A) Bartolus~ 1314-1357(B) Balous~1327-1400

(iii) Cannon Law—Law of the RCC: (a) History: During the Medieval ages, RCC owned 1/3 of the

land in Europe given by kingdoms. In early years, decentralized, but reorganized after model of Abbey of Cluny. Uptil 1300, Pope was counter-balance to heads of state. Created huge bureaucracies and need for legal trained. Influenced by Roman law. From 1100-1500s, development of ecclesiastical courts evolved w/in Church. Had uniform structure, systematic management and educated staff, applied canon law. Primarily concerned with adm. Of church and its rules.

(b) Sources:(A) Old and New Testament: some books considered non-canonical; not official. There are many laws found in the Bible, not all of them are consistent(B) Church Councils: list of important councils who formed important rules or interpretations.

Nicean Creed-325 A.D. Lateran Council IV: (1215) Council of Trent (1545-1563)—

responded to issues brought up by Reformation-response to Protestantism, some reforms and modifications.

Vatican I (1869-70)—had to give back Papal estates w/ unification of Italy, coincided with Franco-Prussian war. Decreed that Pope was infallible.

Vatican II (1962-65): attempt to modernize the RCC-mass no longer in latin, priest faces congregation, emphasizes participation more of lay persons and decreases status of priest.

(C) Synods

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National—convention or meeting to discuss issue- ie Dallas meeting to discuss sex scandals.

Diocesan—meeting of a region-deals with methods to resolve disputes, adopts procedures for church administration and universities.

(D) Patristic Writings~ Fathers of the Church—23 fathers of the church, most lived prior to 500 A.D.

St. Augustin of Hippo(345-430 A.D.)—most famous

(E) Roman Law & Procedure—secular law that in force in late roman empire~ Diocletion 284 A.D. Strong influence of Roman law in latin. Church helped carry Roman law thru Medieval times. Roman procedures then adopted by Phillip II for his royal courts and spreads to Europe.

(F) Tradition/Customary Law—not accepted by Protestants b/c some of doctrines not in text Governs things like requisites for marriage, often differed to local customs.

(G) Natural Law—recognized by St. Augustin and Thomas Acquinas. RCC felt to discover natural law one must use right reason and correct application.

(H) Judicial Opinions Apostolic Peneteniary: courts w/

jurisdiction over grave sins. Tribunal of Roman Rota: court dealt

w/ property issues in Avignon times. Saw a lot of litigation and also served as a court of appeal.

Supreme Tribunal of Apostle Signatura: Highest court that seated in Rome post-Avignon.

(I) Compilation of Canon Law Gratian, Decretum: user of scholastic

method to resolve inconsistencies in religious texts. Decretum was a collection of scattered rules and regs of the church, compiled. Became monumental workd that became basis for almost all Canon law.

Decretals ~1234-1334—pocket parts to Decretum-made by lawyer clergy.

Codex Iuris Canonici—(1918 & 1983) – Code of Canon law; compilation. Written in latin and English, deals with many church procedures and rules, well organized.

(J) Concordants/Treaties: Pope considered chief executive of Papal state, over years have made treaties with other states.

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(K) Papal Decrees ~ different ways Pope can express himself.

Apostolic Constitutions—establishes code

Bulls—attached w/ seal, most solemn church document.

Letters Apostolic Ordinary Pontiticial Decretal

Encyclicals~ akin to scholarly documents, like law review article w/ footnotes and support.

Declarations – explanation of law. Apostolic Exhortations Papal Decrees Papal briefs Papal Rescripts

( c) Jurisdiction: RCC had pervasive influence in almost all aspects of medieval European life-canon law had huge influence. Canon law, like secular law, had systematic expositions of the law and scholarly writings about it-formed basis for decisions of ecclesiastical courts and guidance for church officials. Churches’ reliance on scholarly writings and principles of law-helped influence developing legal systems of Europe. Its procedure also had influence on courts of Europe. Feudal courts like solving by ordeal-ecclesiastical court’s reasoned system that involved reception and consideration of documentary evidence, testimony, qualified notaries to record proceedings, legal arguments by parties on points of law, and decisions by canonical judges—made significant contribution to orderly and systematic methods for conduct of court proceedings and dispute resolution.(L) Persons/Personal Jurisdiction

Christians~ commands personal jurisdicitional over all christians, not just clergy, like if cleric, scholar. Excluded pagans. If tried by common court, assert Christian and handed over to Canon court. So large, that if literature, often assumed cleric. Often more lenient than secular courts.

Crusaders~protected crusaders; creditors couldn’t take property while away, all disputes had to be in cannon court.

Poor~ widows and homeless Jews~ when in conflict with Christian Travelers

(M) Subject Matter~ very broad Sacraments~ marriage, death?

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Property of Decedents Church Property, including tides

(crops, harvest) Sureties or Guardianships, Oaths Sins

(f) Church decline: Many areas that were under Cannon law are assumed royal courts, esp. in England, Germany, and Scandavanian.

(iv) Customary Law(a) Feudal law: conceptual terms used by warloads. Emerges when have no central state, in existence up to time of Charlemagne.

(A) law of Lord-Vassal: Hierarchy where King owns all the land~gives out 1/3 to Church, 1/3 Crown, 1/3 to noble barrons in exchange for military support. King holds title while gives possession to Barrons in return for military support-reciprocal relationship-“subintodation.” Barrons would parcel out land to knights, who had to provide military support when king called~ knight’s fee. Knights would then have the peasants and serfs work the land. King was lord over barron, lord over knight, lord over serf. Not very efficient- also knights only had to fight for 40 days. Then kings had to pay for mercenary soldiers.

(B) Inheritance: LV system caused problems b/c sometimes knights left only female heirs. In this case, Barron would become guardian of her property, revenues and would arrange marriages for her.

(C) Decline: with rise of nation-states, feudal law merges with national laws. Has had some residual effects, esp. in UK where Crown still holds all land.

(D) Examples: Usages of Barcelona ~1068 Libri Feudorum ~ 1095-1130—law of

N.Italy: used Ius Commune when local law had gaps.

Customs of Normandy~ 1200: very extensive, used by William the Conqueror

Sachsenspiegel (Mirror of Saxons)~1221—N.E. Germany: one of earliest documents written in German, akin to Digest in Germnay. No influence of Roman law.

Custom of Beauvaisis~ 1283

(b) Manorial law~ related to Feudal law, refers to way the land was divided. In regions, land divided into fields for crops, common areas, forest, pastures, and towns. Church in the town and peasants live around it and

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noble’s land. Peasants get to plant couple of rows, decided by meeting w/ serfs and lord. Democratic system. Peasants also had some rights regarding common areas, like forest and pastures. Problems arise when kings start taking church land. Allow nobles to buy the abbeys and use materials. Then Enclosure system arises, and nobles fence in crop land and peasants are cut out. To avoid starving, move to cities.

(A) Serfdom: not chattle of his master, could legally marry. Had to provide their own food and clothing. Limited ability to hold land, but could not be mobile. Couldn’t leave town w/o lord’s permission. Also owed dues, fees, and manual labor to the lord. But if escaped and lived in city for 1 year, gained freedom.

(B) Slavery: Lower class than serfs. Provided food, shelter, and clothing. Not allowed to marry. Owed unlimited service. Slavery died out in UK 1250 b/c RCC against it. But huge demand w/ discovery of W.Hemisphere. N. Africans and Indians replace. Nobles invested in ships. Dispossessed peasant became sailors.

(c ) Commercial Law/Law Merchant: Law applied to the professional merchant. revives due to surplus in goods w/ help of the Church and rise of cities. Revives w/ commercial developments-including: creation and expansion of commercial relations between Italian city-states, growth in maritime commercial activities and need for rules, rise in number of fairs and markets and need for commercial regulations, rise of associations of merchants in commercial centers created for purposes of safety in transit, financial security, and speedy resolution of commercial disputes. Yet, not much uniformity thru/out Europe.(A) Roman Law & Law of Rhodes ~ 300 B.C.-

influenced w/ law on sales and leases. Private law had addressed commercial matters like K and negotiable instruments.

(B) Maritime Law—often cheaper to transport by sea. Increase led to practice of codifying the rules, practices, and customs of sea transport.

Lombard Law~ post 567 A.D. Laws of Venice ~ 1050 Amalifiton Tribe~ 1095 –Italy Laws of Oleron~1150-France Laws of Wisby~1350-Baltic Sea Consolato del Mare ~1350-Spain

(C) Customs of Fairs and Markets- Markets weekly, fairs held annually. Lead to creation of rules to deal w/ trade practices and disputes. Based on customary practices of traders. would have different types of fairs across Europe where certain goods exchanged. Markets were local

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weekly. Customs evolved to resolve disputes that arise during fairs-if dissatisfied w/ quality of goods.

(D) Canon Law-influence w/ law on interest-prevented use of interest, then excessive interest. Also involved disputes when had oral agreement. Had good faith requirement, implied terms, nullity due to error or lack of capacity.

(E) International Treaties: many kingdoms had treaties w/ one another, especially w/ trade of wine, textiles, etc. and contracts.

(d) Urban Law: revival of growth in cities after 1050. For a time only had 3 large cities: Venice, London, Paris. New cities, like Rotterdam and Amsterdam grow. Not as big as cities of Roman empire. Yet, fastest growth happened in N.Italy due to de-militarized zone, freedom, cross-roads of Europe. Trade w/ Baltic and Meditterenean Sea. Cities had similar law thru/out Europe, but each negotiated w/ king. Renegotiate when get new one. No uniformity thru/out region-each city had diff. K w/ king. Diff. regions had diff. tax burdens-unrational. Complaint impetus to unification of law.

(A) Customary Law: Various collections of urban law. Deal w/ municipal laws; often broad in scope.

Customs of Genoa Charter of Piza Customs of Milan

(B) Ordinances of Guilds & Associations: Formed a community of institutions that followed local custom and practice, which then provided substance for body of commercial law. professional associations for those of a special skills, including scholars. Had authority to regulate and control a particular trade: Adopted municipal statutes to govern org, internal policies, and practices; Had authority to govern entry into profession, quality standards, law on craftsmanship, hours and punishment. Didn’t like competition among professionals or market economies. Responsible for charity, burial, care of families, commissioning works of art an drama. During FR, system destroyed b/c tie to Medieval society.

(C ) Laws of Urban assemblies~ organization of cities negotiated w/ the king. All written, specific; regional constitutions. Becomes process by how all cities are formed. All settlers would have to swear to negotiated law.

(2) New Legal Developments: Medieval period did create new legal concepts and new legal institutions: (a) Commercial Law:

(i) bills of lading

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(ii) credit(iii) securities(iv) interest

(b) Breach of Warranty(c) Law of Damages(d) Bankruptcy Law(e) Maritime/Admiralty(f) Corporations

(i) limited partnership(ii) trademark & patent(iii) securities(iv) deposit banking

E. Intellectual Devlopments Leading to Codification Process: (1) Humanist School: intellectual mov’t that had origins in 1500s France-time of great upheaval-

ferment of ideas, policitcs, relgions, and commercie. See decline in secular influence of RCC and waning influence of Holy Roman Empire, but rise in nation state and emphasis in strong, central gov’t. Held emphasis on rational thought and potential for individual achievement. Inspired by civ. Of antinquity, esp. Greece. Encouraged scholarly examination of law, esp. nature and function of law, and science of jurisprudence est. Helped lead to school of natural law.

(a) School of legal scholars who try to round up all fragments and notes to resolve changes and inconsistencies in the law. Also rebels and revisionists. Lived during the Reformation and Renaissance-sought to go back to purer Latin-mocked later latin scholars like Accursius. Rejected all Medieval methods-neologism and grammer; different concept of language. Purists. Led to work of quality and reliability. Founders of textual scholarship- remarked on time differences. Yet, bar members of the time thought intellectual snobs, Mos Gallicus not adopted in practice of law.

(b) Jacques Cujas~ 1522-1590(c) Hugo Doneau~1527-1591(d) Petrarch: new intellectual mov’t developed by Petrarch, 1304-1374. Italian,

family of lawyers, worked as church notary and moves to Avignon. Studied at Montpelier and Bologna, but quits law school when dad dies. Influenced by Cicero and St. Augustine. Discovered 2 letters from Cicero. Developed Humanism-aesthetic criticism of Medieval society/culture. Felt no match to quality of Latin writings of Cicero. Desires a return to purity of Latin, Cicero, Virgil. Leads to thinking that Medieval fundamentally flawed. Creates intellectual environment for Renaissance and seedbed for Reformation. Subsequent scholars try to emulate pure Latin of Horace, Virgil, Cicero and searching for new samples from writers. Creates rebirth of classical times.

(2) Natural School: Watershed intellectual movt’ in 1500: School that harkens back to Greek scholars like Aristotle and believes in the higher law, natural law, that governs all world, society, humans. Strong belief reason determines law. Along w/ humanists, leads to codification and rationalization of law.

(a) Fransico Sucrez~1548-1617—Predecessor of Grotius, transitional figure. Catholic. Dealt w/ questions of modern nation-state and church. W/ church decline, nation-state had no counter-balance or check on the power of the state? Sucrez says no, check is natural law. Some believed that monarchs were above the law. Yet, Sucrez looked to problem of tyrants and unjust wars. Finds support in Medieval works that god and rulers subject to natural law-supreme law.

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(b) Hugo Grotius~1527-1645, De Iune Belli ac Paci, 1625—argued even if no G-d, there was still natural law. Find the law thru formal rules of logic. Completely mastered Roman, Romanist and natural law. If there is conflict between text and natural, natural wins. Leads to Bill of Rights, etc. Later attacked in 19th as only intellectual and cultural mov’t with no meaning. Yet, revived in 20th to defeat arguments that not ok to follow unjust law-violate higher law of natural law. Developed universal concepts of law that transcended national boundaries and were not dependeant on any one legal system. Argued law should be Based on human experiences, desire for orderly and peaceful society, and maintenance based on reason. Supported systematic arrangement of legal materials, for property and obligations, and using rational approach. Seen as starting point for codifying lawyers and support for society w/ good order and clearly defined system of rules.

( c) Pufendorf~1632-1694—later writer, influenced development of civil law and codification process. Attempted to build a legal system using scientific methods. Had rules, axioms, rules were deduced and then tested by experience and observation. Had influence all over Europe. Contributed to tradition of including introductory articles stating gen. principles of law that provide framework.

(d) Jean Domat~1625-1696(e) Criticism: Rejected by Jeremy Bentham-atheist and leader of

Positivism-epoused that only law that is real is that which is announced by Parliament.

(3) Other influences: (a) John Wycliffe ~ 1330-1384—Oxford cleric, earliest to criticize the RCC and

question the need of the church hierarchy, like bishops and pope and eucharist. Leads to the Reformation. Argued that services and bible should be in vernacular. Huge influence on Martin Luther and the Reformation.

(b)Erasmus~ 1466-1536—another transitional figure-illigitimate son of priest, well educated, loves classics but interested in religion. Author of In Praise of Folly, a satire of medieval society and its institutions. Becomes celebrated latin scholars and also learned Greek. From this, is able to study the Vulgate translation by St. Jerome, 300-400s, of the Old and New Testaments. Researches older versions and critizes St. Jerome’s translation. Erasmus is able to produce a new latin translation from new Greek discoveries. Has electric sensation and other scholars try to do same. Influences Martin Luther to come up with new translation in german vernacular.

( c) Invention of the Guttenberg Printing Press~ 1453—huge influence on spreading knowledge-fills gap for huge demand of manuscripts. Copies of books can be produced now. Electric effect on intellectual mov’t.

(d) Decline of Ius Commune: not perfect, but seedbed of modern law. Falls apart by Reformation with the renunciation of Canon law and the Rise of Nation State and monarchies. W. threat of conversion, princes chip away at Canon law. Manorial and Feudal law declines as well. Yet, Law of Merchant and Urban law continues and evolves. Roman law’s influence survives as well.

(4) Enlightenment~ 1700s: Turmoil of 1400- 1600 lead to this intellectual mov’t. Included FR and contined the near origins of modern European codes. Legal philosophy, influence by social philosophy, encouraged legal reform, inclding new arragments of legal topics w/in unified system. Justinian’s Institutes and Corpus offered starting point for codification process-rational statement of legal principles and rules on range of subjects of private law and was a shared tradition in almost all European legal systems. Egalitarian ideas required citizens be knowledgeable on matters of law, so that each citizen could know and understand rights and

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duties. Encouraged simplification of rules. Leaders of codification process was France and Germany.

V. Rise of the Modern Nation State and Modern LawA. England

(1) Late Medieval Period(i) Norman Dynasty: During this time, there was no Common Law. England followed own

version of the Ius Commune.(a) William II, Conqueror, 1066-1087(b) William II, Rufus~1087-1100(c) Henry I~1100-1135(d) Stephen~1135-1154—viewed as a weak king. Real power among local barrons,

strong enough to hold off invasion. RCC has power. Creates succession problem b/c no heir.

(v) Plantagenet Dynasty(a) Henry II~1154-1189—Count of Anjou—decides heir to Stephen. Invades

England and takes over court. Only speaks French, but known as “Father of Common law”. Marries Elenenor of Acquitane and holds large parts of France. Goal is to unite countries, goal of all sub. English kings till George II. (1776) Had real interest in law, very intelligent. Served as judge many times. Makes institutional changes.

(A) Decree re juries~1164- decree which expanded use of juries in civil and criminal trials. [French go opposite way-modeled on Cannon courts w/ no jury]

(B) Murder of Thomas a Becket: old friend of Henry’s, but when named archbishop becomes unruly. Tries to expand church jurisdiction, Henry has him killed. But does repent.

(C) Court of Common Pleas- 1180~ first of 3 new courts that is est. Jurisdiction involved disputes that didn’t involve Crown or its revenues; private litigation. Used oral proceedings (vs. French emphasis on written).

(D) Court of Exchequer-1170? Referred to checkered cloth of flag used to compute finances and taxes.

(E) Competition: Each court had its own bar, clerks; seen as specialty. To make more $, each sought to expand its jurisdiction. Took creativity to beat each other out. New writs created until 1300, when frozen. If can’t qualify for one of court, out of luck. Until

(F) Creation of Court of Chancellory/Equity: Chancellor was one who decided where each case went, would issue writ. Then he decides to hear the case. Chancellor was usually studied in Roman and Cannon law. Thus, decisions based on Canon law and had no jury-equitable action.

(b) Richard I~1189-1199—The Lion-Hearted: Son of Henry. Went to Crusades, captured and held for ransom by Austrian King.

(c) John~ 1199-1216: Brother of Richard, ascends to throne when brother dies in crusade. Gets in huge fight w/ barrons:

(A) Magna Carta~1215~ arises from struggle w/ barrons. Forced to sign document that gave tax exemption to barrons, but also acknowledged other rights, ie due process. Huge landmark in English law.

(B) Court of King’s Bench-1200Jurisdiction of matters of the Crown—King’s Land or King’s Peace; criminal law.

(d) Henry III~1216-1272

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(A) Establishment Of Parliament(B) Simon de Montfort~ one of leaders in 1st parliament. Had

gotten rich from land grab due to albiginsians.(C) Bracton~1256-Frenchmen who wrote a treatise on the English

legal system and customs. Very different that Ganvivi in 1189.

(e) Edward I~1272-1307(f) James I, son of Mary Queen of Scotts-1620s—King of England and Scotland-

beginning of UK. Attempted to create absolute monarchy, but Parliament didn’t go along.

(g) Charles I, 1645-as absolute monarch, was beheaded. Parliament is superior.(h) Role of jurist: not as prominent role as in civil law countries-due to

prominence of prior decisions-precedent guides the development of common law-no need for scholars to devise system. Greatest jurists have been judges. Legal writings of jurists cite to cases and the principles and trends that can be gleaned from them-no deduction from code. Treatises play small role in judicial making process and development of law. Remain relatively unimportant. Law is mainly case oriented and doesn’t cite much to juristic writings.

(i) Common Law system v. Civil law system: (A) influence of Corpus Iuris Civilis great on civil law, little on

common law. In civil, corpus furnished many of substantive rules contained in forefunners of legal codes. Did influence some of the common law rules and principles, influence of Roman law not as influential.

(B) Codification process-derived from Corpus, another factor. Civil law has comprehensive codees, developed from single drafting. Cover number of legal topics, separating different areas of law. Common law statutes have been place in a code, but developed in ad hoc basis over time. RElect rules annunciated by judicial decisions-statutory embodiment of rules developed thru judicial decision making process.

(C) Existance and growth of equity law: actually originated in Roman times when ius civile not used for foreigners. But equity law developed in England to soften effects of judicial precedent or legislation.—lead to dev. Of diff. procedures that are followed in interest of justice when other remedies not available. No comparable equity law in civil law countries.—didn’t build new branch of law-but equitable principles become built into overall system.

(D) Role of judicial decisions and manner of legal reasoning-civil law system- until recent time-influence of judicial precedent not high. In common law, supreme. In civil law, judges look to code provisions to resolve a case, common law judges reach for casebook. Reasoning in civil law is deductive-proceed from stated general principles to a specific solution. Common law, inductive reasoning-deriving general principles from precedent or series of decisions, which is then applied to specific case.

(E) Structure of courts-common law favor integrated system with courts of general jurisdiction to adjudicate criminal and civil cases. Civil law systems following tradition of separate codes for diff. areas of law, favor speciality court systems to deal with diff. problems in certain areas.

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(F) Trial process- civil law: no single event- trial involve extended process, successive hearings. Procedural differences relating to role of judge- civil law system uses inquisitorial process, role of judge is elevated-principle interrogator of witnesses, lawyers secondary. Common law-judge acts as referee, while lawyers part of advesary system-introducing evidence and interrogating witnesses. Common law judge can search more creatively for an answer.

(G) Selection of judiciary-civil law system-law student enters after graduation from special training-given certain geographic area. Common law-elected often after being lawyers. Legal training different too-civil law-follows from high school-no general studies before.

B. France(1) Early Medi3val Period

(i) Lex Romana Visigothorum~476 A.D.-506 A.D. “Vulgar Roman Law” in SW France. All of France no longer part of Roman empire. Except SE, belonged to Visigoths. Allowed to keep old law-codified w/ help of church of what they knew. Remnants was only Roman law known, until discovery of Digest. Still in effect in some parts of France until 1804 Code Napoleon.

(ii) Lex Romana Burgundionium~506 A.D. {Eastern France} Took over in S.E. France, in wine region that bears its name. Adapted shorter version of Vulgar Roman law. Kept notion of community regime.

(iii) Battle of Poitiers-Defeat of the Saracens by Franks~ 732 AD.— Tours- Saracens had control of Spain/Iberian Pennisula. Defeat kept Saracens from spreading across W. Europe.

(iv) Chalemagne, King of the Franks-768 A.D-814 A.D. Crowned Holy Roman Emperor of the German Nation 800 A.D.

(v) Viking Invasions, 800-900 A.D.(vi) Est. Of Abbey of Cluny~926 A.D.(vii)Hughes Capet-King of France~987 A.D. : Beginning of rise of modern

France. France takes shape.(2) Late Medieval Period

(i) Norman Conquest of England~ 1066 A.D. from region of Normandy(ii) King Phillip II (“Auguste”)~ 1180-1223 A.D.: attempt to identify w/ Caesar

Augustus. Contemporary of Richard the Lion-hearted and John. Defeated ambition of Henry II to create a unified kingdom of France and England by outwitting English. Expanded France by creating discord amongst family of Henry II-lured sons away, suggesting that they should control some territories before dad dies. Forms alliance w/ sons, drives wedge in between family. Dirty work-John kills one of brothers. W/ Albigensian crusade going on, able to expand power from SW France.

(a) 1190-Est. of Royal “Ballif’s” Court- previously only local Baron Courts- no professional judges, no appeal available, Baron often party to suit. Est. for gaining revenue from the fees. Canon Court were their model-adopted procedures. Used written pleadings, testimony, judgments, had right to appeal. Role of jury was de-emphasized.

(b) court Jury/Enquete par Turbe: remnant of jury role-“inquiry by crowd” the only question put forth was “what was the law of the region”-real ? b/c had 60 regions and 300 local customs. Borders werent’ clear and needed to know which customs applied. Juries made up of illerates-inefficient.

(iii) End of Albigensian Crusade in SW France~ 1229 A.D.

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(iv) Louis IX “St. Louis”~1226 -1270 A.D.: Model Medieval king. Genuien concern for justice. Gained some control of Bronian Courts-receptive to appeals by citizens.

(a) Est. of Parlement of Paris-Court of appeal~1250 A.D. Only 60 years after est. of royal courts. Ahead of England. Expedicted b/c written. As France expands, regions develop own court of appeals-like circuit courts. Parlement of Paris becomes Supreme Court.

(v) Beaumanoir Customs of Beauvasis~1283 A.D.: Recorded 1000 pages of local customary law. Other regional law was much smaller.

(vi) Phillps “Le Bel” 1302: Lead plot vs. Knights Templar to get $. Also responsible for helping to get the Papacy moved to Knights Templar. Convenes the 1st Estates General- 3 classes: nobility, clergy, and 3rd Estate-bourgeoise. Had representatives from all over France. –adopt indictment vs. Pope Boniface.

(vii)Papacy at avignon~ 1309-1379 A.D.(viii) Hundred’s Years War w/ England 1337-1453 A.D.—almost fought

exclusively on French soil. English almost win under Henry V, but dies and weak son takes control. Joan of Ark was culmination-captured by English allies and sold. Burned at stake for herecy. Trial records survive-brilliant but illiterate. Decides to plead guilty, next day dresses as man and seen as relapsed heretic. (Some think raped by guards). Church nullifies judgment 15 years later, canonized in 1929. Helped revitalize French nation. In 1453, France recaptures all of lost land.

(ix) Black Death~ 1348-1352 A.D.(x) Pragmatic Sanctions of Bourges~ 1438 (Gallicanism). Result from 100

years war-official beginning of Callicanism-declaration of autonomy of French Church. Still Catholic country, but no papal decree valid unless ratified by Estates General. French king also has authority to chose bishops and collects revenues. Church becomes subordinate to crown and nobility. Est. b/c of France’s need for revenue for war, also men can buy nobility by paying King. Nobility for sale until FR. Also allowed to buy judge position, bishops, tax collector. Positions then becomes inheritable. Remains in effect after war ends.

(xi) Charles VII: Presides over final victory over English.(a) Ordinance of Charles VII-1454 A.D. –Codification of 60 Regional

and 300 local customs—of mostly oral tradition. Not real code, only compilation. Compiled by writing down and submitting to local estates’ rep.-bargained over wording, eventually submitted to Parlement of Paris. Got official issuing from King, process took 100 years.

(xii) Beginning of Protestant Reformation~1517(xiii) French Religious Wars~ 1560-1629: violent wars-Protestants called

Huguenots. (xiv) St. Bartholomew’s Day Massacre of Huguenots/Protestants~ 1572:

attempt to end war-Decided to make Catholic daughter marry Protestant Prince—Henry of Navarre-becomes Henry IV. All of Protestant nobility invited to Paris for the wedding-extremist tries to kill Prince. Catholics knew that would be blamed, took preemptive attack. Murdered 1000s in the middle of the night. Civil war breaks out.

(xv) Henry IV-“Bourbon Dynasty” 1589-1610-- Henry was to inherit all of France, but Catholics opposed to him. Formally converted to Catholicism- not clear if true to heart.

a. Edict of Nantes (Toleration of Huguenots) ~1598—declared in attempt to end Civil war.

(xvi) Louis XIII~ 1610-1643 A.D.

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(b) Last Session of Estates General-Before FR~ 1614—meant to legislative brance, King ruled by decree. Ordinance had to be registered or enrolled. Applied by Parlement in Paris. Regional application thru local Parlement. Parlements just went w/ king.

(c) Cardinal Richelieu DuPlessis: Capture of LaRouchell thought could hold out-able to get supplies in. Cardinal builds dam to prevent ships entering area. 50% of Protestants die from starvation. Ends military revolt.

(d) Calvinism: French lawyer-contemporary of St. Ignatius Loyola. Began new tradition-Institutes of Christian Religion-best, most logical reading of Protestant religion. Had to leave France and went to Geneva, Switzerland where Calvinist ran gov’t. No one knows how terms Huguenots attached to French Calvinism.

(xvii) 1618-1648 Thirty Years Wars: Began when Catholic ruler of Aurstia sent ambassadors to Prague-People of Prague threw ambassador out the window-“Defrentruation”-Powers of Europe respond. Protestants rally around the rebels, Catholic nations around Austrian emperor. Catholics look like going to win, but if Austria wins, balance of power upset. France switches sides and dissemates Germany. End result is that countries resolve not to go to war strictly over religion. Last war over religion. Reformation continues. Get notions of internation law-geneva convention has roots here.

(a) Prussia-emerges as power, sole winner on German side. Descendants from fighting monks, abbot converted to Lutheranism, becomes akingdom. By 1870, has control of all of Germany. Beginning of Reich II.

(xviii) Louis XIV- The Sun King~ 1643-1715-Assumed Throne upon death of Cardinal Mazarin. Young when Louis XIII dies, so Cardinal runs country. Louis XIV becomes own minister, good manipulator of nobility who had own armies and castles. Nobility asked to come to court, uses wedge tactics to pit one against the other, est. pecking order. Fight over various demeaning privileges. Outwits them so nobility no longer threat. Not very smart, but good at Human relations. Issued a number of Ordinances, under royal authority. Lots of Substantive law remains fragmented until 1804. Unified a lot of fragmented law, influenced by natural law:(a) 1667 Civil Procedure(b) Criminal Procedure-1670(c) Commerce 1673(d) Maritime and Mercantile Law~1681(e) Revolution of Edict of Nantes~1685- Louis had religious

conversion. Raised and practiced as Catholic, when wife dies takes mistress. Mistress becomes wife, devout Catholic-prevoked him to renounce Edict of Nantes from 1598. Started new prosecution of Huguenots. Many leave for America-settle in SC, NY, and LA. Many left for Berlin, South Africa. Causes loss in productive part of society-help lead other countries in IR.

(f) Decline of Louis XIV-army becomes weak, threat of foreign invasion.

(xix) Jean Domat~ 1625-1696: Jurist that synthesis Roman law, natural law, french customary law. Relies on various sources.

(xx) Establishment of LA colony~ 1699—not prosperous time for France, weakened Louis XIV-settle b/c worried about Spanish take over. LaSalle claimed area for France. Wanted to drive wedge between Spanish in TX and Fl. Colony didn’t get much support

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from France. Scottish adventurer, John Law, est. Company of Miss, to exploit riches of La. Printed brochures-fraudulent- described riches, mountains, natives willing to work for cheap. French people bought shares in company-becomes valuable –Bubble- eventually bursts, hit nobility and French hard.

(xxi) Louis XV~1715-1774> Comes to power as minor-REgaean Duc d’Orleans. Hurt by Miss. Company bubble bursting. Minister of legal affairs unified areas of Donation, Wills, and Fedual Entails, by 1747. Along w/ Ordinances of Charles VII, ordinances of Louis XIV, Louis XV, major step towards codification and French Code of 1804. French society also criticized by French intellectuals:

(a) Voltaire~ 1694-1778: Atheist, hated church, sought to undermine church and nobility. Lived on Switzerland border. Never put together alternate to French society.

(b) Rousseau~1712-1778, author of Social Contract- will of people, myth of Noble Savage, feels that humans are basically good but have been corrupted by French society. Has enormous influence on FR.

(c) Diderot~1713-1784~ responsible for putting together an encyclopedia-compiled 100 yrs. Worth of science.

(xxii) Louis XVI~1774-1799: comes to power when struggling with England. Slowly defeated by England. Visited by Franklin to gather support for American side. Opposed to ideas promulgated by Decl. of Independence, but swayed since hurt UK. W/o support, could’ve lost Am.Rev. Helped to bankrupt France. 1789 suffered from horrible harvest-$ of bread soared, highest on Bastille Day. People starving. Revolted. Marched against Bastille-symbol of Medieval Oppression. Monarchy didn’t respond-underestimated power of Revolution.

(3) Period of Codification(viii) Beginning of the Revolution~ July 14, 1789: Most important date in French

history. Bastille day. Divide history according to date. Marks the beginning of the Republic and the beginning of end of French monarchy. French cast off chains, feeling that anything could be done. Becomes living laboratory-played w/ different forms of gov’t –constitutional monarchy at first. By time Louis XVI comes around, too late. Monarchy tries to run away to border-caught and beheaded. End of Bourbon monarcy. Heir to throne dies in prison.

(ix) Constituent Assembly Calls for Code~ 1790—One complaint from the revolution is that French law is irrational and inconsistent. The assembly then called for a new general code of laws. Yet new code put off by other problems-the fear of foreign invasion. Other problem was that suppression of the guilds b/c of association w/ Medieval times, meant that law reform was hard to come by-no scholars or law professors b/c of close of universities.

(x) Napoleon Bonapart: 1799-1815-Comes from impoverished Corsican nobility, not French. Got military scholarship from Crown and trained as soldier. Spends first part of revolution in a quiet area just doing patrols. But as the fear of foreign invasion approaches, Napoleon steps up. Is able to retake Toulon in Italian Pennisula from England.

(xi) Constitution of 1791(xii)Convention ~1792-5

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(xiii) Reign of Terror~1792-3: most violent period of the Revolution. Directed violence towards those of the nobility and opponents of the revolution. Even Napoleon is on the hitlist, but survives.

(xiv) Directory~1795-99: (xv) Consulate 1799 and Napoleon Bonapart: First Consul: Becomes very successful in

defeating other larger armies while serving as General for N.Italy. Decides to make a run for power and stages a coup d’etat. Experiments with new form of government and starts the consulate, serving as 1st consulate over the other 2. Yet, clear that no one else is calling the shots.

(xvi) Commission to Draft Code~August 1800: Napoleon is lucky to seize power during relative period of peace. Able to push through law reform. Puts together a committee to put together a draft of a code. None of the scholars were particularly known as brilliant, but each was from one of the 2 largest parts of legal areas. All had studied natural law scholars like Pudendorf and Grotius.

(a) Bigot de Preameneu ~1747-1826- Northern-Pays de droit coutumier, langue d’oil. Represented the Parisian influence on area of law that had been influenced by Charlemagne’s customary law.

(b) Francois Tronclet~1726-18o6-Northern(c) Jean Portalis~1745-1807-Southern France, Pays de droit ecrit,

langue d’ol- vestiges of the Vulgar Roman law.—Most important of the drafters from southern aix-en-provence. Had predominant influence on the drafting of the code; very eloquent and good note taker.

(d) Marquis de Maleville~1741-1824

(xvii) Project of Year VIII~February 1801: After only 4 months of drafting by the committee came up with the Project, or draft of the civil code. “Year 8 was due to the change from using the Gregorian calendar”. Drew from many sources including: customary, roman, royal ordinances, statutes, judicial decisions, canon, and Napoleonic law. This was actually in effect in LA colony.

(xviii) Civil Code/Code Napoleon Enacted~March 1804: By this time, LA had already been handed over to US. Yet, LA did draw on some of the code as a source, but more from the Project. Napoleon was also helpful in giving imput into the Code. Made sure that it was simple and clear enough for educated bourgeois to be able to read; not just for lawyer. Hands on even though not a lawyer. Also ensured it dealt with problems of the day: marriage, adoption, wills. Had positive influence on Code. Still in effect today, only ¼ has been amended to modernize on women’s law, etc. Respected as great example of law. Responsible also for dissemination into areas conquered by his armies. Consisted of:

(a) General Principles of Law-6 articles regarding publication, effects, and application of the law

(b) Book I- regarding civil rights, status of persons, marriage, divorce, paternity

(c) Book II-covers real and personal property, ownership and rights regarding property

(d) Book III- rights of successions, K and obligations-quasi-K, torts (delicts), security rights and property rights in marriage.

(e) Structure of code reflects influence of Justinians’ Corpus Juris Civilis. Language simple and clear- doesn’t deal w/ procedure, commercial law, or criminal law. Covered by later codes.

(xix) Goals of code: to render the law accessible and clear, to lay down rules in a logical fashion. To gain unification through codification-difficult b/c of the regional differences. Old law was neither unified nor clear. [Voltaire] French legal unification, b/c it was expression of French nationalism, entailed territorial,

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political, and social unification. Unification meant a commitment to democracy and economic liberalism. Marked belief in human reason to make sense.

(xx) Further enactments of Law-Cinq Codes~ other codes not as respected b/c not as innovative.

(a) Code Civil, Code Napoleon 1804(b) Code of Civil Procedure 1807(c) Code of Commercial Law 1808(d) Code of Criminal Procedure 1811(e) Code of Criminal Law~1811

(4) Role of the jurist- role and influence of jurist lessened-monarchy placed legal trained in judiciary- no need to seek outside advice, like in Germnay. French legal scholars did not reach some influence, most of leading jurists were practicing lawyers and judges. Leading one during Napoleon-Dumoulin and Pothier, not law professors. Pothier was a judge for over 50 years. Thus, French code result of product of practitioners, not legal scholars. Leads to shorter cases, citing to code and no treatise.

(5) Sources of French Law—Eccletic code from many sources; major influence on LA.(i) French Customary Law-especially custom of Paris- Code absorbs many of the

customs. Unifies French private law and gets rid of regional divisions.(ii) Roman Law: reflects influence of law effective in southern France since 400s. B/c

destroy remants of feudalism, adopts Roman law on property regime.(iii) Royal Ordinances of Louis XIV, Louis XV-affected areas of commercial law and

civil procedure(iv) Revolutionary Statutes—allowed for divorce and new liberalization(v) Judicial Decisions of Parliament- regional parliaments had influence(vi) Canon Law- although property seized and RCC declined, clergy is on state payroll.

No separation of church and state. Yet, big influence on areas of personal property upon death, family law.

(vii)Napoleon: direct influence-insisted on simplification of law, harsh treatment of aliens, protection of adoption and divorce laws (self-serving needs).

(6) Downfall of Napoleon: Napoleon had been successful in conquering many countries, including parts of Switzerland, Italy, low countries, but then has few bad campaigns-ie Russian campaign in 1812. Forced to abdicate in 1812 and is sent to Elba. But then makes a come back and returns to Paris. Yet, meets his match at Waterloo and is definitively defeated. Then sent to inhospital St. Helena, where dies 6 years later. In memoirs, suspects that won’t be remembered for military victories, but will be remembered for Code Napoleon, but it will last. Influences:(i) Code Napoloen + Project have huge impact, influence on Western Legal Tradition,

including LA(ii) Demogogue: -good general, but corrupt, disregarded representative gov’t, had secret

police-antecedent to Mussolini, no respect for life of others, but still beloved by France.

(iii) Responsible for end of Holy Roman Empire- ends in 1806 when Napoleon takes over. Emperor renounces his power b/c realizes has none. Then takes control over Austria-Hungary.

(iv) Responsible for unification of Germany-proves to be huge nemesis of France.(v) Helps lead to unification of Italy-finished in 1871.(vi) Creates great system of education based on meritology-gives brilliant

underprivledged a chance.(vii) Toleration for different religions.

(7) French Influence:(i) cultural influence/cuisine(ii) language(iii) LA Civil Code based on French Project and French Civil Code/Napoleon

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C. Germany/Holy Roman Empire-1806(1) Early Medieval Period: First influence from German area is the Vulgar Roman law. Germanic

invasion meant end of W.Roman Empire. Let Roman citizens keep their law. This was written down in Lex Romana in 400-500. Ensured the survival of Roman law.

(2) Late Medieval Period~Holy Roman Empire(i) Charlemagne crowned emperor of Rome~800: Church shows desire to revive the old

Roman empire. Church, w/ German leader permission, keeps Roman law.(ii) Otto the Great~936-937-1st Reich—Preserved German kingdom from invasions by Slavs,

Hungarians, and Vikings. Responsible for preservation of German culture.(iii) Investiture Struggle~ 1075-1122: Weakens the German emperors in fight vs. RCC. Lost

the influence used to have over Pope and weakened the region due to war. Was factor in lack of unification for Germany. Attempts to form a single nation failed.

(iv) Frederick I~ 1152-1190: “Barbarossa” named for his red beard sought to unify the country but ultimately failed.

(v) Frederick II~ 1208-1250: grandson of Frederick I, also attempted to unite the country. Was known as “Stupor Mundi”, “Wonder Boy” due to his great intellect. Was descended from 2 kingdoms: Viking holds in S. Italy and Sicily & Holy Roman Empire, held the titular role of emperor. Stayed mainly in S. Italy where he preferred-reason why unification unsuccessful. Progressive ruler in some respects, but autocrat. No Parliament. Controlled local german barrons through church concordant.

(a) Liber Augustalis~1231-Constitutions of Melfi: Promulgated 1st code by a secular ruler. Liber was a medieval code of law. Provisions deal with medical malpractice, bar examinations, products liability.

(b) Sachsenspiegel ~1221-1230 “Mirror of the Saxons”: collection of customary laws that mirror the people and civilization of Germany. Gives snaphot of German law. No influence of Roman law- only customary, feudal law.

(c) Statute in favor of Princes ~1232, FII relunctantly agrees to law. Effect is that recognizes 90 eclesiastic courts. Remains only the titular head of HRE, no unified Germany.

(d) No revenue~ another factor that prevented unification was that HRE didn’t have authority to tax. Had to raise own revenue.

(vi) Charles IV~1356 “Golden Bull”- HRE weakened further by proclamation that HRE was to be elected by the 7 princes. Had to pay each to get their vote. Therefore, HRE ascended to the throne w/o $ and had no way of raising revenue. Therefore, weak.

(2) Hapsburg Dynasty(a) Albert V~1438: First of the Hapsburg family to gain control. Remain in power

till abdicate HRE in 1806. (b) Roman law influence: Many german students go study at various law schools.

Learn Roman and Canon law, influence fragemented German law. Basically Ius Commune is in place.

(c) Reichkammergercht- Formal Reception of Roman Law~ 1495: Maximillian in power, tries to unite German Court. Enacts the Reichkammergercht, the recognition of Roman law. Requires ½ of all judges must have degree in Roman law. Roman law is used to fill the gaps.

(d) Protestant Reformation~1517-Shatters world-Cannon law declines, no longer appeals to Rome. Begins period of warfare that culminates in 30 years war.

(e) Constitutio Carolina Criminals~1532: Charles v in power-stronger ruler in Europe-controls Austria, Burgandy, low countries, Spain and its colonies, Southern Italy, some of N.Italy. Institutes new law.

(f) 30 years war~1618-1648~ very destructive period for Germany- end result is the end automatic declaration of religious wars.

(g) Codification of Bavaria~1751-1756: School of natural law and Grotius’ War and Peace influenced methods to order laws and use reasoning to codify the

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law. Bavaria’s codification was the 1st expression of a duchy. Code est. civil law, criminal procedure, and civil procedure.

(h) Civil Code of Prussia~ 1794: Next in mov’t to codify the law. Comes from the largest and most powerful of regions in Germany. Emerge as leader after 30 years war. Model the country after city-state of Sparta and Rome. Stressed service to the state that consisted of harsh military service. Prussia’s strength is increased under Frederick the Great, 1740-1786. Yet, code is the anti-model-long, detailed and too regulatory-consistent w/ country’s ideology.

(i) French Civil Code-Rhineland Baden~ 1804—Napoleon in conquest is able to annex the Rhineland. Imposes the Code Napoleon and survives even after Napoleon loses power in 1814, and survives till adoption of German Code in 1900. Yet, the Code Napoleon is also adopted in other places in Germany-southern part in Black Forest and Eastern Provinces.

(j) End of Holy Roman Empire~ 1806—With abolition of eclesiatical states, there is an end to HRE. Emperor abdicates his title since doesn’t’ have any-moves empire to Austria. Moves eventually leads to unification of German states. W/ Napoleon gone, Prussia seeks to unify the country.

(k) Civil Code of Austria~ 1811(l) Antan Thibaut~1814—German law professor at Heidleberg. Writes a law

review article arguing in favor of 1 German code.(m) C.F. Von Savigny~1815—In opposition to idea of adopting 1 code for

Germany in response to Thibaut article. Argues that French code shouldn’t’ be adopted for Germany. Holds Romantic idea that law is tied to the land~ Volksgeist~ and should represent the spirit of the nation. The first step is to have a historical study of german law to capture its german essence. It is to be studied like a science. Once accomplished, then can move towards codification. Also argues for the need to study Roman law, due to the acceptance of Roman law w/ Reichkammerecht.

(n) Pandecta School-Jurisdiction of Concepts: “Pandecta” of Digest. branching of 2 philosophical schools. Pandecta school believes that law is based on notions of mastery of Roman law, latin, Greek, and Medieval sources, such as natural law. Were masters of reason and logic. Believed law existed on own based on natural law and one was to deduct rules to solve specific problems. This was the way to learn the law as well.

(A) George Puchta ~1798-1846(B) Bernhard Winscheid~ 1817-1892

(o) Anit-Pandectist-Jurisdiction of Interests: Opposing philosophy—influenced by Comte and Positivism. Believed one must study in reality, experience, and observation. Therefore, to learn the law, start with concrete problems. Uses same method as Romans. Thought before any rule is applied, necessary to locate the different interest involved: state, society, various parties, etc. Anti-Pandectist didn’t gain acceptance until 20th century- effects law of LL and Tenant and leads to notion of implied warranty of habitability and societal interests.

(A) Rudolf Von Ihering~ 1818-1892(p) Code of Commercial Law~ 1861/ Civil Code of Saxony~1863

– developments of these two codes help lead path to drafting of civil code.

(3) Period of Codification/ReichII—1871: Bismark finishes unification through wars with Austria, Denmark, and a provoked war with France. Leads to additional regions added to Germany. Reich II announced at versaille.

(a) 1st Draft of Civil Code~-1874-1887: With unification, bureaucrats go into high gear. Come out w/ 1st draft in 1887, but criticized b/c too verbose and complicated. Result of codifications processes of Prussia, Bavaria and work of legal scholars.

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(b) Code of Civil Procedure~1879(c) Code of Criminal Procedure~1877(d) 2nd Draft of Civil Code~1890-95(e) Civil Code Enacted~1896(f) Civil Code goes into effect-1900- Contains 5 books:

(H) Book I: general parts~natural and juristic persons, definition of things, classification of legal acts, and prescriptive periods.

(I) Book II: obligations, creation and discharge of obligations, K, and law of delict.

(J) Book III: real and personal property, ownership of property and possession, servitudes, securities

(K) Book IV: family law, marriage and other relations(L) Book V: law of succession, rights of heirs, wills,

settlements, proof of inheritance.

(4) Role of German jurist: Civil codes emphasize form, structure, and enumeration of both abstract and concrete principles of law w/in unified whole. Reasoning process is deductive, one arrives at conclusions about situations from general principles. Function of jurist is to analyze code and legistlation for formulation of theories and to expound on the principles of law to be derived from them. Historically work took form of treatise and commentaries that became doctrine used by judges in cases and legislators when drafting. In Germany, as it received Roman law, the status of jurists was enhanced, like it was in Rome-diminished in France. The reasons is that 1500-1600s, the courts were established by lay judges untrained in law-needed legal advice-turned to law faculties-often professors decisions became binding-some judges would simply send over the file. The law professors in a sense became unofficial judges-opinions were incorporated into private law, chief vehicles by which law was administered. Akin to patened jurists of Rome. Therefore, b/c each judge developed own doctrine, no need to consult precedent-thus legal precedent had no force. Decisions are often longer, more lengthy analysis, citing to code and to jurists.

(5) German legal influence/Influence of BGB: Immediately becomes an alternative model to the Code Napoleon. Has a major influence on the development of Codes in Eastern Europe, China, Japan, Switzerland, and Greece. Germ. Law will have increasing influence in LA. Currently revising code w/ Ynopolous leading the change. Has doctorate in German Law-influencing preliminary title and property issues. Strong influence in commercial law as well. Many provisions of the UCC have direct lineage to the German Code of 1861. Also see influence by German legal scholars.

D. Spain(1) Early Medieval Period

(i) Lex Romana Visiogothorum ~476-500: similar to other areas, see adoption of Vulgar roman law. Is the standard until Digest is discovered in 1067.

(ii) Fuero Juzco -Liber Iudiciurum~ 654~ Development of new law. Feuro consisted of Germanic customs, vulgar law, canon law, and visigothic edicts. In some places replaced Lex, in others, co-existed.

(iii) Saracen Invasion~711 A.D.—spread into Iberian peninsula and replaced the Visigothers, held all but Basque region. Saracens allowed Christians to keep the Fuero, while they had own Muslim law. Saracens hold onto power until finally pushed out by Isabella and Ferdinand in 1492. Had relative toleration for Jews and Christians, lived in basic harmony. Under rule, see rise of great cities likje Cardoba and Seville. Great in agriculture, trade.

(iv) Fuero Viejo~985(2) Medieval Period/Development of Law

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(i) Christian Reconquest~ 1050~ begins in earnest, but takes centuries, occurring in phases.

(ii) Fuero Real~1255—Castille is dominant province in interior Spain, began to influence others. Fuero became the model Fuero as the provinces were freed from the Saracens. Dealt with question of what law should be applied.

(iii) Las Siete Partidas: 1265—Marks Roman influence. Students of Bologna brought home Roman law. Lead to preparation of LAS Siete-comprehensive digest. Used Roman law as its primary source. Foundation of Spanish law until 1889-when replaced by Codigo. Served as basis for reception of Roman law into the new world. Scholars see that next to Digest, most comprehensive legistlation and encyclopedic piece of law until Modern times. Development is shrouded in myth- supposedly by Alfonso “El Sabio”, but not official to 1348. Clear that influence is great. Consisted of 7 parts and has influences from Ius Commune~ Roman law, Canon Law, and Customary Law, Fuero from Castile and Leon. Was in effect in LA during Colonial Period and strong influence on WLT. Even after LA goes to US, Las Siete still used as gap filler and many citations to it in early law.(a) God, church, Faith(b) Imperial Law(c) Administration of Justice/Procedure(d) Marriage, Human Affairs(e) Contract/Commercial Law(f) Succession, wills(g) Crime, Punishment

(iv) Ordenamiento de Alcala 1348“Promulation of Las Siete Partidas as where Fueros silent)—Las Siete becomes official as gap filler. Not officially adopted earlier b/c of its influence of Roman law-resisted by local barrons who didn’t want to make King Supreme.

(v) Unification of Spain~ 1492- last of Saracens are pushed out of last hold in Granada. Finally Christian state. Also frees up $ for expeditions to the new world- all paid by Castille province.. Spanish inquisition deals with any dissent-makes Jews and muslims convert or leave—over 200K Jews leave.

(3) Rise and Decline of Colonial Power(i) Height of power: 1500s mark height of power for Spain. King Charles V is king

of Spain and HRE. Very wealthy and strong military power. But beginning of decline when Charles V abdicate to become a monk, his empire is divided.

(ii) Leyes de Toro: 1505“Novels” and “choice of law”: New compilation of law, but old law is not repealed. Makes research very difficult, b/c must move back in time to do research. Leyes similar to pocket part of Las Siete, that added new law from 1265. Also added choice of law provision.

(iii) Phillip II- receives Spain and the low countries. During reign, oversees great naval battle vs. Saracens in the Meditereanan, but loses the Armada when tries to fight UK. Empire is also weakened by independent mov’t in the low countries, the Netherlands over religious differences. By 1600, Spain weakened. Has late entrance to Industrial Revolution, some blame inquisition.

(ii) Nueva Recopilacion [de Leyes de Castilla] Phillip II~ 1564: new compilation of law. Also applied in LA. Effort to update the law, but doesn’t repeal old law.

(iii) Recopilacion de leyes de Indias, Colonial Law~1680: B/c of vast holdings, see need for compilation of colonial law. Applied in LA.

(iv) Ordinance de Bilboa~ 1737, Maritime Law- collection of admiralty law. From Basque region, also applied to LA.

(v) LA becomes Spanish Colony~ 1762-1803—French losing the French and Indian war to England. To prevent LA landing in England hands, Louis XV secretly give it to cousin, Spain. Louisiana becomes very prosperous during this period. Spanish

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legacy remains strong, effective rule over LA. LA linked possession of TX and Florida. Influenced in architecture and law.

(vi) Novisima Recopivacion~ 1805—Napoleon saught to gain Spain to empire. Sent troops over the Pyranees, but Spanish resisted. French troops pillage Spain, but never control.

(vii) Criminal Code~ 1810 – unclear if these two codes are influence by FR or Sp.(viii) Commercial Code~ 1829(ix) Revision of Commercial Code~ 1885(x) Codigo Civil~ 1889 ~ First adoption of Modern Code. Took a long time b/c Spain

was unstable and weak.

(4) Influencial Jurists(i) Gregorio Lopez- premier jurist, commentarian on Las Sietas.(ii) Juan de Heuia Bolanos, Curia Philipica (Lima, Peru)- wrote treatise on civil

procedure. LA has many citations to him.(iii) Jose Febrero~ 1733-1770: Spanish jurists, Author of his Febrero Notarial Treatise –

had form K re marriage and sales, preserves documents.(5) Spain Today: 49 Provinces

(i) Codigo Civil~ 1889- 39 Provinces(ii) 10 provinces which have Mixture of law and has local legal autnomy: Local Fueros trump the Codigo Civil.

(a) Fueros-Aragon, Baleoric Islands, Catalonia, Navarre, Viscaya(b) Codigo Civil of 1889

VI. Western Legal Tradition and Development of Louisiana LawA. La Difference:

(1) inspired by Western Roman tradition, not English law(2) influenced by Roman, Spanish,and French law(3) diff. in estate planning and business practices(4) civil juries less common; notaries aren’t clerks, but office lawyers.(5) Heavily influenced by jurist like Pothier and Domat(6) Heavily influence by humanistic values of Civil Code

B. History(1) Iberville explores Mississippi and establishes colony at Ocean Springs, Ms.~1699.

French wanted to block UK spread from Allegeny mountains. Also sought to block Spanish in between Fl. And Tx. French had French River Valley settlers, no strong colonies-mostly fur traders. Small settlements in IL and Mo.

(2) Bienville establishes New Orleans~ 1718. City of NO founded. Ocean Spring community had hard time trading w/ those on Ms. Had to enter Gulf, travel against current, go thru Riggalies, to Lake Ponchartrain, up Bayou St. John, then get to Ms. River. Difficult process. Picked bend b/c boats would have to slow down, and worried about UK invasion. Built 5 forts. Early years difficult-swamp, disease. Not well funded, but survives b/c of influx of German peasants from Rhineland, who plant in alluvial soil and able to produce crops. Saves colony.

(3) Great Flood of 1722-Ms. Rises and floods community. Then hit by hurricane. Kills many due to disease.

(4) Massascre of French by Natchez Indians –Ft. Rosalie, Ms.—Bossy commander. Indians take preemptive strike. Kill all men, capture women and kids. French do get women released. Rabalais connection.

(5) France secretly gives LA to Spain ~ 1762. Clear French loses Fr. & Indians war vs. England. Give LA territory to Spain Bourbon cousin, Carlos III. Gives Spanish control of all gulf coast.

(6) Revolt against Spanish rule~ 1768. Takes a while for news to reach LA. But slave holders and others not happy. Felt abandoned, worried about property rights and slavery rights. Group legally argue to Spanish gov. Ullola that no authority over La-send him away.

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(7) O’Reilly takes possession of LA for Spain~ 1769—Irish commander arrives year later. Rounds up rebels and kills head. Bring 2000 men to support. Replaces French law w/ Spanish law-Las Siete Patridas and other Spanish law applied. Some settlers arrive from Canary islands-settle in St. Barnard parish. Also receive French settlers-Cajuns-who didn’t accept English rule. Settle W. LA. LA prospers during time w/ influx of English into Ohio valley. Would come down to NO and sell whiskey. Also slave trade also helped NO grow- esp. “merchant” class.

(8) Spain gives LA back to France~1800. Napoleon seizes power and pressures Spain to give LA territory back. Not clear that was big change for LA. Same Spanish law applied.

(9) Spain formerly transfers LA to france~ 1803, Nov. 30th Formally gives LA territory to French. France needs $ due to wars. Jefferson originally only wanted Isle of Orleans, but got a great deal. Expanded Size of US-doubly.

(10) La bought by US~ 1803, Dec. 20th

(11) LA divided between Isle of Orleans (most of modern LA) and District of LA.~1804. congress decides to divied LA territory. Isle of Orleans consists of most of modern LA, w/o Florida parishes and some confusion over TX/LA border. Rest of Territory becomes district of LA.

(12) Gov. Claiborne vetoes Proposed Act regarding Sources of law~1806. Congress enacted statute to allow LA to keep its law but had to enact Bill of Rights and English criminal law-gave right to juries and habeas corpus and outlawed anything contrary to US Constitution and Federal law. Question still remains as to what law should apply. So, Claiborne allows the legislature come up w/ description of what law is in force at the moment, so that it is allowed to be adopted. After Claiborne sees the sources, says no way-too conflusing. Upsets people and manifesto is signed arguing for preservation of law, but come to compromise. –Can base on French Civil Code of 1804—one language, one law, one code. Rational approach. Legislature had noted that based on:

(a) Roman Civil Code-Digest of Justinian, Justinian’s Institutes and Code of emperor Justinian, and commentators of Roman law, Romanist like Domat.

(b) Spanish Law: Recopilation de Castilla, Autos Acordados, Las Sietes Partidas, Fuero Real of Castilla, Recopilation de indias (not slavery part), laws de Toro, and ordinances and royal decrees and commentators, like Balanos, Lopez, and Febrero.

(c) Commercial law-Ordinance of Bilboa, Roman law as gap fillers, and commentaries of Beawes, Pak, Emorigon, Valin.

(13) Committee selected for drafting of LA code~1806(a) Louis Moreau-Lislet-from Haiti(b) James Brown-secretary of Claiborne – Didn’t adopt Civil Code, but Digest now in

force in LA. Conscience or compromise- used Code Civil as primary source but could tell Legis it was called Digest, to still pull in Roman law and Spansih law if needed. But can’t tell, b/c no legisl. Notes.

(14) LA legislature enacts Digest of Civil Law of 1808. (a) Sources:

(1) French Project of VIII~ 807(2) French Civil Code of 1804~ 709(3) Domat~ 175(4) Pothier~ 113(5) Febrero~ 52(6) Customs of Paris~ 9(7) Remaining influences

i. Digest of justinianii. Institutes of Justinian

iii. Code Noir (French)iv. Las Siete Patridas

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v. Balanos(b) De la Vergne Volume & Professor Pascal (LSU) advocated Spanish

sources emphasized vs. Professor Batiza (Tulane) argued French sources emphasized. Debate over sources of 1808 in 1970s. In 1930s, the family of De La Vergne, decedants of redactors-had printed copy of digest-w/ preface by Moreau-Lislet, with notes cross-references analogous provisions of Roman and Spanish law. Few references to French law. Professor Pascal wrote article where he theorized that Dela Vergne volume was key to sources of Digest 1808 and w/ examination of volume and its cross-references, proved that Digest was rooted in Spanish law. That was charge that Moreau had been given b/c of what was in force in LA during 1806. Logical thesis. Pascal try to sell deans of law schools and they agreed. Then Baptiza, published article, that he had discovered true sources of Digest of 1808- methodology was to look at French version of 1808, the true original version, and went back in time to locate the source of each article. When found verbatim match, that is as far as he went. On this textual examination, results were that overwhelming majority of French Sources- Take Code Napoleon of 1804 and Project of 1801. Provoked emotional response by Pascal- challenged integirity as scholar. Stinging rebuttal attacking Baptiza’s method and it was his duty to disprove Pascal’s theory. Baptiza declined to disprove Pascal’s theory. Told Pascal if you want to affirm your theory go ahead. Pascal never did. Baptiza theorized that De la Vergne was probably concordance and cross reference to compare what was old law and what is new law. Both had own camps- LSU Pascal, Tulane Baptiza. Feud so bitter that still lasts. Over years, LASC has received briefs- LASC has come down on side of Baptiza- looks at French sources for original meaning if unclear. doesn’t arise on daily basis-just interpretation to trace antecedents of original meaning. Might never be resolved.

Weir- English scholar- notice problem of what is the sources of law-can get different answers based on how far you can go back. Even if you trace to direct match, don’t go beyond that- don’t know what influenced the law. Domat encorporates roman law. Notion of civil law, not limited to national boundaries. LA didn’t care at time where the origin of law was-civil law was system of law, family of law- like ius commune. La in force piece- saw Spanish law as amplified by Roman law.

(14) Influx of French-speaking Refugees from Haiti~ 1809. Article notes in 1806 Territory of Orleans, was 52K pop. NO only has 8,000. 4/5 people at time spoke French. Then in short time, 1809-1810, 9,000 refugees come from Haiti. Not just white, but also a few black Haitain flee owners, and slaves. Flee b/c French Revoltuionaries had abolished slavery, word reaches Haiti, slaves revolt and demand independence. Planters say no way, continued to demand slavery remain. Anti-colonial revolt begins. Initially gentile, then becomes violent. Result, is that planters leave and uproot to LA. Recognized slavery still and was 80% of population spoke French. Felt at home-culturally and business.

(15) Slave Revolt in Laplace, LA ~1811. Then when Haitain slaves arrive start talking to locals. Tell them of French decree. One of largest Slave revolt in south. 500 slaves involved, decided to march on NO and free slaves. Proceed thru plantations- some violence as go thru. Got as far as Destrahan. Militia sent to suppress revolt- number shot, some trials and hangings. Heads placed on posts from River road. La pays each planter 300 for each slave lost. See turburlent era in LA history.

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(16) La admitted as US state~ 1812/LA constitution. Planters decided want LA to become a state- territorial gov’t didn’t protect enough. Formulate 1812 Constitution. Written in French and English. One interesting provision, still in effect. Existing laws when constitutions goes into effect until abolished by leg. Provided leg. Shall never adopt “system or code of laws by a general reference to the said system or code”. Meant compromise of French worry of adoption of common law- this prevented that from happening. Made others happy b/c couldn’t adopt law by reference, like Civil Code or Las Siete. Preventing legis. From adopting something in future. Trying to tie hands of future legislature. Cannot like others adopt common law of year of 1774 by general reference.

(17) Battle of New Orleans~Jan 1815. Turbulent events start in Dec. US fighting War of 1812 vs. Britain. Large force by British tocapture NO to control whole Middle of US thru rivers. Victory of Battle of NO, miraculous that won and few casualties. Important event in world history-critical period – if US would have lost modern world would’ve been different.

(18) [Cottin v. Cottin]~ 1817- Operating under Digest of 1808, system worked strangely. Had to have 2 lawyers, one for French jury, one for English speaking jurors. Judge had to know both- even though not from LA. Education in LA not good, had to get tutor. Also didn’t have law school yet in US. Have local lawyers w/ bad edu., having to do research in complex system- that drew on medieval and roman times. Yet, moreua-lislet was great mind. In complex system- get Cottin. Digest of 1808 is silent on legal matter. LASC held that case decided by provision in Las Siete and that LA Digest is digest- not designed to resolve all legal issues. If silent, can go to French, Roman, or Spanish. English speaking not happy w/ this- can’t read this. Leads to:

(19) English translation of Las Siete Partidas, 1819-1820- By Moraeu-Lislet, paid by LA legislature. From Spanish of English so that English speaking people can read Las Siete. Throws open flood gates- must research if other laws say something. Took 2 years- legislature- this isn’t good, commercial class objected.

(20) Appointment of Committee of Draft New Civil Code~ 1822: Project of new code- Baptiza research that 80% came from French law, shows decline of Roman and spanish law; not full research.

(a) Louis Moreau-Lislet(b) Pierre Dereigny—Justice of La, governor, and senator(c) Edward Levingston—fascinating character. Native NY family, rich. Brother

had negotiated La purchase. Elected mayor of NY and served as US attorney at same time. During admin, scandal of $. Reputation scarred so went to LA. Goes right to work as lawyer. Successful- central to important legislature-Bacturer cases—by custom house, MS river flowed closer to house but started to move toward westbank. Who owned bank of river. Gravier said owned it, Levingston is lawyer and has interest in property. Jefferson gets involved. Riparian rights-change of course-looks up Roman law. Feud started between Jefferson and Livingston- personal rivals and attacks.

(21) Projet (Draft) of Civil Code~ 1823(22) LA Legis. Passes Project of Civil Code~ 1825 – center piece of law till 1970s. Important

events of LA and whole legal history. (23) Code of Practice of 1825—adopted at time as Code. Important event- b/c most of US

using writ system- simplified civil procedure. Influence Fed. Civil Procedure. (24) Rejection by LA Legislature of Commercial Code, Code of criminal law, code of

criminal procedure~ 1825—Levingston had drafted these, but now in such disfavor, so legislature rejected them. But sent drafts to other jurists- his draft of criminal law influenced the English Criminal Law in India. Became most famous LA jurist. Not liked in LA- represented Jean LaFitte. Controversial.

(25) Great Repealing Statute~ 1828—also attempt by Code of 1825-to repeal all references to Spanish law or those outside. But doesn’t work. Continues to apply Las Siete or

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provisions of French, Roman law. By 1828, legisl. Adopted statute that repealing all old provisions, except some small exception. Watershed, b/c after this, courts of LA no longer tried to import other laws, except to explain general principles. La launched to mixed- private law based on French law, w/ discernable of Roman and Spanish influences. But public law-state constitution and criminal and evidence law influenced by common law.

(26) 1861-1865- LA in the Confederacy—sugar planters were aligned w/ republicans though. April 1862- Union Capture of NO. Largest city and most important captured- not defended well. Why architecture is preserved. Gov’d well. Under union occupation/forces until 1887.

(27) 1866 Riots in NO—Reconstruction period- LA gov’t ineffective- corruption rises. (28) End of Reconstruction ~ 1877. See re-emergence of segregation over time. But

experimentation occurred for 20 times. Legally still protected. But race was divisive issue. Wedge issue to divide lower classes. Worked well.

(29) 1890- to divide, segregations. [Plessy v. Ferguson]- events arise out of NO in 1896. Went up to USSC- ok segregation – not violative of EPC. 70 years of segregation. Becomes central institution of south. 1898 constitutional convention- poll tax, etc-disenfranchise blacks.

(30) 1928 – 1935 Huey Long: Only pause in segregation trend occurred w/ Huey Long in 1930s- realized fear of coalated the lower classes. Important to US History. 1928-1935 in power. During period- laid out program of making everyone a king- conversational tone, simple. Uses before and after pictures- shows his accomplishments. Era lasted from governor until 1935. when 42. Manged to accomplish a lot in a few years. On course to make run for white house. T. Harry Williams writes biography-less objective. La never same—ruled La; politian that had photographic mind for faces. Amazing mind. Saw himself as man of destiny-like Caesar and Napoleon to accomplish something. Driven. Elected to regulate RR when 24. Problem created:

(a) reputation of being corrupt-not the first in LA, started after CW with Cotton expedition –Treasurer of LA took off w/ $. Elections, excluded blacks literacy tests and poll tax by Foster.

(b) La had poor education- few universities-Tulane and Loyola doesn’t get truly going from 1880 and 1900. LSU total enrollment 1200 in

(c) 1920s. Underdeveloped. (d) Corrupt: Opposed by vested interests. Hypocritical-would

denounce EXXON but accepted $ from them, legal fees. After death, many associates go to jail. One of cronies was Pres. Of LSU-skimmed off proceeds into account.

(e) Chose Paul M. Hebert to act as President-was teaching at Loyola. Then lured by LSU. Approached by Col. Tucker-lawyer from Shreveport dev. Interest in civil law heritage and connections w/ French legal system.

(31) Creation of La. State law Institute (Act of 166 of 1938) (La.R.S. 24: 204 et seq) and Dean Paul m. Hebert and Col. John Tucker—researched the civil law. Tucker’s vision to create Law Institute- resp. for law reform and periodic revision of the code and code of practice. Got Hebert’s support and adopted the statute to create the law institution. Becomes the most important assoc. regarding the preservation of the code. Decided to come up w/ Code Napoleon translation into English, then combined edition re digest and all the previous codes of LA.

(32) 1950 Adoption of LA. Revised Statutes of 1950- GI bill allowed more to go to law school. Law institute allocated law research at schools. Led to complete rearrangement of LA statutes. Before, it was a mess to research. Alphabetical themes. Still scheme that is used today. LA institues work declined w/ Korean war.

(33) 1954 Brown v. Board of Education- Held~ segregation Violated EPC; directed at public universities. But met massive resistance-delaying tactics. In LA-lead to special

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sessions in 1960s—blocking mov’t. At time only had 1 D. judge who would rule it unconstitutional-Judge Wright. Slowly gave in-2 poor whites chosen, class resentment. La institutes work was detracted.

(34) 1960 Adoption of La. Code of Civil Procedure (Replaced code of practice of 1825)-still in force. Modeled on Federal R of Civil Pro. Eliminated problems that developed over time. Bad judidical decisions had messed up.

(35) Dean Hebert hired many foreign scholars: 1) Yiannoupoulus-JD from Greece, German doctorate 2) Litvinof- argentinia 3) Lazarus- eclectic group.

(36) 1962 Prof. AN Yiannoupoulos appointed by LSLIAS- revision of civil code of 1870. Made suggestion that civil code provision done differently- no draft, but to adopt new code by the slice. React to it and change- not all or none. Immediately, did preparatory work-research-infuenced by Van Savingny to do historical search. Began law of property-compared every code in property. Encyclopedic review of all civil law property. Problem that didn’t give funds for the research. See New infuences from greek and german civil codes.

(37) 1964- Trust Code- LA state institution- uniquely English notion-from courts of equity. Took practical approach. 1920 trust begin to be used, but in LA couldn’t do it, so went other. Bankers suggested change to allow trusts. Allowed for statutory trust. Ultimately, deficient. So law institute drafted trust code for LA, whose private law was civil law. Has been used by former Soviet Republics.

(38) 1966 La. Code of Criminal Procedure(39) 1974 La. Constitutional Convention of 1974: prior constitution of 1920 was outdated.

Gov’t couldn’t do anything expressly authorized. Like build a bridge-took constitutional amendment. Under Edwards, tried to modernize-streamline constitution. Assisted the drafting assistance-La institute helped.

(40) 1974 Mineral Code-creative area of law. Mineral rights based on purchase of a servitude, not purchase of subterrean rights. It expires after 10 years of non-use. Radically different from other states. TX big influence b/c of oil. Wanted to remain LA but still be pro-business. Russia has adopted this. Oil boom—due to severance tax b/c of mideast problems. LA rolling in the money. Had surplus of $. Had best credit ratings for the state. Edwards had tons of $ to spend.

(41) 1975 Legisature appropriates sufficient funds to begin revision of civil code of 1870: Yiannopolus got $ from legislature- gives enough funds to do revision. Funds were minor. Reporters for all area of law-only given 5,000, but got others to sign on. Got others to proposals revisions to LA civil code. Then started his changes to property law. On wards—others did research and got changes: Process w/ consent of the counseil to designate someone as the Reporter and committee of (school, bar, judges, plaintiff, defendants) to come up with law. Meet 1 a month, and meet to discuss the draft. Met for couple of years- Rabalais sat on Preliminary Title and Conflicts of law. Look at the law, good way to get experience with interpretation and drafting. 1976-79: Property articles of civil code

(42) 1979 Matrimonial regimes—firestorm created- husband was “master of community”. ERA proposed and USSC pressure to declare sex. Distinction unconstitutional. Met opposition by Pascal. Tug of war.Legislature had to intervene. Appointed Duplanche to head committee to come up new formula to get through legislature.

(43) 1980 Partnerships- Nathan came up new refision- currently president of State law institute.

(44) 1984 Obligations- heart of La civil code came for a vote. Reporter Litvinof –did encyclopedic study of civil law obligation codes-saw that argentinian’s law better. More expansive law.

(45) 1987 Preliminary Title—what is law- first 25. (46) 1987 Persons, Suretyship, marriage(47) 1988 Code of Evidence—Rault was co-reporter for this.

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(48) 1990 Foreced Heirship (Held unconstitutional in 1993); Divorce, Mortgages—controversial. Adopted new art. On forced heirship. But adopt changes- but in 1993 it was declared unconstitutional.

(49) 1991 Capacity, Conflicts of Law, Children’s Code—Rabalais involved- no state previously had code of conflicts of law. Had judicial decisions and statute- effort to create unified version of conflict of law. Now in part V of civil code-new part was created. On the bar exam.

(50) 1992 UCC art 1992—selected-negotiable instrument and banking requirements. Lately, adopted art. 9 w/o the approval of law institute.

(51) 1993 Sales, Support and Child Custody: State amendment- can only introduce non-fiscal every other year. Slowed it down. Still fine tuning going on in each of the subjects.

(52) 1995 Quasi-Contracts(53) 1997 Mandate(54) It has taken a long time- headed toward replicating and exceeded years it took to draft

German code. Some are dead, doing other things. Sense that revision is that no one knows when it will it end. Still 1/5 that needs to done. Both Yian –some provisions will never be brought- Tort (WWII from plaintiff vs. defense). Can you have partial revision. Problems w/ codification in general- motivation comes from natural law-certain order b/c of reason. That notion based onstatic model, no changes. But family changes and society changes a lot. New areas of science confuses the law even more. So, need to go back to basics. Can we live w/ current version of law?

(55) La is in era of codification. But might be moving into post-codification- notion to have civil code is not workable. Many jurisdiction have brought in special legislation that aren’t integrated to the civil code—consumer laws, autobile liability. Is the process even worth it or just a dead end?

C. European Antecedants(1) Code Napoleon/Project—represented revolutionary changes in politics, social

prospective, and legal technique. Represented a goal to make law clear and accessible to all. Also marked process of unification of 300 regions. Wanted to lay down a code in general rules of logical sequence. Expression of French nationalism and ideological commitment to democracy and economic liberalism. Used natural law’s and Enlightenment’s emphasis on reason and rational system building. Both LA Code and Code Napoleon were comprehensive, logical organization of general principles of law-applied by deduction and extended to new circumstances by analogy. Codification also meant uniformity thur/out and equality among citizens- no longer different legal rules for clergy, commoners or nobility. Civil Code abolished primogeniture. Code also sought to reduce church influence in family matters- no longer they specified causes for nullity of marriage.

(2) Architecture of Civil Code: collection of organically and logically inter-related articles-short, staccato style. Like Code Napoleon-consists of 3 books- Of persons, of things, of the different mode of acquiring things. Both traceable to Roman times-Gaius’s Institutes.

(3) Termination: borrows from French and Spanish, which rely heavily on Rome terms. Ex: Roman Conception of Property, doctrine of lesion, redhibitory actions, community property, forced heirship. Roman texts supplied some of actual wording and conception of LA Civil Code. Romanist glossators and commentators also had influenced-Bartolus and Accursius.

(4) French Romanists-Jean Domat and Pothier-drafters borrowed directly or indirectly from Code Napoleon. French jurist- work considered preface to Code Napoleon.Had philosophical spirit, unified Roman sources and French customs. Seeks to Brought order to chaos of French law. Domat inspired many articles of Civil Code w/ obligations- requirement of good faith and basis of equity. La judges still look to jurists for support.

(5) The French Civil Code of 1804, LA Digest of 1808, and the Civil Code of 1825 and 1870 all have been influenced by the Humanist perspective. Code Napoleon was lawbook of 3rd estate- the bourgeoisie of the FR. It marked the defeat of all things from the Medieval times and the

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ancien regime. It was influenced by the Humanist belief in individual achievement and reason. Both the Code Napoleon and the Civil Code of La addressed the man of property and not the day laborer. In both codes, the idea was seen as the bourgeois man, head of the family, who had sound judgement and had knowledge of business affaris and law. To do this, the law must be in understandable simple terms. It had a short and simpley style that made it easy to read. It adopted the Humanist belief in reason and their endorsement of logical systematization of the law. Following Gaius Institutes, both codes have separation into 3 books, Of Persons, Of things, Of different modes of acquiring ownership of things. Mirroring the 3 books of the civil code, were its 3 idiological pillars: the freedom of K, private ownership of property, and family solidarity. Freedom to K and private ownership of property was regarded as necessary to put an end to feudalism. They believed it necessary to be able to exploit the wealth of land. It signaled the overthrow of feudalism and the freedom to contract for the effort of human labor. Consistent w/ these ideas, was holding one responsible for the tort he recklessly caused another. Showed accommodation of the freedom and individual responsibility.The third ideological pillar was family solidarity, seen as the building block of society. The code suggested commitment to the family with the paterfamilias at the top. It is these 3 pillars which have had a tremendous effect on the law in these areas: (1) Conventional Obligations (2) Property (3) Ownership (4) Perpertuities (5) Servitudes (6) Delictual Liability (7) Community Property (8)Forced Heirship. These philosophical assumptions remain relevant b/c they are the basis of our law and continue to guide the development of out law. They have shaped our civil law, and if we do not recognize their importance they will be threatened or lost, as the law continues to evolve. The Humanist perspective that drove the original codification of French Law influenced how we drafted our law; it signified a desire for reason, simplicity, fairness, and self-government. It believes in the power of human reason and the belief that the law should be accessible to all in the form of 1 book.

(6) Roman sources—architecture of the code, property regime, redhibition, sales. Some actual wording from Roman texts or conceptions of some articles, works of glassators and commentators like Accursius. French Romanists-Domat and Potheir. Indirectly through code Napoleon.

(7) Goals of the French Revolution-laying down law that is clear and simple.

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Questions for Rabalais:

1. Did Romanist look to the whole Corpus Civilis or just the Digest as an authorative text?

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